Texas passed a law last week that claims to legalize unregistered gun silencers made and sold within Texas, putting it at odds with federal law. There is a significant danger in this law, but it’s not the one many people might expect.
Instead of instigating a tsunami of newly-minted silent assassins straight out of a John Wick movie, the real danger is in how the law could confuse Texans into taking a significant legal risk with potentially lifelong consequences. The claim that a state can protect its residents from enforcement of federal law makes great fodder for the op-ed page and constitutional law classroom. Heck, Texas may even be on the proper philosophical end of the fight over federal control of intrastate commerce. But the theory has been thoroughly rejected by all levels of the federal court system both historically and recently, so anyone looking to put flesh to the legal theory that Texans can sell each other silencers outside of the prying eyes of Uncle Sam ought to fully understand the realities of being a legal guinea pig in this fight.
The last two didn’t fare so well. Just ask Shane Cox and Jeremy Kettler.
In 2014, Cox sold Kettler an unregistered silencer after Kansas passed its own law purporting to put the devices beyond federal reach. The sale tangled the two men in a years-long ordeal that ended with life-altering federal convictions for both. And, in 2019, the Supreme Court left those convictions in place when it declined to hear their case.
“I was just collateral damage in this dispute between the state and federal government,” Kettler, now a federal felon serving three years on probation, said after the Court’s decision. He blamed Kansas lawmakers for setting up residents like him to be prosecuted by passing a misleading law.
Anyone telling Texans a state silencer law will protect them from federal prosecution without giving them fair warning of the likely outcome is merely leading them into the same trap, with a lifetime ban on gun ownership waiting at the end of the line.
Silencer ownership has required a $200 tax stamp and registration with the federal government since Congress reacted to the flashy violence of the gangland era by passing the National Firearms Act (NFA) in 1934. The ATF has registered more than two million of the devices in that time. The devices merely suppress the sound of a gunshot to that of a jackhammer rather than actually silencing it, are rarely used in crime, and the gun-rights movement has made removing them from the registry a top priority for years now. But, with Democrats controlling all levels of the federal government and gun-control activists arguing the registry is the reason for the rarity of silencer crime, removing them from the NFA is impossible in the short-to-medium term. So, the federal government is committed to enforcing this law, however unnecessary, for the foreseeable future.
And there’s the rub.
Texas lawmakers don’t agree there should be a registry and tax on silencers. And they don’t think the federal government should have a say over commerce that happens entirely within their borders. So, in a move that’s becoming a bit of a trend in red states, they passed a bill claiming Congress has no power to regulate silencers made and sold inside the state.
“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,” reads the text of HB957, which Governor Greg Abbott (R.) signed into law last week.
At first glance, this is a similar tactic to those used by immigration activists in blue states and even gun-rights activists in other states. Decriminalize the activity on the state or local level, then block local law enforcement from helping to enforce the still-intact federal prohibition, and hope the feds don’t bother trying to enforce it themselves. It’s a strategy that has worked, at least to some degree, with medical and even recreational marijuana. The federal prohibition remains by federal law enforcement isn’t spending much time or many resources on trying to enforce it in states where marijuana is decriminalized. Perhaps that strategy could work in the long run for silencers, too, if enough states get on board and the federal government decides the juice isn’t worth the squeeze.
But the new silencer law actually goes a step beyond what “sanctuary” city or county proponents have done to this point. Instead of barring local or state officials from using resources to help enforce disfavored federal laws, Texas is trying to nullify them.
The theory is an appealing one: Commerce that takes place entirely within a state’s boards and among its residents doesn’t fall under Congress’s authority to regulate commerce between the states. As Kevin Williamson recently argued in National Review, adopting that reading of the Constitution could even lessen polarization in American politics.
“Resurrecting a more robust model of federalism — recognizing that New Jersey can be New Jersey while Texas is Texas — could help to dissipate some of the culture-war energy that has made our politics, especially our presidential elections, such a horror-show in recent years,” he wrote.
Unfortunately for proponents of this argument, as Williamson notes, it has a terrible track record in court. About a decade after the NFA passed, the Supreme Court decided Wickard v. Filburn. It upheld a conviction against Roscoe C. Filburn for violating federal restrictions on wheat production based on the idea that even growing wheat for his own use on his own farm meant Filburn was impacting interstate commerce. The Court hasn’t backpedaled since, and even conservative icon Justice Antonin Scalia used similar reasoning in 2005’s Gonzales v. Raich to uphold federal prohibitions against marijuana grown and sold entirely within California.
But, of course, it isn’t necessary to go back to 2005 to see how likely Texas is to change its mind with this new silencer law. Kansas tried and failed this exact move, and the lives of two men are in ruins because they trusted what their state told them. Kettler certainly didn’t fully understand what he was in for when he bought that silencer. How many more Kettlers did Texas lawmakers just create?
It’s one thing to knowingly make yourself a test case in hopes of overturning a law you disagree with; it’s another entirely to get tricked into doing so.