By: Michael Boldin
Texas Gov. Greg Abbott signed a bill into law that takes the first two steps against National Firearms Act (NFA) restrictions on firearm sound suppressors.
Rep. Tom Oliverson (R-Cypress) filed House Bill 957 (HB957) on Jan. 4. The legislation repeals Texas code criminalizing owning a firearm “silencer,” more accurately referred to as a sound “suppressor” – outside of Federal regulations. It also bans the state from enforcing any federal restrictions on suppressors that don’t exist under the laws of the state.
On May 4, the Texas House passed HB957 by a vote of 95-51. 14 Democrats joined 81 Republicans in voting yes. The full Senate passed it by a party-line vote of 18-13. With Abbott’s signature, the new law goes into effect on Sept. 1.
SUPPRESSORS
Suppressors simply muffle the sound of a gun. They do not literally silence firearms. Nevertheless, the federal government heavily regulates silencers under the National Firearms Act. The feds charge a $200 tax on the purchase of the devices. Buying one also requires months-long waits after filing extensive paperwork with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.
The repeal of state suppressor restrictions will not alter federal law, but it does remove a layer of law hindering access to these devices. The widespread easing of suppressor regulation in states subtly undermines federal efforts to unconstitutionally regulate firearms. Banning enforcement of federal restrictions is particularly important in light of not just restrictions under the NFA, but proposals from Congress and the Biden administration to ban them completely.
HB957 includes provisions to exempt suppressors made and sold in Texas from federal regulations under the Commerce Clause of the Constitution, although this section of the act is unlikely to have immediate impact without approval of a federal court.
FEDERAL ENFORCEMENT
HB957 provides that “the State of Texas, including an agency, department, commission, bureau, board, office, council, court, or other entity that is in any branch of state government” along with all local governments – are banned from helping the federal government enforce regulations on suppressors.
The law bans those entities from adopting “a rule, order, ordinance, or policy under which the entity enforces, or by consistent action allows the enforcement of, a federal statute, order, rule, or regulation that purports to regulate a firearm suppressor if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation that does not exist under the laws of this state.”
In Section 2 of the law, Section 46.05(a), Penal Code of the State of Texas is also amended to repeal state criminalization of suppressor possession outside of Federal regulations, including the NFA (TX Penal Code 46.05(a)(6).
EFFECTIVE
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.
LEGAL BASIS
The state of Texas can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
