New Law in Texas Deregulates Firearm Suppressors - Fight for Gun Rights!

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[HoughMade]

Intro to Con. Law:

A state can choose not to enforce federal law. It can choose not to participate in enforcement of federal law. It can refuse to cooperate with federal law enforcement. It can refuse to give federal law enforcement information.

A state cannot cancel, preempt or invalidate federal law.

A primer on "general police powers":

The federal government does not have "general police powers" (which have little to do with police). Think of it this way. A state can make any law with only a few exceptions. A state's "general police powers" are limited only by the federal Constitution (and laws made in conformance therewith), it's own constitution, its own statutes or or its own common law.

The federal government, however, only has the power to make the laws that the Constitution says it can make. See the difference?

State: power to make any law with a few exceptions.

Federal: Power only to make laws that the Constitution says it can.

So now, the "Interstate Commerce Clause":

The most used and abused power given to Congress is the power to "regulate commerce among the several states". This is the "Interstate Commerce Clause". Congress asserts the power to regulate anything that moves, may move, may have moved or may, in any way affect, "Interstate Commerce". You can see how broad that can get. As an example, way back when, in Wickard v. Filburn, a regulation which was applied to limit the wheat grown by a farmer for use on his own farm was found to be constitutional because the potential aggregate affect of many farmers growing wheat for their own use could affect the general wheat market and therefore affect interstate commerce. No law based upon the "Interstate Commerce Clause" was struck down as exceeding Congress' authority from 1937 to 1995. In 1995, and this was big news the year I started law school, U.S. v. Lopez was decided which held unconstitutional portions of the "Gun Free School Zone Act" as exceeding the reach of the "Interstate Commerce Clause".

Finally, the Texas Suppressor Law:

It appears that Texas has passed a law to set up a situation which will test whether a suppressor completely manufactured, owned and used in Texas is subject to federal law. The NFA was passed under the authority of the "Interstate Commerce Clause". Therefore, if Texas can get a ruling from a federal judge that a completely in-state (intrastate) suppressor is not subject to a law passed under the interstate commerce clause, then suppressors would be legal in Texas.

But be careful, that is what the design of this law is. It is designed to set up a test case (or several). It is not designed to simply allow everyone and their brother to, instantly, start making their own suppressors...though due to bad reporting and rampant ignorance, I am sure many will.

To be clear, Texas can set up a situation where it does not believe that an "intrastate" suppressor would be subject to the "Interstate Commerce Clause". Texas does not get to decide whether a given suppressor is not subject to a law passed under the "Interstate Commerce Clause". That is a matter for the federal courts.

 

[HoughMade]

Out of curiosity, I took a look at Indiana law. I did not find any Indiana statute that made a suppressor illegal in and of itself. It appears that the possession of a suppressor can be and enhancement as to crimes involving poaching or possessing a firearm while dealing a controlled substance, but I saw nothing else about suppressors. I didn't take a deep dive, so there may be something, but I doubt it at this point.

Federal law, however, still applies.

 

[Timjoebillybob]

As an example, way back when, in Wickard v. Filburn, a regulation which was applied to limit the wheat grown by a farmer for use on his own farm was found to be constitutional because the potential aggregate affect of many farmers growing wheat for their own use could affect the general wheat market and therefore affect interstate commerce.

Finally, the Texas Suppressor Law:

It appears that Texas has passed a law to set up a situation which will test whether a suppressor completely manufactured, owned and used in Texas is subject to federal law. The NFA was passed under the authority of the "Interstate Commerce Clause". Therefore, if Texas can get a ruling from a federal judge that a completely in-state (intrastate) suppressor is not subject to a law passed under the interstate commerce clause, then suppressors would be legal in Texas.

But be careful, that is what the design of this law is. It is designed to set up a test case (or several). It is not designed to simply allow everyone and their brother to, instantly, start making their own suppressors...though due to bad reporting and rampant ignorance, I am sure many will.

To be clear, Texas can set up a situation where it does not believe that an "intrastate" suppressor would be subject to the "Interstate Commerce Clause". Texas does not get to decide whether a given suppressor is not subject to a law passed under the "Interstate Commerce Clause". That is a matter for the federal courts.

Wickard v Filburn is IMO high up the list of worst decisions by SCOTUS. IIRC it was the turning point for using the interstate commerce clause.

That test case happened in another circuit, the results weren't good. I don't believe it was heard by the 10th circuit court of appeals though. He filed a writ to proceed as a pauper and it was turned down.

Kansas man's homemade gun silencers clash with federal law

WICHITA, Kan. (AP) — When Shane Cox began selling his homemade firearms and silencers out of his military surplus store, he stamped "Made in Kansas" on them to assure buyers that a Kansas law would prevent federal prosecution of anyone owning firearms made, sold and kept in the state. The...

apnews.com

 

[KLB]

Wickard v Filburn is IMO high up the list of worst decisions by SCOTUS. IIRC it was the turning point for using the interstate commerce clause.

That test case happened in another circuit, the results weren't good. I don't believe it was heard by the 10th circuit court of appeals though. He filed a writ to proceed as a pauper and it was turned down.

Kansas man's homemade gun silencers clash with federal law

WICHITA, Kan. (AP) — When Shane Cox began selling his homemade firearms and silencers out of his military surplus store, he stamped "Made in Kansas" on them to assure buyers that a Kansas law would prevent federal prosecution of anyone owning firearms made, sold and kept in the state. The...

apnews.com

That wasn't even the first. Montana started it all as far as I know in 2009. I guess they can keep trying in different courts, hoping to find one that will side with the state over the fed. Then maybe the USSC would take the case.

Montana Firearms Freedom Act - Wikipedia

en.wikipedia.org

 

[Alamo]

.... He filed a writ to proceed as a pauper and it was turned down.

This is the reason for the Texas law. The law puts the resources of the State Attorney General into pushing a case forward.

 

[bwframe]

Why in the hell aren't we doing this?

If states are doing similar stuff with "legalizing" pot, then we should certainly be doing the same as Texas to start the precedence to "legalize" suppressors.

Jeez, Indy radio station WIBC is running advertisements for crossing into the Ilini border to "legally" buy pot.

 

[wtburnette]

I can't remember which, but there's another state besides Texas and Montana where they've designated suppressors built, bought and used in the state as legal. Keeping my fingers crossed that one of them wins their case to better protect those rights for us all.

 

[KLB]

I can't remember which, but there's another state besides Texas and Montana where they've designated suppressors built, bought and used in the state as legal. Keeping my fingers crossed that one of them wins their case to better protect those rights for us all.

From the Wiki I posted. Obviously Texas needs to move from the tried to the passed group.

Similar laws were subsequently passed in Alaska, Arizona, Idaho, South Dakota, Utah, Tennessee, Kansas, and Wyoming.[5] Attempts to do so have also been made in Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Hampshire, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, West Virginia and Washington.[4]

 

[HoughMade]

Why in the hell aren't we doing this?

If states are doing similar stuff with "legalizing" pot, then we should certainly be doing the same as Texas to start the precedence to "legalize" suppressors.

Jeez, Indy radio station WIBC is running advertisements for crossing into the Ilini border to "legally" buy pot.

Indiana has no laws against manufacturing or possessing a suppressor, except during the commission of certain crimes.

Want to take on the feds? Go for it.

Pot "legalization" is a thing because the feds don't want to enforce the pot laws where states have removed criminality. Think that is the case for suppressors?

 

[Timjoebillybob]

This is the reason for the Texas law. The law puts the resources of the State Attorney General into pushing a case forward.

I was partially wrong, they denied cert for that but did hear the case.

Opinions | Tenth Circuit | The United States Court of Appeals

www.ca10.uscourts.gov

Unfortunately both guys are felons, fortunatly for them they weren't sentenced to actually do time just parole.

Want to take on the feds? Go for it.

Pot "legalization" is a thing because the feds don't want to enforce the pot laws where states have removed criminality. Think that is the case for suppressors?

Beat me to it.

 

[HoughMade]

This is the reason for the Texas law. The law puts the resources of the State Attorney General into pushing a case forward.

Exactly. It forces the issue with ample resources to litigate.

 

[bwframe]

Indiana has no laws against manufacturing or possessing a suppressor, except during the commission of certain crimes.

Want to take on the feds? Go for it.

Pot "legalization" is a thing because the feds don't want to enforce the pot laws where states have removed criminality. Think that is the case for suppressors?

Yes please!

Let us get this on the agenda for next session.

 

[Jaybird1980]

Yes please!

Let us get this on the agenda for next session.

We can't even get Constitutional Carry through without it getting killed behind closed doors, no chance of this happening.

 

[WebSnyper]

If a state gets a judgment to allow this couldn't that same state just decide to impose some kind of its own NFA like tax and just take the $$ it's citizens were paying to the feds for itself? Not saying that's the motivation, but could be.

All that said I have no idea how much NFA money the residents of any particular state pay in an given year.

As some here on INGO have stated, follow the $.

 

[bwframe]

We can't even get Constitutional Carry through without it getting killed behind closed doors, no chance of this happening.

Three things to consider here, my friend.

Constitutional carry will eventually happen here as more free states pass it. Sadly, we have never had good messaging or solid answers as to why we need it here, over what we already have. (Personally, I think we should have started with legalizing suppressors years ago as opposed to the failed Constitutional Carry effort.)

"Legalizing" suppressors is a safety issue.

We need to make "legalizing" suppressors the narrative to eventually make it common enough talk to be adopted.

We can hold people accountable on silencers or no silencers. There is no grey area on suppressors, as the squishes claim there is in constitutional carry.

Never know, we might actually get our together enough to kick some RINOs out and get some real conservatives in? Real republican conservatives who actually believe in and support the 2A?

I won't even start into the MOST OBVIOUS issue on this subject, as it is painfully obvious, right up to states that surround us.

 

[KLB]

If a state gets a judgment to allow this couldn't that same state just decide to impose some kind of its own NFA like tax and just take the $$ it's citizens were paying to the feds for itself? Not saying that's the motivation, but could be.

All that said I have no idea how much NFA money the residents of any particular state pay in an given year.

As some here on INGO have stated, follow the $.

I don't know why they wouldn't be able to do that already if they so desired.

 

[HoughMade]

Yes please!

Let us get this on the agenda for next session.

I mean...you want a law stating that something that is not illegal under Indiana law...is not illegal under Indiana law?

Or you want a law forcing the AG to litigate the issue. Don't look now, but I think this AG would do it without a law.

 

[bwframe]

I mean...you want a law stating that something that is not illegal under Indiana law...is not illegal under Indiana law?

Or you want a law forcing the AG to litigate the issue. Don't look now, but I think this AG would do it without a law.

As always, thank you for your professional opinion!

Yes, we need to bring this to light. The same as Texas.

It's working with pot across the nation. It can work with suppressors in Texas and here.

If the stoners can get this done, why can't gun owners?

 

[Kirk Freeman]

Out of curiosity, I took a look at Indiana law. I did not find any Indiana statute that made a suppressor illegal in and of itself. It appears that the possession of a suppressor can be and enhancement as to crimes involving poaching or possessing a firearm while dealing a controlled substance, but I saw nothing else about suppressors. I didn't take a deep dive, so there may be something, but I doubt it at this point.

Federal law, however, still applies.

This is correct.