Saturday, August 13, 2022

Texas, Silencers, ATF and the Supreme Court Bruen case

On July 15, 2022, Texas Attorney General Ken Paxton amended the complaint filed in federal court against the Attorney General, Garland, in the Texas lawsuit against the ATF, challenging the constitutionality of the NFA and GCA 1968 to regulate privately made silencers/suppressors/gun mufflers made and kept in Texas. 

The amendment incorporates the Second Amendment decision by the Court in Bruen, which establishes a refined and clarified procedure for courts to use in Second Amendment cases.

The Texas case came into existence as part of the requirements of HB 957, which became law in Texas in 2021. From Ammoland:

In a previous article, the repeal of the Texas law and the anti-commandeering 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.

Following the law, AG Paxton filed a lawsuit on February, 24, 2022. From AmmoLand:

The brief filed by AG Paxton is clear, the arguments are strong. The NFA restrictions on Silencers are attacked on the grounds of taxation of a Constitutional right (Second Amendment), inappropriate use of the commerce clause, and as a law that has no public safety justification.

The amendment filed on July 15, explains how the recent Bruen decision is applicable to and relevant in the lawsuit about federal regulation of silencers/suppressors/gun mufflers. Here are some of the arguments presented in the amendment. From the recent amendment to Paxton v. Richardson:

4. There is a historical tradition of prohibiting the carrying of dangerous and unusual weapons, id. at 2128, but firearm suppressors are neither dangerous nor unusual. They are in “common use,” and therefore the Second Amendment protects their possession and use.Id.

5. There is no historical tradition that can justify regulation of making firearm suppressors for non-commercial, personal use in Texas—including requirements that citizens ask permission before making a firearm suppressor, pay a $200 tax, place a serial number on the firearm suppressor, and register it.

 Some of the other arguments made:

Courts may not apply Means-Ends scrutiny to Second Amendment cases, only historical and textual arguments. The government has to prove its case; not the people claiming Second Amendment rights.   

114. Post-Bruen, courts may not “balance” the government’s “legitimate interests” against citizens’ rights, or use “tiers of scrutiny” or means-ends scrutiny when reviewing the constitutionality of statutes and regulations that regulate the right to keep and bear arms for self-defense. “Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, 142 S. Ct. at 2127.

The government may not require advance permission to exercise a Constitutional Right.

Abuse of procedure, as mentioned in Bruen, with "lengthy wait times in processing ... applications" and "exorbitant fees", is not acceptable.

84. BATFE apparently believes that it can extend the application process indefinitely and ask for any “additional information” it wants. This includes additional information which could be used by BATFE to prosecute Form 1 applicants under the provision of the NFA declaring parts intended to be used to make a firearm suppressor are regulated as if they are already firearm suppressors.

The  government may not tax the exercise of a Constitutional Right. The 1943 case applied to the First Amendment.

113. The government cannot tax the exercise of constitutional rights. Murdock v. Com. of Pennsylvania, 319 U.S. 105, 113 (1943). Post-Heller, taxing the making of firearms in Texas for non-commercial, personal use in Texas is taxing the exercise of a constitutional right, and is prohibited.

The amendment closes with arguments contending the amended NFA of 1934, with regards to silencers is unconstitutional. 

127. The portions of the National Firearms Act of 1934, as amended, and the regulations made pursuant thereto, requiring Texans to apply for and receive permission to make firearm suppressors in Texas for non-commercial, personal use in Texas are unconstitutional.

128. Federal laws and regulations which require Texans to apply for and receive permission to make firearm suppressors for non-commercial, personal use in Texas regulate the right to keep and bear arms for self-defense, which is protected by the Second Amendment. These laws and regulations do not have an historical analogue and are being put toward abusive ends. Accordingly, they are unconstitutional under Bruen. 

The response from the Biden administration uses long standing precedent in cases which expand the federal power via taxation.  It claims silencers, are not arms, and are not protected by the Second Amendment.  The arguments are, essentially these:

Federal tax are exempt from lawsuits. (anti-injunction act)

Precedents exist, before Heller and Bruen, which claim taxing powers used to register weapons are Constitutional...

Silencers are accessories, not "arms" protected by the Second Amendment. 

There is no precedent that taxes effecting the Second Amendment are unconstitutional. The precedent only applies to the First Amendment.

Texas has no standing, because the law affects individuals, not Texas as a State. 

The NFA is "longstanding", therefore is exempt from scrutiny under Bruen. 


It appears to this correspondent, the Biden administration arguments are based on cases settled before the Supreme Court handed down the Heller, McDonald, Caetano, and Bruen decisions.  Those precedents may be overturned by the Second Amendment cases.

Because a previous court declared the NFA as a legitimate taxing measure does not mean it is so under the recent decisions. 

This case may become a vehicle to show the Second Amendment is not inferior to the First Amendment. 

If the federal government can use the taxing authority to avoid Second Amendment scrutiny, the Second Amendment becomes a dead letter.


©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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