In accordance with a new state law, Texas Attorney General Ken Paxton sued the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in an effort to stop the federal government from regulating silencers that are made in Texas.
“Federal laws and regulations which tax and regulate the making of firearm suppressors in Texas for personal use in Texas impinge upon a right protected by the Second Amendment,” the lawsuit reads.
The state law, House Bill (HB) 957 by Rep. Tom Oliverson (R-Cypress), attempts to exempt Texas-made suppressors from federal regulation. Ever since gangland crimes like the St. Valentine’s Day Massacre spurred Congress to pass the National Firearms Act (NFA) in 1934, citizens have had to pay the ATF $200 for a tax stamp to purchase suppressors. Federal regulations also require suppressors to be registered in a national registry. Manufacturers must have a license with the ATF to make suppressors, and even individuals that want to make suppressors for personal use must pay the tax stamp and get advance approval from the ATF.
HB 957 says these regulations do not apply to suppressors made in Texas. It also forbids state and local police from enforcing federal suppressor regulations. However, to keep regular citizens out of trouble with the ATF, it first directs the Texas attorney general to seek a declaration from a federal court that HB 957 is constitutional on behalf of a Texan looking to manufacture a Texas-made suppressor.
The ATF warned licensees in Texas that it would still enforce federal law even after the passage of HB 957.
After months passed with no action from Paxton, most suppressor companies in Texas remained dubious that HB 957 would actually work. Because the companies risk losing their licenses for violating the NFA, one owner suggested that an individual might be better suited to contact Paxton and challenge the law.
Paxton filed his lawsuit on behalf of three Texans who told him they intend to make suppressors for personal use that will remain in Texas. The citizens say suppressors would enable them to defend their homes without earplugs, allowing greater alertness without the risk of hearing damage. Oliverson, a medical doctor, presented similar arguments when laying out the bill on the floor of the Texas House.
In the brief, Paxton argues that the federal government has no compelling interest in suppressor regulation that could outweigh the Second Amendment and supporting precedent like D.C. v. Heller.
Specifically, Paxton claims the $200 tax stamp does not generate revenue — failing even to pay the cost of collecting the tax itself — and that suppressors pose no obvious criminal danger, as opposed to items like grenades.
“The government cannot demonstrate that taxation and regulation of firearm suppressors (unlike dangerous items like hand grenades) is necessary for public health and safety,” the lawsuit reads.
“The government cannot point to any harm that taxing and regulating firearm suppressors alleviates.”
Calling the inclusion of suppressors in the NFA “merely a historical accident,” Paxton notes that Congress landed on the $200 price tag since that was the average cost of a machine gun at the time. Additionally, the NFA definition of “firearm” excludes most guns, such as common long shotguns or rifles, but includes suppressors and their component parts if their owners intend to use them to build suppressors.
“Thus, a metal pipe is a ‘firearm’ subject to taxation and regulation under the National Firearms Act of 1934 if the owner of the metal pipe intends to incorporate it into a firearm suppressor. Other metal pipes are not defined as ‘firearms’ in the statute,” Paxton notes.
Other NFA firearms include short shotguns and rifles, machine guns, and grenades, making suppressors the only gun accessory in the law.
Paxton is seeking two permanent injunctions. One would stop the ATF from assessing the tax stamp. The other would stop the ATF from enforcing federal gun regulations that impose duties besides taxes on the making of suppressors in Texas for personal use in Texas.
More broadly, he also seeks a declaration that federal regulation on suppressors is not a valid exercise of power.
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