TX AG Files Lawsuit against Federal Power to Tax, Regulate Homemade Silencers

AmmoLand ^ | February 25, 2022 | Dean Weingarten

[marktwain]

On February 24, 2022, Texas Attorney General Ken Paxton filed a suit against Marvin Richardson, acting head of the ATF, challenging the power of the federal government to regulate personally made silencers used for home defense in Texas, which remain in Texas.

The lawsuit follows the predictions made in a previous article on the subject by this correspondent. Here is the press release from Attorney General Paxton: From texasattorneygeneral.gov:

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.

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.

[marktwain]

I believe, with today's Supreme Court, this case has a chance, maybe as much as 50%. The arguments are good. The court needs to cut back on the insane doctrine the Commerce Clause gives the Federal government control over all sales, trade, making, growing, giving and use of all items in the entire country.

The Second Amendment nexus is good. There are court cases which say the taxing power cannot be used to circumvent the protections guaranteed in the Bill of Rights.

[Travis McGee]

I think the SCOTUS will shoot this down. Even the “conservatives.” Unfortunately.

[riverrunner]

We can hope that restoring the original meaning of the commerce clause.

Would go a long way in raining in the over reach of the federal government.

[ptsal]

Bkmk silence and silencers

[Magnatron]

3. There has never been a public-safety justification for the taxation and regulation of firearm suppressors.

This more than anything.

In fact, an argument could be made that suppressors increase safety through the reduction of hearing loss…

[Navy Patriot]

This is a positive, though I have less confidence in US Courts and the US JustUs System.

However, you were right on the Rittenhouse Judge, hope your right again.

Thanks for posting this.

[pierrem15]

The 2nd Amendment argument won't fly. If it does, it's because the registration is too burdensome and the tax too high. If the tax were trivial and collected by the seller, like a sales tax, it would fly.

The real issue is the Commerce Clause: it's overturning Wickard v. Filburn, so any "homemade" item not intended for transfer across state lines is simply not under Congress' authority to regulate.

But that would also apply to firearms themselves.

[nagant]

Backtracking, federal law and federal cops receive their power over contraband, like silencers, from the Constitution’s interstate commerce clause. This means that the federal government has no authority over items which never leave a state.

Go Paxton!

[chaosagent]

But wasn’t there a court case a good while back about agricultural products that said that even if something never left the state it could still be regulated under the Interstate Commerce clause?

[Houserino]

Need to undo all gun laws going back to at least 1934 NFA.

[zeugma]

I would be more impressed if it weren’t an election year.

[marktwain]

But wasn’t there a court case a good while back about agricultural products that said that even if something never left the state it could still be regulated under the Interstate Commerce clause?

There have been several, the last being Raich, which, in my opinion, was a terrible decision.

However, none of the previous decisions had to do with regulating an enumerated right specifically in the Constitution.

[chaosagent]

And exactly when has the government and the courts worried about infringing on the Constitution?

[marktwain]

And exactly when has the government and the courts worried about infringing on the Constitution?

1. Between 1791 and 1833.

2. Partly, from about 1876 to 1932

What we have seen, is they tend to emphasize different parts of the Constitution.

There has been, however, a strong movement to ignore the Constitution almost entirely, since 1932. There was Wilson from 1912 to 1920, who was pretty bad, while Coolidge was outstanding, the Trump of his time.

Since 1932, the Progressive ideology has been dominant and the court has been packed with ideological Progressives, which started to be changed with Reagan.

We have had some (rare) constitutional decisions since then. We have only had a declared majority of Originalists and Textualists on the Court for about a year, since 1932

A raft of important decisions is expected in June.