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, §

§ 

v. § Civil Action No. 4:22-cv-00143-P

§ 

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. § 

PLAINTIFFS’ BRIEF IN SUPPORT IN RESPONSE TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND

IN REPLY TO DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ MOTION FOR SUMARY JUDGMENT

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TABLE OF CONTENTS

Table of Contents .........................................................................................................................1

Table of Authorities......................................................................................................................2

I. Corrections to Plaintiffs’ Motion for Summary Judgment.................................................3

II. BATFE’s explanation of its mass denial of applications further demonstrates the 

unconstitutionality of its application process.....................................................................4

III. Plaintiffs have standing......................................................................................................6

A. Texas has standing. ..................................................................................................... 6

B. Schnitz, Martin, and Allen have standing.................................................................... 7

IV. The AIA does not bar this case..........................................................................................8

A. BATFE challenges arguments Plaintiffs did not make................................................. 8

B. The AIA does not apply to Claims I, III, and IV.......................................................... 8

C. The Enochs exception applies. ................................................................................... 10

V. The Challenged Statutes Violate the Second Amendment as Applied to the NonCommercial, Personal Making of Firearm Suppressors in Texas. ...................................11

A. Making firearm suppressors is conduct covered by the Second Amendment. ........... 11

B. Firearm suppressors are neither dangerous nor unusual............................................ 13

C. Courts have not Already Held That the NFA’s Application, Taxation, Registration, 

and Serialization Requirements are Constitutional.................................................... 15

D. BATFE does not Overcome its Burden to Show Analogous Founding-Era 

Regulations................................................................................................................ 16

Certificate of Service...................................................................................................................20

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TABLE OF AUTHORITIES

Cases

Alfred L. Snapp & Son v. Puerto Rico,

458 U.S. 592 (1982)............................................................................................................... 6, 7

CIC Services, LLC v. IRS,

141 S. Ct. 1582 (2021).......................................................................................................... 9, 10

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................................................................................ 12

Enochs v. Williams Packing & Nav. Co.,

370 U.S. 1 (1962)......................................................................................................................11

Gibbons v. Ogden,

22 U.S. 1 (1824) ...................................................................................................................... 19

Heller v. District of Columbia,

670 F.3d 1244 (D.C. 2011)....................................................................................................... 16

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) .................................................................................................................. 7

Murdock v. Commonwealth of Pennsylvania,

319 U.S. 105 (1943).................................................................................................................. 17

Nat’l Rifle Ass’n of Am., Inc. v. McCraw,

719 F.3d 338 (5th Cir. 2013) ......................................................................................................8

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

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

Sonzinsky v. United States,

300 U.S. 506 (1937)................................................................................................................. 18

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

419 U.S. 7 (1974)......................................................................................................................11

United States v. Cox,

906 F.3d 1170 (10th Cir. 2018) ................................................................................................ 10

United States v. Royce,

No. 1:22-CR- 130, 2023 WL 2163677 (D.N.D. Feb. 22, 2023)................................................. 14

United States v. Saleem,

No. 3:21-cr-00086, 2023 WL 2334417 (W.D.N.C. Mar. 2, 2023)............................................ 13

Statutes

18 U.S.C. § 921(a)(25) .................................................................................................................. 5

18 U.S.C. § 3571(b) .......................................................................................................................4

18 U.S.C. § 3571(c) .......................................................................................................................4

26 U.S.C. § 5822........................................................................................................................... 5

26 U.S.C. § 5845(a)(7).................................................................................................................. 5

26 U.S.C. § 7421(a).......................................................................................................................9

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TO THE HONORABLE MARK T. PITTMAN, U.S. DISTRICT JUDGE: 

Plaintiffs, Ken Paxton, in his official capacity as Attorney General of Texas, David Schnitz, 

Tracy Martin, and Floice Allen, file this Brief in Support in Response to Defendants’ Motion for 

Summary Judgment an in Reply to Defendants’ Response to Plaintiffs’ Motion for Summary 

Judgment, and will respectfully show the Court as follows: 

I. Corrections to Plaintiffs’ Motion for Summary Judgment

Plaintiffs made two minor errors in their Motion for Summary Judgment. First, Plaintiffs 

stated that the fine for violating the National firearms Act is up to $10,000. ECF 51 at 21, 38. In 

fact, the fine for violating the National Firearms Act is up to $250,000, 1 in addition to up to ten 

years imprisonment. (Notably, BATFE does not acknowledge these criminal penalties anywhere 

in its Motion for Summary Judgment.) Second, Plaintiffs attached the September 2019 version of 

the Form 1 as Exhibit 2 to their Brief in Support of their Motion for Summary Judgment. But ATF 

revised Form 1 effective December 2022. A copy of the current form is attached as Exhibit 1. The 

difference is that the current form recognizes a new kind of tax-exempt application for citizens with 

firearms not subject to the making tax, and states that to confirm tax-free status, BATFE “may 

require additional supporting documentation, such as photographs of the firearm to be registered.” 

Exhibit 1 at 1. Suppressors are not tax-exempt, so this does not apply to this case.

1 https://www.atf.gov/firearms/docs/undefined/atf-national-firearms-act-handbook-chapter15/download#:~:text=The%20criminal%20provisions%20of%20the,the%20case%20of%20an%20or

ganization (citing 18 U.S.C. § 3571(b), (c)).

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II. BATFE’s explanation of its mass denial of applications further demonstrates the 

unconstitutionality of its application process.

In addition to the other infirmities of the law, BATFE’s explanation of its mass denial of 

applications demonstrates that the application process operates like a may-issue regime that can 

indefinitely delay the exercise of Texans Second Amendment rights.

the time Plaintiffs filed this lawsuit, BATFE denied a few thousand Form 1 applications to 

make firearm suppressors. ECF 51 at 17–18. BATFE now explains that around that time, it became 

aware of companies selling firearm suppressor parts, sometimes marketing them as “solvent 

traps,” “flashlight suppressor kits,” and/or “Form 1 silencer kits.” ECF 54-1 at 7. The statute 

defines a suppressor as “any device for silencing, muffling, or diminishing the report of a portable 

firearm, including 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.” 26 U.S.C. § 5845(a)(7); 18 U.S.C. § 921(a)(25). Thus, according 

to BATFE:

These devices have the objective design features and characteristics of known silencer 

devices and are themselves properly classified as “silencers” under federal law. Further, 

these devices are often incorrectly marketed as items that a person may use to “make” a 

silencer upon receiving an approved ATF Form 1, generally by drilling out the center of an 

already manufactured baffle stack. Because these devices are already silencers in and of 

themselves, Form 1 applications seeking to “make” silencers with them cannot be 

approved.

ECF 54-1 at 7. Similarly, BATFE claims that it cannot approve the making of a firearm suppressor 

from a firearm suppressor parts kit because:

Under the NFA, “parts” or “parts kits” that are that are already silencers in and of 

themselves (whether assembled yet or not), must be independently registered before being 

manufactured, transferred, or sold. A person who then acquires a properly-registered 

silencer (including parts or parts kits that are themselves silencers) need not also separately 

apply to “make” that same silencer, but instead must apply to have that silencer transferred 

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to him or her. Accordingly, Form 1 applications seeking to “make” a silencer using parts 

or parts kits that are already “silencers” must be denied.

Id. BATFE correctly says it “must deny an application to make a silencer ‘if the making or 

possession of the [silencer] would place the person making the firearm in violation of the law.’ 26 

U.S.C. § 5822.” ECF 54 at 51. But it does not follow that if an applicant might have illegally 

obtained firearm suppressor parts (and thus, legally, a firearm suppressor) without permission, the 

applicant further violates the law by making the parts into a completed firearm suppressor, so 

permission to do so cannot be granted. The transfer of parts is a separate transaction from the 

making of the parts into a completed firearm suppressor. BATFE has no legal authority to deny an 

application to make a firearm suppressor simply because the parts are allegedly illegally possessed. 

To the contrary, once the allegedly illegally possessed parts are made into an approved firearm 

suppressor, the parts lose existence, and the former possessor of illegal parts becomes the legal

maker and possessor of a firearm suppressor and is no longer “in violation of the law.”

During this episode, BATFE admits that it denied approximately 847 applications based on 

the applications themselves, and another 1,649 applications after requesting “additional 

information.” BATFE has no legal authority to deny applications to make firearm suppressors 

based on a belief that the applicant intends to make it out of illegally-possessed parts. And BATFE 

has no legal authority to demand “additional information” over what the statute and the 

regulations require. ECF 51 at 44–46. BATFE has “put [the application process] toward abusive 

ends” with “lengthy wait times” in violation of the Constitution. New York State Rifle & Pistol 

Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2138 n.9 (2022). BATFE runs the application process more 

like a may-issue regime similar to the one disapproved in Bruen.

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III. Plaintiffs have standing.

A. Texas has standing.

BATFE argues that Texas asserts parens patriae standing. ECF 54 at 26–27. But Texas does 

not. Texas asserts standing on the grounds that “a State has a quasi-sovereign interest in the health 

and well-being—both physical and economic of its residents in general.” Alfred L. Snapp & Son v. 

Puerto Rico, 458 U.S. 592, 607 (1982). As Texas argued, the unconstitutional regulation of firearm 

suppressors adversely affects Texans’ health and well-being by delaying (by 30 or 45 days when 

the application is approved) or prohibiting (when the application is not approved) Texans’ ability 

to use firearm suppressors for the purpose of home defense. ECF 16 at 23. BATFE does not—

because it cannot—challenge this assertion. See ECF 54 at 25–27.

BATFE quotes Alfred L. Snapp’s statement that “[a] State does not have standing as parens 

patriae to bring an action against the Federal Government,” 458 U.S. 610 n.16, and argues that 

Texas’s assertion of quasi-sovereign interests is the same as asserting parens patriae standing. ECF 

54 at 16. But they are not the same. In 2007, the Supreme Court specifically rejected the argument

that states cannot assert quasi-sovereign interests against the federal government. Massachusetts v. 

E.P.A., 549 U.S. 497, 520 n.17 (2007) (“Drawing on Massachusetts v. Mellon, 262 U.S. 447 [] (1923) 

and [Alfred L. Snapp] the CHIEF JUSTICE claims that we ‘overloo[k] the fact that our cases cast 

significant doubt on a State’s standing to assert a quasi-sovereign interest ... against the Federal 

Government.’ Not so. Mellon itself disavowed any such broad reading when it noted that the Court 

had been ‘called upon to adjudicate, not rights of person or property, not rights of dominion over 

physical domain, [and] not quasi-sovereign rights actually invaded or threatened.” [262 U.S. at 484–

485] (emphasis added).” (citations omitted)). Texas has standing to assert its own “quasiCase 4:22-cv-00143-P Document 55 Filed 04/17/23 Page 7 of 21 PageID 1014
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sovereign interest in the health and well-being—both physical and economic of its residents in 

general” against the federal government.

B. Schnitz, Martin, and Allen have standing.

BATFE argues that Schnitz, Marti, and Allen lack standing because (1) they have not 

submitted an application to make a firearm suppressor; (2) do not allege that they cannot pay the 

tax; (3) do not allege that the $200 tax impedes their ability to make a suppressor; (4) produce no 

evidence that BATFE might deny their application; and (5) produce no evidence that they might 

be prosecuted. ECF 54 at 23–25. But these arguments are beside the point. As explained in their 

motion for summary judgment, the individual plaintiffs’ injury arises from the application process 

and the tax itself, and being prosecuted if they make a firearm suppressor for non-commercial 

personal use without first applying and paying. ECF 51 at 31–32. It is not disputed that they must 

apply for permission and pay the tax before exercising their constitutional rights under the Second 

Amendment, and that they are subject to prosecution if they exercise their right to make a firearm 

suppressor without first applying for permission and paying the tax. See Nat’l Rifle Ass’n of Am., 

Inc. v. McCraw, 719 F.3d 338, 345 (5th Cir. 2013) (“When asking a federal court to engage in preenforcement review of a criminal statute, a plaintiff need not violate the statute; he may meet [the] 

injury requirement by showing an intention to engage in a course of conduct arguably affected with 

a constitutional interest, but proscribed by a statute, and a credible threat of prosecution 

thereunder.”) (cleaned up). That is an injury.

BATFE also argues that pre-Bruen cases establish that the individual plaintiffs have no 

standing to sue until they first apply and pay the tax. Those cases do not survive Bruen, because 

requiring permission to make a firearm suppressor and tax such making regulates conduct covered 

by the Second Amendment.

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IV. The AIA does not bar this case.

A. BATFE challenges arguments Plaintiffs did not make.

BATFE notes that the AIA applies even when a lawsuit challenges the constitutionality of the 

tax. ECF 54 at 29. While Plaintiffs are challenging the constitutionality of the tax, they do not argue 

against the AIA’s applicability on that ground. BATFE also argues that the AIA applies to 

regulatory taxes. ECF 54 at 30. But Plaintiffs do not challenge the AIA’s applicability on that 

ground either.

Plaintiffs instead argue (1) the AIA simply does not apply to the application requirement 

(Count I), the registration requirement (Count III), or the serial-number requirement (Count IV); 

and (2) the AIA does not apply to any of the Counts under the Enochs exception.

B. The AIA does not apply to Claims I, III, and IV

The AIA does not apply to Plaintiffs’ challenges to application requirement, the registration 

requirement, and the serial-number requirement because they are not “suit[s] for the purpose of 

restraining the assessment or collection of any tax.” 26 U.S.C. § 7421(a). They “fall[] outside the

Anti-Injunction Act because the injunction[s] [they] request[] do[] not run against a tax at all.” 

CIC Services, LLC v. IRS, 141 S. Ct. 1582, 1593 (2021). Yet BATFE asserts, “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.’” ECF 54 at 30 (citing CIC Services, 141 S. Ct. at 1589). But CIC Services

never discusses the “primary purpose” of a lawsuit. Although BATFE puts the phrase “primary 

purpose” in quotation marks, it does not appear anywhere in the opinion. Whether Plaintiffs’ suit 

has a “primary purpose” is of no consequence.

The suit in CIC Services only had one purpose—to challenge reporting requirements. Here, 

Plaintiffs’ suit has four purposes, corresponding to the four Counts—to enjoin the application 

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process, the collection of the $200 tax, the registration requirement, and the serial-number 

requirement. Only Count II has “the purpose of restraining the assessment or collection of any 

tax.” The AIA does not apply to the other three counts. “The Anti-Injunction Act 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.’” CIC Services, 141 S. Ct. at 1590 

(citing the AIA).

BATFE also argues that “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.” ECF 54 at 30 (citing CIC Services, 141 S. Ct. at 1590). But CIC Services says nothing of 

the sort, either on page 1590 or at any other part of the opinion. BATFE also cites the pre-CIC 

Services case United States v. Cox, 906 F.3d 1170 (10th Cir. 2018) for the idea that “the NFA’s tax 

payment cannot be treated in isolation. Rather, the challenged requirements together make up the 

NFA’s integrated ‘taxing scheme.’” ECF 54 at 31. But the AIA-question after CIC Services is not 

whether the NFA contains a “taxing scheme”; rather, the question is whether Plaintiffs’ counts 

have the purpose of enjoining the collection or assessment of a tax. Count II does have that 

purpose, but the other Counts do not. Cox itself recognizes, “And on its face, the NFA is a taxing 

scheme.... But the NFA does more than lay taxes.” Cox, 906 F.3d at 1179 (emphasis added). CIC 

Services, not Cox, is the controlling authority.

BATFE also argues that many courts have found that the NFA is a valid exercise of 

Congress’s taxing authority. ECF 54 at 31. But whether that is true or not (it is not; see Part __) 

has nothing to do with whether the AIA bars the Court’s consideration of Counts I, III, and IV.

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BATFE also cites pre-CIC Services authority holding that the AIA bars claims against 

statutory requirements that do not themselves assess or collect tax, but serve to aid in the 

assessment and collection of tax. ECF 54 at 31 ̶34. But all of this authority is overruled by CIC 

Services. See ECF 51 at 26–30.

C. The Enochs exception applies.

BATFE agrees with Plaintiffs that under the two-part test set forth in Enochs v. Williams 

Packing & Nav. Co., 370 U.S. 1 (1962), 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.” ECF 54 at 34.

The NFA causes irreparable harm to citizens wishing to make firearm suppressors for noncommercial, personal use by delaying or prohibiting such makings, and by requiring registration 

and serial numbers which cannot be repaired. ECF 51 at 31 ̶32. BATFE responds by arguing that 

United States v. Am. Friends Serv. Comm., 419 U.S. 7 (1974) holds that “any delay in Plaintiffs’ 

ability to make a suppressor is insufficient to establish irreparable harm in this context,” ECF 54 

at 36, and that “the Supreme Court has applied this rule even where subjecting a plaintiff to the 

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

Amendment rights,” id. (citing Am. Friends Serv. Comm. at 11). But Am. Friends Serv. Comm. does 

not so hold. The Plaintiffs were employees whose employer complied with their religiously 

inspired desire not to withhold 51.6% of income taxes due (51.6% being the amount representing

their estimate of the percentage of the federal budget which is military related) to make the 

government levy the taxes directly from the employees. The employees did not (because they could 

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not) argue that a delay of the exercise of a constitutional right was causing them irreparable injury. 

Instead, they argued that a refund suit was an inadequate remedy because they would lose. This 

case does not support BATFE’s position that a delay in exercising constitutional rights cannot be 

an irreparable injury under the AIA (unlike in all other contexts) because no such delay was at 

issue.

Moreover, it is clear that under no circumstances can BATFE prevail for the reasons 

presented elsewhere in Plaintiffs’ motion for summary judgment.

BATFE also argues that the AIA bars Texas’s claims because Texas citizens can file their own 

refund claims. ECF 54 at 36 ̶37. But that is beside the point because Texas is not suing on behalf 

of its citizens. As explained above, it is suing to assert its own “quasi-sovereign interest in the 

health and well-being—both physical and economic of its residents in general” against the federal 

government.

V. The Challenged Statutes Violate the Second Amendment as Applied to the NonCommercial, Personal Making of Firearm Suppressors in Texas.

A. Making firearm suppressors is conduct covered by the Second Amendment.

Despite the NFA’s inclusion of firearms suppressors in its definition of “firearm,” BATFE 

argues that the Second Amendment does not apply to the making of firearm suppressors for noncommercial, personal use because:

Under District of Columbia v. Heller, the Second Amendment extends only2 to 

“instruments that constitute bearable arms.” 554 U.S. 570, 582 (2008); Hollis v. Lynch, 

2 BATFE miscites Heller. The exact quote is, “Some have made the argument, bordering on the 

frivolous, that only those arms in existence in the 18th century are protected by the Second 

Amendment. We do not interpret constitutional rights that way. Just as the First Amendment 

protects modern forms of communications, and the Fourth Amendment applies to modern forms 

of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable 

arms, even those that were not in existence at the time of the founding.” District of Columbia v. 

Heller, 554 U.S. 570, 582 (2008) (citations omitted). Heller does not use the word “only.”

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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.”

ECF 54 at 39 (citing pre-Bruen cases and two post-Bruen district court opinions, discussed below).

Plaintiffs have already addressed this issue. ECF 51 at 35–38. Whether a firearm suppressor is 

itself an “arm” is not the proper question post-Bruen. The Second Amendment regulates 

conduct, not arms. Bruen, 142 S. Ct. at 2126 (“[W]hen the Second Amendment’s plain text 

covers an individual’s conduct, the Constitution presumptively protects that conduct.”). The 

right to keep and bear arms includes the right to keep and bear all kinds of arms—for instance, arms 

with or without suppressors, laser sights, scopes, tactical slide racks, biometric trigger locks, 

bipods, folding stocks, extended magazines, mounted lights, speed loaders, holsters, etc. It is 

immaterial whether the arms at issue are accessories that improve the usage of a firearm or parts 

necessary for the use of a firearm because both instances involve conduct covered by the Second 

Amendment. Similarly, the conduct of driving a car includes the conduct of driving a car equipped 

with a muffler, whether or not a muffler is itself a car, and whether or not a muffler is “necessary” 

to the operation of a car. And the right to free press covers ink and paper, even though ink and 

paper is not itself press and even though it is possible to communicate words without ink and paper, 

audibly and digitally. 

BATFE notes that, since Plaintiffs filed their motion for summary judgment, two district 

courts have ruled that firearm suppressors are not “arms” and that the Second Amendment does 

not apply to them. ECR 54 at 39. Both opinions mis-apply Bruen, have no precedential value, and 

should not be followed by the Court. In United States v. Saleem, No. 3:21-cr-00086, 2023 WL 

2334417 (W.D.N.C. Mar. 2, 2023), the court denied a motion to dismiss an indictment for illegal 

possession of an unregistered firearm suppressor “because [firearm suppressors] are not 

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independently operable and do not serve any central self-defense purpose, [they] are not firearms 

within the meaning of the Second Amendment but are instead firearm accessories that fall outside 

its protection,” Saleem at *9, and 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,” id. at *10. Neither of these 

arguments are a correct application of Bruen. The court in United States v. Royce, No. 1:22-CR- 130, 

2023 WL 2163677, at *4 (D.N.D. Feb. 22, 2023) came to the same incorrect conclusion for the

same incorrect reason. Royce at *4 (“The Government contends there is no Second Amendment 

right to possess a silencer. The Court agrees. Unlike rifles, silencers are not considered “arms” 

within the meaning of the Second Amendment.”); id. (“A silencer is not necessary to make a 

firearm operable. Rather, a silencer is simply a means to reduce sound omitted from a firearm.”).

Both cases incorrectly address whether a firearm suppressor is an “arm,” and incorrectly address 

whether a firearm suppressor is “necessary,” rather than addressing the conduct of keeping and 

bearing arms with firearm suppressors. 

B. Firearm suppressors are neither dangerous nor unusual.

BATFE argues that even if firearm suppressors are “arms,” the Second Amendment does 

not apply to them because they are “dangerous and unusual.” CEF 54 at 42. Plaintiffs have already 

explained why firearms suppressors are neither dangerous nor unusual. ECF 51 at __.

Not dangerous. Even the former second-in-command of BATFE during the Obama 

Administration has written that firearm suppressors are not dangerous. ECF 51-1. Yet BATFE 

argues that they are, first by noting that there are records of some crimes being committed by 

persons using firearms equipped with firearm suppressors pre-1934, ECF 54 at 43, and that there 

are reports of people using firearms with firearm suppressors in crimes more recently, ECF 54 at 

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44.

3 But that is not the test. All weapons—indeed all things—are sometimes used in crime. Firearm 

suppressors are not “dangerous” even though they are occasionally—very occasionally—used in 

crime. Although there are over 2.6 million registered firearms suppressors in the United States, 

“ATF has only recommended 44 defendants a year for prosecution on silencer-related violations.” 

ECF 51 at 11. That number includes prosecutions for possession crimes. 

BATFE then argues, “From 1909 to 1936, at least fifteen states enacted silencer restrictions.” 

ECF 54 at 43 (citing Robert J. Spitzer, Gun Accessories and the Second Amendment: Assault 

Rifles, Magazines, and Silencers, 83 L. & Contemp. Probs. 231, 248 n.123). But the fact that some 

states have regulated a firearm does not establish that the firearm is “dangerous.” Courts must 

make an independent determination. For instance, the statute at issue in Bruen did not establish 

that carrying a handgun outside the home without a may-issue license is “dangerous.” To the 

contrary, the Bruen court held that such activity is protected by the Second Amendment. Notably, 

3 Notably, neither the BATFE, nor the anti-gun activists authoring the report they rely on, specify 

which of the cited cases showing the “dangerousness” of suppressors involved individuals who 

received a suppressor permit from the BATFE. Indeed, the BATFE issued a suppressor permit to 

the Virginia Beach shooter. See Chief James A. Cervera, May 19, 2019, Mass Homicide Updated 

Executive Summary, City of Virginia Beach at *9 (Apr. 24, 2020), 

https://www.vbgov.com/government/departments/communicationsoffice/Documents/04242020_InterimMay31InvestSummary.pdf (In 2017, [the shooter] applied 

for a firearms suppressor permit.”). And the suppressor likely had no impact on the severity of the 

shooting, as “gun-rights advocates and most law enforcement experts say [the shooter’s] use of a 

suppressor likely had no bearing on his ability to kill so many people in so little time... ‘A 

suppressor does not alter the lethality of the weapon at all. All it does is just limit the noise it 

makes,’ said Gregory Shaffer, a retired FBI agent who was a member of the bureau’s elite Hostage 

Response Team. ‘It doesn't increase the rate of fire. It doesn't do anything other than make it more 

comfortable to shoot because it's not so loud.’” Lisa Marie Pane, Did ‘Silencer' Make a Difference 

in Virginia Beach Carnage?, NBCDFW (Jun 1, 2019), https://www.nbcdfw.com/news/nationalinternational/virginia-beach-shooting-silencers/232260/ 

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BATFE does not cite these minority state “silencer restrictions” in an effort to establish a 

historical tradition of silencer regulation, since they do not do so.

BATFE next argues that the fact that firearm suppressors are regulated by the NFA “further 

affirms” their “dangerousness.” ECF 54 at 43. Again, however, legislation cannot establish 

“dangerousness.”

Not unusual. BATFE admits that there are 2.6 million registered firearm suppressors, and 

they are legal in 42 states. ECF 54 at 45. They are in common use just like AR-15s are in common 

use, as the D.C. Circuit found because “[a]pproximately 1.6 million AR–15s alone have been 

manufactured since 1986.” Heller v. District of Columbia ̧ 670 F.3d 1244, 1261 (D.C. 2011) (Heller 

on remand). BATFE nevertheless insists that they are not in “common use” because “eighteen 

[of the 42] states ban suppressors unless they are legal under federal law” and “out of the 

remaining 24, some still have other restrictions affecting or limiting suppressor possession.” ECF 

54 at 45. None of this has anything to do with whether firearm suppressors are “unusual.”

C. Courts have not Already Held That the NFA’s Application, Taxation, 

Registration, and Serialization Requirements are Constitutional.

BATFE quotes the dicta in Bruen that “nothing in [its] analysis should be interpreted to 

suggest the unconstitutionality” of “objective licensing requirements.” ECF 54 at 48 (citing Bruen

at 2138 n.9.). But neither did Bruen hold that such licensing schemes are constitutional. The 

question is open. BATFE has the burden to show a historical tradition of such licensing schemes.

BATFE does make the attempt, albeit unsuccessfully, as discussed in the next section.

BATFE also argues that the NFA’s application, taxation, registration, and serialization 

requirements “do not impair the use or functioning of a weapon in any way.” ECF 54 at 48. But 

Case 4:22-cv-00143-P Document 55 Filed 04/17/23 Page 16 of 21 PageID 1023
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that is not the test under Bruen. The test is whether there is a historical tradition of those 

requirements.

BATFE next argues against Plaintiffs’ position that Murdock v. Commonwealth of Pennsylvania, 

319 U.S. 105 (1943), prohibits the taxation of the exercise of a constitutional right. BATFE claims 

that “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.” ECF 54 at 50 (citing 

Murdock at 113–14). But the NFA tax is in no way “a nominal fee, imposed as a regulatory measure 

and calculated to defray the expense” of implementing the NFA. The Murdock court goes on to 

distinguish such fees from an unconstitutional “flat license tax levied and collected as a condition 

to the pursuit of activities whose enjoyment is guaranteed by the First Amendment.” Id. at 114. 

The NFA tax is this later kind of unconstitutional tax.

Finally, BATFE denies that last year’s lawless episode of denying applications to make firearm 

suppressors based on a belief that the applicant intends to make it out of allegedly illegallypossessed parts “put the application process to abusive ends,” ECF 54 at 50–51, because it denied 

that it was lawless. Nonetheless, there is no legal authority to deny applications on the stated basis, 

and BATFE did in fact “put the application process to abusive ends.”

D. BATFE does not Overcome its Burden to Show Analogous Founding-Era 

Regulations.

BATFE argue that the NFA is a “longstanding, presumptively regulatory measure [that] 

likely implicate[s] no Second Amendment rights.” ECF 54 at 52. But the statue in Bruen was over 

one hundred years old—older than the NFA. And Bruen clarified that “longstanding” means 

“consistent with this Nation’s historical tradition of firearm regulation,” id. at 2126, and that 

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“belated innovations of the mid- to late-19th-century courts come too late to provide insight into 

the meaning of the Constitution in 1787,” id. at 2137 (cleaned up, citation omitted). The NFA is 

not old enough to be “longstanding.” BATFE also argues that Sonzinsky v. United States, 300 U.S. 

506 (1937) “already upheld other analogous sections of the NFA as valid exercise of taxing 

powers.” ECF 54 at 52. But Sonzinsky did not consider the Second Amendment, let alone Bruen’s 

methodology, so this does not support BATFE’s case.

Next, BATFE cites some old state statutes in an effort to point to “a well-established and 

representative historical analogue” to the NFA. ECF 54 at 53 (citing Bruen, 142 S. Ct. at 2133). 

Statutes must be representative,” not “outliers.” Id. at 2133. But BATFE points only to outliers.

For instance, it cites a 1781 New Jersey statute which it characterizes as authorizing “door-to-door 

surveys of firearms.” ECF 54 at 53. That statute in fact required that “the Captain or Commending 

Officer of Each Company shall, once every four Months, order a Sergeant to call at the Place of 

Abode for each person enrolled as aforesaid, for the Purpose of examining the State of his Arms, 

Accoutrements, and Ammunition.”4 The people “enrolled as aforesaid” referred to are explained 

in another part of the statute: “[T]he Captain or Commanding Officer of each Company shall keep 

a true and perfect List or Roll of all elective Men between the ages of fifteen and fifty Years, residing 

in the District of such Company.”5 BATFE also cites a 1775 Massachusetts statute and a 1778 New 

York statute requiring militia members to have their firearms inspected. None of these outliers are 

analogous to the NFA’s application, taxation, registration, or serialization requirements. They are

not analogous to the registration requirements because the NFA requires each firearm suppressor 

4 njlaw.rutgers.edu/cgi-bin/diglib.cgi?collect=njleg&file=005&page=0043&zoom=120

5 njlaw.rutgers.edu/cgi-bin/diglib.cgi?collect=njleg&file=005&page=0042&zoom=120

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to be individually registered, while the cited laws only require that militia members’ arms be 

inspected, presumably for functionality and safety, without any additional requirement that the 

weapons themselves be registered. Moreover, registering weapons has nothing to do with ensuring 

their functionality or safety, and the NFA does not seek to insure functionality or safety of 

weapons. BATFE also points to an 1805 Massachusetts statue and an 1821 Maine statute (possibly 

the same statute, as Maine was part of Massachusetts until 1820) requiring musket and pistol 

barrels be inspected and marked, upon payment of a fee, to ensure their safe condition. This outlier 

is similarly not analogous to the NFA’s application, taxation, registration, or serialization 

requirements.

BATFE further points to statutes in three states requiring licenses or inspection to export or 

sell gunpowder. ECF 54 at 54. But there is a tradition of regulating founding-era gunpower, which 

sometimes exploded. The Supreme Court has long held that regulation of founding-era gunpowder 

is part of the police power of states. See, e.g., Gibbons v. Ogden, 22 U.S. 1, 119 n.59 (1824).

Regulating gunpowder is not analogous to regulating firearm suppressors, which do not explode.

BATFE also claims that there is a historical tradition of taxing firearms. The only foundingera statute it cites is New Hampshire’s 1759 “An Act about Powder Money,” which states:

That every foreign ship or vessel above thirty tons, coming into any port or part of this 

province from over the sea to trade or traffick [sic], all or the major part of the owners 

whereof are not actually inhabitants of this province, shall, every voyage they make, pay 

two shillings in money per ton, or one pound of good gunpowder, for the supply of his 

Majesty’s fort and fortifications within this province, to be received by the treasurer, or 

such other person or persons as shall be appointed to receive the same.6

6 https://firearmslaw.duke.edu/laws/1759-76-n-h-laws-63-an-act-about-powder-money/

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This statute is not a tax on firearms or even on gunpowder. It is a tax on ships, to be paid in money 

or in gunpowder. This outlier does not establish a historical tradition of regulating firearm 

suppressors.

BATFE has failed to overcome its burden to establish a historical tradition justifying the 

NFA’s regulations of firearm suppressors made for non-commercial, personal use in Texas.

CONCLUSION

The Court should grant Plaintiffs’ motion for summary judgment and deny Defendants’ 

motion for summary judgment.

Case 4:22-cv-00143-P Document 55 Filed 04/17/23 Page 20 of 21 PageID 1027
20 

Respectfully submitted, 

KEN PAXTON /s/ Tony K. McDonald 

Attorney General of Texas TONY K. MCDONALD

 State Bar No. 24083477

BRENT WEBSTER

First Assistant Attorney General THE LAW OFFICES OF TONY MCDONALD

 1501 Leander Dr., Suite B2

GRANT DORFMAN Leander, Texas 78641

Deputy First Assistant Attorney General (512) 200-3608 • fax (815) 550-1292

 tony@tonymcdonald.com

AARON F. REITZ

Deputy Attorney General for Legal Strategy 

State Bar No. 24105704 WARREN V. NORRED 

 State Bar No. 24045094

/s/ Charles K. Eldred 

CHARLES K. ELDRED NORRED LAW, PLLC

Special Counsel for Legal Strategy 515 E. Border Street

State Bar No. 00793681 Arlington, Texas 76010 

 (817) 704-3984 • fax (817) 524-6686 

JOHNATHAN STONE warren@norredlaw.com

Assistant Attorney General 

General Litigation Division 

State Bar No. 24071779 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

P. O. Box 12548

Austin, Texas 78711-2548

(512) 936-1706 • fax (512) 320-0167 

charles.eldred@oag.texas.gov

Attorneys for Ken Paxton, Attorneys for David Schnitz,

Attorney General of Texas Tracy Martin, and Floice Allen

CERTIFICATE OF SERVICE

We certify that a true and accurate copy of the foregoing document was filed electronically 

(via CM/ECF) on April 17, 2023. 

/s/ Charles K. Eldred /s/ Tony K. McDonald 

Charles K. Eldred Tony K. McDonald

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