Texas silencer law, NFA, No Commandeering, Commerce Clause, Test Case

Texas recently passed HB 957 into law. It will become effective on 1 September, 2021. The law repeals the Texas state ban on the possession of silencers/suppressors/gun mufflers, puts into effect a "no commandeering clause" for federal enforcement of the National Firearms Act (NFA) for silencers, and sets up a federal test case of the NFA in federal court.  

In a previous article the repeal of the Texas law and the anti-commandering section were discussed. The likely federal test case was not.

HB 957 came from the brain of Representative Oliverson of Texas District 130, north of Houston. Dr. Oliverson is not a lawyer.  This correspondent was able to talk to Representative Oliverson about how he formed the idea for the law.

Dr. Oliverson came up with the idea to reform suppressor law in Texas because he had purchased two suppressors. He personally experienced the bureaucratic insanity it takes to legally obtain a silencer/suppressor/gun muffler in the United States.

Representative Oliverson:

I had this idea, last session, and it was something I sort of came up with on my own. The basic idea was, you know, states obviously, in the last decade, I am aware, have in a variety of ways, pushed back against federal law that they thought was overreaching and unnecessary, by simply opting out, and just saying look, we are not invalidating federal law, but as far as the state is concerned, we do not recognize this in the same way that you do, and you cannot use our resources to enforce the law. If you want to enforce it, knock yourself out, but we are not helping you, and we are done.

The first thing Representative Oliverson noticed about states which enacted anti-commandeering laws, was that Colorado did this with Marijuana, and other states started doing it as well. 

The federal government did essentially nothing. Representative Oliverson:

"You just sort of saw crickets from the federal government on the issue."

Representative Oliverson's personal experience with legally purchasing suppressors convinced him the law should be changed:

I have two firearms suppressors, and I have a trust, and I have been through that inordinately painful process of getting them. And I thought, you know, this is stupid. 

I was aware that the CDC had published a study, in combination with NIOSH, recognizing that firearms suppressors are hearing protection devices that should be used whenever possible.  And there were other countries where they were readily accessible, with no ill effects. 

Representative Oliverson said Gun Owners of America, especially their Texas Director, Rachel Malone, was critical in getting the bill passed.

The anti-commandeering portion of the law makes it unlikely any Texas official will aid the federal government in enforcing the National Firearms Act for silencers.  If they do, their agency is subject to losing any State grant funds for the next year. This is a strong incentive for State agencies to direct their officers not to enforce federal silencer law. 

HB 957 goes far beyond anti-commandeering. It sets up an ambitious test case to challenge the entire edifice of overwhelming federal power derived from the current pernicious interpretation of the commerce clause. From the bill (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 commerce clause in the Constitution grants to Congress the power to:

"regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Clearly, there is commerce which is not to be regulated by the Congress. Powers to regulate commerce with foreign Nations, among the  several States, and with the Indian Tribes would not be listed separately if Congress were given the power to regulate all commerce. Instead, the text would simply read "regulate commerce."

Over the history of the United States, and especially during the Progressive era, Progressive judges have expanded the Interstate Commerce Clause to mean all commerce and anything affecting commerce.  This gives the United States federal government unlimited power over everything in the United States, making federalism a minor impediment. Huge swaths of federal power rely on this interpretation.  

In the last few decades, there has been some push back against the idea that one need only say "interstate commerce" as the magic phrase to allow any and all regulation by the federal government. There are four particularly relevant cases.

The cases are: U.S. v. Lopez(1995); U.S. v. Morrison(2000), and even "Obamacare" NFIB v. Sebelieus (2012). 

The fourth case gives pause.

 Gonzalez v. Raich (2005) is a case where people grew Marijuana in their own home for their own use. Six justices on the Supreme Court claimed that was "economic activity" and could therefore be regulated by the Congress. Justice Thomas is the only justice still sitting who was part of the Court when U.S. v. Raich was decided.

Justice Thomas wrote a vigorous dissent against the majority opinion.

The time seems ripe to challenge the National Firearms Act (NFA) on interstate commerce, Second Amendment, 14th Amendment, Ninth and Tenth Amendment grounds.  Even the taxing power may be challenged, as the record of legislative intent shows the taxing power was used specifically to overcome objections on Second Amendment, Tenth Amendment, and commerce clause grounds.

Texas law under HB  957 offers a good vehicle. It does not require an ordinary person to risk their liberty and property in a challenge to the NFA. 

The test case is to be done before any silencer is made. From the law:

"intent to manufacture"

All the power and might of the State Attorney General can be used to challenge the law. 

In Kansas, an attempt was made to challenge the NFA law on silencers. Two people relied on that change and were convicted of federal felonies. The Kansas Attorney General defended the law, but the federal Court ruled the arrests were lawful under the federal taxing power.

Test cases are not for the merely enthusiastic. The defendant(s) needs to be chosen with care. The case has to be set up exactly right, or it will be knocked down on arcane procedural grounds. Do not attempt to be a test case without substantial legal advice. Do not do so on your own (pro se).

HB 957 will make it difficult to be arrested for illegal possession of a silencer in Texas. 

Those who try hard enough, by posting about homemade suppressors on social media, bragging about their non-tax stamp suppressor, or loudly challenging federal agents to arrest them, are likely to find federal law can still be enforced by federal agents.

Do not be a test case though one of the above listed methods. Let Attorney General Ken Paxton do his job.

What Attorney General Paxton may be looking for in a test case (He should be looking now), and arguments which may be presented, will be the subject of a future article.

The author is not an attorney. The article is for educational purposes only.

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

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