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

[GodFearinGunTotin]

I proposed it 30 years ago in GUNS Magazine. May have been bills proposed since then.

The silly magic state games are feckless Boston T. Party nonsense. We need to do serious work so when the political opportunity presents itself we can strike instead of dithering with the usual 5 year old birthday party nonsense that transpires, "I want a pony" "I want a rocket ship" "I want a gold house".

I presented a bill on suppressor removal from NFA with federal preemption and a plan to NRA in Pittsburgh at the cocktail hour after the CLE on Friday with NRA brass hats. They laughed and told me it could not happen, Obama this, Obama that.

"Yes, right now, but the worm will turn and we need to be ready." They laughed some more.

A problem solved is a campaign issue (or with the NRA, a fund raising issue) lost.

 

[Timjoebillybob]

I proposed it 30 years ago in GUNS Magazine. May have been bills proposed since then.

The silly magic state games are feckless Boston T. Party nonsense. We need to do serious work so when the political opportunity presents itself we can strike instead of dithering with the usual 5 year old birthday party nonsense that transpires, "I want a pony" "I want a rocket ship" "I want a gold house".

I presented a bill on suppressor removal from NFA with federal preemption and a plan to NRA in Pittsburgh at the cocktail hour after the CLE on Friday with NRA brass hats. They laughed and told me it could not happen, Obama this, Obama that.

"Yes, right now, but the worm will turn and we need to be ready." They laughed some more.

Removal from the NFA would be grand, but even excluding Obama said what recent President would sign that? Donald "I don't like them" Trump?

What you call silly state games, I call attempts to drive the fed back to being able to being able to be drowned in a bathtub.

Honestly I want a case like this to succeed not just for suppresors, but for a sea change in the fed. IMO suppressors are at the moment one of the best vehicles to beat back wickard v filburn.

Heck, next thing you know I might be able to grow tomatoes in my backyard without worrying about the BATF. The ureau of alcohol, tomatoes, and firearms.

 

[jwamplerusa]

Honestly I want a case like this to succeed not just for suppresors, but for a sea change in the fed. IMO suppressors are at the moment one of the best vehicles to beat back wickard v filburn.

^^^^ this!

"We" had an opportunity to deregulate came with the Hearing Protection Act in 2017 - 2019, and the uniparty would not act on it. Pay attention when they show you their stripes.

 

[HoughMade]

Wasn't this an attempt to add another exemption to the NFA?

No. It is Texas doing its own thing. An exception to the NFA would be getting the law amended or abolished, or challenging it in federal court on some basis. This is a case where Texas made its own law and is seeing if that passes muster.

(hold on for a "standing" discussion after my broader interstate commerce clause lecture).

It is an interesting argument that suppressors made and sold in Texas which stay in Texas are not in interstate commerce. Without the interstate commerce clause precedent that we have, it would be a great argument....but we don't live in fantasyland.

Swift and Company v. United States, 1905- the Supreme Court held that Congress had the authority to regulate local commerce, as long as that activity could become part of a continuous “current” of commerce that involved the interstate movement of goods and services.

NLRB v. Jones & Laughlin Steel Corp, 1937- the Supreme Court held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce.

Wickard v. Filburn, 1942- Congress could use its Commerce Power to regulate activities with only a minimal impact on commerce, when the the aggregated effect of many people doing what an individual within a single state did could exert a substantial economic effect on interstate commerce.

[But see, U.S. v. Lopez, 1995].

Given cases like these, it's pretty easy to see how an argument can be made that suppressors manufactured in Texas, staying in Texas and only used in Texas could have an affect on interstate commerce in that there are regulated suppressors that move in interstate commerce and completely intrastate suppressors will affect the market for the interstate suppressors. Is the effect "substantial"- we haven't gotten to that.

Do I believe the interstate commerce clause is interpreted overbroadly? Absolutely...but this is where we are at. Side lesson- never underestimate the power of a national crisis- 1937- depression, 1942- WWII. They lead to all kinds of abuses of the Constitution. So, the argument in favor of Texas would involve taking down over 100 years of precedent in numerous cases...that has been done, but rarely. Could it be done here? Yes....but you need the right case and the right court.

This brings us to standing. Article III of the Constitution has a requirement for cases that many states do not- federal court jurisdiction extends to "cases" and "controversies" (See Art. III, Sec. 2). What this has been interpreted to mean (among other things) is that federal courts cannot decide hypothetical cases. They cannot give opinions about how they believe the law would be applied in a certain situation. There has to be a real "case" or "Controversy" where there are real parties either in present legal jeopardy of some sort or where there is a present dispute over actions or incidents that have already occurred which need to be resolved.

Generally speaking (there's a lot more to it) if a person is not in present legal jeopardy or there is not a real, present legal dispute, there is no standing for that person to have a federal court decide a matter. In this case, no one actually broke the federal law they were challenging. Beyond that, the 5th Circuit stated that their affidavits (declarations) did not state an intent to break federal law. This seem like hair splitting, but seems calculated to me. In other words, it seems like a deliberate choice to not say that. Expressing an intent to break a law is not in itself illegal, but it's pretty good evidence of intent if you get prosecuted. There's no "I thought what I was doing was legal defense" which, old cliché's notwithstanding can affect the outcome of a criminal case.

As for the State of Texas, it was found to not have standing either...for more ethereal reasons....but applying precedent.

So- how does one obtain standing to challenge the feds enforcing the NFA to intra-state Texas suppressors? More specific affidavits, I guess....but maybe not even that will work. Make a suppressor and find out what the ATF or federal prosecutor does....and if they come after you, then you will definitely have standing.

 

[Timjoebillybob]

No. It is Texas doing its own thing. An exception to the NFA would be getting the law amended or abolished, or challenging it in federal court on some basis. This is a case where Texas made its own law and is seeing if that passes muster.

(hold on for a "standing" discussion after my broader interstate commerce clause lecture).

It is an interesting argument that suppressors made and sold in Texas which stay in Texas are not in interstate commerce. Without the interstate commerce clause precedent that we have, it would be a great argument....but we don't live in fantasyland.

Swift and Company v. United States, 1905- the Supreme Court held that Congress had the authority to regulate local commerce, as long as that activity could become part of a continuous “current” of commerce that involved the interstate movement of goods and services.

NLRB v. Jones & Laughlin Steel Corp, 1937- the Supreme Court held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce.

Wickard v. Filburn, 1942- Congress could use its Commerce Power to regulate activities with only a minimal impact on commerce, when the the aggregated effect of many people doing what an individual within a single state did could exert a substantial economic effect on interstate commerce.

[But see, U.S. v. Lopez, 1995].

Given cases like these, it's pretty easy to see how an argument can be made that suppressors manufactured in Texas, staying in Texas and only used in Texas could have an affect on interstate commerce in that there are regulated suppressors that move in interstate commerce and completely intrastate suppressors will affect the market for the interstate suppressors. Is the effect "substantial"- we haven't gotten to that.

Do I believe the interstate commerce clause is interpreted overbroadly? Absolutely...but this is where we are at. Side lesson- never underestimate the power of a national crisis- 1937- depression, 1942- WWII. They lead to all kinds of abuses of the Constitution. So, the argument in favor of Texas would involve taking down over 100 years of precedent in numerous cases...that has been done, but rarely. Could it be done here? Yes....but you need the right case and the right court.

This brings us to standing. Article III of the Constitution has a requirement for cases that many states do not- federal court jurisdiction extends to "cases" and "controversies" (See Art. III, Sec. 2). What this has been interpreted to mean (among other things) is that federal courts cannot decide hypothetical cases. They cannot give opinions about how they believe the law would be applied in a certain situation. There has to be a real "case" or "Controversy" where there are real parties either in present legal jeopardy of some sort or where there is a present dispute over actions or incidents that have already occurred which need to be resolved.

Generally speaking (there's a lot more to it) if a person is not in present legal jeopardy or there is not a real, present legal dispute, there is no standing for that person to have a federal court decide a matter. In this case, no one actually broke the federal law they were challenging. Beyond that, the 5th Circuit stated that their affidavits (declarations) did not state an intent to break federal law. This seem like hair splitting, but seems calculated to me. In other words, it seems like a deliberate choice to not say that. Expressing an intent to break a law is not in itself illegal, but it's pretty good evidence of intent if you get prosecuted. There's no "I thought what I was doing was legal defense" which, old cliché's notwithstanding can affect the outcome of a criminal case.

As for the State of Texas, it was found to not have standing either...for more ethereal reasons....but applying precedent.

So- how does one obtain standing to challenge the feds enforcing the NFA to intra-state Texas suppressors? More specific affidavits, I guess....but maybe not even that will work. Make a suppressor and find out what the ATF or federal prosecutor does....and if they come after you, then you will definitely have standing.

Thank you much for breaking it down. I do have to disagree with one thing, and that would be that this is just Texas doing its own thing. IMO it was an attempt to bring a federal suit. Again IMO this is the best court we can expect to overturn the current precedent. Now just need the right case.

 

[jwamplerusa]

No. It is Texas doing its own thing. An exception to the NFA would be getting the law amended or abolished, or challenging it in federal court on some basis. This is a case where Texas made its own law and is seeing if that passes muster.

(hold on for a "standing" discussion after my broader interstate commerce clause lecture).

It is an interesting argument that suppressors made and sold in Texas which stay in Texas are not in interstate commerce. Without the interstate commerce clause precedent that we have, it would be a great argument....but we don't live in fantasyland.

Swift and Company v. United States, 1905- the Supreme Court held that Congress had the authority to regulate local commerce, as long as that activity could become part of a continuous “current” of commerce that involved the interstate movement of goods and services.

NLRB v. Jones & Laughlin Steel Corp, 1937- the Supreme Court held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce.

Wickard v. Filburn, 1942- Congress could use its Commerce Power to regulate activities with only a minimal impact on commerce, when the the aggregated effect of many people doing what an individual within a single state did could exert a substantial economic effect on interstate commerce.

[But see, U.S. v. Lopez, 1995].

Given cases like these, it's pretty easy to see how an argument can be made that suppressors manufactured in Texas, staying in Texas and only used in Texas could have an affect on interstate commerce in that there are regulated suppressors that move in interstate commerce and completely intrastate suppressors will affect the market for the interstate suppressors. Is the effect "substantial"- we haven't gotten to that.

Do I believe the interstate commerce clause is interpreted overbroadly? Absolutely...but this is where we are at. Side lesson- never underestimate the power of a national crisis- 1937- depression, 1942- WWII. They lead to all kinds of abuses of the Constitution. So, the argument in favor of Texas would involve taking down over 100 years of precedent in numerous cases...that has been done, but rarely. Could it be done here? Yes....but you need the right case and the right court.

This brings us to standing. Article III of the Constitution has a requirement for cases that many states do not- federal court jurisdiction extends to "cases" and "controversies" (See Art. III, Sec. 2). What this has been interpreted to mean (among other things) is that federal courts cannot decide hypothetical cases. They cannot give opinions about how they believe the law would be applied in a certain situation. There has to be a real "case" or "Controversy" where there are real parties either in present legal jeopardy of some sort or where there is a present dispute over actions or incidents that have already occurred which need to be resolved.

Generally speaking (there's a lot more to it) if a person is not in present legal jeopardy or there is not a real, present legal dispute, there is no standing for that person to have a federal court decide a matter. In this case, no one actually broke the federal law they were challenging. Beyond that, the 5th Circuit stated that their affidavits (declarations) did not state an intent to break federal law. This seem like hair splitting, but seems calculated to me. In other words, it seems like a deliberate choice to not say that. Expressing an intent to break a law is not in itself illegal, but it's pretty good evidence of intent if you get prosecuted. There's no "I thought what I was doing was legal defense" which, old cliché's notwithstanding can affect the outcome of a criminal case.

As for the State of Texas, it was found to not have standing either...for more ethereal reasons....but applying precedent.

So- how does one obtain standing to challenge the feds enforcing the NFA to intra-state Texas suppressors? More specific affidavits, I guess....but maybe not even that will work. Make a suppressor and find out what the ATF or federal prosecutor does....and if they come after you, then you will definitely have standing.

@HoughMade

Your legal background on this issue is appreciated. I, like many, find the current commerce clause precedents to be offensive. Especially in light of a court which has ruled for text history and tradition for the second amendment.

For the first time in at least 100 years there is a non-left court. Or at least one which was not cowed into submission by the post '29 administrations.

That makes now the best opportunity to correct many wrongs over the last 100 years. I would place the commerce clause in its current interpretation in that box.

Justice Joseph Story's commentaries on the Constitution had this to say about the commerce clause (§514). "The next words are "among the several The word "among" means intermingled states." with a thing, which is among others, is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single state, or between different parts of the same state, and not extending to, or affecting other states. Commerce among the states means, commerce, which concerns more states than one. It is not an apt phrase to indicate the mere interior traffic of a single state. The completely internal commerce of a state may be properly considered, as reserved to the state itself."

A return to text, history, and tradition for the commerce clause is long overdue. Such a correction would also aid in removing the thumb of the federal government from the scale and direction of private industry.

 

[Alamo]

When is the last time a bill passed in Congress “riddling” the NFA with exceptions? Even one exception? When is the last time a bill passed in Congress was actually a forward movement for the 2A, not a frantic battle to put mayo on a **** sandwich?

All the progress is happening in the courts, not with some wishlist standing by for a sunny day. We can always hope that November selection changes this but frankly, even if the Republicans take both houses and the presidency, tinkering with the 2A laws is not going to be at the top of anybody’s list. Nor should it be, actually. There are much bigger problems that subsume the 2A struggle, and if you fix a couple of those the two 2A benefit greatly. Like pruning back gummint power in general and cutting/gutting bureaucracy.

In the meantime, these guys in Texas need to re-file the lawsuit with an approved application for a suppressor made entirely in Texas as an attachment.

The trial court judge noted that if the suppressor tax process is unconstitutional, then you suffer an injury simply by following the law, and that would give you standing. He seemed at least open to the idea that the law itself is unconstitutional exercise of federal power.

 

[KLB]

Do I believe the interstate commerce clause is interpreted overbroadly? Absolutely...but this is where we are at. Side lesson- never underestimate the power of a national crisis- 1937- depression, 1942- WWII. They lead to all kinds of abuses of the Constitution. So, the argument in favor of Texas would involve taking down over 100 years of precedent in numerous cases...that has been done, but rarely. Could it be done here? Yes....but you need the right case and the right court.

I wonder if this court would be willing to take up cases on this subject. An originalist interpretation of that Clause should definitely be an improvement over where it stands today, I cannot imagine the founders saw it as a catch all to allow the Fed to pretty much do anything they wanted.

 

[phylodog]

I haven't read through the entire thread, just the first handful of posts so apologies if this has been stated already. I'm full aware of and understand states not being allowed to go against federal law. I believe we're up to 37 now that are doing just that in regards to medical cannabis.

This may not be the "proper" way to get things changed but when the federal government completely ignores the will of the people this seems to be the only way to get what the people want established. I fully support and applaud Texas in this and sincerely hope this grows legs like cannabis has and we begin seeing other states follow suit. I know Indiana won't until federal law changes but that's a different topic.