The Texas Attorney General’s office brought the lawsuit, saying the law violates the Second Amendment.
A federal appeals court recently blocked an attempt by gun owners and the Texas attorney general to allow the approval of a state gun law that deregulates gun silencers in the state. In other words, gun silencers will remain regulated in Texas for the time being.
The Louisiana-based U.S. Appeals Court for the Fifth District on June 21
affirmed a lower court’s decision that dismissed the case for lack of standing, which is a legal term used to describe whether an individual’s complaint can be heard and whether injury can be connected to a defendant’s conduct or a government policy.
In the ruling, the court stated that the plaintiffs in the case were unable to establish whether they suffered injury or were going to.
Under federal law, a person who wants to buy a silencer has to first pay a $200 excise tax, get a permit, register the silencer with the National Firearms Registration and Transfer Record, and mark the silencer with a serial number. But in 2021, the Texas Legislature
approved a law, later signed by Texas Gov. Greg Abbott, that allowed for silencers made in Texas and that remain in Texas to not be subject to federal laws around the devices, among other loosened restrictions.
In 2022, Texas Attorney General Ken Paxton filed a
lawsuit against the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and its former chief before it was dismissed by U.S. District Judge Mark Pittman in July 2023.
According to
his office, the Republican attorney general said the suit was warranted because the federal law about silencers is in violation of the U.S. Constitution’s Second Amendment “by taxing and regulating firearm suppressors made and used in Texas,” noting that “no other constitutional right is subject to payment of a federal tax before an American can exercise that right.”
The lawsuit also contended that Texas is a “sovereign state” and that taxing and regulating the making of firearm suppressors isn’t a valid exercise of power delegated to Washington under either the commerce clause or the necessary and proper clause of the U.S. Constitution.
However, the Fifth Circuit argued in its ruling only that “it is plain that Texas’s asserted quasi-sovereign interest is wholly derivative of the personal Second Amendment interests of its citizens and therefore not a valid quasi-sovereign interest at all.”
It also noted that a state only has legal standing “based on a conflict between federal and state law if the state statute at issue regulates behavior or provides for the administration of a state program, but not if it simply purports to immunize state citizens from federal law.”
The Fifth Circuit’s ruling comes just as the U.S. Supreme Court, in an 8–1 order, upheld a law that prohibits domestic abusers from possessing firearms. Only Justice Clarence Thomas dissented in the case.
“Our tradition of firearm regulation allows the government to disarm individuals who present a credible threat to the physical safety of others,” Chief Justice John Roberts wrote for the majority.
The Texas lawsuit was filed just months before the U.S. high court handed down a landmark ruling that a New York state law that restricted the ability to carry a pistol in public violated the Second Amendment.
ATF Warning
At about the same time the Texas law was passed in 2021, the ATF
warned Texans that federal rules around silencers, known as suppressors, which require a tax stamp and registrations, are still in effect.
“These federal requirements apply regardless of whether the [National Firearms Act] firearm/silencer has crossed state lines. If you have any questions regarding the federal firearms laws and regulations, please contact your local ATF office,” the bureau wrote.
The National Firearms Act, passed in 1934, was the first federal law to regulate firearms used for criminal purposes.
In a separate letter, the ATF
stated that possession of an unregistered silencer or making a transfer of a silencer that doesn’t comply with federal laws are subject to penalties of up to 10 years in prison, a fine of $250,000, or both.
In 2023, a Florida man received a two-year sentence in federal prison for “conspiring to possess and transfer unregistered firearm silencers,” the Department of Justice
said in a statement. The defendant, who pleaded guilty, had operated a company that manufactured and sold firearm silencers over the internet and, according to the DOJ, used “lightly coded language” to disguise the devices when they were sold.
