Texas vs. ATF: Made in Texas suppressor lawsuit update

I have had many, many questions about Representative Tom Oliverson’s Texas Suppressor Bill. We spoke with Rep. Oliverson on Episode 1 of 2A Ricochet and you can listen to his take here.

The latest news is that Texas Attorney General Ken Paxton has amended the state’s lawsuit against the ATF post-Bruen (the SCOTUS decision that corrected the way courts must look at Second Amendment cases) to include the requirements of “text informed by history and tradition”. This is a game changer.

So now, Attorney General Paxton has included this argument.

The history and tradition of the suppressor begins in the early 20th century. Did you know that Hiram Percy Maxim, the man who created the first commercially successful firearm suppressor in 1902, also invented suppressors (aka mufflers) for cars and large factory machines? I didn’t! President Teddy Roosevelt used the Maxim Silencer (the trade name for Maxim’s suppressor). Additionally, suppressors weren’t regulated until well over three decades later under the National Firearms Act.

Frankly, as our Attorney General (and so many of us) have pointed out, a suppressor shouldn’t even be covered under the National Firearms Act because it is not a firearm. But the ATF requires you to be approved anyway (and takes your money).

In its response, the ATF seems to agree that suppressors are not protected by the Second Amendment because they are not bearable arms. However, this is a weak argument: If they aren’t bearable arms, the ATF has no authority over them any more than it has the authority to regulate bayonets, bipods, optics, or any other accessory that might be attached to a firearm.

On the other hand, the ATF says it has jurisdiction because suppressors are firearms, according to laws passed in 1934 and 1968. It seems the ATF is trying to play both sides, hoping that one or the other will work.

Of course, we all realize that suppressors aren’t really “silencers” (unlike those in the movies) and they are rarely used in real crimes. According to national crime statistics, they are used in crimes less than one-half of one percent of the time. So, more than 99.5% of crimes committed with a firearm are done so without a suppressor. And, in fact, the “tax” one pays to the ATF for the “privilege” of using a suppressor doesn’t even cover the cost of enforcing the tax as the head of the ATF stated five years ago.

Texas and other states have had legislation before them, often called “hearing protection acts” because that is their purpose: To allow shooters to protect their hearing by reducing the decibel level of a gunshot to a point less likely to cause permanent damage. The whole idea of protecting one’s hearing while enjoying a Constitutional right seems to be a difficult concept for the ATF, the courts, and many state legislatures.

The lawsuit is Paxton et al v. Richardson and it is being heard in the U.S. District Court for the Northern District of Texas. The presiding judge is Mark Pittman, the same judge who recently ruled that Texas must make it possible for 18-20-year-olds to legally carry a handgun.