3-lug suppressor mount
Courtesy SilencerCo

Constitutional carry (though it isn’t yet final) hasn’t been the only win for gun rights to come out of the waning days of the Texas legislative session. Early this morning, the Senate passed HB 957, which addresses the regulation of suppressors made within the Lone Star State.

The bill does three things:

  1. It repeals the state law criminalizing suppressor manufacture or possession outside of regulation under the National Firearms Act.
  2. It establishes and legalizes a class of made-in-Texas suppressors that must be manufactured and/or sold within the state from Texas-made parts. The silencer must be stamped “Made In Texas” and must remain in the state. It would then be exempt from NFA regulation. That means no forms, background checks, $200 tax stamps or year-long waits for government permission.
  3. Finally, the bill provides a path to secure a declaratory judgment on the constitutionality of this law before someone manufactures “Made in Texas” suppressors.

That last part is really important. Before you run out and make yourself a can out of an oil filter and then post it on Instabook for all the world to see, STOP. If signed into law, this is still going to have to go through the federal courts.

You may remember the situation a couple of Kansans found themselves in after their state passed something called the Kansas Second Amendment Protection Act. A retailer there then began selling unregistered suppressors. He, along with one of his customers, was arrested by the ATF, prosecuted and convicted. They appealed to the Supreme Court, but were denied cert.

DON’T BE LIKE THOSE KANSANS.

HB 957 author Rep. Tom Oliverson (center left in blue suit) with GOA members who testified in support of Texas-made suppressor deregulation before the House hearing of the bill in April. (Courtesy Rachel Malone, GOA)

People who know much more about both of these laws than we do tell us that the Texas bill is far different from what passed in Kansas and will provide the basis for a very good argument for excluding Texas-made suppressors from NFA regulation. That said, the process still needs to play out and be decided in federal court. In the mean time, don’t do anything stupid.

The Texas Senate passed the House version of the bill cleanly. That means it now goes to Governor Greg Abbott, who hasn’t said anything about the bill so far. He may not have thought it would ever make it to his desk. We’re guessing he’ll sign it into law, but stay tuned. This should get very interesting.

 

92 COMMENTS

  1. It HAS to go through federal court? If a state is taking back its own rights and powers from the fed then the feds need not apply for any say in the matter. Arrest anyone who tries to enforce the NFA.

    Men don’t just declare themselves free, take back their rights, then run back to their old master to ask for permission after the fact.

    • The problem with that is that the Feds don’t care about state rights. Remember that by the Constitution we all protect and defend, Fedral law supersedes state law.

      • Indeed they don’t and that is why states need to wake up to what government is; pure force, and violence. The sooner the states step up and make their own meaningful armies and actually use them to keep the feds out, the better.

        • Your “solution” seems to be some sort of secession, a civil war 2.0, etc. which these states or new union will most certainly lose against the federal government. Do you seriously believe states have the means to organize an air force and navy that could rival that of the US government? It’s not the 1860s…But before dreaming about this crazy scenario, you might want to read about the balance of power between the fed government and states.

        • It doesn’t need to rival the federal government but be enough of a deterrence that no self-serving politician will want to touch a hornets nest. You don’t have to beat the bully, just give him a bloody nose. The day the federal government tries to subjugate a state through military force is the same day a dozen or so other states on the same political spectrum jump in and collectively tell the feds to pound sand.

          Yes, what I suggest is a flavor of soft secession, literally stop listening to what the federal government has to say while remaining apart of the union on paper; arrest their agents when appropriate. What YOU suggest is in the realms of dream and unless you get a democrat super majority or psychotic president, attacking another state won’t happen because that WILL escalate it into hard secession.

          Republicans wouldn’t even bring California or unruly border states to heel when they had the majority power and attempts by the executive to force its way to conflict would be deeply unpopular.

          Suppose the federal government did invade Texas and turned it into a rubble heap; suppose they killed all the active and retired military that chose to fight for Texas, about half of the police, bombed John doe suburbia and sent in the grunts to control territory. Just what kind of message is that going to send to every other state that wants the feds out of their back yard? What kind of message to currently active military? Such actions all but guaranteed that other states will not sit idle. Likewise the destruction of pipelines, shipping/trucking routes, and complete crash of infrastructure would utterly collapse what is left of the US economy. It would be political suicide to attempt to stop Texas through military force.

          Simply put, if Texas formed its own country today, the only thing the feds could try to do is subvert it from within with alphabet soup.

        • “Yes, what I suggest is a flavor of soft secession, literally stop listening to what the federal government has to say while remaining apart of the union on paper; arrest their agents when appropriate.”

          That’s exactly what California is doing right now on immigration and marijuana law, literally giving the Fed the middle finger.

          It seems to me two can play at that game, according to Saul Alinsky –

          “4 – Make the enemy live up to its own book of rules.”

          Game on! 😉

        • @arc – the not so bright one?
          “…Do you seriously believe states have the means to organize an air force and navy that could rival that of the US government?…”

          Who said anything about conventional tactics? Do you think the insurgency would actually march into a field in straight lines and perform volley fire similar to 1860s?

        • Call it what you’d like but I think marijuana and CB radio provide the guide here.

          If enough states simply ignore Fed rules then the rules cease to matter. Generally speaking, over a long enough timeline, the Feds will change the rules to match reality just to save face.

          If you want to accelerate this the state could give some sort of tax credit for everyone who buys a suppressor kit and Form 1’s it. That would overwhelm the NFA Branch pretty quick and they’ve already put out papers saying they’d like silencers removed from the NFA for a variety of reasons.

          It might take a number of years the way it did with the FCC but this tactic has a history of being effective.

        • This may be nothing more than pandering to Texan gun voters. But even so, that’s a good thing. Especially if the legislature is going to spend tax money on suing the Feds.

          Even an unsuccessful suit makes it clear to Congress that they are being opposed.

          The marijuana and illegal immigration sanctuary jurisdictions didn’t get the Feds to back-off by rolling over on their backs and showing the Feds their vulnerable throats. They stood up. And, the Feds got the message – eventually – that exerting supremacy would cost more than the principle was worth.

          What is the silencer regulation really worth to the Feds? Nobody is going to die. They will probably save a little money on every Form 4 they do NOT process. They will look foolish pressing their case for registering and taxing silencers because they are “scary”.

          What if 20 or 30 state legislatures followed suite and declared themselves silencer sanctuaries? Easy gestures for legislatures to make; and, the ATF might just de-prioritize silencer enforcement. Solvent trap kits might become really popular. At some point, we would have de-facto de-regulation of silencers. Somewhere along the line, Congress would tack-on an amendment to some conservation bill and they would be off the NFA`34.

        • @arc – the not so bright.

          Spoken like a person who would never fight for their rights. Defeatist. Loyalist. Scum.

          Fuck the fed. And yes, the constitution if that’s what it means – even though it doesn’t. It’s a guideline. Not a rule book. Clearly, just look at the Dems rewriting it constantly and your precious fed rhinos standing idly by while they do it. At this point, states rights are all that’s left. Did you just skip 2020? Da fuq u been fuddley mcfudderton?

        • While I agree to state autonomy, there has to be a balance. If not for federal laws, my state of California would be 100% socialist right now. Checks and balances

        • Kind of like what these democrat states did with Illeadal Aliens, ignore the law and keep the feds out.

        • Everyone brings up fighting the military angle without thinking. There are about 1 million more military trained men and women on the outside then on the inside. And guess what? We know where the keys are to all the toys. Those that have keys, most don’t.
          This includes aircraft, tanks and you name it right down the inventory. Do you really think that I can’t walk aboard the base down the street and launch in an F-18 that I flew for 12 years that my 2 neighbors that were ordinancemen just armed. Hell, they probably still have their ID’s and keys to all the restricted areas they used to work in.
          Do you really think we turn in our knowledge at the gate when we leave the military? As far as infantry and special trained personnel, there are millions of folks available fresh from the service thanks to our endless wars.
          So yes, taking on the military would actually be pretty easy. Hell, if something went down it would take days for the military to even saddle up in the US. Most troops live off station. Arms and ammo are kept away from easy access. At some locations, miles from where the troops live and work. Only the fat Dod cops have arms and they are first cousins to Barney Fife. Remember Fort Hood? Nothing is different today from the day of the massacre.
          A planned assault could easily take any installation in a very short time.
          Add to the fact that for the right reasons most of the folks fighting to preserve the constitution will probably be active duty personnel. Just look at the purge that the commie left including the Joint Chiefs and Secretary of Defense are currently requiring. This shows how right I am and how scared they are.

        • Most of the aircraft the military uses are built and maintained here in Texas. The Texas Air national guard has an Air Force and the entire naval fuel reserve is here in Texas. Then add the fact that a large percentage of military personnel currently serving are from the south. You think they won’t come home to fight for their own state? There are no less that a dozen American legion and VFW posts in the small area I live in. Not to mention Texas refineries supply most of the gasoline and diesel for the country. Shut that off and the feds will be too busy dealing with riots in the blue states to field an army.

        • Plus, all of the pilots (regular and drones),logistic truck drivers, all have families and don’t think for a moment that their addresses are not known. Same goes for all politicians and their families. When the gloves come off it will be nasty.

          Oh, and don’t forget their are around 9k-10k all ranks of military retiring Each and Every day. Thats 9000-10,000. As a recent poster mentioned they don’t leave their knowledge at the gate.

      • @Michael,

        Federal law supersedes where enumerated by the Constitution to grant such authority. All other power is invested to the States. Congress shall have the authority to oversee interstate commerce. Congress has no power to regulate intrastate commerce, and especially for something the USC clearly states “shall not be infringed”.

        Kansas knew this and attempted to assert their State rights. Montana knew this. Now Texas is stepping up.

        SCOTUS may be forced to deal with this (very important) issue at some point.

        • States asserting their rights should also assert that the federal courts have no say in the matter and disregard any opinions they may have. These laws mean nothing if states do not enforce it.

        • “…is that rectum wrecker MADDMAXX.”

          I just bet you have plenty of personal experience with getting one’s rectum wrecked, little ‘eow’.

          Lube is a ‘thing’, son…

          *snicker*… 😉

        • Arc the annoying one said:
          “States asserting their rights should also assert that the federal courts have no say in the matter and disregard any opinions they may have. ”

          Arc, is right. The Federal courts (and Congress, President, FBI, and ATF) have no authority to interfere with intrastate commerce. the Constitution never gave them that authority. They have just gotten away with it for a long time. Ignore any orders they issue. The blue states have already done it with pot and immigration (and immigration is a legitimate Federal issue).

          The local Texas sheriff could arrest any interfering federal agents. That would likely be regarded as Ft. Sumter 2.0.

          A more pleasant and peaceful solution would be to let the Feds know that they need to back off or all Texas state and local law enforcement will be prohibited by law from providing any assistance whatsoever to any Federal law enforcement agency for any reason, and at any time.

          If the Feds cut off funding to the state, then Texas authorities could take over the tax collecting function of the I RS within the state of Texas and send the appropriate amount of money to DC (or not). That would also be Sumter 2.0 but at least the Feds would be seen as the agressors.

          Were the Feds to try to burn down Texas, it would be game on for OK, KS, MO, LA, AL, TN, MS, MT,AR, ID, UT, AZ, WY, ND, SD, NE, and many Americans in every county of every other state. The whole USA would burn to the ground, and the Chinese would stomp whatever was left over afterwards.

          Let’s hope it doesn’t come to that. The American empire is collapsing. That seems inevitable at this point. Let’s hope things collapse in a peaceful manner.

        • The issues is that NFA is a tax law. The constitution allows the federal government to levy and enforce taxes. SCOTUS already ruled that as a TAXING law, the NFA is perfectly legal. States are unlikely to move the SCOTUS form the prior stance that the NFA law and scheme is legal. They might get the Hughs amendment struck down. I haven’t seen anything that has made its way to them about that. They can levy a tax and they can enforce that levy. But can they ALSO refuse to accept payment of that tax? That on its face seems unconstitutional.

      • true, but my understanding was the legal basis for the NFA laws as well as the GCA laws was the Interstate Commerce Clause of the Constitution. If there’s only intra-state commerce then they shouldn’t apply, at least I think that’s supposed to be the argument here?

        • See Wickard v. Filburn (1942).

          AsbI’ve said here more times than I’d like to think; if you want to head off 90% of Federal 2A issues at the pass, attack the CC and get Wickard overturned.

        • I agree with strych9 that Wickard needs to go, but I think the Courts can find for the Texas law without overruling it (which may be a bridge too far for Roberts and Kavanaugh).

          Remember that in U.S. v. Lopez (1995), SCOTUS overruled the Federal Gun-Free Schools Act on Commerce Clause grounds, which was seen as an a retrenchment from Wickard. Because the new Texas law is written to require everything associated with the can to be 100% intrastate, you *may* see some courts in Texas and the Fifth Circuit willing to find a narrow commerce clause exception to the NFA based on Lopez. (The right test case is critical.)

          If the Fifth Circuit found this, it would put the Biden admin in a real pickle. If they leave it alone, then the Texas law stands and we can make our own cans (yaaaay!). But if they apply for cert, they risk having the Court expand the Lopez exception to Wickard, if not overrule it entirely, which could cripple a lot more of their big picture agenda than just restricting cans in Texas (and potentially Louisiana and Mississippi).

          Pass the popcorn, this could get interesting.

        • strych9 is right about Wickard v. Filburn, if it even smells like interstate commerse the courts have found for the feds. It is the peg they have hung the destruction of the 10th amendment on. Still Texas might have a shot at it, if they win I may just sell the house and head west since Georgia has been a bit too Democrat frendly for a while now.

        • Laws on the books, unconstitutional or not, still have the same force of penalty for violation. We can sit at our keyboards and whale away against them but until cases proceed through the system, nothing changes. For example. Loving vs VA, or Brown vs Board of Education.

      • That’s a different kind of post from guy that is usually trying to incite others to violence so he can claim he thought of it when he pops his head up afterwards (or not if the revolution fails).

        • You can change your screen name and avatar as many times as you wish. You are still the same strange, sad little “male” that you have been since you began stalking my posts. I assume you are a male. This is the only time I will respond to anything that you post. Be well.

      • The Constitution says we the people have the right to keep (have) and bear (carry) arms and that right SHALL NOT be infringed.

        Therfore, Texas is not going against or trying to supercede the US Constitution…. it is not only following it; it is embracing it as written!

        • To repeat myself: “ Laws on the books, unconstitutional or not, still have the same force of penalty for violation. We can sit at our keyboards and whale away against them but until cases proceed through the system, nothing changes. For example. Loving vs VA, or Brown vs Board of Education.” one of the phrases my Dad used to use was simple, “graveyards and prisons are full of people who were dead right”

      • “Federal law supersedes state law” or “federal law is supreme” is one of the big lies that we have been sold… and it could not be any further from the truth! Please review the following and see if this is not made perfectly clear to you.

        Article VI, Clause 2 of the Constitution creates what is clearly a conditional statement in that with regard to U.S. law being the supreme law of the land it states that; “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof”… the meaning of this of course being that all U.S. law must be “made in Pursuance thereof” with respect to the Constitution in order for any such laws to hold a place together with the Constitution as being the supreme law of the land. United States laws therefore do NOT automatically share the status with the Constitution of being “the Supreme Law of the Land” unless the new laws first meet the all important criteria of having been made “in Pursuance thereof” with respect to the Constitution, and thus an unconstitutional law is void from its inception. But more importantly, please let us not overlook this most important and crucial point; Regardless of what provisions may exist in the original Constitution document, the provisions and the ‘command directive’ of the Second Amendment still overrides and supersedes it all. And this is because an amendment to a document permanently alters the document and in any case of there being a conflict between what is in the original document with what is in the amendment, it is the terms, conditions and the directives of the amendment that shall and must prevail because under recognized contract law the amendment overrides and supersedes the original document. Contract law cases are ruled this way all across the country in our courts and our U.S. Constitution is in fact a covenant subject to the same rules of contract law. And that as a result of the application of this principle of law, it is the command directive contained in the amendment that shall and must always prevail. “Shall Not be Infringed” is what should rule in any and all gun Rights issues.

        And to further help in clarifying the original intent of the Founding Fathers, and also because the courts often times in reviewing a case look back at the intent of the law, let’s consider one other thing. It is unfortunate that most people do not know that the Bill of Rights has a Preamble that states very clearly the reason the Founding Fathers wanted to immediately incorporate those first ten amendments into our Constitution. The Preamble to the Bill of Rights written by the Founders states that they “expressed a desire, that in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…” Their desire and intent was for there to be a small and limited federal government that would leave the real power to reside locally with the states and with the people. That was clearly their intent and their goal, and in fact that is pretty much the thought behind what is stated in the Tenth Amendment. The mindset and intent of the Founding Fathers is very clear, the main purpose and function of the Constitution was to serve as a firewall against the overreach of power and authority by the federal government… and so when the framers thought that maybe the Constitution did not go far enough, they tried to make this more clear by the incorporation of those first ten amendments to the Constitution that we today recognize as the Bill of Rights.

    • Thank you! The States Right’s and the people’s therein are superior to any laws passed by the feds. Especially when the laws passed by feds contradict the Supreme law of our collective states. The solution is to have state law enforcement agencies arrest and prosecute any and all federal agents that try to impede or usurp the rights of the people. If the feds resist then treat them like any other thug. Shoot them on the spot!

    • Yes – it has to go through federal courts because there is going to be a commerce clause argument from the federal government due to suppressors being a highly likely item that will end up in interstate commerce (legally OR illegally). The court will have to weigh whether the commerce clause or state sovereignty (federalism) governs here.

      • “…there is going to be a commerce clause argument from the federal government due to suppressors being a highly likely item that will end up in interstate commerce (legally OR illegally).”

        Has Justice Thomas ever expressed an interest in taking a swing at something like that?

        • Memory is a bit fuzzy, didn’t Thomas make a comment on ‘Wickard’ awhile back?

        • Geoff: yup. In Gonzales, Thomas was pretty clear that he’d nuke Wickard in a heartbeat.

          However, on commerce clause cases, Thomas is best known for his categorical rejection of the “dormant commerce clause” (this is a basis for overruling state laws on the grounds that it might impact interstate commerce, even when Congress has not acted).

    • I think he meant it’s inevitable that it will be tested in the federal courts. Which is true. While I believe supressors of any kind or place of manufacturing shouldn’t have any legal requirements on their ownership or use, that’s not the world we live in. You can thumb your nose at the feds all the way the the federal pen but you still end up in the pen. People have done just that and they are still sitting in a cell.

  2. “Indeed they don’t and that is why states need to wake up to what government is; pure force, and violence.”

    Indeed…Indeed…Indeed…what arc said above is absolutely true. I’d only add that his statement applies most acutely to the Federal Government and not necessarily to states like mine, TEXAS. With respect to gun laws, Texas seems to be on the path to liberalization (ouch, I flinch at the inclusion of the world liberal in any conversations) of those laws.

    Been there…

    • Yep yep, Obey or be fined, resist the fine and be locked in a cage, resist the cage and it’s execution.

      Too true about Texas turning blue, through fraud, illegals, or what have; this is why I’m fleeing to Idaho and I’ll keep voting to keep it as red as possible.

      • Idaho…interesting thought as my house is for sale and we’re retired.

        Plus, under the Biden Administration our cities are flooded to overflow with illegals from Mexico and further south.

        My wife and I are medical professionals. We appreciate and are compassionate about the plight of the citizens in countries south of Texas which are so corrupt such that those citizens suffer. But they also bring a ton crime, pestilence and disease (Coronavirus) to our state.

        I’m glad you brought this up.

        Best,

        David

        • Yeah, Idaho seems too cold for me. However, seems like if I can make it a few more years in TX, I could sell my house and head south to settle unpopulated areas, like for example Honduras and/or Guatemala after all their people have moved illegally to Texas. The way these creatures live, most of the country could likely move into my house!

    • Being liberal isn’t a bad thing. Being too far liberal is. The modern Dems are so far left they are basically a passive aggressive Nazi state. Republicans are no longer conservatives either, they are rhinos. 2024 deserves a new, centric party, as intended in 1776.

  3. Is the attempt here to run this through ‘friendly’ federal courts?

    What’s the expected end game here? To hope whenever it gets to the SCOTUS the current make-up will wink and nod by simply not granting cert. when it gets there?

    And who is crazy enough the be the ‘sacrificial lamb’ test case?

    “People who know much more about both of these laws than we do tell us that the Texas bill is far different from what passed in Kansas and will provide the basis for a very good argument for excluding Texas-made suppressors from NFA regulation.”

    If it works as intended, that will only apply to suppressors manufactured and staying in Texas only, correct?

    • The entire premise of this legislation relies upon a belief in the intrinsic fairness of the court system above the state level, and that belief is probably misguided.

      Convincing a Federal court, and in particular the Supreme Court, by claiming that a product that does not enter into interstate commerce is therefore not controlled by Federal law is going to be, ah, ‘difficult.’ One might as well say that heroin produced within a state is no longer a Federally-controlled substance, or that a motor vehicle made in a state that never leaves said state doesn’t have to meet any Federal safety standards. It’s just not reasonable to expect to be able to claim some exemption from Federal law under the Commerce Clause due to a product not entering ‘commerce’ as a miraculous antidote to Federal legal supremacy over all state law, although the idea is imaginative.

      Sadly, when Texas chose to give up its freedom as an independent nation, it made a pact with a rhetorical devil in the form of Federal rule; Convincing said devil to loosen the reins even just a tiny bit has little chance of success.

      • “One might as well say that heroin produced within a state is no longer a Federally-controlled substance,…”

        Like California’s position on prosecuting weed laws?

        It seems to me what’s good for the goose ought to go for the gander when comes to civil rights…

        • There you go again, assuming that ‘right’ or ‘fair’ or ‘good’ has any place in this sort of politico-legal argument between an elephant and a few mice. Or geese. In such a contest, I’m betting on the elephant.

  4. Texas keeps giving more and more reasons for people like me…freedom loving, tired of Federal Overreach…to become a Texan! You go Lone Start…get some!

    • We need more constitutional conservatives in Texas to offset the socialists already here and those that want to come here. Now to resurrect the 1800’s vintage Texas Rangery and put them in charge of the border.

      • Texas, No BS Rangers, on the Boarder with Texas Cans, taking Texas pot shots at the assholes coming across the Texas boarder…I bet the illegals will stay away from Texas and move it down the Road to AZ, NM, Nevada or the land of the Fruits and Nutz…lol.

      • “Now to resurrect the 1800’s vintage Texas Rangery and put them in charge of the border.“

        Yep, bring back the 1800s Texas Rangers, what a great idea to reestablish white supremacy!

        “At the inception of the Republic of Texas in 1836, the Rangers embarked on a decades-long campaign of “ethnic cleansing” to depopulate the nation of Indigenous peoples who controlled much of what is now West Texas. In March 1840, the Rangers and affiliated Anglo soldiers double-crossed and murdered 35 Comanche diplomats, women and children attempting to negotiate for peace. The event ignited a brutal war between Anglo Texans and the Comanche that dragged on for decades after Texas entered the United States in 1845.
        The Texas Rangers were equally violent toward enslaved Black Texans. As the slave state’s main police agency, the Rangers were tasked with upholding slavery by hunting down “runaway” enslaved people — a job that represents the seed of modern American policing. In 1838, a band of Rangers cornered an armed group of Black men who had escaped from slavery. The Rangers captured one of the men, and, after slashing him several times with a Bowie Knife, sold him back into slavery for $800, splitting the profit among themselves. In 1855, Rangers crossed the Rio Grande seeking Black fugitives who had escaped to a Mexican border town, where slavery was illegal. The Rangers burned the town to the ground for harboring freedom seekers.”

  5. “. . . declaratory judgment on the constitutionality of this law before someone manufactures “Made in Texas” suppressors.”

    We need a lawyer to tell us what this means.

    My guess is that as a state, TX may have a straight path to SCOTUS where the high court might have a hard time turning down the grant of cert.

    I can see several grounds to sue the Feds:

    1. – The $200 tax is not revenue producing; therefore, it is unConstitutional. It was intended as a prohibitively high tax so that no one would buy a suppressor. It is still so high a tax that the Feds would generate more net revenue at 10% on a much larger volume of sales. (I don’t think SCOTUS would like to make such a ruling that would bring into question the power to tax.)

    2. – Manufacturing and sale for exclusive use in TX is not interstate commerce. Problem here is that such 1-state-only manufacturers affect interstate commerce. The Feds will claim jurisdiction on that ground. A huge fraction of Federal law is based on the specious claim that – whatever it is that each such law regulates – it is “in or affecting interstate commerce”. SCOTUS can’t do anything that would disturb all this other law. Moreover, the Feds’ power to tax doesn’t depend on being in interstate commerce.

    3. – The regulation of suppressors doesn’t pass even the rational basis test. If a suppressor is an “arm” then it deserves heightened scrutiny. If it is not an “arm” it must at least pass rational basis test. There is no legislative history that suggests any reason why Congress intended to tax suppressors out of existence; and no one since has come up with any rational explanation for doing so. This would seem to be the strongest argument.

  6. Although I have no use for a gunm muffler I see no reason why they are not for sale everywhere.
    Well wait a minute, maybe I do. Didnt some towns start putting in devices that hear gunmshots. That would be a lot of wasted money. No wait a minute, it was a waste of money to start with.
    Dad burn it, every time I come up with a reason the second ammendment could be infringed and make any difference I come up with another reason it wouldn’t work.

  7. Numerous states are at this very minute are refusing to enforce Federal Immigration Laws among others. What matters is do the those states wishing to refuse to enforce Federal Firearms Laws have the backbone to openly tell the Feds to pound sand. It all comes down to having the Courage to Stand and Fight for your Rights or cower under Complacent Cowardice and remain silent on the matter. If your Rights are as Important as many claim then have the Courage to not Comply openly and without Fear.. To do so will possibly require the Courageous Sacrifice of all you have. The question is are Your Rights worth the Sacrifice or is it all just Bloviating Courage.

  8. Take a page from the pot heads. Pass this and ignore the feds. It’s worked for both medical and recreational marijuana. (No offense to any pot heads. No pot heads were harmed in the making of this post. Any resemblance to actual pot heads is purely coincidental.)

    • “Take a page from the pot heads.”

      Bingo, that’s the model to follow. Rights aren’t a cafeteria, you eat everything on your plate…

  9. The new law is simply Republican election posturing as they damn well know that no silencer manufacturer and dealer in such devices will risk the wraith of the jack booted Feds as they are the law of the land and State Laws are meaningless.
    As Mao Zedong once said “Power comes from the barrel of a gun” and the Feds have the most firepower, end of story.

    • “…as they damn well know that no silencer manufacturer and dealer in such devices will risk the wraith of the jack booted Feds…”

      Horseshit.

      It happened in Kansas, I bet there will be someone in the Lone Star State willing to make a grab for the metaphorical ‘Brass Ring’.

      Time will tell…

      • You are oblivious to the fact that if the Feds pull a manufactures license or a dealers license you ass is grassed if you go ahead and continue to make or sell silencers. End of story the new law is a joke.

        • *Yawn*

          The feds can’t keep cocaine out of maximum security prisons.

          The only reason the ATF gets away with what it does is due to anticipatory obedience. If that were to stop the ATF would be just as fucked as the DEA.

    • dacian – this site does not need another resident yappin moron. Miner has you beat with seniority for the position of resident horse’s ass troll.

  10. Soooooo, if they manufactured a machine gun, fully within the state, for use only within the state, could you bypass the NFA with that too? 😉

  11. I’d like to see this succeed, and I agree that there would be a positive ripple effect. However, the safest thing would be for this to be purely intrastate, so wouldn’t you Texans want to begin mining & smelting your own ores as needed to produce the metals used in production? Seems to me that would be the safest bet, if the law you write is going to depend on the courts for enforcement. Once the lawyers and judges get ahold of it, the sausage machine will kick in. Would international commerce (e.g., titanium bar stock brought in from Japan through a Houston port) trigger anything federal? Something to consider?

    And, yes, what about other NFA items as noted by Vic?

    • It sounds potentially promising though having state produced cans, SBRs, and such would make for some interesting buying. Sure you could buy that SiCo or Dead Air can but what about getting that Texas Ranger can. Is it better than the SilentOK supressor, or the IdahoCan, well doesn’t matter because you can’t buy those.

      Pretty soon, you have the Tennessee Glock knock off vs the South Carolina Glock, but you can only get the one where you live.

      • It would probably lead to red states having reciprocity while still telling the feds to pound sand despite interstate clause. 2A > Interstate clause.

  12. what an IDIOTIC statute, WRITTEN BY FOOLS

    The NFA is based on the federal power to tax, not the federal power to regulate commerce. Thats why you need a tax stamp to buy one.

    • Originally, that was correct. However the arrogance has grown and grown until the fools do not think the subterfuge is necessary any more, they are ready to pretend 2A has never existed. In 1934 they knew they would likely be killed (literally) if they dared to attempt such a coup. So they pretended it was about a tax, which it clearly was not, since the amount was too high for anyone to afford, maybe someone could look up how much revenue was actually collected under NFA in the first, say, 20 years? It was an unconstitutional prohibition, pretending to be a tax. And of course there was no enforcement except in special situations, no one even registered the thousands of German full-auto weapons brought home from WWII.

  13. @Benbow: You are correct; NFA is based on power to tax, not commerce clause.

    Suppose, hypothetically, Congress taxed cheese. It wouldn’t matter that a package of cheese didn’t cross the WI/MI state line; it would be taxable.

    I think there are two avenues of attack: legislative; and, judicial.

    The Texas Silencer Sanctuary bill is purely legislative notwithstanding that they seem to have a plan to sue. They are standing up to Congress on a Nullification strategy. We should NOT mock this effort. It’s been successful for sanctuaries for illegal aliens and for marijuana.

    The judicial avenues of attack are:
    1. rational basis test (for silencers, SBSs and SBRs)
    2. non-revenue-generating tax for:
    – AOWs
    – Silencers
    – Destructive Devices
    – Hughes Amendment
    3. 2A infringement
    The place to begin here is with silencers. If we couldn’t win on silencers how would we expect to win on anything else? If we SUCCEED with silencers we set the precedents to advance to other aspects.

    I wonder if the non-revenue-producing argument might be the most powerful. It’s readily accepted that the states have the police power under 10A to promote public health, safety and morals. (Why that should be is a separate topic.) So, if states want to impose “sin taxes” on tobacco, alcohol, . . . (add long list) there seems no Constitutional impediment to doing so.

    The Constitution provides: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; . . . ” It’s hard to read into this a power to “lay and collect” a “sin tax”. Just because Congress doesn’t like something – say coal or natural gas – doesn’t empower them to tax it. Where the tax wipes-out an industry it is prohibition by taxation. Is there a Constitutional power to do such a thing?

    The argument is doubly-strong if the object of taxation is protected by an enumerated right. What would we say about a federal excise tax on lawyers’ fees? Printing presses; PA equipment?

    It’s very likely that the $200 stamp tax costs nearly $200 to collect. If taxed at 10% and collected from manufacturers the costs would be negligible and the gross revenues would increase; net revenues would soar! That Congress refuses to move silencers from NFA`34 to GCA`68 shows that this is not a bona fide tax but, instead, a barrier to exercising an enumerated right. With no rational basis to inhibit use of silencers to boot!

    It took the 24A to abolish the poll tax. It probably had to be done by amendment since the abuse was conducted within a state power to tax and conduct elections. Some drug prohibition laws were adopted under a tax pretext. Clearly, the NFA`34 was intended as a ban under pretext of tax.

    SCOTUS has allowed the Commerce Clause to be stretched far beyond it’s original intention. Will it allow the power to tax to likewise be stretched to achieve Congressional goals for which it is not otherwise empowered? Or, will SCOTUS adopt a principle that a tax must, at least, be net-revenue producing? And, must not be levied in such a way as to abridge/infringe/impede exercise of any enumerated right. These would seem to be modest steps to impose a useful check on Congress.

  14. I spoke with Andi Hunt of TSRA this morning. The bill has not yet passed the Texas lege. The house voted this morning to send the conference report to the Senate for their vote. Once they approve it, expected this week, it goes to Abbott who has stated that he will sign it. So hold on, this isn’t done, yet. Texas peeps get on the phone!

  15. Should this proposal become law, and if it survives federal monkeyshines, it might become more than a little interesting. I personally have no particular interest in “silencers”, but that’s just me. Others likely feel differently, and the Hollywood foolishness showing a “bad guy” screwing a silencer onto the muzzle of his revolver is just that, Hollywood Foolishness.

  16. Why does it have to go through the federal courts? Did the states that legalized marijuana (which is a violation of federal law) go through the courts?

  17. When does an item enter interstate commerce according to the fedgov? I see Texas has the ability to mine iron ore, titanium and other alloying elements. But no aluminum. Does this mean that if someone wants to make a silencer in Texas that they have to mine the ingredients and smelt them? What if they’re using equipment that was manufactured in other states to mine these ores? How crazy does this so-called ability to regulate interstate commerce go? I’m hoping that what they’re going for here is to get the NFA out in the open and show how ridiculous it is. For when they do that, the federal government won’t prosecute and will be forced to change these regulations. And / or they won’t prosecute against these types of items for fear of upsetting the apple cart. And does this require an individual to be part of the test case? Or will the state government bring suit against the federal government?

    • “How crazy does this so-called ability to regulate interstate commerce go?”

      Good question; your whole train of thought here. While I can’t answer the question in terms of how far back in the process one must go, the answer can be arrived at through another avenue.

      The wheat case concluded that the wheat the farmer grew for consumption on his own farm would “affect” interstate commerce. So, now, laws typically to say “widgets in, or affecting, international or interstate commerce”.

      So, if this were an interstate commerce issue (which it is NOT) then a silencer made or manufactured in Texas for use in Texas would – arguably – affect interstate commerce in commercially manufactured and sold silencers.

      What was not obvious to me, until pointed out by a lawyer, is the problem of precedence. Consider, to contrast the problem with an easy case, that professional SOFTball teams colluded to fix salaries or ticket prices. They would be charged with Sherman Act violations for colluding. The SOFTball teams would cite the BASEball case where SCOTUS ruled that BASEball is NOT a business. That ruling is regarded as completely wrong, but not worth fixing. So, it is “cabined”; it’s left in its “outhouse” and will be disregarded by a future court. If the SOFTball industry tried to collude they would be told that a SOFTball is different from a BASEball and that makes enough of a difference to not decide the case on the foolishly decided precedent.

      What makes commerce clause different is that there have been hundreds of cases where SCOTUS and Circuit courts have ruled that “in or affecting interstate commerce” means whatever Congress feels like it means. Maybe thousands of cases. SCOTUS would be loath to open this Pandora’s box. If they couldn’t see an easy way to distinguish a case appealed to them from all these other cases then they wouldn’t take the case and let the matter rest with the Circuit court decision.

      I’m aware of only two commerce clause cases where SCOTUS overturned the laws. One was the Violence Against Women Act and the other was the first (not current) Gun Free School Zones act. In these two cases SCOTUS was unwilling to go so far as to agree that committing violence against women was somehow commerce or that could affect commerce. That was a bridge too far. I think that the first Zones act failed because they didn’t include “affecting” in the law; but after Congress fixed that oversight, the law hasn’t been challenged again. I could be mistaken about the Zones case; don’t have a clear recollection.

      Some day SCOTUS might take some steps to narrow commerce clause. E.g., if Congress wrote a law making it a Federal crime to kill someone with a gun sold in or affecting interstate commerce they might strike it down. HOWEVER, they are not going to strike down a law about making a gun because making a gun might affect interstate commerce; and there would be too much at stake to rule against such a case.

      I’ve written elsewhere here what I think the reasonable lines of attack are on NFA`34. You might look for those comments.

  18. It will take a deep moral courage for the people in positions of power to defy the federal government. And I don’t know if the C(c)onservartives or the L(l)ibertarians have what it takes to do that???

    The Left/Liberals have no problem what so ever of telling the feds, they won’t enforce the immigration laws.
    And are voters going to support a Politian, who votes to defy the feds???
    I give you Rep Marjorie Taylor Green, as an example. And she wasn’t broken any laws yet.

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