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Shootout Over the Commerce Clause Begins with Suppressors


The 87th Texas Legislature was perhaps the most favorable legislature to gun rights in Texas history. In previous blogs, our office has discussed the passage of “permitless carry,” also known as “constitutional carry,” and legislation prohibiting certain governmental contracts with companies that discriminate against firearm and ammunition industries, all of which came out of this most recent legislative session. Today, we’ll be discussing yet another pro-gun action taken by the 87th Legislature, this time regarding an optional firearm accessory: the suppressor.

At some point, you’ve probably seen a movie where a spy or assassin gingerly screws a long, cylindrical device onto the barrel of a handgun and then moves swiftly through a compound, dispatching armed guards along the way and without alerting anyone in the vicinity because the device makes their gunfire sound quieter than a hardcover book being closed. Due to such Hollywood portrayals, many people incorrectly refer to these devices as “silencers” and presume that they are primarily used by someone who intends to kill as many people as possible without being noticed. However, these devices are actually referred to in the firearm industry as “suppressors”. They are primarily used by recreational shooters at a firing range, and rather than silencing gunfire, they merely reduce the sound to a decibel level that is less likely to cause hearing loss—but it is still considerably loud. Perhaps Hollywood’s mischaracterization of suppressors is why they are so heavily regulated by federal law.

Under the National Firearms Act of 1934 (NFA), the requirements for a person to own a suppressor include passing a thorough background check by the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), notifying their local chief law enforcement official, and paying a $200 tax. Federal regulation of firearms and firearm accessories is authorized under the commerce clause of the Unites States Constitution; but, according to the United States Supreme Court, only if the firearm or accessory affects interstate commerce. Texas heard that criterion loud and clear.

The Texas Legislature passed Chapter 2 of the Texas Government Code, titled “Firearm Suppressor Regulation,” effective September 1, 2021. The chapter defines the meaning of the phrase “manufactured in this state” and then provides in Section 2.052 as follows:

     Sec. 2.052.  NOT SUBJECT TO FEDERAL REGULATION.  (a)  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, under the authority of the United States Congress to regulate interstate commerce.

     (b)  A basic material from which a firearm suppressor is manufactured in this state, including unmachined steel, is not a firearm suppressor and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm suppressor.

Chapter 2 requires the Texas Attorney General, upon being notified by a citizen in Texas of an intent to manufacture a firearm suppressor under Section 2.052, to seek a declaratory judgment from a federal district court that Section 2.052 is consistent with the United States Constitution. The attorney general was so notified, and on February 24, 2022, filed suit against the BATFE in the United States District Court for the Northern District of Texas. That lawsuit, Case 4:22-CV-00143-P, is still pending.

Additionally, Chapter 2 prohibits enforcement of certain federal firearms laws by the State of Texas, a district attorney, the governing body of a municipality, county, or special district, and an officer, employee, or other body that is part of a municipality, county, or special district, including a sheriff, municipal police department, municipal attorney, or county attorney.

If Section 2.052 survives judicial scrutiny, we can anticipate similar legislation being applied to other federal regulations under the commerce clause, likely beginning with other provisions of the NFA, such as the minimum barrel length of rifles and shotguns.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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