How a Texas Challenge to the National Firearms Act might Succeed with HB957

 

HB 957, the new silencer/gun muffler/suppressor law, will become effective in Texas on 1 September, 2021. On that date, the Attorney General,  Ken Paxton, will be able to accept written notification by a United States citizen who intends to make a firearms suppressor as per Section 2.052 of the new law. The Attorney General shall then seek a declaratory judgement from a federal district court. 

There is strong Supreme Court precedent that the federal government may not command a state to enforce federal law, known as the anti-commandeering doctrine.

HB 957 goes far beyond anti-commandeering. It sets up a test case to undermine the pernicious doctrine which has crept into the federal judiciary over the last 80 years. The doctrine is:  all commerce is essentially, interstate commerce, and may be regulated by the federal government.  From HB957 (now law):

Sec. 2.052. NOT SUBJECT TO FEDERAL REGULATION. (a)  A firearm suppressor that is manufactured in this state and remains in this state is not subject to federal law or federal regulation,including registration, under the authority of the United States Congress to regulate interstate commerce. 

(b) A basic material from which a firearm suppressor is manufactured in this state, including unmachined steel, is not a firearm suppressor and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm suppressor. 

Sec. 2.053.  MARKETING OF FIREARM SUPPRESSOR. A firearm suppressor manufactured and sold in this state must have the words "Made in Texas" clearly stamped on it.

Sec. 2.054. ATTORNEY GENERAL. On written notification to the attorney general by a United States citizen who resides in this state of the citizen's intent to manufacture a firearm suppressor to which Section 2.052 applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that Section 2.052 is consistent with the United States Constitution.

The United States Courts have created the precedent, since 1942 in Wickard v. Filburn, that all commerce may be regulated by the federal government, because all commerce affects interstate commerce. The precedent was established by courts overwhelmed with justices who were ideological Progressives. 

Several cases, starting in 1995, with U.S. v. Lopez(1995), then  U.S. v. Morrison(2000), and even "Obamacare" NFIB v. Sebelieus (2012) establish a different precedent, that the power of the United States government to regulate commerce has some limit. 

The most problematic of theses sort of cases is Gonzalez v. Raich (2005). In Raich, the Supreme Court held that people growing Marijuana in their own home for their own use affected interstate commerce and was subject to regulation by the federal government.

Justice Thomas wrote a famous dissent in Raich, which was decided 6-3. Justice Thomas is the only member of the court which created the Raich decision who is still on the court. 

The National Firearms Act (NFA), which is the base federal law used to regulate silencers/gun mufflers/suppressors, is a good test case to work to advance the precedent to limit the federal power to regulate all commerce. 

The historical record is clear. The taxing power was used, in the case of the NFA, to avoid the limitations on the federal government placed by the Second Amendment, the Tenth Amendment, the Fourteenth Amendment, and the commerce clause. The legislative intent is well documented.

There are numerous precedents that using government power to restrict fundamental rights protected by the Constitution, is invalid.  For example, newspapers may not be taxed more than other, similar establishments. 

In other cases, the federal courts are reluctant to restrict taxing powers. 

The logical problem is, if you allow taxation of the exercise of Constitutional rights, you grant the government the power to violate those rights.

Silencers are the weakest part of the NFA. There was virtually no legislative history to give intent for the extreme tax on silencers. The tax is not popular; it taxes a safety device, there are numerous examples and statistics to show the tax does not reduce crime.

Silencers are increasing in popularity, while their use in crime is negligible.  There are over 400,000 legal silencers in Texas.

Federal courts, and especially the Supreme Court, have been reluctant to restore constitutional checks and balances, and, especially, limits on federal power, after 80 years of Progressive infringements. The best approach is to offer the court small, incremental steps restoring rights, rather than "all or nothing" efforts which require the courts to invalidate vast expanses of law all at once.

This correspondent believes the way to expand the doctrine of limiting federal power over the commerce clause, and to invalidate the NFA, is to argue that a person making a silencer for their own use, in their own state, is not "commerce" as defined in the commerce clause of the Constitution.

If everything is commerce, the commerce clause allows the federal government to invalidate the concept of federalism, by invalidating state power to regulate its internal affairs; and to invalidate the Second Amendment by allowing the federal government to selectively apply excessive taxation to a disfavored, fundamental right.

Arguing an individual, making a safety device, for their own use, which has virtually no effect on interstate commerce, is beyond a reasonable interpretation of the original meaning of the commerce clause, has a chance of being accepted by the federal courts.

Arguing a business, selling a commercial product inside a state, is beyond the federal power, is much harder. It has a much lower chance of succeeding.

Limits on federal power, which have been stripped away by Progressive courts over the last 80 years, are unlikely to be restored all at once. They can be restored,  incrementally, over time.

This correspondent recommends the examples used by AG Paxton be selected with care. Sympathetic examples are best; perhaps poor, minority, single mothers can be found.  Selecting sympathetic clients has become a major part of jurisprudence in the federal courts. 

If you believe you could be helpful to AG Paxton, you may want to contact him.

The law is set up so the AG can challenge the federal law before any items are made in Texas, under the new law.

This correspondent suspects such efforts are already underway. It is likely the briefs to be filed in federal court are already sketched out. 

Texas Attorney General Ken Paxton is not a fool. 

It would be poor judgement to set up a shop and start to manufacture and advertise "MADE IN TEXAS" silencers/gun mufflers/suppressors before the Texas AG legal challenge is completed.

Privately made and discreetly held gun mufflers, on the other hand, will be much harder for federal or local authorities to find and/prosecute under the new law, because state and local authorities will be risking their budget to do so. Federal authorities mostly depend on local authorities to find cases.

©2021 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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