80% silencers: How we got Here

Legally available parts which can be machined into an effective silencer

80% silencers are legal in the United States.  In a society built on individual liberty, with checks and balances on government power, it is difficult to effectively ban a simple item. 80% silencers are collections of partly machined parts, sold for other purposes, which can be made into a silencer with a bit of effort by a hobbyist.  They are the analog of 80% receivers for hobbyists to make their own guns.

How did we come to the situation where people are not allowed to purchase a simple safety device over the counter, which they can easily make at home? In addition, they are not allowed to make it at home, without jumping through the same silly bureaucratic hoops, at significant expense?

Silencers are most useful as a safety device designed to prevent damage to the ears.  They make shooting more pleasant and avoid noise pollution, as the inventor of the silencer, Hiram Percy Maxim, envisioned. Maxim invented the silencer in 1908, 112 years ago.  Henry Maxim, from Range 365.com:

“The Maxim Silencer was developed to meet my personal desire to enjoy target practice without creating a disturbance. I have always loved to shoot, but I never thoroughly enjoyed it when I knew that the noise was annoying other people. It occurred to me one day that there was no need for the noise. Why not do away with it and SHOOT QUIETLY.”

Ad from Cody Museum, cropped and scaled by Dean Weingarten

Silencers were completely legal, and available through the mail, for over 20 years. President Teddy Roosevelt used them and approved of them.The U.S. Army ordered about 9,100 Maxim model 1915 silencers during WWI. After the war, most were sold, with the rifles they were on, as surplus, through the Civilian Marksmanship Program.

There were enough constraints on government power in the 1930's, that the FDR administration did not wish to risk a Constitutional challenge to an outright ban on pistols, sawed off shotguns, and machine guns. Instead, they imposed a draconian tax, equivalent to $3,800 in 2020.  $200 in 1934 was worth at least $3,800 in 2020 dollars.  In 1934, unskilled labor was paid a dollar a day.

Silencers were included in the 1934 National Firearms Act, as an afterthought. The only reason given was conjecture by a single Congressman. The NRA was able to have handguns stripped from the legislation. Short barreled shotguns, rifles, and silencers were sacrificed as a consolation prize to the Progressives. The legislation was typical of the FDR administration: heavy handed, poorly conceived, and draconian in concept. Crimes committed with silencers have always been extremely rare.

No one believed the federal government had the power to prevent an individual from building his own silencer.

Commercially made silencers were driven from the market. No one was willing to pay $200 for a $5 accessory. The law was obviously unconstitutional. Using the tax power to infringe on Second Amendment rights was a blatant manipulation of the intent of the Constitution. Few people had silencers. Most were unaware of the new law. In the middle of the Depression, people were struggling to have enough to eat and a place to live. 

The Progressives were in power. They see the Constitution as an impediment to be worked around. They consider honor and oaths as ways to manipulate lesser beings, not anything they are bound by.

In the early years, most people who made silencers ignored the law. The federal law only applied to silencers that moved across state lines. Home made silencers were not affected. 

President Franklin Roosevelt's appointments to the federal courts created a revolution in the judiciary. He appointed dogmatic Progressives. In 1942, with the Wickard v. Filburn decision, a Progressive Supreme Court revolutionized Constitutional law.  With the Wickard decision, The National Firearms Act had the potential to be applied to silencers that did not cross state lines.

The original law did not ban silencer parts; it banned silencers with a draconian tax.

As interest in silencers grew after WWII, kits to make effective, durable, and efficient silencers were made available to the public. There were ads in Shotgun News. Many were sold. Mass manufacture has economies of scale. It is cheaper to make accurate and efficient silencers in mass production.

It was illegal to assemble the silencer without the $200 tax, which in 1986 was worth about $500, today.  Criminal misuse of silencers continued to be a non-problem, except in the imagination of Progressives.

In 1986, Congress changed the law to make silencers even more illegal than they already were.  The 1986 laws were passed on the ridiculous premise there were no legitimate purposes for silencers, as noted by Stephen P.  Halbrook in his seminal research on the criminalization of silencers. No examples of actual criminal misuse of silencers were documented.

Not one member of Congress noted the obvious safety and health benefits of silencers when the 1986 law was passed. The Leftists in support of the law operated on the premise the government is to decide what you need and do not need, exactly opposite of the foundational theory of Constitutional government.

The 1986 law expanded the definitions of silencers in the existing law:

- First, a collection of parts which can be assembled into a working silencer became a silencer. However, there had to be the intent to create a silencer, or a large percentage of people in the United States would be guilty. Pillows can be working silencers. Almost any relatively sturdy container that can be attached to a firearm can be made into a silencer. Most oil filters make good silencers.

- Second, any part intended only for use in a silencer, became the same as a silencer, in the law. Again, intent is critical.

An adapter which allows you to attach legal devices to your firearm is legal; an oil filter is legal; owning both is legal; put them together, fire a bullet through them, and you are in possession of an illegal silencer.  The powder residue inside the former filter will be damning evidence.

Kits to build silencers disappeared from the market.

As the United States urbanized and grew, so did interest in silencers. Monetary inflation ate away at the draconian tax that limited legal silencers to the wealthy.

The process to pay the tax was absurdly bureaucratic and burdensome.

The tax is not the only thing draconian about federal silencer law;  penalties are up to 10 years in jail and a fine of up to $10,000. If the silencer is used in a crime, the penalties can jump to 30 years imprisonment and a $250,000 fine, far more than is normally given for rapes and most homicides.

Those are significant incentives to pay the tax and get the tax stamp.

$200 is an insane tax to pay for a $40 safety device, but many find it worth the price, to save ears from damage and to prevent noise pollution.

$200 is cheap insurance compared to going to prison for twenty seven months, which is the minimum federal sentence guideline for possession of a silencer, without paying the tax.

$200 is less than three day's income at minimum wage, compared to 200 days in 1934. 

Second Amendment activists pushed for and passed laws requiring a local Chief Law Enforcement Officer (CLEO) to sign off on the required form for obtaining a tax stamp for to make or purchase any NFA item, including silencers.

In the face of legal challenges on the Constitutionality of requiring a local government official to sign off on a federally required tax, BATFE dropped the requirement for local (CLEO) approval.

As more people went through the legal hoops to purchase silencers, the BATFE responded to the pressure by making some reforms in the process, making it  easier to purchase or make a silencer legally.

The legal ownership of silencers expanded rapidly.

More and more people started buying commercial silencers. The costs of a commercial silencer was generally more than that of the tax stamp. A durable, effective, and usable silencer can be made for a few dollars. There is a potential market of a hundred million people who would likely purchase inexpensive silencers if they were available.

It is difficult to mass market an item that bears such an enormous regulatory burden.

Effective, durable silencers can be made relatively cheaply and easily, especially for subsonic cartridges. Maxim's early designs were overly complicated. Effective silencers can be much simpler.

Where insane over-regulation of silencers is absent, such as in New Zealand, commercial silencers can be purchased over the counter for $39 (USD). Their use in crime in New Zealand, as in the United States, is rare.

Making your own silencer is easy. It is even easier if much of the machining is already done.

 Steven Howard is a weapons expert and criminal defense attorney. He told me that if you buy one of these perfectly legitimate, "80%" kits, turn in the paperwork, and get approval from the ATF, you can make a silencer that works as well as a $1,000 dollar commercial model, at a fraction of the cost.

Tens of thousands of people a year are doing so.

In May of 2019, there were 1,750,433 silencers registered with the BATF in the United States. That is up from 1,370,023 reported in April of 2017.

The pressures driving record sales in firearms are likely driving record sales and manufacturing in silencers.

As of July, 2020,  there are likely more than two million registered silencers in the United States.

In the next installment, I will explore some of the advantages, difficulties, and traps connected with 80% silencers.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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