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Last year, Texas Governor Greg Abbott signed into law a bill that says suppressors that are built, owned, and used within the state are not subject to federal regulation under the National Firearms Act. The new law set up a legal challenge that, once it plays out in the courts, could result in the elimination of the onerous NFA compliance requirements surrounding silencers that are stamped “Made in Texas” and never leave the state.

As TTAG legal wizard LKB wrote at the time . . .

The new law does not make any suppressors free from federal law, although it sets up a legal challenge that might do so for certain suppressors in the future.  Until such a challenge succeeds — which will be years away, and would require some seismic shifts in constitutional law — making or possessing a suppressor in violation of the National Firearms Act remains illegal under federal law, and subjects you to a minimum 10 year federal sentence. . . .

The legal argument will be that because such “Made in Texas” suppressors are not in or part of interstate commerce, Congress lacks the constitutional authority to tax/regulate/ban them.

Read LKB’s explainer and DO NOT start making your own silencers in Texas. Yet. The process has a long legal row to hoe before “Made in Texas” cans are NFA-exempt.

The Texas law directs the Attorney General to file suit against the ATF challenging the agency’s right to regulate “Made in Texas” cans if someone informs him that they intend to manufacture such silencers without complying with the NFA.

Apparently someone has done that. And now, Attorney General Ken Paxton has filed suit against our friends in Washington. Here’s his press release announcing the legal action . . .

Attorney General Ken Paxton filed a lawsuit against the Bureau of Alcohol, Tobacco, Firearms, and Explosives seeking to stop the enforcement of federal regulations regarding firearm suppressors made in Texas. Texas House Bill 957, passed in 2021, expressly exempts from federal regulation firearm suppressors that are made in, and remain in Texas. 

Federal law regulates firearm suppressors, making it illegal to own a firearm suppressor for personal use without paying a tax. It is also a federal offense to possess, manufacture, transport, repair, or sell a firearm silencer unless a person complies with federal guidelines.  

“Our Second Amendment right must be protected and I will continue to protect Texans from federal overreach interfering with that inalienable right,” Attorney General Paxton said. “The federal government cannot simply override the Constitution. I will not allow them to tarnish the freedom and values Americans hold dear.” 

This federal law violates the Second Amendment by taxing and regulating firearm suppressors made and used in Texas. No other constitutional right is subject to payment of a federal tax before an American can exercise that right.

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55 COMMENTS

  1. Going to court first is appropriate. The demon feds will not relent or rule justly however. The Texas law will have to go further to protect Texans from the demon feds.

    • If it’s not a brace it’s barrel length by an inch or two, a can, a pistol grip, a magazine it’s always something that targets the law abiding all-because someone somewhere criminally misused a firearm. And with that said it automatically makes you and your gun, the 2A, the NRA, the GOA, etc. participants in the crime all based on having any association with a firearm. Sounds like a Salem Witch Hunt because it is.

      Gun Control zealots are laying in wait for the next adam lanza and they are ready to pounce and seize the opportunity to further disarm and control you. Not a word from the same Gun Control ratbassturds when a criminal misused a motor vehicle to plow through parade goers in Wisconsin. Obviously Gun Control zealots could care less about expendable defenseless victims. It’s the “gun” that sets Gun Control perverts off because it’s your “gun” that stands in their way of having their way with you and yours.

      Until sicko Gun Control is called out and arrested, jailed, put on trial for its confirmed history of catering to racism and genocide your freedom rides in the back of the bus while closet tyrants who have no use for you occupy the driver’s seat. If you think Gun Control stopped and parked forever in Waco and would not turn Texas into a Ukraine…Think Again.

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      • You say “gun control zealots are laying in wait”. I don’t think so. I think they are lying in wait.
        You say “gun control zealots could care less”. I don’t think so. I think they couldn’t care less.

        • “You say “gun control zealots could care less”. I don’t think so. I think they couldn’t care less.”

          Idiomatic expression; depends on the part of the country. The phrases are two versions of the same contempt. My experience in Texas, ‘Bama, and South Carolina, either phrase is used.

  2. Personally, I don’t see the problem with “suppressors”. It seems the Nanny State is going a bit overboard.

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  5. Just read the Complaint. It touches all the right bases.

    They also forum shopped it into *exactly* the court I would have recommended: ND Tex., Fort Worth Division. Filing there gave very high odds of it being assigned to a good judge, and it was: Mark Pittman, a very conservative, very pro-2A, PDT appointee.

    Complaint also makes a very ballsy move: daring BATFE to show with evidence why regulating suppressors is necessary in the first place (which, given what we suspect will come out of SCOTUS in a few weeks, may well require the government to demonstrate why simply treating suppressors just like any other firearms isn’t sufficient, which they never will be able to do). Key here is that “but it’s just obvious!” might play in NCY or places where people do not actually understand how suppressors actually work, but absent actual evidence Pittman isn’t likely to just take BATFE’s word for it.

    Again, this is an uphill fight — no two ways about it. But there is a decent chance that we may just draw to the inside straight.

  6. I doubt the scope will be expanded enough at SCOTUS, but the idea if the NFA is legal to create should be on the table.

    If the Constitution tells the feds SHALL NOT INFRINGE, and they make a law that infringes, it should be declared null and void.

    Texas is trying in its limited way to enforce the 2nd Amendment.

  7. Kansas tried this a few years back, didn’t work out so well for the guys caught up in the state v fed pissing match. Congress just loves them some interstate travel rules. Was the ore mined & smelted in Texas? No? Then interstate travel.

    • Silencer reviews would get wacky… Get the new such and such Silencer, if you are in Texas only though! Mississippi, get this one instead! Florida… Nah republicrats won’t pass that anytime soon.

      I am guessing most of the state brand cans would be cheap and disposable, unless a bigger brand wants to set up manufacturing in multiple states using one design. Could be interesting, but have to get there first.

      • I think another way around this is to manufacture the type of device that uses an automobile oil filter as the actual suppressor. Let’s see the BATFE try to regulate oil filters.

    • The odds of that happening with the current bench’s constituency are better than they have been in over half a century.

      A whole lot of dominoes may be ready to start falling sooner, rather than later… 🙂

      • As I wrote in my initial analysis (linked by Dan above), I suspect the strategy is to try and persuade a Fifth Circuit panel (which has a lopsided GOP majority, thanks to lots of PDT appointees) to hold that Lopez rather than Wickard applies. The Fifth Circuit would essentially be daring the feds to appeal the case to SCOTUS . . . which now has at least 5 justices who are likely ready to gut Wickard once and for all.

        (Cue Jules Winnfield (played by Samuel L. Jackson) in Pulp Fiction: “I dare you, MF, I DOUBLE dare you!”)

        That would put the Biden Admin to a very tough choice. If they appeal, SCOTUS could well take the case and use it to demolish the foundational precedent for much of the current federal nanny state. Or it could decide letting Texas (and likely Louisiana and Mississippi, which would probably pass their own laws like this) have unregulated in-state-made cans isn’t worth that risk.

        (Cue Harry Callahan (played by Eastwood) in Dirty Harry: “You’ve got to ask yourself one question: ‘Do I feel lucky?’ Well, do ya, punk?”)

        Again, case is still a longshot . . . but there is a window that, with a bit of luck, Texas may be able to get through.

    • Wickard v. Filburn is on my all-time sh*t list of Supreme Court precedents that need to die a painful and fiery death. I doubt there’s much stomach for overturning it, though, because it and its brethren basically underpin the whole huge federal regulatory apparatus, from the EPA to the FDA to OSHA. It would be a complete rewrite of government as we know it.

    • The interstate commerce “wheat production” precedent was rejected by the USSC in the original Obama Care Ruling. The court has since become more conservative. Perhaps we will see some further push back on invocation of commerce clause.

    • “This will ultimately depend on how much the Supreme Court wants to overturn long-standing interstate commerce precendents like…”

      Heart of Atlanta Motel, Inc. vs. United States, 379 U.S. 241 (1964)

      Toothpicks

  9. Anybody remember that Court Supreme (with sour cream) case, from the 1930’s I think, about growing your own wheat? The upshot was that if you grow your own wheat for your own use then you aren’t buying wheat and not buying wheat affects interstate commerce. Even if you bought locally grown wheat, somewhere down the chain that locally grown wheat would affect wheat that moved in interstate commerce.

    I wish them well with this case, but I am not holding my breath.

    • Montana did make a similar effort . . . but the appeal in that case was to the Ninth Circuit, and so the loss was preordained.

      Here, however, the issue will be decided by the Fifth Circuit: a decidedly different animal than the Ninth.

      • And, as a number of folks in Kansas found out the hard way, that’s a great way to a mandatory 10-year stint in Club Fed.

        I don’t like the NFA either, but telling people to “just do it” is unwise in the extreme.

  11. Perhaps its time for Texas to tell the ruling Regime to “Pound Sand”. Its not like it would be the first time Texans have done so.

  13. I visited a firearm store in north Idaho that was selling suppresors marked with something to the extent of “made in Idaho, to remain in Idaho”.

    Didn’t buy, wasn’t inclined.

  14. The best goal and only clear way would too repeal the semi automatic and assecoire group complete (aow/sbr/sbs, big bore destruction device and silencer) together white the 68 any “felony” flatrate ban and “gun free zone school act”

    Re open the full automatic register since the “ban” passed clearly illegal in 1986 is another special and difficult think for it self ………..

  15. Some notes from Texas:

    1) 2 months ago. I took advantage of the SilencerCo Free Suppressor offer. Bought a .22 Sparrow and a .308 Harvester, and chose the .45 Octane as my freebie. It’ll be another 7 months or so before I can get the paid-for ones out of NFA jail. The freebie won’t ship for another 4 months, and then I get to start the 9-month wait on that one, plus pay the $200 tax, plus the $100 transfer fee, so I’ll have to pay $300 in fees for the “free” silencer (that costs $450). This is just insane. So my ‘free’ silencer will cost $300 and take 15 months to arrive. Can you imagine walking into a Texas gun shop and saying “I’ll take that one” and they hand it over to you? Sheesh, the freedom, it just can’t come soon enough.

    2) People at Texas gun shows are already selling “solvent adapters” with oil filters attached, with signs on their tables saying “The law has passed! It’s legal!” As LKB said, and as anyone who’s paid attention, no it isn’t legal yet. Y’all better be careful out here.

    3) Ken Paxton. Ugh. The guy’s like Trump — he’s corrupt as hell, he’s been repeatedly indicted, etc., but dammit, he does all the right things policy-wise. I was 90% decided to vote for Louie Gohmert, but then Paxton goes and does this. I may have to hold my nose and vote for Paxton again.

    • Eva Guzman is who we need as AG. Strong legal skills and a reputation for integrity.

      And Paxson didn’t have much choice — under the law as I read it, he (and any other TxAG) is *required* to bring this challenge.

    • “…he does all the right things policy-wise…”

      I generally agree with the Buckley Rule, of supporting the most rightward-leaning viable candidate, but that seems to have resulted in a gradual shift to the left over time, at least on a national scale. Deciding among primary candidates is seldom cut-and-dried.

  16. I’m trying to be nice. The Libertarians Liberals and the Left have already explained how to deal with this issue. They supported the States cities and counties, when they refused to support the federal government on immigration issues. In fact they have passed laws making it illegal to assist a federal agent on any immigration issue.

    States should pass laws making it illegal for any state, county, or city law enforcement, from assisting any federal agents, regarding any issue, about the Second Amendment and gun ownership.

    In California I remember when Governor Moonbeam refused to assist the federal government in arresting and transferring Leonard Pelletier. He was an American Indian who was accused of trying to murder two FBI agents.

    So yes even in crimes involving murder or attempted murder, the states can refuse to assist the federal government. And punish any government person with prison time, fines, and termination of employment. If the states believe the federal government is working to deny the Second Amendment civil rights of State residence? They should punish the local cops who help them.

  17. The Corrupt Court system would not dare set a precedent that would allow a State to usurp the absolute power of the Federal Government over the States. It simply is not going to happen.

    Silencer is a “dirty word” in the U.S. as the average citizen knows we already have enough of a gun problem in the U.S. without adding more problems to it. Without draconian Federal Vetting every gang banger and street punk and pycho nut case of the Far Right Trumpite Storm Troopers, complete with twisted cross arm bands, would be buying them for assignations and terror campaigns against the government and law enforcement and the public at large.

    More wives would be murdered by their husbands as well as they know the silencer would enable them to knock off their wives without the neighbored hearing the gun shots within the home.

    The average ignorant Hill Jack using his latest toy (the silencer) would accidentally kill people with ricochets because they would think in their complete ignorance that no noise meant the gun equipped with a silencer could be used anywhere, even in their own back yard, with the corresponding stray bullets whizzing through the neighborhood killing people on their lawn mowers or walking their dogs.

    Gangs equipped with silencers would give rise to 10 times the shoot outs on the streets between gangs fighting over turf.

    All this of course was known to the great charlatan Gov. Abbot who had the law past to gain political points with his hard core nut case radical far right base knowing far well that the law would never pass Constitutional muster.

    • Blood in the streets….

      Don’t you gun control twerps ever get tired of saying the EXACT SAME SHIT every time we do something pro-gun in Texas? More people died shoving things up their ass than shot by a suppressor in 2020. It’s not a big deal, and certainly won’t result in this murder-fantasy, something you spewed about campus carry as well (also didn’t happen)

    • Guess up have not heard one in the flesh. Most are still loud, just not as loud as unsilenced. More like what you hear with muffs on. If you are using other than subsonic rifle ammo the projectile leaving the barrel makes a very noticeable sound as it breaks the sound barrier.

      Even air guns can have that problem. I picked up a Beeman to pick off squirrels and darn if it is not just about as loud as a 22. Quite the loud crack as the pellet leaves the barrel. I thought at first it was dieseling but it has never quietened down.

      I would like a silencer but not willing to pay the fee or give up even more privacy for the privilege.
      The noticeable reduction in recoil would be worth it to me if I were to get one. I’d still wear hearing protection when target shooting.

      As to your blood running in the streets fantasy. Give it up, you folks drag that horror story out just like Chicken Little with his “the sky is falling” every time something is not to your liking and as a result most ignore you now.

      None of my weapons have joined a gang or participated in a shootout nor have they even tried to kill my wife. And they do not go around firing in my back yard either. I must have civilized weapons I guess.

    • ¡Cállete! Baboso.

      I typically ignore your rantings and blatant misinformation. This particular screed of yours is too full of Hope and Change Democrap to ignore.

      Nothing you wrote is supported by fact. EVERYTHING you wrote is supposition, conjecture or blatant lie.

      • “Suppressors won’t cause any more gun crimes.”

        It isn’t about creating, it is about hiding. The theory (from the “Roaring Twenties” was/is that silencers prevent people from hearing the crime, and reporting to police, who are supposed to arrive on scene so fast that the shooter(s) cannot runaway. An ancillary benefit is that at least the crime is reported, and the bodies won’t lie in the street for days before they are discovered, and the criminal trail goes cold.

        To fully understand, binge-watch crime dramas from the ’30s, ’40s, ’50s. Even attached to revolvers, silenced guns make a “pppffftttt” sound when fired. A sound that would not be detectable outside a room, or on the street.

  18. I made a suppressor once for an AR-15. Copied a design from one of the well known suppressor manufacturers for a titanium suppressor a friend had. It was really close to something I already had in mind but it needed a little tweaking. I bet him I could improve upon the design and not make it any longer than 1/2″ and keep the same diameter so I set out to do that – a little longer blast chamber by 1/4 inch, added an extra baffle, changed the baffle spacing some, changed the baffle shape a little bit, and only changed the overall length by 3/8″ while keeping the diameter of the original. Mathematically, based upon the dimension constraints I had worked out that my redesign would provide -35 dB reduction where the original I copied from only gave -26 dB reduction measured. So I designed for -35 dB and I drew up the design for my version.

    So I took the design to the guys that did metal work for us and they turned it into physical reality. So it was done, a titanium beauty she was too and it was too bad she was doomed.

    Measured, came in at -38 dB reduction. I had applied physics for moving gases and energy. My math was a little off because I took the short path for the gas velocity factor with generalizing by relying on the general energy loss thermal factors alone so I was off by ~3dB.

    But I won the bet. Then after firing a couple hundred rounds through it on the range, modeling its performance, I destroyed it. Besides, there were better designs with better reduction waiting for me.

    Yeah, someones going to say “but but the NFA! You broke the law.” No, I didn’t. At the time I worked for a lab that was working on ‘sound’ energy weapons for the government and as part of that work we would also come up with weapon suppressor designs for the military. I was able to do it and classify it as an ‘experiment’ for that purpose which is not a violation of NFA if I did it for the government as “development” under ‘sound energy weapons’.

  20. Why can’t the same argument be made for 80% lowers. If the gun is manufactured in one state, and never leaves, why is the Federal government involved? How about a normal gun purchase? Should the Fed be left out until, and if, it leaves the state where manufactured?

    • “Why can’t the same argument be made for 80% lowers. If the gun is manufactured in one state, and never leaves, why is the Federal government involved?”

      First thought: Commerce Clause; the means by which the federal Civil Rights act was made enforceable throughout the country.

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