On June 21, 2024, a three-judge panel of the Fifth Circuit issued a unanimous opinion against Ken Paxton, the Attorney General of the State of Texas, and three individual plaintiffs. The ruling stopped the challenge to the National Firearms Act federal regulation of silencers, at least for the present. The opinion was not about the merits of the case. It was based solely on the plaintiffs’ standing to sue. The case is Paxon v Dettelbach.
First, the declarations do not state any intention to engage in conduct proscribed by law. Rather, the declarations state only that the Individual Plaintiffs “intend to personally manufacture a firearm suppressor for [their] own non-commercial, personal use.” But, as the federal government points out, the statutes at issue do not prohibit the Individual Plaintiffs from making a firearm suppressor. Rather, they only prohibit making a firearm suppressor without complying with the applicable procedures and requirements, i.e., applying for approval, paying the requisite tax, registering the suppressor, and labeling it with a serial number. See 26 U.S.C. § 5871. This is a distinction with an important difference because it differentiates this case from those in which the statutory scheme at issue is a blanket prohibition.
From the above, the plaintiffs might gain standing if they submitted Form 1 applications to the ATF and refused to pay the $200 tax, give pictures and images of proposed silencers to be produced, and made clear they were doing so under protest.
It is not clear if AG Paxton would be required to create another challenge based on such actions. AG Paxton could ask for a hearing en banc at the Court of Appeals for the Fifth Circuit.
AG Paxton filed the lawsuit as required by Texas statute HB957. From HB957:
Sec. 2.054. ATTORNEY GENERAL. On written notification to the attorney general by a United States citizen who resides in this state of the citizen’s intent to manufacture a firearm suppressor to which Section 2.052 applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that Section 2.052 is consistent with the United States Constitution.
AG Paxton has filed the lawsuit. The lawsuit has been denied for lack of standing. A federal court has not ruled on the merits of the case. AG Paxton has fulfilled his legal obligation to file the case, although the case has not settled the issue the Texas legislature wished to have settled.
Analysis: This case is one of several attacks on the viability of keeping silencers/suppressors subject to National Firearms Act (NFA) regulation. Aside from the obvious Constitutional questions, such regulation does not make any sense. The regulation is counter productive and produces much more harm than any of the known benefits. Actual, criminal use of silencers for violent purposes is extremely rare. The 1986 ban on silencer parts is based on a foundation of lies. There is a push to make obtaining legal silencers easier, either by reforming the NFA or by removing silencers from the NFA.
If former President Trump wins his third election for the presidency, and his coattails result in a conservative majority in the House and the Senate, it is likely a version of the Hearing Protection Act will pass. Paul Ryan will not be Speaker of the house, willing to throw away his career in a weird effort to stop President Trump from succeeding, at any cost.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
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