IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

KEN PAXTON, in his official capacity as ) 

Attorney General of Texas, )

DAVID SCHNITZ, )

TRACY MARTIN, and )

FLOICE ALLEN, )

Plaintiffs, ) Civil Action No. 4:22-cv-00143-P

 ) 

vs. )

 ) 

STEVEN M. DETTELBACH, in his )

official Capacity as Director, Bureau of ) 

Alcohol, Tobacco, Firearms and Explosives, )

and )

MERRICK B. GARLAND, in his official )

Capacity as Attorney General of the )

United States, )

Defendants. ) 

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 

AND OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND 

BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 Civil Division 

 

 LESLEY FARBY 

 Assistant Branch Director 

 

EMILY B. NESTLER (D.C. Bar # 973886) 

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, NW 

Washington, D.C. 20005 

Tel: (202) 305-0167 

Email: emily.b.nestler@usdoj.gov 

Counsel for Defendants

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TABLE OF CONTENTS 

SUMMARY .................................................................................................................................... 1

FACTUAL BACKGROUND ......................................................................................................... 3

I. National Firearms Act Tax Scheme ........................................................................................ 3

II. Definition of Making Silencers for Purposes of the National Firearms Act ........................... 7

III. ATF Response to Largescale Manufacture of Unlawful Silencer Parts Kits .......................... 8

IV. Texas House Bill 957 Purports to Exempt Suppressors Made for Personal Use in 

Texas from Some Federal Laws ....................................................................................... 10

V. Individual Plaintiffs’ Stated Intention to Make Suppressors for Personal Use .................... 11

PROCEDURAL HISTORY .......................................................................................................... 11

LEGAL STANDARD ................................................................................................................... 12

ARGUMENT ................................................................................................................................ 12

I. Summary Judgment Should be Granted for Defendants Because Plaintiffs Have 

Failed to Establish Standing.............................................................................................. 12

A. Individual Plaintiffs Lack Standing Because They Have Failed to 

Demonstrate a Cognizable Injury. ........................................................................ 13

B. Texas Lacks Standing Because it has Failed to Demonstrate a Cognizable 

Injury. .................................................................................................................... 15

C. The Court Must Consider Whether Each Plaintiff Has Standing. ........................ 17

II. This Court Lacks Jurisdiction Because the Anti-Injunction Act Bars All of 

Plaintiffs’ Claims. ............................................................................................................. 19

A. The AIA Bars This Case Because its Object is to Enjoin the Collection or 

Assessment of a Tax. ............................................................................................ 20

B. The Enochs Exception to the AIA Is Narrow and Does Not Apply ..................... 24

1. Equity Jurisdiction Is Not Implicated ....................................................... 24

2. Plaintiffs Cannot Establish that the Government Is Unable to 

Prevail Under Any Circumstances. ........................................................... 27

III. Summary Judgment Should Be Granted for Defendants Because the Challenged 

Laws Are Constitutional. .................................................................................................. 28

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ii 

A. Firearm Silencers are Not Bearable Arms, So Their Use Is Not Protected 

by the Second Amendment. .................................................................................. 28

B. Suppressors are Not Protected by the Second Amendment Because They 

Are Dangerous and Unusual ................................................................................. 32

C. The NFA’s Tax Scheme Does Not Infringe the Second Amendment .................. 37

D. Regulating the Possession of Silencers is Consistent with the Nation’s 

Historical Tradition of Firearm Regulation. ......................................................... 42

CONCLUSION ............................................................................................................................. 45

 

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iii 

TABLE OF AUTHORITIES 

Cases 

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 

458 U.S. 592 (1982) ............................................................................................................... 16 

Alexander v. “Am. United” Inc., 

416 U.S. 752 (1974) ................................................................................................... 19, 24, 26 

Bauer v. Becerra, 

858 F.3d 1216 (9th Cir. 2017) ................................................................................................ 40 

Bd. of Trs. of State Univ. of New York. v. Fox, 

492 U.S. 469 (1989) ............................................................................................................... 18 

Bennett v. Spear, 

520 U.S. 154 (1997) ............................................................................................................... 10 

Bezet v. United States, 

276 F. Supp. 3d 576 (E.D. La. 2017) ...................................................................................... 22 

Bezet v. United States, 

714 F. App’x 336 (5th Cir. 2017) ......................................................................... 14, 23, 37, 42 

Bob Jones Univ. v. Simon

416 U.S. 735 (1974) ...................................................................................................... passim 

Caetano v. Massachusetts, 

577 U.S. 411 (2016) ............................................................................................................... 36 

CIC Servs., LLC v. IRS, 

141 S. Ct. 1582 (2021) ............................................................................................ 2, 20, 21, 22 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) ......................................................................................................... 13, 14 

Confederated Tribes & Bands of Yakama Indian Nation v. Alcohol & Tobacco Tax & Trade 

Bureau, 

843 F.3d 810 (9th Cir. 2016) .................................................................................................. 27 

Deerfield Med. Ctr. v. City of Deerfield Beach, 

661 F.2d 328 (5th Cir. 1981) .................................................................................................. 26 

DeMarco v. Bynum, 

50 F.4th 479 (5th Cir. 2022) ................................................................................................... 12 

District of Columbia v. Heller, 

554 U.S. 570 (2008) ............................................................................................. 29, 30, 32, 42 

Case 4:22-cv-00143-P Document 54 Filed 03/13/23 Page 4 of 57 PageID 943
iv 

Enochs v. Williams Packing & Navigation Co., 

370 U.S. 1 (1962) ....................................................................................................... 19, 20, 24 

Ezell v. City of Chicago, 

651 F.3d 684 (7th Cir. 2011) .................................................................................................. 31 

Florida v. Mellon, 

273 U.S. 12 (1927) ................................................................................................................. 17 

Helvering v. Davis, 

301 U.S. 619 (1937) ............................................................................................................... 17 

Hollis v. Lynch, 

827 F.3d 436 (5th Cir. 2016) ...................................................................................... 29, 35, 36

Jackson v. City and Cnty. of San Francisco, 

746 F.3d 953 (9th Cir. 2014) .................................................................................................. 31 

Kaszycki v. United States, 

No. C19-1943, 2020 WL 2838598 (W.D. Wash June 1, 2020) ............................................. 29 

Kemlon Prod. & Dev. Co. v. United States, 

638 F.2d 1315 (5th Cir. 1981) .................................................................................... 24, 25, 27 

Kwong v. Bloomberg, 

723 F.3d 160 (2d Cir. 2013) ................................................................................................... 40 

Lane v. Holder, 

703 F.3d 668 (4th Cir. 2012) .................................................................................................. 37 

Linn v. Chivatero, 

714 F.2d 1278 (5th Cir. 1983) .......................................................................................... 19, 20 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ......................................................................................................... 13, 14 

Massachusetts v. EPA, 

549 U.S. 497 (2007) ............................................................................................................... 17 

Massachusetts v. Mellon, 

262 U.S. 447 (1923) ......................................................................................................... 16, 17 

McAllen Grace Brethren Church v. Salazar, 

764 F.3d 465 (5th Cir. 2014) .................................................................................................. 18 

Murdock v. Commonwealth of Pennsylvania, 

319 U.S. 105 (1943) ............................................................................................................... 40 

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 

538 U.S. 803 (2003) ............................................................................................................... 14 

Case 4:22-cv-00143-P Document 54 Filed 03/13/23 Page 5 of 57 PageID 944
v 

New Jersey v. Sargent, 

269 U.S. 328 (1926) ............................................................................................................... 16 

New York v. Mnuchin, 

408 F. Supp. 3d 399 (S.D.N.Y. 2019) .............................................................................. 26, 27 

New York Rifle & Pistol Ass’n v. Bruen, 

142 S.Ct. 2111 (2022) ..................................................................................................... passim

Or. Firearms Fed’n, Inc. v. Brown, 

No. 2:22-CV-01815-IM, 2022 WL 17454829 (D. Or. Dec. 6, 2022) .................................... 38 

Sonzinsky v. United States, 

300 U.S. 506 (1937) ....................................................................................................... passim 

Texas v. Becerra, 

No. 5:21-cv-300-H, 2021 WL 6198109 (N.D. Tex. Dec. 31, 2021) ...................................... 17 

Texas v. ICC, 

258 U.S. 158 (1922) ............................................................................................................... 16 

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015) .................................................................................................. 17 

Thompson/Center Arms Co. v. Baker, 

686 F. Supp. 38 (D.N.H. 1988) ........................................................................................ 23, 25 

Tineo v. Att’y General, 

937 F.3d 200 (3d Cir. 2019) ................................................................................................... 18 

Town of Chester N.Y. v. Laroe Ests., Inc,, 

137 S. Ct. 1645 (2017) ............................................................................................................ 18 

United States of Am. v. Royce, 

No. 1:22-CR-130, 2023 WL 2163677 (D.N.D. Feb. 22, 2023) ........................................ 29, 30 

United States v. Am. Friends Serv. Comm., 

419 U.S. 7 (1974) ....................................................................................................... 19, 24, 26 

United States v. Aiken, 

974 F.2d 446 (4th Cir. 1992) ............................................................................................ 33, 34 

United States v. AlAzhari, 

2020 WL 7334512 (M.D. Fla. Dec. 14, 2020) ................................................................. 29, 30 

United States v. Ardoin, 

19 F.3d 177 (5th Cir. 1994) .................................................................................................... 24 

United States v. Bolatete, 

977 F.3d 1022 (11th Cir. 2020) .............................................................................................. 40 

Case 4:22-cv-00143-P Document 54 Filed 03/13/23 Page 6 of 57 PageID 945
vi 

United States v. Clintwood Elkhorn Mining Co., 

553 U.S. 1 (2008) ................................................................................................................... 19 

 United States v. Cox, 

906 F.3d 1170 & n.12 (10th Cir. 2018) ................................................................ 21, 29, 30, 35 

United States v. Gresham, 

118 F.3d 258 (5th Cir. 1997) ............................................................................................ 23-24 

United States v. Hasson, 

2019 WL 4573424 (D. Md. Sept. 20, 2019) ......................................................... 29, 30, 31, 32 

United States v. Holton, 

No. 3:21-CR-0482, 2022 WL 1670195 (N.D. Tx. Nov. 3, 2022), aff’d 26 F.4th 610 (4th Cir. 

2022) ........................................................................................................................... 32, 34, 38 

United States v. Hoover, 

No. 3:21-cr-22(S3)-MMH-MCR, 2022 WL 10524008 (M.D. Fla. Oct. 18, 2022) .... 32, 34, 38 

United States v. McCartney, 

357 F. App'x 73 (9th Cir. 2009) ....................................................................................... 29, 32

United States v. One Palmetto State Armory, 

115 F. Supp. 3d 544 (E.D. Pa. 2015) ...................................................................................... 25 

United States v. Perkins, 

2008 WL 4372821 (D. Neb. 2008) ................................................................................... 32, 33 

United States v. Price, 

2022 WL 6968457 (S.D.W.Va. Oct. 12, 2022) ...................................................................... 38 

United States v. Reyna, 

2022 WL 17714376 (N.D. Ind. Dec. 15, 2022) ...................................................................... 38 

United States v. Ross, 

458 F.2d 1144 (5th Cir. 1972) ................................................................................................ 24 

United States v. Rush, 

No. 22-cr-40008, 2023 WL 403774 (S.D. Ill. Jan. 25, 2023) ................................................. 42 

United States v. Saleem, 

No. 3:21-cr-00086, 2023 WL 2334417 (W.D.N.C. Mar. 2, 2023) ....................... 29, 31, 32, 34 

United States v. Stepp-Zafft, 

733 F. App'x 327–30 (8th Cir. 2018) ..................................................................................... 29 

United States v. Thompson/Center Arms Co.

504 U.S. 505 (1992) ................................................................................................... 33, 34, 35 

United States v. Tita, 

2022 WL 17850250 (D. Md. Dec. 22, 2022) ......................................................................... 38 

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vii 

Virginia ex rel. Cuccinelli v. Sebelius, 

656 F.3d 253 (2011) ............................................................................................................... 17 

Westfall v. Miller, 

77 F.3d 868 (5th Cir. 1996) .................................................................................................... 14 

Federal Statutes 

5 U.S.C. § 706 .............................................................................................................................. 41 

18 U.S.C. § 921 .................................................................................................................. 1, 7, 8, 9 

26 U.S.C § 5848 ........................................................................................................................... 15 

26 U.S.C. § 5801 ........................................................................................................................ 1, 3 

26 U.S.C. § 5821 .................................................................................................................... 21, 22 

26 U.S.C. § 5822 .................................................................................................................. passim 

26 U.S.C. § 5841 .................................................................................................................... 4, 7, 9 

26 U.S.C. § 5842 .................................................................................................................... 4, 5, 6 

26 U.S.C. § 5845 ........................................................................................................................ 1, 7 

26 U.S.C. § 6511 ............................................................................................................................ 7 

26 U.S.C. § 7421 ................................................................................................................ 2, 19, 23 

26 U.S.C. § 7422 ............................................................................................................................ 7 

26 U.S.C. §§ 5821 .................................................................................................................. 23, 25 

State Statutes 

8 Pa. Cons. Stat. § 908 ................................................................................................................. 37 

720 I.L.C.S. 5/24-1 ...................................................................................................................... 36 

1759-1776 N.H. Laws 63 ............................................................................................................. 45 

1866 Ga. Laws 27-28 ................................................................................................................... 45 

1879 Tex. Crim. Stat. 24 .............................................................................................................. 44 

1890 S.C. Act ............................................................................................................................... 44 

Act of Jan. 8, 1781, ch. XII, § 13, 1781 N.J. Laws 39, 43 ........................................................... 43 

Act of Feb. 21, 1867, ch. CCCXVII, §§ 1-8, 1867 Miss. Laws 412; Rev ................................... 45 

Act of Feb. 24, 1844, ch. 1, § 1, 1844 Miss. Laws 57-59 ............................................................ 45 

Act of Apr. 1, 1881, ch. XCVI, § 1, 1881 Ark. Act ..................................................................... 44 

Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 65 ......................................................................... 44 

Act of Apr. 12, 1871, ch. XXXIV, § 1, 1871 Tex. Gen. Laws 25, 25 ......................................... 44 

Alaska Stat. § 11-61 ..................................................................................................................... 37 

Ariz. Rev. Stat. § 13-3101 ........................................................................................................... 37 

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viii 

Ark. Code. Ann. ch. 48 § 1498 (1894) ......................................................................................... 44 

Cal. Penal Code § 33410-15 ........................................................................................................ 36 

Colo. Rev. Stat. § 18-12-102 ........................................................................................................ 37 

Conn. Gen Stat. § 53a-211 ........................................................................................................... 37 

Del. Code. Ann. Tit. 11 § 1444 .................................................................................................... 36 

Ga Code Ann. §§ 16-11-122 & 16-11-124 .................................................................................. 37 

Gen. Laws § 11-47-20 .................................................................................................................. 36 

Haw. Rev. Stat. §§ 134-8 & 134-11 ............................................................................................. 36 

Kan. Gen. Stat. § 1003 (1901) ..................................................................................................... 44 

Kan. Stat. Ann. § 21-6301 ........................................................................................................... 37 

La. Rev. Stat. Ann. § 40:1379.3 (H)(2) (West Cum. Supp. 2022) ............................................... 39 

Mich. Comp. Laws § 750.224 ...................................................................................................... 37 

Miss Code Ann. § 97-37-31 ......................................................................................................... 37 

Miss. Code. Ann. § 45-9-101 (2022) ........................................................................................... 39 

Mo. Rev. Stat. § 571.020 ............................................................................................................. 37 

Mont. Code Ann. § 45-8-337 ....................................................................................................... 37 

N.C. Gen. Stat. § 14-288.8 ........................................................................................................... 37 

N.D. Cent. Code § 62.1-05-01 ..................................................................................................... 37 

N.H. Rev. Stat. Ann. § 207:4 ....................................................................................................... 37 

N.J. Stat. Ann. § 2C:39-3 ............................................................................................................. 36 

N.Y. Penal Law § 265.02 ............................................................................................................. 36 

Nev. Rev. Stat. § 202.350 ............................................................................................................ 37 

Ohio Rev. Code Ann. § 2923.17 .................................................................................................. 37 

Or. Rev. Stat. § 166.272 ............................................................................................................... 37 

Pennsylvania, ch. 1857, §§ 1-12, 346-51 ..................................................................................... 45 

S.D. Codified Laws § 22-14-6 ..................................................................................................... 37 

Section 2.052 of the Texas Government Code ...................................................................... 10, 11 

Tex. Gov’t Code Ann. § 411.174 ................................................................................................. 39 

Tex. Gov’t Code § 2.052 ........................................................................................................ 10, 17 

Tex. Gov’t Code § 2.054 .............................................................................................................. 10 

Wash. Rev. Code §§ 9.41.250 & 9.41.251 .................................................................................. 37 

Wis. Stat. § 941.298 ..................................................................................................................... 37 

Rules 

Fed. R. Civ. P. 56 ......................................................................................................................... 12 

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ix 

Federal Rule of Civil Procedure 5 ................................................................................................. 1 

Regulations 

26 C.F.R. § 301.6402-2 ............................................................................................................ 7, 25 

27 C.F.R. § 479.62 ......................................................................................................................... 4 

27 C.F.R. § 479.64 ............................................................................................................... 4, 6, 22 

27 C.F.R. § 479.65 ......................................................................................................................... 5 

27 C.F.R. § 479.86 ......................................................................................................................... 5 

27 C.F.R. § 479.102 ....................................................................................................................... 4 

27 C.F.R. § 479.172 ................................................................................................................. 7, 25 

Other 

Christopher Ingraham, There are More Guns than People in the United States, According to a 

New Study of Global Firearm Ownership, The Washington Post, 

available at https://perma.cc/LNE7-8TZQ ............................................................................. 35 

Joe Walsh, U.S. Bought Almost 20 Million Guns Last Year — Second-Highest Year On Record, 

Forbes (Apr. 14, 2022 at 2:05pm EDT), 

available at https://perma.cc/TVS8-NNVW ................................................................... 35, 36 

Robert H. Churchill, “Gun Regulation, the Police Power, and the Right to Keep Arms in Early 

America: The Legal Context of the Second Amendment,”

25 Law & Hist. Rev. 139 (2007)(discussing the colonial militia practice of surveying firearms 

owned by members of the community) .................................................................................. 43 

Robert J. Spitzer, Gun Accessories and the Second Amendment: Assault Weapons, Magazines, 

and Silencers, 

83 L. & Contemp. Probs. 231 (2020) ..................................................................................... 33 

Violence Pol’y Ctr., Silencers: A Threat to Public Safety, at 3 (July 2019), 

available at https://www.vpc.org/studies/silencers.pdf .......................................................... 34 

Case 4:22-cv-00143-P Document 54 Filed 03/13/23 Page 10 of 57 PageID 949
SUMMARY 

This case seeks to enjoin enforcement of the National Firearms Act of 1934, 26 U.S.C. 

§ 5801 et seq. (the “NFA”) and its implementing regulations, as applied to the making of firearms 

suppressors. A suppressor is a device that may be attached to a weapon in order to silence or 

diminish the sound that the weapon makes when fired. See 26 U.S.C. § 5845(a).1 A suppressor 

cannot operate as a weapon on its own, nor is it necessary to the functioning of any other weapon. 

The NFA requires any person who intends to make a suppressor for personal use to pay a 

$200 tax, accompanied by an application to the federal government. The statute also imposes 

registration and marking requirements in order to aid in the assessment, collection, and 

enforcement of the tax. Plaintiffs seek to enjoin enforcement of these provisions, based on the 

faulty theory that the NFA’s tax scheme violates the Second Amendment as applied to suppressors. 

Every court to consider the issue has held that firearms suppressors are not protected by 

the Second Amendment either because they are not “bearable arms,” or alternatively because they 

are “dangerous and usual.” Notwithstanding Plaintiffs’ assertions, their claims do not require the 

Court to “re-evaluate Second Amendment jurisprudence” under New York Rifle & Pistol Ass’n v. 

Bruen, 142 S.Ct. 2111 (2022). Pls.’ Brief in Supp. of. Mot. for Summ. J. at 1, ECF 46-1 (“Pls.’ 

Br.”). On the contrary, both before and after Bruen, courts have consistently held that suppressors 

are not covered by the Second Amendment. This Court should not stray from that long line of 

unbroken precedent. 

1

 While the statute uses the term “silencer,” Plaintiffs’ Complaint uses the term “suppressor” to 

describe these same devices. See Compl. ¶¶ 32-36. For purposes of this motion, the terms silencer 

and suppressor are used interchangeably to refer to the relevant devices covered by 26 U.S.C. 

§ 5845(a) and 18 U.S.C. § 921(a)(24). 

 

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2 

But the Court need not address the merits of Plaintiffs’ Second Amendment challenge 

because summary judgment for Defendants is warranted for several threshold reasons. 

First, the Court lacks jurisdiction over this case because none of the Plaintiffs have Article 

III standing. Plaintiffs—three individuals who have expressed a vague intention to make firearm 

suppressors for personal use in Texas (the “Individual Plaintiffs”) and the State of Texas—have 

failed to demonstrate any cognizable injury flowing from the challenged laws. 

Second, the Anti-Injunction Act (the “AIA”) bars all of Plaintiffs’ claims. The AIA 

provides that “no suit for the purpose of restraining the assessment or collection of any tax shall 

be maintained in any court by any person, whether or not such person is the person against whom 

such tax was assessed.” 26 U.S.C. § 7421. Binding precedent makes clear that the NFA is a taxing 

statute and that the challenged provisions—including the NFA’s application and registration 

requirements—are part of the statute’s integrated tax scheme. See Sonzinsky v. United States, 300 

U.S. 506, 511-13 (1937). Because the purpose of Plaintiffs’ suit is to enjoin assessment and 

collection of the NFA’s tax obligations, this case falls squarely within the AIA’s jurisdictional bar. 

It is well settled that the AIA is not limited to claims that target the specific act of paying a levy, 

but rather it extends to other obligations that serve the collection and assessment of a tax (e.g., 

application and registration requirements) when they are part of an integrated tax scheme. See CIC 

Servs., LLC v. IRS, 141 S. Ct. 1582, 1593-94 (2021). And the narrow “Enochs exception” to the 

AIA invoked by Plaintiffs does not apply. 

Even if the Court had jurisdiction to hear this case, summary judgment should be granted 

for Defendants on the merits. To determine whether a law violates the Second Amendment, the 

Court must start by ascertaining whether the challenged law implicates the right to bear arms in 

the first place. See Bruen, 142 S.Ct. at 2130. Because suppressors are not “bearable arms” and 

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3 

because they are “dangerous and unusual,” they fall outside the Second Amendment’s ambit. As 

noted above, nothing in Plaintiffs’ motion justifies a departure from the unanimous precedent—

both before and after Bruen—holding that the Second Amendment does not cover suppressors. 

And, even assuming arguendo that suppressors could be weapons covered by the Second 

Amendment, the NFA’s tax scheme itself does not implicate the Second Amendment. This is 

because the NFA does not ban making firearms, but rather permits making them when the 

application, payment, and registration requirements are met. Those ministerial requirements do 

not impinge upon Second Amendment rights, and are akin to the types of firearms licensing 

requirements that the Supreme Court and the Fifth Circuit have repeatedly upheld. 

Finally, even if the Second Amendment were implicated here, the NFA’s requirements are 

“consistent with the Nation’s historical tradition of firearm[s] regulation,” id., because they are 

analogous to historical laws similarly regulating firearms and thus consistent with the Second 

Amendment. 

Accordingly, summary judgment should be granted for Defendants. 

FACTUAL BACKGROUND 

I. National Firearms Act Tax Scheme 

The NFA “is a tax statute, located in the United States Code at Title 26 (‘Internal Revenue 

Code’), Subtitle E (‘Alcohol, Tobacco, and Certain Other Excise Taxes’).” Compl. ¶ 52, ECF 21 

(citing 26 U.S.C. § 5801 et seq.).2

 The NFA charges a $200 tax on any person who “shall make a 

firearm,” which is defined to include “silencers” under the statute, see infra Part II, and imposes 

associated regulations in conjunction with that tax. Specifically, the NFA provides: 

2

 Unless otherwise indicated, the term “Complaint” or “Compl.” refers to the operative Second 

Amended Complaint, ECF 21. 

 

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No person shall make a firearm unless he has (a) filed with the [Attorney General] a written 

application, in duplicate, to make and register the firearm on the form prescribed . . .; (b) paid 

any tax payable on the making and such payment is evidenced by the proper stamp affixed 

to the original application form; (c) identified the firearm to be made . . .; (d) identified himself 

in the application . . . if such person is an individual, the identification must include his 

fingerprints and his photograph; and (e) obtained the approval of the [Attorney General] to 

make and register the firearm and the application form shows such approval. 

 

26 U.S.C. § 5822. The NFA also requires that the Attorney General “maintain a central registry of 

all firearms in the United States, which are not in the possession of or under the control of the 

United States” in the National Firearms Registration and Transfer Record (“NFRTR”), 26 U.S.C. 

§ 5841(a), and that “[e]ach [] maker shall register each firearm he [] makes.” Id. § 5841(b). 

Approval of an application to make and register the firearm, which is submitted alongside the $200 

tax, “shall effectuate registration of the firearm to the applicant,” 27 C.F.R. § 479.62, and “[u]pon 

receipt of the approved application, the maker is authorized to make the firearm described therein,” 

id. § 479.64. Firearms made pursuant to these requirements must be marked with a serial number 

and the name of the maker in a manner that cannot “be readily removed, obliterated, or altered.” 

26 U.S.C. § 5842(a); 27 C.F.R. § 479.102. 

 In accordance with these statutory requirements, applications to make an NFA firearm must 

be made on an ATF Form 1, and be accompanied by the applicable tax payment, fingerprints and 

photograph of the maker, and law enforcement certification. See NFA Handbook, Chap. 6, §§ 6.1 

– 6.2, at pp. 35-36; www.atf.gov/firearms/docs/guide/atf-national-firearms-act-handbook-atf-p53208/download; see also Decl. of Amy L. Stely ¶¶ 6-7, App. 001 (“Stely Decl.”). The Form 1 

requires the applicant’s name and address, country of citizenship, date and place of birth, social 

security number, and other identifying information, a description of the firearm to be made, 

including a unique serial number created by the applicant, a list of questions to be answered, and 

local law enforcement notification. Id. ¶ 7The Form 1 is available on ATF’s website and may be 

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5 

submitted by mail to the address on the form or through ATF’s eForms. See

www.atf.gov/firearms/applications-eforms. 

Upon receiving an application to make an NFA firearm, ATF reviews the form for 

completeness, identifies the supporting documentation, compares the form to the supporting 

documents to ensure the information matches, confirms payment, ensures the serial number is not 

a duplicate of one already listed in the NFRTR, and verifies the chief law enforcement officer 

listed on the form is within the same city or county as the applicant. Id. ¶ 8. In addition, to conduct 

the background check, ATF is required by regulation to contact the National Instant Criminal 

Background Check System (“NICS”), 27 C.F.R. § 479.86, which is the FBI’s national system that 

checks records on persons who may be disqualified from receiving firearms. Id. After receipt of 

the response from NICS, ATF will confirm that state law does not otherwise forbid possession of 

the NFA firearm that the applicant seeks to make. Id. 

Under the NFA, “[a]pplications [to make firearms] shall be denied if the making or 

possession of the firearm would place the person making the firearm in violation of law.” 26 U.S.C. 

§ 5822; 27 C.F.R. § 479.65. Accordingly, ATF approves applications to make firearms when it 

determines that the application is complete, that the tax is paid, and that the making and possession 

of the firearm would not violate Federal or state law. Stely Decl. ¶ 9. When an application is 

approved, it will be marked “approved,” and then a tax stamp will be affixed to the Form 1 and 

returned to the applicant. Approval by ATF will effect registration in the NFRTR. Upon receipt of 

the approved Form 1 the applicant may make the firearm described on the form, id. ¶ 16, so long 

as they mark the firearm with the unique serial number that they submitted with their application, 

26 U.S.C. § 5842(a). 

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6 

 Conversely, as required by the NFA, ATF denies applications to make firearms “if the 

making or possession of the [silencer] would place the person making the firearm in violation of 

the law.” Id. ¶ 9 (quoting 26 U.S.C. § 5822). For example, ATF denies applications to make 

firearms in situations where the background check shows that the applicant is within a category of 

people prohibited from possessing firearms pursuant to a different law (e.g., a convicted felon), id.

¶ 10, or when the application indicates that the proposed firearm would be made from so-called 

“parts kits” that are already in and of themselves silencers, id. ¶¶ 11-13. If an application is 

ultimately not approved, the applicant’s original form and $200 tax payment are returned to the 

applicant. 27 C.F.R. § 479.64. 

Sometimes the information set forth in a particular application leaves unclear whether it 

can be approved and taxed in accordance with the NFA’s statutory requirements. Stely Decl. ¶ 15. 

For example, the applicant’s description of the proposed firearm may lack sufficient information 

or detail to determine whether it is lawful, or the NICS background check results may not be 

determinative. Id. Under those circumstances, because ATF can only approve applications that 

meet the NFA’s requirements, ATF may need to request additional information from the applicant 

in order to complete the process. Id. The purpose of requesting this clarifying information is to 

give applicants an opportunity to demonstrate compliance so that their application can ultimately 

be approved, when appropriate, based on more complete information. Id. If additional information 

is needed, ATF will send a letter to the applicant requesting such information. Id. Once the 

necessary information is received, ATF then works expeditiously to resolve the application as soon 

as practicable, and typically within 90 days. Id. 

In the event the maker of a firearm wishes to challenge the assessment of the NFA’s tax 

against him, the Internal Revenue Code provides an administrative process to address that claim. 

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7 

The maker can file a claim for refund or credit with the Attorney General after submitting an 

application and paying the applicable tax within the applicable limitations period. See 26 U.S.C. 

§ 6511; 26 C.F.R. § 301.6402-2; 27 C.F.R. § 479.172. Only after those administrative remedies 

are exhausted can the maker then challenge the result in United States District Court, if necessary. 

See 26 U.S.C. § 7422 (civil actions for refund).

II. Definition of Making Silencers for Purposes of the National Firearms Act 

The NFA defines “make” to mean “manufacturing (other than by one qualified to engage 

in such business under this chapter), putting together, altering, any combination of these, or 

otherwise producing a firearm.” 26 U.S.C. § 5845(i).3

 

For purposes of the NFA, the term “firearm” includes, inter alia, “any silencer.” 26 U.S.C. 

§ 5845(a). “Silencer” is defined to include “any device for silencing, muffling, or diminishing the 

report of a portable firearm,” as well as “any combination of parts, designed or redesigned, and 

intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part 

intended only for use in such assembly or fabrication.” 18 U.S.C. § 921(a)(24). A person who 

acquires a properly-registered silencer need not apply to “make” that same silencer. Rather, they 

must apply to have that silencer transferred to them. 26 U.S.C. § 5841 (requiring registration before 

silencer is manufactured or transferred); see also Stely Decl. ¶ 13. 

Notwithstanding Plaintiffs’ suggestion to the contrary, Compl. ¶ 58, the NFA’s definition 

of “silencer” does not include each and every part that may be used to make a silencer (e.g., screws, 

bolts, pipes, washers, etc.), nor does ATF interpret it as such. See 18 U.S.C. § 921(a)(24); Stely 

Decl. ¶ 12. Rather, the NFA only includes combinations of parts that are designed and/or intended

3

 The NFA expressly distinguishes between persons who make firearms for personal use, as 

opposed to “manufacturers.” The term “manufacturer” means any person who is engaged in the 

business of manufacturing [silencers].” 26 U.S.C. § 5845. 

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8 

to be used together for making silencers (i.e. so-called suppressor “parts kits”), or a part that has 

the objective design features and characteristics to be identified as a part intended only for use in 

assembling or fabricating a silencer (e.g., a baffle, baffle stack, monolithic baffle core, threaded 

end cap, etc.). Id. By contrast, materials commonly found at a hardware store (e.g., screws, bolts, 

pipes, washers, etc.), are not “intended only for use” in assembling or fabricating a silencer and, 

thus, they are not regulated by ATF as “silencers” because they have a legitimate use outside of 

that purpose. Id. It is only when a person possesses those items and plans to use them for the 

purpose of making a suppressor that a Form 1 must be submitted in order to register that wouldbe silencer. 

III. ATF Response to Largescale Manufacture of Unlawful Silencer Parts Kits 

In late 2021, ATF became aware that a large number of silencer parts kits were being 

unlawfully manufactured and sold under the misleading label of “solvent traps” or “solvent trap 

kits.” Stely Decl. ¶ 19. Although these kits were marketed as “solvent traps” and “solvent trap 

kits” (purportedly to be attached to the barrel of a firearm during cleaning in order to catch excess 

cleaning fluid), they were actually devices that functioned as silencers and had the design 

characteristics of silencers—not cleaning devices. Id. ¶ 20. After these “solvent traps” were 

properly classified as silencers, their manufacturers were told to cease and desist selling those kits, 

unless and until they were manufactured and sold in compliance with the NFA, and two “solvent 

trap” manufacturers had their websites seized. Id. ¶ 21.

In early January 2022, ATF began seeing Form 1 Applications submitted by persons 

seeking to “make” silencers using “solvent trap” kits or potentially similar devices. Id. ¶ 22. ATF 

determined that, because these kits contained all the parts to make a silencer, and are “designed or 

redesigned, and intended for use in assembling or fabricating a firearm silencer,” they fell within 

the NFA’s definition of “silencer.” Id. (quoting 18 U.S.C. § 921(a)(24)). Because such “parts kits” 

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9 

are already silencers in and of themselves under the NFA (whether assembled yet or not), those 

kits should have been registered before being manufactured, transferred, or sold; otherwise, they 

are possessed unlawfully. Id.; see also 26 U.S.C. § 5841 (requiring registration before silencer is 

manufactured or transferred). This meant that applications stating an intention to “make” silencers 

using those unregistered “parts kits” would need to be denied because doing so would place the 

would-be maker “in violation of the law.” 26 U.S.C. § 5822. Having become aware of this 

widespread problem, on February 2, 2022, ATF paused action on all Form 1 applications that 

appeared to implicate unregistered parts kits—which consisted of approximately 2,958 

applications—pending further review and analysis. Stely Decl. ¶ 23. 

In some cases, it was clear the applicant had purchased the parts kit from one of the 

manufacturers against which ATF had taken enforcement action; on February 28, 2022, 

disapprovals were issued to approximately 847 of those applicants. Id. In other cases it was unclear 

from where the parts kit originated or if it was even a kit, depending on the description of the 

firearm on the particular Form 1, id. ¶ 22; with respect to those unclear applications, ATF had to 

seek additional information in order to determine if the NFA’s requirements were met. Id. ¶ 24. 

Accordingly, on March 3, 2022, ATF emailed a letter to approximately 2,111 Form 1 Applicants 

who utilized eForms, seeking additional information in the form of photos, schematics, product, 

model or kit name, if any, and the source from which the parts were obtained, i.e., the name of the 

store or website. Id. On or about April 11, 2022, ATF mailed the same letter to approximately 175 

paper applicants. Id. Ultimately, approximately 1,485 applications were approved after ATF 

received the requested additional information. The remaining 1,649 applications were 

disapproved, either based on additional information received or because the applicant did not 

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10 

respond to the request for additional information. Id. This process took a little over three months; 

the final approval and denial letters were sent out on June 22, 2022. Id. 

This large number of simultaneous requests for additional information and denials in 

February-April of 2022 were unique to this unusual situation, specifically the culmination of 

ATF’s investigation into the large-scale manufacture of unlawful silencer parts known as “solvent 

traps.” Id. ¶ 25. 

IV. Texas House Bill 957 Purports to Exempt Suppressors Made for Personal Use in 

Texas from Some Federal Laws 

Texas House Bill 957 (“HB 957”) was passed on May 4, 2021, and went into effect on 

September 1, 2021. HB 957 purports to exempt firearms suppressors made for personal use in 

Texas from some federal firearms laws. In particular, Section 2.052 of the Texas Government 

Code now provides that neither “[a] firearm suppressor that is manufactured in this state and 

remains in this state” nor “[a] basic material from which a firearm suppressor is manufactured in 

this state” is “subject to federal law or federal regulation . . . under the authority of the United 

States Congress to regulate interstate commerce.” Tex. Gov’t Code § 2.052 (as amended). 

HB 957 further states: “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.” Tex. Gov’t 

Code § 2.054.

4

4

 Before HB 957 went into effect, ATF issued an “Open Letter to All Texas Federal Firearms 

Licensees” on July 26, 2021, advising them that regardless of HB 957, all federal firearms laws 

and regulations continued to apply. See Compl., Ex. 4. The Open Letter further explained that 

“[t]his letter does not impose any new obligations. It merely confirms the continuing applicability 

of existing federal obligations.” Id. at 1. Plaintiffs have not brought any claims purporting to 

challenge the Open Letter itself, nor could they do so in light of the fact that the Open Letter 

imposes no legal obligations. See Bennett v. Spear, 520 U.S. 154, 178 (1997) (holding that a federal 

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V. Individual Plaintiffs’ Stated Intention to Make Suppressors for Personal Use 

None of the Individual Plaintiffs has filed an application to make a firearm suppressor, 

much less paid the applicable tax, been subject to any request for additional information from ATF 

and/or had their application denied. 

 Individual Plaintiffs have submitted three identical declarations in this lawsuit, each 

claiming that they “intend[] to manufacture a firearm suppressor to which section 2.052 of the 

Texas Government Code applies and ha[ve] notified the attorney general of that fact in writing.” 

ECF Nos. 46-4 ¶ 2; 46-5 ¶ 2; 46-6 ¶ 2. Individual Plaintiffs further state that they “intend to 

personally manufacture a firearm suppressor for [their] own non-commercial, personal use.” ECF 

Nos. 46-4 ¶ 2; 46-5 ¶ 2; 46-6 ¶ 2. They provide no description or details about the suppressors they 

intend to make, only that “the firearm suppressor[s] will be manufactured in [their] home[s] from 

basic materials.” ECF Nos. 46-4 ¶ 2; 46-5 ¶ 2; 46-6 ¶ 2. Plaintiffs have offered no further 

information about what types of materials they intend to use, or even more generally what they 

mean by “basic materials.” 

PROCEDURAL HISTORY 

Plaintiffs filed this lawsuit on February 24, 2022. On April 26, 2022, Defendants filed a 

Motion to Dismiss, ECF 10. Upon consideration of Defendants’ motion, Plaintiffs filed an 

Amended Complaint on May 17, 2022, ECF 11. After Defendants moved to dismiss the First 

Amended Complaint on June 15, 2022, ECF 18, Plaintiffs sought leave to amend their complaint 

again, ECF 21, which the Court granted, ECF 20. Plaintiffs filed their now-operative Second 

Amended Complaint on July 15, 2022. ECF 21. 

agency action is only final, and thus subject to legal challenge, if it is “one by which ‘rights or 

obligations have been determined,’ or from which ‘legal consequences will flow’”) (citation 

omitted)). 

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Plaintiffs’ operative Complaint asserts a Second Amendment challenge to the NFA’s tax 

requirements and related processes, and splits that claim into four parts: Count I seeks to enjoin 

the NFA’s requirement that Texans submit an application in conjunction with paying a tax on the 

making of firearms suppressors; Count II seeks to enjoin the NFA’s requirement that Texans pay 

a $200 tax on making firearms suppressors; Counts III and IV seek to enjoin the NFA’s registration 

and marking steps associated with paying that tax. 

On August 2, 2022, Defendants filed a motion to dismiss Plaintiffs’ Second Amended 

Complaint, arguing that the Court lacks jurisdiction because Plaintiffs do not have standing and 

because the Anti-Injunction Act bars Plaintiffs’ challenge to the NFA’s tax scheme; Defendants 

also moved to dismiss because Plaintiffs’ had failed to state a claim upon which relief may be 

granted. ECF 26. After full briefing, the Court denied the Motion to Dismiss on October 3, 2022. 

ECF 33. The Court’s order did not address the merits of Defendants’ motion, explaining that 

“[h]aving reviewed the Motion and the applicable law, the Court finds the arguments contained 

therein are more appropriately raised at the summary judgment stage of the proceedings.” ECF 33. 

The Court subsequently determined that discovery is not appropriate in this case and issued a 

schedule for summary judgment briefing. ECF 45. 

LEGAL STANDARD 

The Court “shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a); see also DeMarco v. Bynum, 50 F.4th 479, 481 (5th Cir. 2022). 

ARGUMENT 

I. Summary Judgment Should be Granted for Defendants Because Plaintiffs Have 

Failed to Establish Standing. 

Because Plaintiffs have failed to establish the requisite cognizable injury to meet the 

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“irreducible constitutional minimum of standing,” this case is not properly before the Court. Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, Plaintiffs must show that they 

have “suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete 

and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. (citations 

omitted). “‘The party invoking federal jurisdiction bears the burden of establishing’ standing–and, 

at the summary judgment stage, such a party ‘can no longer rest on . . . ‘mere allegations,’ but 

must ‘set forth’ by affidavit or other evidence ‘specific facts.’” Clapper v. Amnesty Int’l USA, 568 

U.S. 398, 411-12 (2013) (quoting Lujan, 504 U.S. at 561). Neither the Individual Plaintiffs nor 

Texas has met that burden. 

A. Individual Plaintiffs Lack Standing Because They Have Failed to Demonstrate a 

Cognizable Injury. 

Individual Plaintiffs have failed to establish any concrete injury suffered as a result of the 

challenged laws. None of the Individual Plaintiffs claim to have submitted an application to make 

a firearm suppressor, much less an application that has been delayed or denied. Individual 

Plaintiffs also do not allege that they are ineligible to make a firearm suppressor generally, such 

that filing any application would be futile. Nor do they claim that they are unable to pay the $200 

tax, or that the $200 tax payment itself has impeded their ability to make a silencer in any way. 

Pls.’ Br. at 17-19. 

Instead, Individual Plaintiffs speculate that some nondescript application they might file in 

the future could be denied, based on the unknown particulars of that application—e.g., if ATF 

were to determine that the use of certain (unidentified) parts to make their hypothetical suppressor 

would place the applicant “in violation of the law.” Pls.’ Br. at 18. Individual Plaintiffs set forth 

no facts to establish why their applications to make suppressors would be denied. They do not even 

describe their proposed suppressors or their parts, attesting only that they intend to make them 

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14 

“from basic materials,” without more. ECF Nos. 46-4 ¶ 2; 46-5 ¶ 2; 46-6 ¶ 2. It is well-settled that 

such vague and theoretical allegations of future harm are insufficient to establish standing. See 

Lujan, 504 U.S. at 560; see also Clapper, 568 U.S. at 411-12 (holding that conclusory assertions 

without any “specific facts” are insufficient to establish standing at the summary judgment stage). 

Indeed, the Fifth Circuit has repeatedly held that concern regarding future denial of a firearm 

certification or registration is insufficient to demonstrate Article III standing. See, e.g., Westfall v. 

Miller, 77 F.3d 868, 871-72 (5th Cir. 1996) (“Just because Westfall does not like the firearms 

regulation does not give him standing to complain about its legality. . . . [C]ompletion of the 

statutory procedure is necessary to establish Westfall’s injury.”); Bezet v. United States, 714 F. 

App’x 336, 340 (5th Cir. 2017) (“A plaintiff wishing to challenge [firearm] certification laws must 

generally exhaust his certification options before suing in federal court. Otherwise, his ‘inaction’ 

caused his own injury.”) (citing Westfall, 77 F.3d at 872).5 

Alternatively, Individual Plaintiffs argue that they have standing based on vaguely 

purported fears that submitting an NFA application could “expos[e] them[] to potential criminal 

prosecution on account of their [unlawful] possession of parts disclosed in the application.” Compl. 

¶ 131; see also Pls.’ Br. at 17-18. But Plaintiffs have asserted no facts to explain why they would 

need to disclose possession of any unlawful materials in order to file an NFA application to make 

5

 Because Plaintiffs have not engaged in the requisite administrative process of filing an 

application at all—much less one that was denied—their claims also are not ripe. See Nat’l Park 

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003) (ripeness is a justiciability 

doctrine that prevents courts “from entangling themselves in abstract disagreements over 

administrative policies, and also to protect the agencies from judicial interference until an 

administrative decision has been formalized and its effects felt in a concrete way by the challenging 

parties.”). 

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a suppressor.6

 And, regardless, Plaintiffs’ assertion fails as a matter of law. As Plaintiffs recognize, 

ATF is statutorily barred from using information disclosed in NFA applications “directly or 

indirectly, as evidence against that person in criminal proceeding with respect to a violation of law 

occurring prior to or concurrently with the filing of the application or registration.” Pls.’ Br. at 11 

(quoting 26 U.S.C § 5848(a)). In light of this statutory bar, there is no credible risk of prosecution 

based on what Individual Plaintiffs might choose to disclose in their hypothetical NFA 

applications. Indeed, Plaintiffs do not put forth any facts or cite a single case suggesting that any 

would-be maker has faced prosecution as a result of suppressor parts disclosed in their NFA 

application.7

Accordingly, Individual Plaintiffs lack Article III standing and this Court lacks jurisdiction 

over their claims. 

B. Texas Lacks Standing Because it has Failed to Demonstrate a Cognizable Injury. 

Texas also lacks standing because it has failed to articulate any “legally protected” state 

interest that is harmed as a result of the NFA and its associated regulations, much less a “concrete 

and particularized” injury. Texas has not alleged any direct or concrete injury, nor is it in any 

immediate danger of such injury. Indeed, the NFA imposes no obligations on the State at all. 

Instead, Texas claims standing to assert its general sovereign interest in regulating the 

6

 Even if Individual Plaintiffs had set forth any facts to establish that they possess unregistered 

silencers, such as “parts kits” (which they have not), nothing in the NFA or its regulations requires 

them to disclose that fact in order to make a suppressor. Rather, regardless of what other materials 

Individual Plaintiffs happen to possess, they remain free to file an application and pay the tax to 

make a suppressor using lawful parts. No step in that process requires them to disclose their 

separate possession of other firearms or parts not related to that suppressor. 

7

 Plaintiffs cite several examples of cases in which people have been prosecuted for illegal 

possession of firearm suppressors, all of which are beside the point. Pls.’ Br. at 17 n.7. Review of 

Plaintiffs’ examples confirms that none of those cases involved prosecutions that were based on 

or resulted from information disclosed in NFA applications. Rather, in each of those cases the 

defendants were caught in the act of buying, selling, or using unregistered silencers. 

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16 

making of firearm suppressors within Texas “and in promoting the availability of firearms 

suppressors in Texas.” Compl. ¶ 20. That is insufficient. A state’s alleged harm to its abstract 

interest in its own sovereignty is not in itself a justiciable injury. See Massachusetts v. Mellon, 262 

U.S. 447, 484-85 (1923); New Jersey v. Sargent, 269 U.S. 328, 337 (1926) (allegations that 

provisions of federal law “go beyond the power of Congress and impinge on that of the state . . . 

do not suffice as a basis for invoking an exercise of judicial power”); Texas v. ICC, 258 U.S. 158, 

162-63 (1922) (state’s claim of infringement upon state sovereignty was merely “an abstract 

question of legislative power,” not a justiciable case or controversy). These decisions make clear 

that Texas’s abstract assertion of “sovereign interest” does not give rise to a controversy under 

Article III; Texas is asking this Court “to adjudicate, not rights of person or property, not rights of 

dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but 

abstract questions of political power, of sovereignty, of government.” Mellon, 262 U.S. at 484. 

Alternatively, Texas argues that “a state has a quasi-sovereign interest in the health and 

well-being—both physical and economic of its residents in general.” Pls.’ Br. at 16 (quoting Alfred 

L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982)). Texas does not acknowledge that 

the language it quotes from Alfred L. Snapp addressed parens patriae standing, or the fact that the 

Supreme Court made explicit in the same case that “[a] State does not have standing as parens 

patriae to bring an action against the Federal Government.” 458 U.S. 610 n.16. It is well-settled 

that a state cannot, acting as “parens patriae, . . . institute judicial proceedings to protect citizens 

of the United States from the operation of [federal] statutes.” Mellon, 262 U.S. at 485-86. Because 

citizens of a state are also citizens of the United States, “it is the United States, and not the state, 

which represents [its citizens] as parens patriae” and, thus, “it is no part of [a State’s] duty or power 

to enforce [its citizens’] rights in respect of their relations with the federal government.” Id. The 

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17 

Supreme Court has repeatedly reiterated that Mellon “prohibits” a state from suing federal 

defendants “to protect her citizens from the operation of federal statutes.” Massachusetts v. EPA, 

549 U.S. 497, 520 n.17 (2007) (Mellon “prohibits” “allowing a State ‘to protect her citizens from 

the operation of federal statutes”). Texas thus cannot bring this suit against the federal government 

on the theory that the NFA burdens or otherwise injures Texas’s citizens. 

While Texas states in a conclusory fashion that it “is not trying to protect its citizens from 

the operation of federal law,” Pls.’ Opp. at 25, the only purported “health and well-being” concern 

it identifies is an interest in protecting Texans from restraints on their ability to use suppressors—

e.g., in “protecting” citizens from enforcement of the NFA by the federal government. Id. That is 

just the type of standing theory proscribed by Alfred L. Snapp. In the end, Texas concedes that it 

is suing “to vindicate [its] quasi-sovereign interests in promoting” its policy in favor of the use of 

firearms suppressors.” Pls.’ Br. at 17.8

 That abstract assertion of sovereign interest is insufficient 

to establish Article III standing. See Mellon, 262 U.S. at 485. 

8

 Texas does not—and cannot—purport to have standing based on HB 957, the State’s recentlyenacted law purporting to exempt firearms suppressors made in Texas from federal law. Rather, 

Texas characterizes HB 957 as “set[ting] out the State’s policy in favor of the use of firearms 

suppressors and direct[ing] the Attorney General to vindicate Texas’s independently existing” 

interests in promoting that policy. Pls.’ Br. at 16 (emphasis added). In the absence of any 

independent, legally-cognizable interests, it is well-settled that Texas could not manufacture its 

own standing to challenge a federal law by simply passing a statute purporting to nullify it. HB 

957 merely provides that certain firearms suppressors made in Texas are “not subject to federal 

regulation under the authority of the United States Congress to regulate interstate commerce.” Tex. 

Gov’t Code § 2.052(b). Under the Supremacy Clause, a state law purporting to nullify federal law 

“must yield.” Florida v. Mellon, 273 U.S. 12, 17 (1927); see also Helvering v. Davis, 301 U.S. 

619, 645 (1937). For this reason, Courts consistently recognize that a state has standing based on 

“federal interference with the enforcement of state law” only when “‘the state statute at issue 

regulate[s] behavior or provide[s] for the administration of a state program’ and does not ‘simply 

purport [] to immunize [state] citizens from federal law.’” Texas v. United States, 809 F.3d 134, 

153 (5th Cir. 2015) (emphasis added) (citing Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 

(2011)); see also Texas v. Becerra, No. 5:21-cv-300-H, 2021 WL 6198109, at *21 (N.D. Tex. Dec. 

31, 2021) (also citing Cucinelli for this same principle). 

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C. The Court Must Consider Whether Each Plaintiff Has Standing. 

Because none of the plaintiffs in this case has standing, judgment should be granted for 

Defendants across the board. However, Plaintiffs also are wrong to insist that “if one plaintiff has 

standing, there is no need to consider whether other plaintiffs have standing.” Pls.’ Mem. at 19 

(citing McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 471 (5th Cir. 2014)). The general 

rule Plaintiffs cite does not apply where inclusion of a party without standing would alter the scope 

of available relief. The Supreme Court has made clear that “standing is not dispensed in gross.” 

Town of Chester N.Y. v. Laroe Ests., Inc,, 137 S. Ct. 1645, 1650 (2017). Rather, “a plaintiff must 

demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” 

Id. (citation omitted). And “[t]he same principle applies when there are multiple plaintiffs. At least 

one plaintiff must have standing to seek each form of relief requested in the complaint.” Id. at 1651. 

Plaintiffs challenge the NFA’s requirements as applied in Texas, and seek to enjoin those 

requirements statewide. See Compl., Counts I-IV & Prayer for Relief. Only Texas—not the 

Individual Plaintiffs—could conceivably have standing to seek a statewide injunction in this case. 

This is because an as-applied claimant asserts only that “the acts of his that are the subject of the 

litigation fall outside what a properly drawn prohibition could cover.” Bd. of Trs. of State Univ. 

of New York. v. Fox, 492 U.S. 469, 482 (1989) (italics in original); see also Tineo v. Att’y General, 

937 F.3d 200, 210 (3d Cir. 2019) (as-applied challenge turns on plaintiff’s “particular 

circumstances at hand”). Thus, without Texas as a party, any relief would necessarily be limited 

to an injunction preventing application of the NFA’s requirements to the Individual Plaintiffs. 

Under these circumstances, even assuming arguendo that the Individual Plaintiffs have standing, 

Texas’s lack of standing is relevant to the scope of any relief. 

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II. This Court Lacks Jurisdiction Because the Anti-Injunction Act Bars All of 

Plaintiffs’ Claims. 

Because this lawsuit seeks to enjoin the NFA’s tax scheme, it is barred by the the AntiInjunction Act. The AIA provides that “no suit for the purpose of restraining the assessment or 

collection of any tax shall be maintained in any court by any person, whether or not such person 

is [a] person against whom such tax [is] assessed.” 26 U.S.C. § 7421(a). In other words, the AIA 

“withdraw[s] jurisdiction from the state and federal courts to entertain suits seeking injunctions 

prohibiting the collection of federal taxes.” Linn v. Chivatero, 714 F.2d 1278, 1281 (5th Cir. 1983) 

(quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5 (1962)). 

The Supreme Court has made explicit that the AIA’s jurisdictional limitations apply even 

where, as here, plaintiffs raise a constitutional challenge: 

The “decisions of this Court make it unmistakably clear that the 

constitutional nature of a taxpayer’s claim . . . is of no consequence” to 

whether the prohibition against tax injunctions applies. This is so even 

though the Anti-Injunction Act’s prohibitions impose upon the wronged 

taxpayer requirements at least as onerous as those mandated by the refund 

scheme—the taxpayer must succumb to an unconstitutional tax, and seek 

recourse only after it has been unlawfully exacted. 

United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 10 (2008) (quoting Alexander v. “Am. 

United” Inc., 416 U.S. 752, 759 (1974)) (emphasis added); see also United States v. Am. Friends 

Serv. Comm., 419 U.S. 7, 11 (1974) (“Even though the remitting of the employees to a refund 

action may frustrate” the plaintiffs’ First Amendment rights, “the bar of the Anti-Injunction Act 

is not removed.”); Linn, 714 F.2d at 1282 (Plaintiff’s “decision to cast his lawsuit in constitutional 

terms does not mean that the Anti-Injunction Act is inapplicable”). 

The AIA protects the “Government’s need to assess and collect taxes as expeditiously as 

possible with a minimum of preenforcement judicial interference ‘and to require that the legal right 

to the disputed sum[] be determined in a suit for refund.’” Bob Jones Univ. v. Simon 416 U.S. 735, 

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736-37 (1974) (quoting Enochs, 370 U.S. at 7). Thus, it is well-settled that the AIA is not limited 

to claims targeting the specific act of paying a levy, but rather also encompasses requests for an 

injunction that are aimed at “collection or assessment of [that] tax,” particularly when they are part 

of an integrated tax scheme. CIC Servs. LLC, 141 S. Ct. at 1590 (citation omitted). Moreover, the 

AIA bars suits against a “tax rule” regardless of whether the “tax in question is a so-called 

regulatory tax—that is, a tax designed mainly to influence private conduct, rather than to raise 

revenue.” Id. at 1593 (citing Sonzinsky, 300 U.S. at 513). 

To determine whether a plaintiff’s claims are barred by the AIA, courts assess whether the 

“primary purpose” of the lawsuit is to seek relief that would “restrain the collection of taxes or the 

collection of information that would aid in the assessment of taxes.” Linn, 714 F.2d at 1282 

(quoting Bob Jones, 416 U.S. at 738). When considering “a suit’s purpose” the Court must “inquire 

not into a taxpayer’s subjective motive, but into the action’s objective aim—essentially, the relief 

the suit requests.” CIC Servs., LLC 141 S. Ct. at 1589 (cleaned up). The AIA “kicks in when the 

target of a requested injunction is a tax obligation—or stated in the Act’s language, when that 

injunction runs against the ‘collection or assessment of a tax.’” Id. at 1590 (citation omitted). 

As detailed below, this case falls squarely within the jurisdictional bar of the AIA because 

every aspect of the NFA that Plaintiffs seek to enjoin is an integral component of the statute’s 

mechanism for imposing a tax obligation. And the narrow Enochs exception to the AIA that 

Plaintiffs invoke does not apply here. 

A. The AIA Bars This Case Because its Object is to Enjoin the Collection or 

Assessment of a Tax. 

This case is barred in its entirety because its “primary purpose” is to seek relief that would 

restrain the “collection or assessment of [a] tax.” CIC Servs., LLC, 141 S. Ct. at 1589 (citation 

omitted). Plaintiffs challenge the NFA’s $200 tax on the making of a firearm suppressor (Count 

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21 

II) and the NFA’s application, registration, and marking requirements that aid in collection and 

enforcement of that tax (Counts I, III & IV). All four counts of Plaintiffs’ Complaint seek to enjoin 

provisions of the NFA, which Plaintiffs concede “is a tax statute.” Compl. ¶ 42; see also Sonzinsky,

300 U.S. at 511-13 (holding that the NFA is a lawful exercise of Congress’s taxing power).9

Plaintiffs do not dispute that the AIA applies to the $200 tax payment imposed by the NFA, 

see Pls.’ Br. at 19, nor could they. It is well settled that the AIA applies to excise taxes, see Bob 

Jones, 416 U.S. at 741, and that the levies imposed by the NFA are excise taxes. See 26 U.S.C. § 

5821(a) (“There shall be levied, collected, and paid upon the making of a firearm [suppressor] a 

tax at the rate of $200 for each firearm made.”) (emphasis added); see also Sonzinksy, 300 U.S. at 

511-13. Plaintiffs instead break the NFA into parts, and ask the Court to rewrite the statute by 

eliminating its application, registration, and marking requirements. Compl. ¶¶ 129, 151. But the 

NFA’s tax payment cannot be treated in isolation. Rather, the challenged requirements together 

make up the NFA’s integrated “taxing scheme.” United States v. Cox, 906 F.3d 1170, 1179 & n.12 

(10th Cir. 2018) (finding that the NFA’s process for collection of excise taxes and registration 

requirements are part of the statute’s tax scheme); id. at 1183 n.12 (noting that “[o]ther circuits 

uniformly agree” that the NFA’s requirements are “a valid exercise of Congress’s taxing power,” 

and listing cases). The Supreme Court has already held that the NFA’s tax scheme regulates only 

9

 In Sonzinsky, the Court considered whether the NFA’s analogous tax scheme for firearms dealers 

was a constitutional exercise of Congress’s taxing powers. The criminal defendant argued that the 

NFA’s levy was not a true tax, “but a penalty imposed for the purpose of suppressing traffic in 

certain noxious type of firearms[.]”300 U.S. at 512. The Court held that “[e]very tax is in some 

measure regulatory . . . [b]ut a tax is not any the less a tax because it has a regulatory effect.” Id.

at 513-14. The Court further held that, since the measure operates as a tax, it is within Congress’s 

taxing power and courts should not “speculate as to the motives which moved Congress to impose 

it.” Id. The Supreme Court has consistently reiterated this principle. See CIC Servs. LLC, 141 S. 

Ct. at 1593 (“This Court has long since ‘abandoned the view that brightline distinctions exist 

between regulatory and revenue-raising taxes.’”) (quoting Bob Jones, 416 U.S. at 743 n.17). 

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“in aid of a revenue purpose.” Sonzinsky, 300 U.S. at 513. Under this binding precedent, there can 

be no doubt that Plaintiffs’ claims are barred by the AIA. 

 A closer look at the NFA’s application, registration, and marking requirements confirms 

that those steps serve to aid in the assessment and collection of the tax. First, requiring application 

and approval to make a firearm, in conjunction with submitting the requisite tax payment, is merely 

the regulatory mechanism used to identify those who are required to pay the tax in the first place. 

See generally Bezet v. United States, 276 F. Supp. 3d 576, 618-19 (E.D. La. 2017). As set forth on 

the application form itself, the purpose of the information is to “verify payment of the tax imposed 

by 26 U.S.C. § 5821,” and to confirm whether the applicant owes that tax because the firearm 

making can lawfully proceed. Id.

10 Thus, the NFA’s application is not “a standalone reporting 

requirement” that exists independent of the tax, such that it would fall outside the purview of the 

AIA. CIC Servs. LLC, 141 S. Ct. at 1594.11 Rather, the NFA directly levies a tax that flows directly 

from its application process. Indeed, use of the application process to assess the NFA’s tax is 

10 Notably, if ATF determines that the applicant cannot make the requested firearm, and thus that 

no tax is owed, the applicant’s $200 payment is returned. See 27 C.F.R. § 479.64. 

11 Plaintiffs incorrectly cite CIC for the broad proposition that “challenges to reporting 

requirements are not barred by the AIA.” Pls.’ Br. at 21. But CIC was far more limited. In CIC,

the plaintiff challenged an IRS Notice that required reporting certain transactions, but did not raise 

any claim against the separate statutory tax that served as one way to enforce that reporting 

requirement. 141 S. Ct. 1590. The Court held that the AIA did not apply because the IRS’s 

“standalone reporting requirement” was too attenuated from the separate statutory tax. Id. The 

Court made clear that “[h]ad Congress, or the IRS act[ing] through a delegation, imposed a tax on 

micro-captive transactions themselves—and had CIC then brought a pre-enforcement suit to 

prevent the IRS from applying that tax—the Anti-Injunction Act would have kicked in.” Id. at 

1594. The Court also made explicit that a “legal rule at issue is a tax provision” to which the AIA 

applies when “[t]he tax does not backstop the violation of another law” and instead “imposes a 

cost on perfectly legal behavior.” Id. at 1593 (emphasis added). The result in CIC is clearly 

distinguishable from the facts at hand. Here, the NFA directly levies a tax, which flows directly 

from the statute’s application requirement; and the NFA’s tax is not a penalty, but rather is an 

excise tax that is assessed upon a person’s compliance with the requisite process. 

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expressly required by the statute itself—a statute that Congress lawfully enacted pursuant to its 

taxing power. See 26 U.S.C. § 5822 (“No person shall make a firearm unless he has . . . filed with 

the [Attorney General] a written application, in duplicate, to make and register the firearm on the 

form proscribed”); see also Compl., Ex. 3 at 4 (NFA Form-1 statement that “[s]olicitation of this 

information is made pursuant to the National Firearms Act (26 U.S.C. §§ 5821 and 5822)”). 

Plaintiffs argue that the AIA does not apply to the NFA’s application process because some 

applications are denied, which results in a tax obligation of $0. Pls.’ Br. at 21 (arguing that denying 

an application is “an effort to not collect taxes”). Pls.’ Br. at 20-21. But the AIA bars suit for the 

purpose of restraining “the assessment or collection of any tax.” 26 U.S.C. § 7421(a) (emphasis 

added). Enjoining the NFA’s application requirement would restrain the assessment of the tax that 

flows from the application process—regardless of whether Defendants’ ultimate assessment is that 

no tax is owed. Indeed, that is why the only court to consider whether the AIA bars challenges to 

the NFA’s tax scheme (including its application requirement) held that it did. See 

Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38 (D.N.H. 1988). 

Second, the NFA’s registration and related marking requirements serve to aid ATF in its 

ability to enforce the applicable tax—a fact that both the Supreme Court and the Fifth Circuit have 

recognized. In Sonzinsky v. United States, the Supreme Court upheld the NFA’s registration 

provisions as a constitutional exercise of Congress’s taxing power, on the basis that those 

registration requirements are “obviously supportable as in aid of a revenue purpose.” 300 U.S. at 

513. Likewise, the Fifth Circuit has repeatedly upheld Congress’s ability to enforce a tax through 

the promulgation of firearm registration requirements. See, e.g., Bezet v. United States, 714 F. 

App’x 336, 342 (5th Cir. 2017) (holding that the registration requirement in Section 5822 of the 

NFA is “part of the web of regulation aiding enforcement of the . . . tax provision”); United States 

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v. Gresham, 118 F.3d 258, 263 (5th Cir. 1997) (holding requirement to register pipe bombs was 

“not a mere pretext for a police power, but is ‘part of the web of regulation aiding enforcement of 

the [] tax provision’”); United States v. Ardoin, 19 F.3d 177, 188 (5th Cir. 1994) (holding 

requirements to register weapons can be constitutionally premised on Congress’s taxing power); 

United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972) (upholding penalty on possession of 

unregistered weapons under Congress’s taxing power because “[s]uch a penalty imposed on 

transferees ultimately discourages the transferor on whom the tax is levied from transferring a 

firearm without paying the tax”). 

Accordingly, notwithstanding Plaintiffs’ assertions to the contrary, Pls.’ Br. at 19-23, every 

NFA provision and regulation they seek to enjoin serves the assessment and collection of a tax. 

Thus, Plaintiffs’ claims are therefore barred by the AIA. 

B. The Enochs Exception to the AIA Is Narrow and Does Not Apply 

Plaintiffs invoke the exception to the AIA set forth in Enochs, 370 U.S. 1 (1962), Pls.’ Br. 

at 23-25, but that exception is narrow and does not apply. Under the two-part test set forth in 

Enochs, a pre-enforcement injunction against the assessment or collection of taxes may be granted 

only: (1) “if equity jurisdiction otherwise exists,” meaning that irreparable harm would result if 

the case does not go forward; and (2) “if it is clear that under no circumstances could the 

Government ultimately prevail.” Enochs, 370 U.S. at 7; see also Bob Jones Univ., 416 U.S. at 748-

49. “Unless both conditions are met, a suit for preventive injunctive relief must be dismissed.” Am. 

Friends Serv. Comm., 419 U.S. at 10 (quoting Alexander, 416 U.S. at 758). Plaintiffs cannot satisfy 

either prong of the Enochs test, much less both. 

1. Equity Jurisdiction Is Not Implicated 

Equity jurisdiction is not implicated here because Plaintiffs cannot establish “irreparable 

injury and inadequacy of legal remedy.” Kemlon Prod. & Dev. Co. v. United States, 638 F.2d 

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1315, 1321 (5th Cir. 1981). If this case is dismissed pursuant to the AIA, Individual Plaintiffs 

would not lack alternative means to litigate their claims. Rather, they can employ the appropriate 

administrative procedure, which is to file a claim for refund after submitting an application and 

paying the applicable tax within the limitations period, and thereafter to challenge the result in 

United States District Court, if necessary. See 26 U.S.C. §§ 6511, 7422; 26 C.F.R. § 301.6402-2; 

27 C.F.R. § 479.172; see also Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38 (D.N.H. 1988) 

(dismissing challenge to NFA’s taxing provisions for firearms makers based on the AIA, and 

explaining appropriate alternative process for the challenge). Alternatively, in the event Individual 

Plaintiffs submitted an application to make a firearm and that application were denied (which there 

is no basis to conclude would happen based on the record before the Court), they could file a 

lawsuit challenging the denial at that time. Such a challenge would then take into account the 

reason for the denial and the effect of any alleged resulting injury. See, e.g., United States v. One 

Palmetto State Armory, 115 F. Supp. 3d 544, 577 (E.D. Pa. 2015) (holding firearms maker had 

standing to challenge denial of NFA application to make a firearm).12

Nor can Plaintiffs claim irreparable harm based on a purported loss of Second Amendment 

rights. As discussed infra in Part III, no constitutional rights are implicated here because the 

Second Amendment does not apply. But, even assuming arguendo that constitutional rights were 

involved, the Supreme Court has made clear that “the constitutional nature of a taxpayer’s claim, 

as distinct from its probability of success, is of no consequence under the Anti-Injunction Act.” 

12 Nor can the Individual Plaintiffs claim irreparable harm based on their vague purported fear that 

submitting an NFA application could “expos[e] them[] to potential criminal prosecution on 

account of their [unlawful] possession of parts disclosed in the application.” Compl. ¶ 131. As 

discussed supra in Part I.A, Plaintiffs neither explain what parts they possess, nor offer any 

explanation as to how or why they may have those parts illegally. Moreover, Plaintiffs do not 

allege facts suggesting that any would-be maker has faced or could face prosecution as a result of 

suppressor parts disclosed in their NFA application. 

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Am. Friends Serv. Comm., 419 U.S. at 11 (quoting Alexander, 416 U.S. at 759). Under this 

precedent, any delay in Plaintiffs’ ability to make a suppressor is insufficient to establish 

irreparable harm in this context. Comparison to First Amendment caselaw only confirms this point. 

Contrary to Plaintiffs’ assertions, it is not “well settled that the loss of First Amendment freedoms 

for even minimal periods of time constitutes irreparable injury” for purposes of the AIA. Pls.’ Opp. 

at 6 (quoting Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981)).13

Just the opposite—the Supreme Court has applied this rule even where subjecting a plaintiff to the 

challenged taxation method would, in and of itself, permanently deprive the plaintiffs of access to 

First Amendment rights. See American Friends Serv. Comm., 419 U.S. at 11 (“Even though the 

remitting of the employees to a refund action may frustrate their chosen method of bearing witness 

to their religious convictions, a chosen method which they insist is constitutionally protected, the 

bar of the [AIA] is not removed.”). 

Finally, Plaintiffs claim that “Texas is also irreparably harmed by delays to or prohibitions 

on Texans’ ability to use firearm suppressors for the purpose of home defense” which it argues 

“run[s] counter to state policy favoring firearm suppressors.” Pls.’ Br. at 25. But, Texas has not 

identified any concrete harm to itself, such that the State requires an injunction on its own behalf. 

Rather, Texas’s claims are entirely derivative of the injuries claims by individual Texans, 

specifically would-be makers of firearm suppressors and, in particular, the Individual Plaintiffs. 

See supra Part I.B. Texas has offered no explanation as to why the rights of individual Texans—

and by extension its purported interest therein—cannot be addressed through the requisite NFA 

process described above. See New York v. Mnuchin, 408 F. Supp. 3d 399, 412 (S.D.N.Y. 2019) 

13 Deerfield Medical Center addressed the irreparable harm prong of the preliminary injunction 

standard in a case challenging an abortion restriction. 661 F.2d at 338. It had nothing to do with 

the AIA or the Second Amendment.

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(explaining that the AIA would bar the state’s claims if the state only sought “to assert the rights 

of their taxpayers—rights that the taxpayers could defend themselves in a refund action”); 

Confederated Tribes & Bands of Yakama Indian Nation v. Alcohol & Tobacco Tax & Trade 

Bureau, 843 F.3d 810, 815 (9th Cir. 2016) (finding AIA barred tribe from bringing claims aimed 

at protecting its members because, inter alia, the members were incentivized to raise their own 

claims). 

2. Plaintiffs Cannot Establish that the Government Is Unable to Prevail 

Under Any Circumstances. 

Because Plaintiffs cannot satisfy the first prong of Enochs, the narrow exception does not 

apply, and the Court need not address the merits to determine that this case is jurisdictionally 

barred under the AIA. See Kemlon Prod., 638 F.2d at 1321 (“Enochs establishes two prongs, both 

of which must be satisfied.”). 

In any event, Plaintiffs also have not established that the United States is unable, under any 

circumstances, to ultimately prevail in this suit. For purposes of the Enochs exception, the Court 

need only determine whether the United States could succeed based on the “most liberal view of 

the law and the facts.” Kemlon Prod., 638 F.2d at 1321. In other words, Plaintiffs’ Second 

Amendment claims need only be “sufficiently debatable to foreclose any notion that ‘under no 

circumstances could the [United States] ultimately prevail.’” Bob Jones, 416 U.S. at 749. As 

detailed infra in Part III, if the Court were to reach the merits in this case, Defendants would be 

entitled to summary judgment. For the same reasons, and particularly given the extensive 

precedent supporting Defendants’ positions, there can be no doubt that Defendants have a path to 

success under “most liberal view of the law.” 

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III. Summary Judgment Should Be Granted for Defendants Because the Challenged 

Laws Are Constitutional. 

Even if the Court were to reach the merits in this case, summary judgment should be 

granted for Defendants because the NFA’s tax scheme is plainly constitutional as applied to 

suppressors. To determine whether a law violates the Second Amendment, the Court must first 

determine whether the challenged law impinges upon a right protected by the text of the Second 

Amendment at the outset. See Bruen, 142 S.Ct. at 2130. As detailed below, every court to consider 

the issue—both before and after Bruen—has held that firearms suppressors are not protected by 

the Second Amendment, either because they are not “bearable arms” or because they are 

“dangerous and unusual.” Nothing in Plaintiffs’ motion justifies a departure from that unbroken 

precedent in this case.14

More broadly, the NFA’s tax scheme also does not implicate the Second Amendment 

because it does not ban making silencers, but rather imposes ministerial requirements that are akin 

to the type of firearms licensing requirements that the Supreme Court and the Fifth Circuit have 

repeatedly upheld. And, even if the Second Amendment covered the laws at issue here, they are 

“consistent with the Nation’s historical tradition of firearm[s] regulation,” Bruen, S.Ct. 2130, and 

therefore do not run afoul of the Constitution. 

14 Rather than grapple with the extensive caselaw regarding suppressors and the NFA, Plaintiffs 

provide an eight-page footnote, cataloguing post-Bruen decisions that address other firearms and 

other laws not challenged here. See Pls.’ Br. at 42-50. While the Court should focus on the 

abundant caselaw that directly applies to the questions at hand, it is worth noting that the majority 

of cases listed in Plaintiffs’ footnote held the restrictions at issue to be constitutional in the wake 

of Bruen. If anything, Plaintiffs’ catalogue only further confirms the salient point made in Heller,

and reiterated in Bruen, that the Second Amendment does not provide “a right to keep and carry 

any weapon whatsoever in any manner whatsoever and for whatever purpose.” Bruen, 142 S.Ct. 

at 2128. 

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A. Firearm Silencers are Not Bearable Arms, So Their Use Is Not Protected by the 

Second Amendment. 

Under District of Columbia v. Heller, the Second Amendment extends only to “instruments 

that constitute bearable arms.” 554 U.S. 570, 582 (2008); Hollis v. Lynch, 827 F.3d 436, 447 (5th 

Cir. 2016) (same). No court has ever held that a firearm suppressor is an “arm” within the meaning 

of the Second Amendment. In fact, every court to consider the issue has found that suppressors do 

not qualify as “bearable arms.” See, e.g., Cox, 906 F.3d at 1186 (“A silencer is a firearm accessory; 

it’s not a weapon in itself.”); United States v. McCartney, 357 F. App'x 73, 76 (9th Cir. 2009) 

(holding that silencers are not protected by the Second Amendment); United States v. Stepp-Zafft, 

733 F. App'x 327, 329–30 (8th Cir. 2018) (on plain error review, finding no plain error where 

district court failed to dismiss unregistered silencer charge on Second Amendment grounds); 

United States v. Saleem, No. 3:21-cr-00086, 2023 WL 2334417 (W.D.N.C. Mar. 2, 2023) 

(“[S]ilencers] . . . are not firearms within the meaning of the Second Amendment but are instead 

firearm accessories that fall outside its protection.”); United States of Am. v. Royce, No. 1:22-CR130, 2023 WL 2163677, at *4 (D.N.D. Feb. 22, 2023) (holding that “there is no Second 

Amendment right to possess a silencer” because they “are not considered ‘arms’ within the 

meaning of the Second Amendment”); United States v. Al-Azhari, 2020 WL 7334512, at *3 (M.D. 

Fla. Dec. 14, 2020) (same); Kaszycki v. United States, No. C19-1943, 2020 WL 2838598, at *4 

(W.D. Wash June 1, 2020) (same); United States v. Hasson, 2019 WL 4573424, at *4-5 (D. Md. 

Sept. 20, 2019) (“Silencers generally have no use independent of their attachment to a gun. They 

do not fire bullets on their own and do not contain a slide, trigger, firing pin, cartridge case, barrel, 

primer, or gunpowder.”), aff’d 26 F.4th 610 (4th Cir. 2022). 

As the Tenth Circuit explained in Cox, “[a]n instrument need not have existed at the time 

of the founding to fall within the amendment’s ambit, but it must fit the founding-era definition of 

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an ‘Arm[].’” 906 F.3d at 1186 (citing Heller, 554 U.S. at 581); see also Bruen, 142 S.Ct. at 2132 

(“[T]he Second Amendment’s definition of ‘arms’ is fixed according to its historical 

understanding[.]”). Consistent with this requirement, Heller explained that the historical 

understanding of the term “arm” covers “[w]eapons of offence or armour of defence,” or “any 

thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike 

another.” 554 U.S. at 581 (citing two dictionaries from the eighteenth, and one from the nineteenth, 

century). Courts have rightly held that, because suppressors are neither weapons nor “an armour 

of defense,” they fall squarely outside the historical definition of “arms” and are not within the 

Second Amendment’s “ambit.” Cox, 906 F.3d at 1187; see also Hasson, 2019 WL 4573424 at *4 

(collecting cases); Al-Azhari, 2020 WL 7334512 at *3 (adopting the historical analysis from Cox). 

Nothing in Bruen calls those decisions into question. Rather, courts correctly looked to foundingera definitions of the term “arms” in order to determine that suppressors are not covered—which 

is the same “text-and-history” standard demanded by Bruen. 142 S.Ct. at 2138. Thus, it is 

unsurprising that courts have continued to hold that suppressors are not “arms,” and that they are 

not subject to Second Amendment protection, in the months since Bruen was decided. See Royce, 

2023 WL 2163677 at *4; United States v. Al-Azhari, 8:20-cr-206, ECF No. 280 (M.D. Fl. Oct 14, 

2022) (denying motion to reconsider decision finding silencer is not a bearable arm within the 

meaning of the Second Amendment based on Bruen). 

Plaintiffs urge the Court to disregard this precedent, arguing that “whether a firearm 

suppressor is or is not an ‘arm’ is not the issue.” Pls.’ Br. at 28. Plaintiffs’ theory is that, because 

suppressors may be used in conjunction with a protected weapon, the conduct of using a suppressor 

is automatically covered by the Second Amendment. Id. at 28-20. Plaintiffs do not cite a single 

case in support of this proposition with respect to suppressors, and indeed there is none. Instead, 

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courts have recognized that the Second Amendment does not cover anything and everything 

associated with using a protected firearm—rather, only what is “necessary to the exercise of the 

core Second Amendment right.” Hasson, 2019 WL 4573424 at *4-5. And, “[a]lthough silencers 

may improve the usage of a firearm, they are not necessary, and they are therefore not protected 

by the Second Amendment.” Id. at *5; see also Saleem, 2023 WL 2334417 at *10 (holding that 

silencers do not qualify for Second Amendment protection because “[t]he use of a silencer is in no 

way necessary to the effective use of a firearm—it certainly has benefits for the user, but unlike 

cleaning materials or bullets, a firearm can be used safely and effectively without a silencer.”). 

For these same reasons, Plaintiffs’ attempt to draw a comparison between making 

suppressors and “when one goes to a firing range” or “when one uses ammunition” is inapt. Pls.’ 

Opp. at 10. Unlike suppressors, the Seventh Circuit found that firing ranges are not “categorically 

unprotected by the Second Amendment” because “the right to possess firearms for protection 

implies a corresponding right to acquire and maintain proficiency in their use; the core right 

wouldn’t mean much without the training and practice that make it effective.” Ezell v. City of 

Chicago, 651 F.3d 684, 704 (7th Cir. 2011).15 Similarly, courts have held that the Second 

Amendment covered ammunition because, unlike a restriction on making suppressors, “[a] 

regulation eliminating a person’s ability to obtain or use ammunition could thereby make it 

impossible to use firearms for their core purpose.” Jackson v. City and Cnty. of San Francisco, 

746 F.3d 953, 967 (9th Cir. 2014). By contrast, every court to apply this same standard to 

suppressors has reached the opposite conclusion. See, e.g., Hasson, 2019 WL 4573424 at *5 

15 The Ezell Court also found that protection of the right to target practice (and by extension 

access to a firing range) had a historical basis in the Second Amendment. Id. at 405. By contrast, 

Plaintiffs cite to no similar historical analogue with respect to suppressors, which were not even 

invented until the Twentieth Century. 

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(holding that silencers are distinguishable from firing ranges and ammunition because “there is no 

evidence that silencers are ‘so critical’ to firearm ownership that firearms cannot be used 

effectively without them”). 

Because suppressors are not “arms” protected by the Second Amendment, the NFA does 

not implicate Plaintiffs’ constitutional rights as applied to them, and summary judgment should be 

granted for Defendants. 

B. Suppressors are Not Protected by the Second Amendment Because They Are 

Dangerous and Unusual 

Even if suppressors could be deemed “arms,” they still would not implicate the Second 

Amendment because they are “not typically possessed by law-abiding citizens for lawful 

purposes,” Id. at 625, and thus are considered “dangerous and unusual” based on historical 

tradition. Heller, 554 U.S. at 627. In Bruen, the Supreme Court reaffirmed Heller’s holding that 

not all weapons are protected by the Second Amendment. Bruen, 142 S.Ct. at 2128 (“[T]he right 

[is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for 

whatever purpose.”). Rather, there exists a “historical tradition of prohibiting the carrying of 

dangerous and unusual weapons.” Id. at 2162 (quoting Heller, 554 U.S. at 626–27) (Kavanaugh, 

J., concurring); United States v. Holton, No. 3:21-CR-0482, 2022 WL 1670195 (N.D. Tx. Nov. 3, 

2022) (“The Supreme Court in Bruen and Heller confirmed that [dangerous and unusual] weapons 

are not protected under the Second Amendment.”). 

Every court to consider the question has upheld silencer restrictions on the grounds that 

silencers are dangerous and unusual. See, e.g., McCartney, 357 F. App’x. at 76 (“[S]ilencers . . 

. are not ‘typically possessed by law-abiding citizens for lawful purposes’” and are less common 

than either short-barreled shotguns or machineguns); Saleem, 2023 WL 2334417 at *11 

(“[S]ilencers fall into the category of ‘dangerous and unusual weapons’ and are outside the scope 

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33 

of the Second Amendment’s protection.”); United States v. Perkins, 2008 WL 4372821, at *4 (D. 

Neb. 2008) (“[S]ilencers/suppressors are not in common use by law-abiding citizens for lawful 

purposes and therefore fall within the category of dangerous and unusual weapons that the 

government can prohibit for individual use.”) (citation omitted). 

Indeed, firearms suppressors were perceived as “not typically possessed by law-abiding 

citizens for lawful purposes” almost immediately after their invention, and they were quickly used 

to facilitate crimes. See Robert J. Spitzer, Gun Accessories and the Second Amendment: Assault 

Weapons, Magazines, and Silencers, 83 L. & Contemp. Probs. 231, 246-49 (2020). The silencer 

was invented in the early 1900s and patented in 1908. Id. at 246. “Objections to civilian use of 

silencers appeared almost immediately.” Id. By 1909, Maine became the first state to ban the sale 

or possession of silencers, and New Jersey followed two years later. Id. at 247. The primary 

concern underlying the unregulated possession of suppressors was crime that would be committed 

by both typical criminals and hunters/poachers. Id. “From 1909 to 1936, at least fifteen states 

enacted silencer restrictions,” including Arizona, Louisiana, Michigan, North Carolina, 

Pennsylvania, and Wyoming. Id. at 248, n.123. Ultimately, the inventor of the silencer and his 

company “discontinued manufacturing silencers because of the popular impression that this 

invention was an aid to crime.” Id. at 248 n.125 (Maximum Bans Gun Silencer, N.Y. TIMES, May 

8, 1930, at 27). 

The dangerousness of silencers is further affirmed by Congress’s decision to include them 

in the NFA. “It is . . . clear from the face of the Act that the NFA’s object was to regulate certain 

weapons likely to be used for criminal purposes . . . .” United States v. Thompson/Center Arms 

Co., 504 U.S. 505, 517 (1992); see also H.R. Rep. No. 1337, 83d Cong., 2d Sess., A395 (1954) 

(indicating “congressional intent to cover under the National Firearms Act only such modern and 

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34 

lethal weapons . . . as could be used readily and efficiently by criminals and gangsters”); see also 

United States v. Aiken, 974 F.2d 446 (4th Cir. 1992) (explaining that purpose of the NFA is to tax 

and regulate “certain specially dangerous and concealable weapons.”). By including 

silencers within the NFA’s ambit, and then later expanding the statutory definition of silencers to 

encompass combinations of parts or parts kits, See Pub. L. No. 99-308, § 109(b), 100 Stat. 449, 

460 (1986), “Congress determined silencers are ‘modern and lethal weapons’ that are ‘likely to be 

used for criminal purposes.’” Saleem, 2023 WL 2334417 at *11. Based on this legislative history, 

another judge on this Court recently held that the NFA is “a statute regulating dangerous and 

unusual weapons.” Holton, 2022 WL 16701935 at *3. 

Plaintiffs ask the Court to disregard the history demonstrating dangerousness of 

suppressors, on the theory that they have been “infrequently used in criminal activity” in more 

recent years. Pls.’ Br. at 3-4 (citing data from 2017). But a lower rate of suppressor use by criminals 

today may simply indicate that Congress’s attempt to deter the unlawful use of silencers has 

succeeded. And, in any event, suppressors continue to be used to commit dangerous crimes in 

modern society. For example, in 2019, a gunman used a handgun with a silencer attached to kill 

twelve people and injure four people in Virginia Beach. Violence Pol’y Ctr., Silencers: A Threat 

to Public Safety, at 3 (July 2019), available at https://www.vpc.org/studies/silencers.pdf. And, 

over the last decade, silencers also have been used by criminals seeking to avoid detection when 

committing robberies, drug trafficking, terrorist plots, gang-related and other murders, and hate 

crimes, among other things. Id. at 3-7. This is unsurprising, given that the purpose of a suppressor 

is to muffle the sound of a gun, which makes it easier for a perpetrator to avoid detection. As courts 

have recognized in other contexts, firearm features that help to conceal a weapon may render that 

weapon increasingly dangerous. See, e.g., Thompson/Center Arms Co., 504 U.S. at 517 

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(emphasizing the regulation of short-barreled rifles because they are “concealable weapon[s]” that 

are thus likely to be used for criminal purposes); Cox, 906 F.3d at 1185 (holding that “possession 

of short-barreled rifles falls outside the Second Amendment’s guarantee,” given dangerousness of 

such weapons, because their “concealability fosters [their] use in illicit activity”). 

Nor are suppressors “typical” (i.e., common or usual), as Plaintiffs suggest. See Pls.’ Br. at 

30. In Hollis v. Lynch, the Fifth Circuit identified the “wide variety in methodological approaches” 

that may be used to determine “usualness”—including, the “total number” of the particular weapon 

in the United States, the “percentage and proportion” of the particular weapon relative to that total 

number, and consideration of the number of jurisdictions in which the particular weapon is banned 

or limited. 827 F.3d at 449. Suppressors are not common by any of these metrics. 

First, as Plaintiffs lay out, there are approximately 2.6 million firearm suppressors in the 

United States, Pls.’ Br. at 30; that total number of suppressors falls far short of the requisite 

threshold for “common use” that has been recognized by the Fifth Circuit. See Hollis, 827 F.3d at 

449–50 (comparing number of machine guns to “50 million large-capacity magazines” in use, or 

the “more than 8 million AR- and AK-platform semi-automatic rifles”). 

Second, to the extent “[p]ercentage analysis may also be relevant,” the number of 

suppressors relative to the total number of firearms in the United States is “quite low.” Id. at 449-

50. Conservatively estimating that there are approximately 400 million civilian-owned firearms in 

the United States,16 the number of silencers (2.6 million) amounts to less than one percent of that 

amount (0.65%). 

16 See Christopher Ingraham, There are More Guns than People in the United States, According 

to a New Study of Global Firearm Ownership, The Washington Post, (June 19, 2018 at 10:31am 

EDT), available at https://perma.cc/LNE7-8TZQ (citing 2018 study estimating 393 million 

civilian-owned firearms in the United States). Total current firearm ownership is likely far higher 

than 400 million, as consumers have purchased nearly twenty million firearms per year in recent 

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But, even if the raw numbers associated with suppressor ownership were deemed relatively 

high compared to other weapons, that alone would be insufficient to establish “usualness.” See id.

at 449. In Hollis, the Fifth Circuit looked to Justice Alito’s concurring opinion in Caetano v. 

Massachusetts, 577 U.S. 411 (2016), which suggested that the evaluation involves, at the very 

least, looking to the “absolute number” of weapons at issue “plus” the number of states where the 

firearm “may be lawfully possessed.” Hollis, 827 F.3d at 449–50 (emphasis in original). While the 

Supreme Court found that 200,000 stun-guns in Caetano did not render them unusual, Hollis 

explicitly rejected the argument that the “absolute number [of firearms] by itself was sufficient” 

in Caetano to determine usualness. Hollis, 827 F.3d at 450. Rather, the Fifth Circuit also looked 

to the number of states in which machine guns could be “lawfully possessed.” Id. Specifically, the 

Court added together states in which machine guns were “entirely ban[ned],” and states where 

machine guns are banned “unless the weapon is legal under federal law.” Id. Concluding that 34 

states “prohibit possessing machineguns,” the Fifth Circuit found this to be further support that 

machine guns are unusual. Id. Similarly here, the majority of states have severely restricted 

possession of suppressors. Eight states and the District of Columbia ban suppressors entirely, even 

when they are legal under federal law.17An additional eighteen states ban suppressors unless they 

years. See Joe Walsh, U.S. Bought Almost 20 Million Guns Last Year — Second-Highest Year On 

Record, Forbes (Apr. 14, 2022 at 2:05pm EDT), available at https://perma.cc/TVS8-NNVW 

(citing estimates that 19.9 million firearms were purchased in 2021 and 22.8 million were 

purchased in 2020). 

17 See Cal. Penal Code § 33410-15; Del. Code. Ann. Tit. 11 § 1444; Haw. Rev. Stat. §§ 134-8 & 

134-11; 720 I.L.C.S. 5/24-1(a)(6); Mass. Gen. Laws. Ann. Ch. 269 § 10A; N.J. Stat. Ann. § 

2C:39-3(c); New York, N.Y. Penal Law § 265.02(2); R.I. Gen. Laws § 11-47-20. 

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are legal under federal law.18 And out of the remaining 24 states, some still have other restrictions 

affecting or limiting suppressor possession.19

Accordingly, because suppressors are both dangerous and unusual, they fall outside the 

ambit of the Second Amendment. Summary judgment should be granted for Defendants. 

C. The NFA’s Tax Scheme Does Not Infringe the Second Amendment 

Even putting aside that suppressors are not protected, more broadly, the NFA’s tax scheme 

does not infringe the Second Amendment. The NFA does not ban making firearms (e.g., silencers), 

but rather permits the making when its application, payment, and registration requirements are 

met. These ministerial hurdles cannot amount to a constitutional violation. On the contrary, as the 

Fifth Circuit has explained, similar firearm licensing requirements such as being “photographed 

and fingerprinted” do not harm any a legally-protected interest, and are “merely ‘additional costs 

and logistical hurdles’ that all citizens bear as ancillary to living under a government.” Bezet, 714 

F. App’x 336, 340 (5th Cir. 2017); see also Lane v. Holder, 703 F.3d 668, 672–73 (4th Cir. 2012) 

(finding no injury from “additional costs and logistical hurdles” in purchasing handguns, 

distinguishing laws imposing “minor inconveniences” from those amounting to “an absolute 

deprivation” of the right to bear arms). 

As Justice Kavanaugh reiterated in his Bruen concurrence, 43 states employ concealedcarry licensing regimes that may demand “fingerprinting, a background check, a mental health 

18 See Alaska Stat. § 11-61-200(h); Ariz. Rev. Stat. § 13-3101(8)(a)(ii); Conn. Gen Stat. § 53a211; Ga Code Ann. §§ 16-11-122 & 16-11-124; Kan. Stat. Ann. § 21-6301; Mich. Comp. Laws § 

750.224; Miss Code Ann. § 97-37-31; Mo. Rev. Stat. § 571.020; Mont. Code Ann. § 45-8-337; 

Nev. Rev. Stat. § 202.350; N.D. Cent. Code § 62.1-05-01; N.C. Gen. Stat. § 14-288.8(c)(3); Ohio 

Rev. Code Ann. § 2923.17(C)(5); Or. Rev. Stat. § 166.272; 8 Pa. Cons. Stat. § 908; S.D. 

Codified Laws § 22-14-6; Wash. Rev. Code §§ 9.41.250 & 9.41.251; Wis. Stat. § 941.298. 

19 See, e.g., Colo. Rev. Stat. § 18-12-102 (requiring permitting and licensing for silencer 

possession); N.H. Rev. Stat. Ann. § 207:4(1) (outlawing hunting with a silencer unless issued a 

permit).

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record check, and training in firearms handling and in laws regarding the use of force, among other 

possible requirements.” 142 S.Ct. 2111, 2162 (2022) (Kavanaugh, J., concurring). These licensing 

regimes, which use “objective licensing requirements,” impose no Second Amendment violation. 

Id. The majority’s opinion took pains to explaining that “nothing in [its] analysis should be 

interpreted to suggest the unconstitutionality” of such licensing regimes. Id. at 2138 n.9. ATF’s 

application process likewise involves features that posed no constitutional problem in Bruen, such 

as fingerprinting and a background check. If such procedures create no constitutional infirmity 

when employed by state governments, the same holds true for federal registration. Accord Or. 

Firearms Fed’n, Inc. v. Brown, No. 2:22-CV-01815-IM, 2022 WL 17454829, at *15 (D. Or. Dec. 

6, 2022) (holding constitutional, under Bruen, state firearms permit requirement that includes a 

“background check, fingerprinting, a mental health check, and training in firearms”). 

Likewise, the registration and marking requirements that are ancillary to the NFA’s 

application and taxing process, see supra Part II.A, do not infringe on any individual’s Second 

Amendment rights because they “do not impair the use or functioning of a weapon in any way[.] . 

. . [A] person is just as capable of defending himself with a marked firearm as with an unmarked 

firearm.” Holton, 2022 WL 16701935 at *4 (holding that the Gun Control Act’s prohibition against 

possessing firearms with removed serial numbers does not regulate conduct protected by the 

Second Amendment because “it does not infringe on an individual’s right to bear arms for selfdefense”) (citation omitted); see also United States v. Tita, 2022 WL 17850250 (D. Md. Dec. 22, 

2022) (same); United States v. Reyna, 2022 WL 17714376 (N.D. Ind. Dec. 15, 2022) (same).20

20 While one other district court held this same law unconstitutional, United States v. Price, 2022 

WL 6968457 (S.D.W.Va. Oct. 12, 2022), another judge on this Court expressly declined to follow 

the Price’s interpretation and then held the opposite in United States v. Holton, 2022 WL 1670193 

(N.D. Tex. Nov. 3, 2022). 

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While the Bruen Court left open the possibility that otherwise constitutional licensing 

regimes might infringe Second Amendment rights, namely where registration requires “lengthy 

wait times” or “exorbitant fees” which effectively “deny ordinary citizens their right to public 

carry,” Bruen, 142 S.Ct. at 2138 n.9, Plaintiffs cannot show that any such extraordinary 

circumstances are present here. ATF’s current estimated processing times for NFA applications, 

which Plaintiffs themselves reference, state that the average processing time is 45 days for paper 

submissions and 30 days for efiled submissions. Pls.’ Br. at 10 (citing Current Processing Times, 

ATF, atf.gov/resource-center/current-processing-times). 

Similarly, Plaintiffs cannot contend that the $200 tax is “exorbitant” such that it prohibits 

them from compliance with the NFA’s tax scheme. Plaintiffs do not allege that payment of this 

amount will impose any financial hardship at all, let alone that the amount is so significant that 

they are effectively denied their right to make a suppressor. Indeed, this exact tax has remained 

constant since the NFA was enacted in 1934. 

To the extent that Plaintiffs argue the Second Amendment is violated whenever any tax or 

fee is required in firearm licensing, Pls.’ Br. at 36-37, that position would threaten every state and 

federal licensing or registration requirement where a tax or fee is involved. Such a position is 

precluded by Bruen, given that the very licensing regimes whose unconstitutionality was not even 

“suggest[ed]” frequently require the payment of some amount of money. See, e.g., La. Rev. Stat. 

Ann. § 40:1379.3 (H)(2) (West Cum. Supp. 2022) ($25 fee per year); Miss. Code. Ann. § 45-9-

101 (5)(c) (2022) ($80 license fee); Tex. Gov’t Code Ann. § 411.174(a)(6) (West Cum. Supp. 

2021) ($40 application and license fee); see also Bruen, 142 S.Ct. at 2123 nn. 1, 9 (listing state 

laws regulating concealed-carry licenses). 

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By contrast, Plaintiffs’ reliance on Murdock v. Commonwealth of Pennsylvania, 319 U.S. 

105 (1943), is misplaced. Pls.’ Br. at 36-37. Murdock does not stand for a per se rule that the 

Government cannot tax firearms; in fact, it had nothing to do with firearms or the Second 

Amendment at all. Rather, Murdock struck down a licensing fee for religious canvassing on First 

Amendment grounds because—in stark contrast to the NFA—it was “not a nominal [fee], imposed 

as a regulatory measure and calculated to defray the expense” of regulating the activities in 

question. 319 U.S. at 113-14. Neither the Fifth Circuit nor the Supreme Court has extended 

Murdock to the Second Amendment context. Some courts have expressly declined to do so. See 

United States v. Bolatete, 977 F.3d 1022, 1036 (11th Cir. 2020) (on plain error review, declining 

to extend Murdock to the Second Amendment context because “[t]he absence of [binding 

precedent] rules out a holding that” the failure to do so was erroneous). And, even courts that have 

imported Murdock into their Second Amendment analyses nonetheless have upheld the restrictions 

at issue under that standard. See Bauer v. Becerra, 858 F.3d 1216, 1226 (9th Cir. 2017) (fees 

supporting background check program “can fairly be considered an ‘expense[] of policing the 

activities in question’ or an ‘expense incident to . . . the maintenance of public order in the matter 

licensed’”) (citation omitted)); Kwong v. Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013) (finding 

$340 fee for residential handgun licensing permissible). 

Finally, Plaintiffs are wrong to argue that “last year, Defendants put the application process 

toward abusive ends” by seeking additional information from certain applicants upon receiving 

their Form 1 applications to make suppressors. Pls.’ Br. at 37-39 (citing Bruen, 142 S.Ct. at 2138 

n.9).21 Plaintiffs contend that, by seeking follow-up information from some applicants, ATF 

21 Notably, Plaintiffs do not—and could not—argue that ATF has “abused the process” by 

improperly denying any applications to make suppressors. ATF has only denied applications to 

make suppressors where “the making or possession of the [silencer] would place the person 

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exceeds its statutory and regulatory authority, and is “just mak[ing] up a ‘process’ of indeterminate 

length.” Id. On the contrary, ATF only seeks additional information from applicants when it is 

warranted by the statute—that is, when a particular application contains insufficient information 

for the agency to determine whether it can be approved and taxed in accordance with the NFA’s 

requirements. Stely Decl. ¶¶ 15, 22-24. Because the NFA mandates that ATF must deny an 

application when making the proposed suppressors would “place the person making the firearm in 

violation of the law,” 26 U.S.C. § 5822, this step is wholly consistent with—indeed necessary 

for—ATF’s exercise of its statutory obligations.22 Indeed, rather than simply deny unclear 

applications for failure to meet NFA’s requirements, ATF seeks clarifying information from such 

applicants solely for the purpose of givinng them further opportunity to demonstrate compliance—

so that their application can ultimately be approved, when appropriate. Id. And, once ATF 

receives the additional information it needs to make a determination, it moves as expeditiously as 

possible to resolve the application. Stely Decl. ¶¶ 15, 22-24. There is, thus, nothing abusive about 

ATF’s approach, which is designed to maximize access under the statute, not to limit it. 

For these reasons, the NFA’s tax scheme does not prevent “law-abiding, responsible 

citizens” from exercising their Second Amendment rights, Bruen, 142 S.C.t at 2138 n.9, and 

summary judgment should be granted for Defendants. 

making the firearm in violation of the law,” Stely Decl. ¶¶ 9-11, 13-14, 22-24, which is what is 

required by the NFA. 26 U.S.C. § 5822. 

22 Plaintiffs repeatedly assert that Defendants “have no authority” to seek additional information 

under the statute. Pls.’ Br. at 38. For the reasons set forth above, Defendants’ interpretation of their 

statutory authority is plainly reasonable here. But, in any event, any questions about the scope of 

the agency’s authority are not properly before this Court. Plaintiffs have not brought any claims 

challenging Defendants’ interpretation of the NFA under the Administrative Procedure Act, which 

would be the appropriate vehicle for such claims. See 5 U.S.C. § 706(2)(C). This case only raises 

Second Amendment challenges to the NFA’s tax scheme. 

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D. Regulating the Possession of Silencers is Consistent with the Nation’s Historical 

Tradition of Firearm Regulation. 

Even if suppressors and the NFA’s tax scheme were covered by the Second Amendment, 

such that the right to bear “arms” were implicated here, the challenged laws would still pass 

constitutional muster. The NFA does not “require applicants to show an atypical need” for a 

suppressor, nor does it otherwise “prevent ‘law-abiding, responsible citizens,’” from making a 

suppressor. Bruen, 142 S.Ct. at 2138 n.9 (quoting Heller, 554 U.S. at 635). Rather, the NFA is a 

longstanding tax statute that has been in place for nearly a century. As both the Supreme Court 

and the Fifth Circuit have recognized, “‘longstanding, presumptively regulatory measures’ likely 

implicate no Second Amendment rights.” Bezet, 714 F. App’x at 336 (quoting Heller, 554 U.S. at 

627) (cleaned up). That is especially true here, where the Supreme Court has already upheld other 

analogous sections of the NFA as a valid exercise of the taxing powers. Sonzinksy, 300 U.S. at 

514.23 And, the challenged laws rest upon centuries of similar taxation and registration 

requirements. 

Where a law affects the Second Amendment, the Government may justify the law “by 

demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” 

23By contrast, Defendants are not aware of any case holding the NFA’s making requirements 

unconstitutional based on the Second Amendment or on any other basis. Indeed, the Fifth Circuit 

previously upheld the NFA’s making requirement even in the context of actual “arms” (as opposed 

to suppressors), albeit based on the means-end scrutiny standard that the Supreme Court has since 

abrogated in Bruen. See Bezet v. United States, 714 F. App’x 336 (5th Cir. 2017). While no court 

has yet had the opportunity to examine the NFA’s making requirements based specifically on 

Bruen’s “historical tradition” standard, courts have upheld other provisions of the NFA post-Bruen 

on other grounds. See, e.g., United States v. Hoover, No. 3:21-cr-22(S3)-MMH-MCR, 2022 WL 

10524008, at *1-2 (M.D. Fla. Oct. 18, 2022) (rejecting post-Bruen constitutional challenge to

NFA’s requirements for unregistered machineguns because machineguns are “dangerous and 

unusual”); United States v. Rush, No. 22-cr-40008, 2023 WL 403774 at *3 (S.D. Ill. Jan. 25, 2023) 

(rejecting post-Bruen constitutional challenge to NFA requirements for short-barreled rifles 

because they are “dangerous and unusual”). 

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Bruen, 142 S.Ct. at 2130. The Government may do so by pointing to “a well-established and 

representative historical analogue, not a historical twin. So even if a modern-day regulation is not 

a dead ringer for historical precursors, it still may be analogous enough to pass constitutional 

muster.” Id. at 2133. To be analogous, historical and modern firearms regulations must be 

“relevantly similar,” meaning that they impose a “comparable burden” on the right of armed selfdefense that is “comparatively justified.” Id. at 2132-33. This historical analysis can be “nuanced,” 

and it is important to account for the fact that “[t]he regulatory challenges posed by firearms today 

are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction 

generation in 1868.” Id. at 2132. 

From colonial times, state and local governments have routinely exercised their authority 

to regulate the possession and manufacture of firearms, through taxation, registration, licensing, 

and similar requirements. Indeed, colonial and early state governments regularly sought to gather 

information regarding firearm ownership in their jurisdiction. As early as 1631, Virginia required 

a regular survey of people in the colony and “also of arms and munition.”24 Likewise, door-todoor surveys of firearms were authorized in Rhode Island in 1667, South Carolina in 1747, and 

New Jersey in 1781.25 In a similar vein, militia members in Massachusetts (1775) were required 

to have their firearms inspected, with an official record documenting all such inspections, and New 

24 Act of Mar. 2, 1631, act LVI, 1631 Va. Acts 175. 

25 See Records of the Colony of Rhode Island and Providence Plantations, In New England, 

2:196 (John Russell Bartlett, ed., Providence: A. Crawford Greene and Brother vol. 2, 1857); “An 

Act for the better regulating of the Militia of this Province,” 1747, McCord, Statutes at Large, 

9:647; Act of Jan. 8, 1781, ch. XII, § 13, 1781 N.J. Laws 39, 43. See also Robert H. Churchill, 

“Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal 

Context of the Second Amendment,” 25 Law & Hist. Rev. 139, 161-62 (2007) (discussing the 

colonial militia practice of surveying firearms owned by members of the community). 

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York (1778) imposed similar requirements.26 In 1805 Massachusetts required that all musket and 

pistol barrels manufactured in the state and offered for sale be “proved” (inspected and marked by 

designated individuals) upon payment of a fee, to insure their safe condition, and Maine enacted 

similar requirements in 1821.27 Licenses or inspection were also required in certain states to export 

or sell gunpowder (akin to modern ammunition), such as in Massachusetts (1651, 1809), 

Connecticut (1775), and New Hampshire (1820).28 South Carolina authorized the issuance of 

licenses for the sale of pistols (1890).29 And personal firearm licenses for sporting purposes were 

required in Hawaii (1870) and Wyoming (1899).30 

Further, Plaintiffs’ assertion that there is no “historical tradition” of taxes on firearms, Pls.’ 

Br. at 35, is belied by multiple historical statutes. In 1759, New Hampshire required that certain 

26 1775-1776 Mass. Acts 18; Act of Apr. 3, 1778, ch. 33, 1778 N.Y. Laws 65. 

27 Laws of the Commonwealth of Massachusetts from November 28, 1780 to February 28, 1807, 

259-61 (1807); Laws of the State of Maine 546 (1830). 

28 Colonial Laws of Massachusetts Reprinted from the Edition of 1672, at 126 (1890); 2 General 

Laws of Massachusetts from the Adoption of the Constitution to February 1822, 199 (1823); 15 

The Public Records of the Colony of Connecticut 191 (1890); Laws of the State of New 

Hampshire; with the Constitutions of the United States and of the State Prefixed 277 (1830). 

29 An Act to Provide a License for the Sale of Pistols or Pistol Cartridges within the Limits of this 

State, § 1, 1890 S.C. Acts 653. Arkansas (1881) prohibited the sale or exchange of most pistols. 

Act of Apr. 1, 1881, ch. XCVI, § 1, 1881 Ark. Acts 191, 191 (codified at Ark. Code. Ann. ch. 48 

§ 1498 (1894)). Other states, including Texas (1871), Kansas (1872), Wyoming (1875), and 

Tennessee (1879), enacted prohibitions or other restrictions on the carrying of pistols. See Act of 

Apr. 12, 1871, ch. XXXIV, § 1, 1871 Tex. Gen. Laws 25, 25 (codified at 1879 Tex. Crim. Stat. 

24); Act of Mar. 13, 1872, ch. 100, § 62, 1872 Kan. Sess. Laws 210, 210 (codified at Kan. Gen. 

Stat. § 1003 (1901)); Act of Dec. 2, 1875, § 1, 1876 Wyo. Sess. Laws 352, 352; Act of Mar. 26, 

1879, ch. CLXXXVI, § 1, 1879 Tenn. Pub. Acts 231, 231. 

30 An Act to License the Carrying of Fowling Pieces and other Fire-Arms, 1870 Haw. Sess. Laws 

26, §§ 1-2; Act of Feb. 15, 1899, ch. 19, § 14, 1899 Wyo. Sess. Laws 27, 32–33. 

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ships pay a tax of money or gunpowder.31 Taxes on firearms specifically were common through 

the 19th century. Indeed, taxes were specifically levied on pistols and in some instances certain 

other firearms, in Alabama (1867), Mississippi (1844, 1867), North Carolina (1857), and Georgia 

(1866).32 

Taken together, the above laws illuminate an unbroken historical tradition of American 

firearm regulation “relevantly similar” to that required by the NFA. Bruen, 142 S.Ct. at 2133. Like 

colonial and state laws in the 17th, 18th, and 19th centuries, the modern NFA and its corresponding 

regulations seek to raise revenue through taxation, regulate but do not prohibit firearm ownership, 

and gather information on firearms and their owners in a given jurisdiction. Accordingly, any 

modest burden imposed by the NFA’s tax scheme is certainly “comparable” and “comparably 

justified” to the numerous historical laws listed above. Given this history and tradition, there is no 

constitutional violation and Plaintiffs’ claims fail as a matter of law. 

CONCLUSION 

For the foregoing reasons, Plaintiffs’ motion for summary judgment should be denied and 

summary judgment should be granted for Defendants. 

31 An Act About Powder Money, 1759-1776 N.H. Laws 63; Pennsylvania similarly imposed a 

taxation, testing, and grading regime for all gunpowder to be sold in Philadelphia. See The Statutes 

at Large of Pennsylvania, ch. 1857, §§ 1-12, 346-51 (James T. Mitchell & Henry Flanders comps. 

1911). 

32 Joseph Abram Walker, The Revised Code of Alabama 169 § 10, (Reid & Screws, State Printers, 

1867); Act of Feb. 24, 1844, ch. 1, § 1, 1844 Miss. Laws 57-59; Act of Feb. 21, 1867, ch. 

CCCXVII, §§ 1-8, 1867 Miss. Laws 412; Revenue, ch. 34, § 23(4), 1857 N.C. Sess. Laws 34; 

County Bonds, Taxes, Etc. tit. VI, 1866 Ga. Laws 27-28. 

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46 

DATED: March 13, 2023 Respectfully submitted, 

 BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 Civil Division 

 

 LESLEY FARBY 

 Assistant Branch Director 

 

 /s/ Emily B. Nestler 

EMILY B. NESTLER (D.C. Bar # 973886) 

Trial Attorney 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, NW 

Washington, D.C. 20005 

Tel: (202) 305-0167 

Email: emily.b.nestler@usdoj.gov 

Counsel for Defendants

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CERTIFICATE OF SERVICE 

On March 13, 2023, I electronically submitted the foregoing with the clerk of court for the 

U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. 

I hereby certify that I have served all parties electronically or by another manner authorized by 

Federal Rule of Civil Procedure 5(b)(2). 

/s/ Emily B. Nestler 

EMILY B. NESTLER

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