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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