Court denies Paxton's 2nd Amendment claim

Texas Attorney General Ken PaxtonPhoto byState of Texas

As part of the 1968 Gun Control Act, the United States Congress declared silencers, also known as "suppressors," to be a definition of "firearm." This declaration and enactment gave the federal government control over silencers alongside other firearm devices.

This law also requires that silencers incur a $200 excise tax and that any desire to manufacture of a silencer be registered with the federal government through an application to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Silencers, if approved for manufacture, must then be assigned and stamped with a serial number which would further be registered into the National Firearms Registration and Transfer Record.

Concerned about the 2nd Amendment rights of its citizens to bear firearms of their own making, the State of Texas passed a law in 2021 stating that "(a) firearm suppressor that is manufactured in (Texas) and remains in (Texas) is not subject to federal law or regulation." The state law was also enacted as it was believed that a proposed new federal regulation would redefine a "dealer" to include "hundreds of thousands of Americans" who are not engaged in the business of selling firearms. If the rule was to be adopted, then those who had manufactured items such as suppressors or silencers for their personal use would become felons overnight.

Fusion Series SuppressorPhoto byStealth Project

Circumstances that are not directly delegated to the federal government or prohibited from state control by the U.S. Constitution thereby become the responsibility of the individual states to legislate under the 10th Amendment. In many cases, the U.S. Congress will enact laws based on the Commerce Clause of the Constitution to exhibit the delegation of authority for legislation.

The Commerce Clause has often come under scrutiny by the states as opponents of Congress's use of the Clause in this manner claim it undermines the spirit of the Clause. They claim that the Clause is intended to ensure that trade over state lines is handled fairly and equally, and that trade wholly within a state is exempt from the Clause.

When the rule was published in the Federal Register on April 19, 2024, it essentially became law and would become effective on May 20, 2024. In an attempt to clarify the scope of the new regulation and to potentially spread the protections of the Texas law to others in the United States, Texas Attorney General Ken Paxton, joined by other states' Attorneys General and several private organizations and citizens, filed suit against ATF, the Department of Justice (DOJ), U.S. Attorney General Merrick Garland, and ATF Director Steven Dettlebach in the Fifth District Court. The suit sought to stop ATF and DOJ from enforcing the new regulation at least until a final determination could be made by the Court as to the legality and constitutionality of the new regulation.

Without discussing the 2nd Amendment claims made in the filing, the Court ruled that the plaintiffs did not have standing to bring the suit as there had been no injury suffered.

Joined by three individuals - David Schnitz, Tracy Martin, and Floice Allen - Paxton filed an appeal with the Fifth Circuit Appeals Court. In an opinion filed on June 21, 2024, the Appeals Court affirmed the lower court's decision that the plaintiffs had no standing to bring the case.

F. Edward Hebert Building, New Orleans, LAPhoto byUnited States Court of Appeals for the Fifth Circuit

With the dismissal of the case at the Appeals Court level, the rule remains intact as 27 CFR 478. Even if doing so solely for personal and private use, those manufacturing or possessing suppressors or silencers without having paid the excise tax or registering the device with ATF are subject to felony charges. This will remain in effect unless the matter is appealed further to the U.S. Supreme Court and the Court accepts the case for review.