In a case challenging facets of both the 1968 Gun Control Act and the nefarious 1934 National Firearms Act that was its godfather, Texas Attorney General Ken Paxton and his team May 1 presented before a panel of the Fifth Circuit Federal Court their arguments against federal mandates to make residents get ATF permission to make homemade silencers, and then pay taxes on them when constructed.
At first blush, this looks like a positive sign. But rights supporters critiquing the Paxton argument might want to hold their full applause.
At the center of the battle are three Texas residents who want to make their own suppressors for personal use without having to register them with the feds and without having to pay a federally mandated $200 “tax.”
The case is called Paxton v Dettelbach, and as Bob Adelman reports for The New American:
“The question before the panel is whether a Texan (three of whom are named as plaintiffs in the suit) must first apply for permission from the ATF to build, in his own garage, using his own materials, a suppressor, which he intends only for his own personal use. Must he not only make an application, but pay the $200 fee required under the NFA?”
Of course, those Texas residents and the state are confronted by a host of federal “regulatory” agents and politically-appointed judges, which are barriers to what should be a clear answer in favor of natural rights and the Second Amendment.
Because Texas legislators could see a potential conflict between the gun rights of residents interested in engaging in this home-based craft and the ATF mandates, they passed a statute explicitly backing the right.
“In 2021, Texas adopted a law declaring that ‘a firearm suppressor that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration.’”
And this has kicked off a battle between the Texas government, on behalf of the residents, and the feds, including bureaucrats at the ATF and federal judges at the district and appellate court levels.
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Dean Weingarten, of Ammoland, has more:
“On February 24, 2022, Ken Paxton, the Texas Attorney General, filed suit against the acting head of the ATF, then Marvin Richardson. The lawsuit was required by Texas law. HB 957 became law in Texas on September 1, 2021. On July 15, 2022, Paxton, acting for the State of Texas, amended the lawsuit to include arguments mandated by the Supreme Court ruling in the Bruen case, published on June 22, 2022. On July 18, 2023, Judge Pittman of the District Court dismissed the case with the claim the State of Texas had no standing.”
Observers thus are drawn to focus on two salient legal points, the first being the two-level Supreme Court “Bruen” standard, which requires all “gun-regulating” political units to explain how such infringements comport with the actual wording of the Second Amendment, and to site how their new action would be in any way similar to a previous historical example of a US-based infringement on the right.
While it has been heralded by some pro-rights Americans as a bulwark against government attacking the right to keep and bear arms, the 2022 SCOTUS “Bruen Standard” contains inherent contradictions, such as the very idea that it’s acceptable for government to infringe on the right that the Second Amendment explicitly says shall not be infringed. Citing prior historical examples of government infringements is absurd and negates the first level of the “Bruen Standard” which is to abide by the ACTUAL WORDING OF THE AMENDMENT.
The second legal issue is the matter of so-called “standing,” and, on that point, the Paxton AG’s office argued to the Fifth Circuit:
“Before a Texan may make a firearm suppressor for non-commercial, personal use in Texas, the National Firearms Act of 1934 (‘NFA’), as amended, requires him or her to apply for permission from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (‘BATFE’) and pay a $200 tax (refunded if permission is denied). If permission is granted, the firearm suppressor still cannot be made unless it has a serial number, and the firearm suppressor is registered in a national database. This case warrants oral argument because it raises issues of exceptional constitutional importance: Do Texans have standing to challenge the constitutionality of those statutory requirements before applying for permission and paying the tax, and does Texas also have standing to vindicate its quasi-sovereign interests in its citizens’ health and safety?”
Indeed, the ATF convinced the District Court that the plaintiffs did not have “standing” because they had not been fined or targeted for federal prosecution. Only after such ATF actions, argued the feds, could plaintiffs respond. This places peacefully-minded Texas residents – and all Americans – under the constant pressure of the feds, and can induce many to avoid engaging in their God-given right to self-defense, even to the point of avoiding the hobby of gunsmithing.
Wrote the Paxton team in its October appeal:
“In other words, the district court held that the Individual Plaintiffs could not challenge the NFA requirements unless they broke the law or had already been targeted for potential prosecution. Because the Constitution does not put plaintiffs [in a position of having to make] such a zero-sum choice, the district court erred.”
And in the Fifth Circuit, Paxton also is arguing that the state of Texas, itself, also has standing, due to the statute passed there in 2021.
Writes Weingarten:
“The question is, does Texas have an interest in protecting the constitutional freedoms of its citizens? Does Texas have an interest in challenging federal restrictions on the State’s application of law passed by the State of Texas? Do individual citizens who are required to pay federal taxes and who must undergo a lengthy process to exercise their right to arms, have a concrete injury which can be brought before the courts?”
If the three-judge panel says “yes,” the case against the ATF and the 1968 and 1934 federal gun statutes applying to homemade gun suppressors can proceed.
Beyond the issue of standing, ATF argues that the federal statutes supersede state statutes. But the 1934 and 1968 federal statutes are blatant infringements of the right to keep and bear arms.
Because politicians at the time at least acknowledged that they could not directly breach the Second Amendment, they framed the 1934 National Firearms Act as a “tax” that would be so high it would make the purchase of short-barreled shotguns and machine guns prohibitively expensive.
They thought they had skirted the Second Amendment.
But that tax, itself, is an infringement of the right. Use of simple logic reveals that any government requirement to pay a “tax” in order to engage in exercising a right is an a-priori infringement, period.
And in 1968, the Gun Control Act made things worse, requiring, among many things, “permission slips” like licenses for interstate sale of guns and suppressors, and it outright banned certain kinds of guns from mail-order sale.
Because all political office-holders, including those on the state and local levels, swear oaths to abide by, protect, and defend, the US Constitution, Paxton and his team are required to fight these federal impositions. They must block federal agents engaging in enforcement, and must negate and nullify all federal gun restrictions. They don’t need a state law mandating that they do so.
Additionally, it appears that, should the case be allowed to proceed, the Texas AG will argue the weakest point, a point that actually accepts federal tyranny.
They appear ready to claim that the suppressors don’t cross state borders, and, as a result, should be free from federal “interstate” regulation.
That is a bad argument. First, the question of whether the items remain in-state, in-home, or travel across all fifty states accepts the errant and expansive view that the feds can “regulate” anything that goes over state borders. As James Madison explained, this is not the case.
But, more important, the Second Amendment is clear.
The right to keep and bear arms shall not be infringed – by any level of government, any agency, any judge, or bureaucrat.
Why is this so hard for politicians and judges to understand?
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