By LKB
At long last, the pro-2A side in Texas had a decidedly winning record in the last legislative session. Finally free from years of obstructionist RINO House Speakers, the Texas House passed a slew of long-overdue changes to Texas firearms law in the session that was just completed.
While it took no small amount of pressure on Lt. Gov. Patrick and a number of wavering GOP senators, at the end of the day the People of the Gun pretty much got everything we asked for out of the Texas legislature.
One such bill, however, is causing no small amount of confusion in certain circles. HB 957, has changed Texas law regarding suppressors. This post is aimed at dispelling some of the misinformation and misunderstandings about the new law, what it does, and when it will likely do it.
Executive summary: 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.
HB 957 essentially does two things. First, it removes the state prohibition on the possession of suppressors. Previously, possessing a suppressor was verboten under the Texas Penal Code, except where such possession was legal under federal law (i.e., the NFA).
Thus, if you possessed a can without getting the required ATF permissions, you were subject to prosecution for violations of both state and federal law. When the new law takes effect, this old state prohibition goes away.
Further, because Texas will be a Second Amendment sanctuary state, state authorities will be forbidden from arresting you for violating the federal suppressor laws, or assisting federal authorities in doing so. This provision will almost certainly be challenged in court, and there are certain federal district judges in Texas that I have little doubt would enjoin it.
Even if the sanctuary state provisions ultimately stand up to the anticipated legal challenges, federal authorities will still be perfectly free to arrest and prosecute violations of the NFA, and such prosecutions would get you a very serious mandatory sentence in Club Fed.
The second thing HB 957 does is it sets up a legal challenge to the NFA by declaring that suppressors that are assembled in Texas, from Texas-made parts, possessed by Texas residents, marked “Made in Texas,” and do not leave the state, are not covered by federal law. 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.
The bill directs the Texas Attorney General to file a suit making such a challenge if someone advises them that they wish to manufacture such a “Made in Texas” silencer without complying with the NFA. I have little doubt that the a papers for such a lawsuit are currently being drafted.
Again, unless and until such a challenge succeeds, making or possessing a “Made in Texas” suppressor without the required NFA tax stamps puts your head on the block for federal prosecution.
Will such a challenge succeed? Regrettably, it’s a long shot. That’s because of a New Deal era Supreme Court decision known as Wickard v. Filburn.
Wickard held that a farmer who grows wheat on his property for his own personal consumption and use was nevertheless part of interstate commerce because his actions meant that he did not have to buy wheat through interstate commerce. As a result, the scope of what constitutes “interstate commerce” has been expanded to essentially include everything.
While Wickard has long been criticized by legal commentators and some judges, it remains on the books.
There is a slim window that I suspect Texas will try and fit through in backing this new law. In United States v. Lopez, the Supreme Court retrenched a bit from Wickard, by declaring that Bush the First’s Gun Free School Zone Act, which made it a federal crime to have firearms in or near schools was unconstitutional because having firearms in or near school had nothing to do with interstate commerce. Thus Congress lacked authority to regulate it via the commerce clause.
I can see a situation where the Fifth Circuit (which will hear any appeal from Texas’s anticipated lawsuit) might well hold that Lopez applies and thus find for Texas, and essentially dare the federal government to take the case to SCOTUS. That would put the Biden administration in a pickle.
If they do not appeal (or if they do and the court refused to hear it), the decision stands and binds the feds, and thus “Made in Texas” NFA-free suppressors would then become a thing for Texas residents. Louisiana and Mississippi would likely pass similar laws, as those states are also in the Fifth Circuit.
On the other hand, if the administration does appeal, the Supreme Court might very well take a look at reconsidering Wickard entirely. The possibility that Wickard might be overturned — which would open the floodgates to all sorts of challenges to myriad federal laws near and dear to the Biden administration — might not be worth the risk to them.
In other words, the Biden administration may decide it’s better to let Texans have their suppressors than risk a SCOTUS decision that could dismantle much of the post-New Deal administrative state.
But while I can hypothesize such a result, the reality is that it’s far more likely that both the Fifth Circuit and SCOTUS will not be willing to go that far. Recall that similar challenges have been made to marijuana laws — e.g., possession of weed grown by a person for their own consumption, that never crosses state lines, doesn’t involve interstate commerce and thus cannot be proscribed by federal law.
Even with Lopez on the books, the courts have still rejected such arguments and ruled that Wickard applies, and thus the federal laws making marijuana possession illegal are OK. My suspicion is that will be the result here as well.
Again, while I applaud the Texas Legislature and Governor Abbott for HB 957, anyone who thinks it means that they can legally have a non-NFA can in the Lone Star State needs to slow their roll. It might mean that in the future, but for the present — and for the foreseeable future — you still have to comply with the NFA or risk the severe, life-changing consequences of ignoring it.
CAVEAT: While I am a lawyer, I’m not your lawyer, and this article is not legal advice from me, my firm, TTAG, or anyone else. If you have questions about how the law affects you or actions you are contemplating taking, you should consult your own counsel for specific legal advice.