United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10802

____________

Ken Paxton, Attorney General, State of Texas; David Schnitz; 

Tracy Martin; Floice Allen, 

Plaintiffs—Appellants, 

versus

Steven Dettelbach, in his Official Capacity as Director, Bureau of 

Alcohol, Tobacco, Firearms and Explosives; Merrick Garland, U.S. 

Attorney General, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:22-CV-143

______________________________

Before Jones, Clement, and Wilson, Circuit Judges.

Edith Brown Clement, Circuit Judge: 

Three individuals and the State of Texas sought to enjoin federal 

statutes that criminalize making silencers for personal use without paying a 

$200 excise tax, applying for permission from the federal government, and, 

if permission is granted, registering the silencer in a federal database and 

labeling the silencer with a serial number. The district court granted 

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2024

Lyle W. Cayce

Clerk

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2

summary judgment for the federal government, holding that the Plaintiffs 

lacked standing. We AFFIRM.

I.

Federal law regulates the making of firearms. See 26 U.S.C. §§ 5821–

22. Since 1968, silencers (also known as suppressors) have been considered 

“firearms” subject to these regulations. 26 U.S.C. § 5845; Gun Control Act 

of 1968, Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1214. A silencer is a device 

that attaches to the muzzle of a firearm and makes the firearm quieter when 

discharged. See 18 U.S.C. § 921(a)(25). 

As applied to individuals wishing to make a silencer for personal, noncommercial use, federal law imposes the following requirements. First, the 

individual must pay a $200 excise tax, 26 U.S.C. § 5821, and file a written 

application for permission to make a silencer with the Bureau of Alcohol, 

Tobacco, Firearms and Explosives, 26 U.S.C. § 5822. Then, if the 

application is approved, the individual may make the silencer but must 

register it in the National Firearms Registration and Transfer Record and 

mark it with a serial number. 27 C.F.R. § 479.64; 26 U.S.C. §§ 5841–42. If 

the application is denied, the individual may not make a silencer, and the 

$200 tax payment is refunded. 27 C.F.R. § 479.64. Making a silencer in 

violation of these procedures is a crime punishable by a maximum fine of 

$10,000, imprisonment for up to ten years, or both. 26 U.S.C. § 5871.

In 2021, Texas enacted a law providing that “[a] firearm suppressor 

that is manufactured in [Texas] and remains in [Texas] is not subject to 

federal law or federal regulation.” Tex. Gov’t Code Ann. § 2.052(a). 

The law also requires that upon “written notification to the attorney general 

[of Texas] by a United States citizen who resides in [Texas] of the citizen’s 

intent to manufacture a firearm suppressor . . . the attorney general [of Texas] 

shall seek a declaratory judgment from a federal district court in [Texas] that 

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[the Texas statute] is consistent with the United States Constitution.” Id.

§ 2.054. 

On February 23, 2022, David Schnitz, Tracy Martin, and Floice Allen 

(the “Individual Plaintiffs”) provided such “written notification” to Texas 

Attorney General Ken Paxton of their intent to manufacture a firearm 

suppressor. The next day, Paxton and the Individual Plaintiffs (collectively, 

the “Plaintiffs”) filed suit seeking (1) “a declaratory judgment that neither 

the Commerce Clause nor the Necessary and Proper Clause authorize federal 

regulation of the making of a firearm suppressor for personal use in Texas,” 

and (2) injunctive relief against “federal law as applied to taxing and 

regulating firearm suppressors made in Texas for personal use in Texas 

because that law violates the Second Amendment.” The Plaintiffs later 

dropped their request for a declaratory judgment, proceeding only on their 

claims for injunctive relief against the application, tax, registration, and 

serial-number requirements on Second-Amendment grounds.

The parties cross-moved for summary judgment. The federal 

government’s motion argued that the Plaintiffs lacked standing, that the 

court lacked jurisdiction because of the Tax Anti-Injunction Act, and that the 

Plaintiffs’ claims failed on the merits. The district court concluded that 

neither the Individual Plaintiffs nor Texas had standing to pursue their claims 

and therefore granted summary judgment in favor of the federal government 

on that basis.1

_____________________

1 The district court did not address the Tax Anti-Injunction Act or the merits of 

the Plaintiffs’ Second-Amendment claims. Neither do we.

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II.

We review the district court’s standing determination de novo. Chavez 

v. Plan Benefit Servs., Inc., 77 F.4th 370, 378 (5th Cir. 2023).

III.

We begin with the Individual Plaintiffs. To have Article III standing, 

the Individual Plaintiffs “must have (1) suffered an injury in fact, (2) that is 

fairly traceable to the challenged conduct of the defendant, and (3) that is 

likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 

578 U.S. 330, 338 (2016). On appeal, as before the district court, the parties 

primarily contest whether the Individual Plaintiffs demonstrated an injury in 

fact.

“To establish injury in fact, a plaintiff must show that he or she 

suffered ‘an invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” 

Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 

Where, as here, a plaintiff raises a pre-enforcement challenge to a federal 

statute, the injury-in-fact requirement is satisfied where the plaintiff shows a 

serious “intention to engage in a course of conduct arguably affected with a 

constitutional interest, but proscribed by a statute, and there exists a credible 

threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 

U.S. 149, 159 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 

442 U.S. 289, 298 (1979)); see also, e.g., Zimmerman v. City of Austin, 881 F.3d 

378, 389 (5th Cir. 2018) (requiring a “serious intention to engage in conduct 

proscribed by law”).2

_____________________

2 The Individual Plaintiffs have not raised—and have therefore forfeited—other 

potential bases for standing beyond pre-enforcement standing vis-à-vis the criminal 

penalties imposed by the federal regulatory scheme at issue. See Ctr. for Biological Diversity 

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The Individual Plaintiffs claim that they have established injury in fact 

through their signed, unsworn declarations, each of which stated, in relevant 

part: 

I intend to personally manufacture a firearm suppressor for my 

own non-commercial, personal use. The firearm suppressor 

will be manufactured in my home from basic materials without 

the inclusion of any part imported from another state other 

than a generic and insignificant part, such as a spring, screw, 

nut, or pin.

For two reasons, we find that these declarations are insufficient to “establish 

a serious intention to engage in conduct proscribed by law.” Zimmerman, 881 

F.3d at 389.

A.

First, the declarations do not state any intention to engage in conduct 

proscribed by law. Rather, the declarations state only that the Individual 

Plaintiffs “intend to personally manufacture a firearm suppressor for [their] 

own non-commercial, personal use.” But, as the federal government points 

out, the statutes at issue do not prohibit the Individual Plaintiffs from making 

a firearm suppressor. Rather, they only prohibit making a firearm suppressor 

without complying with the applicable procedures and requirements, i.e., applying 

for approval, paying the requisite tax, registering the suppressor, and labeling 

it with a serial number. See 26 U.S.C. § 5871. This is a distinction with an 

important difference because it differentiates this case from those in which 

the statutory scheme at issue is a blanket prohibition. 

_____________________

v. EPA, 937 F.3d 533, 542 (5th Cir. 2019) (“Arguments in favor of standing, like all 

arguments in favor of jurisdiction, can be forfeited or waived.”).

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Take, for example, National Rifle Association of America, Inc. v. 

McCraw, a case concerning a pre-enforcement challenge to a Texas criminal 

statute prohibiting individuals under the age of 21 from carrying handguns in 

public. 719 F.3d 338, 342 (5th Cir. 2013). The district court had found that 

the plaintiff’s declared intent to “carry a handgun outside of the home” was 

insufficient to establish standing, in part because the criminal provision at 

issue allowed an individual to carry a handgun in public if the individual had 

a concealed-carry license, and the plaintiff had not specifically alleged any 

“desire to carry a handgun . . . without a license.” Jennings v. McCraw, No. 

5:10-cv-141-C, 2012 WL 12898407, at *2–3 (N.D. Tex. Jan. 19, 2012). We 

reversed, explaining that because Texas’s licensing program prohibited 

granting concealed-carry licenses to individuals under 21, “[t]he criminal 

provision forb[ade] [the plaintiff] from carrying a handgun altogether.” 

McCraw, 719 F.3d at 345. For this reason, the intent to carry a handgun 

outside of the home generally was sufficient to bring the plaintiff’s intended 

conduct within the ambit of the criminal prohibition. 

Here, the opposite is true. The Individual Plaintiffs have only stated 

an intent “to personally manufacture a firearm suppressor” but say nothing 

about whether they intend to personally manufacture a firearm suppressor 

without applying for government approval, and they make no claim that they are 

statutorily ineligible for such approval. So, they have failed to show that their 

intended conduct is within the scope of what 26 U.S.C. § 5871 prohibits and 

therefore lack standing to bring their pre-enforcement challenge. 

In this sense, the Individual Plaintiffs’ declared intent is more akin to 

that which was deemed insufficient in Zimmerman. In that case, an Austin 

City Councilmember challenged a campaign-finance law that placed an 

aggregate limit on the amount of monetary contributions that could be 

accepted from persons outside of the Austin area. Zimmerman, 881 F.3d at 

382. The plaintiff had submitted a declaration stating that, absent the 

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challenged law, he would have solicited funds from individuals outside of the 

Austin area. Id. at 389. But, as we pointed out, the law at issue did “not 

preclude solicitations; it preclude[d] only accepting aggregate contributions 

over the relevant limit.” Id. (cleaned up) (emphases added). So, “[s]tating 

[a] desire to solicit funds . . . d[id] not establish an intent to accept funds above 

the proscribed limit,” and the plaintiff therefore lacked standing. Id. Here, 

the challenged statute does not preclude making a silencer; it precludes only 

making a silencer without submitting to various government-imposed 

requirements. So, stating a blanket desire to make a silencer does not 

establish an “intention to engage in conduct proscribed by law.” Id. at 389.

B.

Second, the declarations lack the necessary detail to establish that the 

Individual Plaintiffs’ professed intent to make a silencer is sufficiently 

“serious” to render their feared injury “imminent” rather than merely 

speculative or hypothetical. As the Supreme Court explained in Lujan, at the 

summary-judgment stage, declarants’ profession of “‘some day’ intentions 

[to engage in certain conduct]—without any description of concrete plans, or 

indeed even any specification of when the some day will be—do not support 

a finding of the ‘actual or imminent’ injury” required for standing. 504 U.S. 

at 564. To determine whether the Individual Plaintiffs’ professed intent to 

make silencers is sufficiently serious, it is helpful to look specifically at cases 

concerning pre-enforcement Second-Amendment claims. 

Again McCraw—and its companion case, National Rifle Association of 

America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 

185, 188 (5th Cir. 2012) (hereinafter, “BATFE”), challenging a federal law 

prohibiting the sale of handguns to individuals under the age of 21—are 

instructive. In both cases, the same individual plaintiff—Andrew Payne—

submitted a detailed declaration describing his passion for the safe handling 

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of firearms and explaining how and when he would engage in the proscribed 

conduct if the challenged laws did not exist. With respect to the federal law 

prohibiting the sale of handguns to individuals under 21, Payne explained, “I 

identified a handgun that I wanted to purchase—a new Taurus .357 magnum 

that was selling for just under $500” at a local firearms dealer—and he 

declared, under penalty of perjury, that “[i]f [the retailer] could legally sell 

me this handgun, I would buy it (or one very similar to it) from that store 

now.” Decl. of Andrew Payne at 3, BATFE, 700 F.3d 185 (No. 11-10959), 

ECF No. 25 at 56. Similarly, in the case challenging the state law prohibiting 

him from carrying a handgun in public, Payne’s declaration was unequivocal: 

“If Texas law did not prohibit me from doing so, I would carry a handgun 

outside of the home”—specifically, his “father’s handgun when patronizing 

[a local] Wal-Mart” in an area of town where Payne felt unsafe. Decl. of 

Andrew Payne at 2, McCraw, 719 F.3d 338 (No. 12-10091), ECF No. 17 at 59.

We therefore had no hesitation holding that Payne had a serious intention to 

engage in the conduct that he claimed would expose him to criminal liability. 

BATFE, 700 F.3d at 191–92; McCraw, 719 F.3d at 345.

Out-of-circuit case law is in accord. In Antonyuk v. Chiumento, the 

Second Circuit found that a plaintiff had established a serious intention to 

violate a criminal law banning the carriage of firearms in “sensitive 

locations,” including public zoos, based on the plaintiff’s “aver[ments] in his 

declaration that he and his wife frequently visit the [local] Zoo . . . so that 

[they] can see the otters and wolves, . . . that they would visit the zoo . . . at 

least once[] within the next 90 days” and that “he intend[s] to carry [his] 

firearm when [they] visit.” 89 F.4th 271, 333, 352 (2d Cir. 2023) (internal 

quotation marks omitted). Similarly, in Montana Shooting Sports Association 

v. Holder, the Ninth Circuit found that an individual had a serious intention 

to violate federal laws criminalizing the manufacturing of firearms and 

ammunition without a government-issued license where the plaintiff had 

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“not merely alleged a vague desire to manufacture and sell unlicensed 

firearms if he [won his] lawsuit, but ha[d] made specific allegations 

substantiating [that] claim,” including that he “ha[d] a background in 

running his own shooting range equipment manufacturing business, ha[d] 

identified . . . the component parts of the [firearm he wanted to make], ha[d] 

design plans for the firearm ready to load into manufacturing equipment, and 

ha[d] identified hundreds of customers who ha[d] ordered the [firearm] at his 

asking price.” 727 F.3d 975, 978–80 (9th Cir. 2013).3

The detailed allegations and declarations that were sufficient for 

standing in BATFE, McCraw, Antonyuk, and Montana Shooting stand in stark 

contrast to those submitted in this case. For example, in Montana Shooting, 

the plaintiff presented design plans for the firearm he intended to make and 

identified each of the parts necessary to complete the manufacturing process. 

And in BATFE, the plaintiff identified the specific handgun that he intended 

to purchase. Here, the Individual Plaintiffs have provided no information 

concerning the specific type of silencer that they allegedly intend to make or 

what parts they will use to make it. Moreover, and perhaps most importantly, 

each of the plaintiffs in BATFE, McCraw, Antonyuk, and Montana Shooting

expressed an unequivocal intent to engage in the proscribed conduct 

immediately if the challenged restrictions did not exist, whereas here, the 

Individual Plaintiffs have expressed only a vague intention to make a silencer 

at some indeterminate point in the future. The Individual Plaintiffs’ 

professed “some day intentions” to make a silencer, without any concrete 

_____________________

3 Montana Shooting went to the Ninth Circuit at the motion-to-dismiss stage, 727 

F.3d at 979, so the court needed only look at the allegations in the complaint to evaluate 

standing. More—namely, “affidavit or other evidence”—is required here. Lujan, 504 U.S. 

at 561. 

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details concerning the type of silencer they will make or even when they will 

make it, is insufficient to establish injury in fact. See Lujan, 504 U.S. at 564.4

To be sure, there are limits to the degree of specificity a plaintiff can 

be expected to provide in a declaration. And, as the Second Circuit 

recognized, courts must be “mindful that a plaintiff may fall between stools: 

allege future conduct too imminent and the claim will become moot, but 

allege a generic or distant intention and the injury will be insufficiently 

specific.” Antonyuk, 89 F.4th at 371. But the bottom line is that “it is simply 

not all that hard” to write a declaration with enough detail to establish a 

serious intention to engage in a course of conduct. See id. The Individual 

Plaintiffs have fallen well short of that mark here.

IV.

Next, we address Texas’s two asserted bases for standing: its “quasisovereign interests in its citizens’ health and well-being,” and “its sovereign 

interest in the power to create and enforce a legal code.” Neither is valid.

A.

Texas claims that it “has standing to vindicate its quasi-sovereign 

interests in its citizens’ health and well-being” because “[t]he 

unconstitutional regulation of firearm suppressors adversely affects Texans’ 

health and well-being by delaying (by 60 or 55 days when the application is 

_____________________

4 To be clear, our holding does not require the Individual Plaintiffs to commit a 

crime to have standing. To the contrary, it is well established that “where threatened action 

by government is concerned, we do not require a plaintiff to expose himself to liability 

before bringing suit to challenge the basis for the threat.” MedImmune, Inc. v. Genentech, 

Inc., 549 U.S. 118, 128–29 (2007) (emphasis removed). The Individual Plaintiffs would face 

no risk of criminal liability by identifying the materials they plan to use to make a silencer 

in a declaration, and they need not collect those parts if it would be illegal to possess them 

without a permit.

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

ability to use firearm suppressors for the purpose of home defense.” We hold 

that Texas has not established a valid quasi-sovereign interest because it has 

not shown that the challenged statutes implicate the State’s own interests in 

addition to and “apart from the interests of particular private parties.” Alfred 

L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).

Snapp itself is illustrative of what a state must show to satisfy this 

requirement. There, Puerto Rico, as part of its participation in a federal jobs 

program, had recruited over two thousand Puerto Rican farmworkers to be 

sent to harvest apples for private growers on the east coast. Id. at 597. But 

when the workers arrived, the growers refused to employ them on the basis 

that Puerto Rican farmhands were inferior and unproductive. Id. The 

Supreme Court found that Puerto Rico had parens patriae standing on an 

economic-wellbeing basis because the conduct at issue concerned efforts to 

stigmatize the entire Puerto Rican labor force and therefore implicated the 

economic interests of Puerto Rico itself beyond the interests of the specific 

individuals who lost job opportunities. Id. at 609–10.

Contrast Puerto Rico’s showing in Snapp with that of Louisiana in 

Harrison v. Jefferson Parish School Board, 78 F.4th 765 (5th Cir. 2023). There, 

Louisiana claimed parens patriae standing to challenge a local school board’s 

disciplinary policy based on its “quasi-sovereign interest in preventing its 

political subdivisions [i.e., the school board] from violating the constitutional 

rights of 52,000 public schoolchildren.” Id. at 772. As we explained, this was 

not a valid quasi-sovereign interest because Louisiana was not claiming 

“injury to its citizens health or economic well-being in a way that also 

implicates its own interests”; rather, “Louisiana’s asserted interest [was] 

wholly derivative of the interests of [the individual] students,” who were 

perfectly capable of suing the school board themselves. Id. at 773 (emphasis 

added); see also Pennsylvania v. Kleppe, 533 F.2d 668, 675 (D.C. Cir. 1976) 

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(finding lack of quasi-sovereign interest in light of “the presence . . . of a more 

appropriate party or parties capable of bringing the suit”).

Applying these principles here, it is plain that Texas’s asserted quasisovereign interest is wholly derivative of the personal Second-Amendment 

interests of its citizens and therefore not a valid quasi-sovereign interest at 

all. See Harrison, 78 F.4th at 773. As the district court succinctly put it: 

“Texas may not merely litigate as a volunteer the personal claims of its 

citizens. And it is hard to think of a more personal interest than one’s ability 

to better hear a home intruder in the middle of the night and fend them off 

with the aid of a home-made silencer.”5

B.

Texas claims that it “also has standing to vindicate its sovereign 

interest in the power to create and enforce a legal code.” True, such a 

sovereign interest exists. See Snapp, 458 U.S. at 601. But it is not implicated 

here. 

Specifically, Texas asserts that the challenged federal statutes 

interfere with its ability to enforce Section 2.052 of the Texas Government 

Code, which provides that “[a] firearm suppressor that is manufactured in 

[Texas] and remains in [Texas] is not subject to federal law or federal 

_____________________

5 Because Texas has failed to establish an injury to its quasi-sovereign interests and

“[p]rinciples of judicial restraint dictate that if resolution of an issue effectively disposes of 

a case, we should resolve the case on that basis without reaching any other issues that might 

be presented,” Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir. 1989), we do not address 

Texas’s argument that it would have standing to bring a claim based on an injury to its 

quasi-sovereign interests against the federal government despite the so-called Mellon bar, 

which prohibits states from bringing parens patriae suits against the federal government. See 

Massachusetts v. Mellon, 262 U.S. 447, 486 (1923) (explaining that when it comes to a state’s 

citizens’ “relations with the federal government,” “it is the United States, and not the 

state, which represents them as parens patriae”).

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regulation.” Tex. Gov’t Code Ann. § 2.052(a). But as we have

previously explained, “[a] state has standing based on a conflict between 

federal and state law if the state statute at issue regulates behavior or provides 

for the administration of a state program, but not if it simply purports to 

immunize state citizens from federal law.” Texas v. Nuclear Regul. Comm’n, 78 

F.4th 827, 836 (5th Cir. 2023) (quoting Texas v. United States, 787 F.3d 733, 

749 (5th Cir. 2015)) (emphasis added). Section 2.052 falls squarely into the 

latter category. 

The black-letter rule set forth in Texas v. Nuclear Regulatory 

Commission and Texas v. United States is derived from the Fourth Circuit’s 

decision in Virginia ex rel. Cuccinelli v. Sebelius—a case with facts remarkably 

similar to this one. See Texas v. United States, 787 F.3d at 749 (quoting

Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011)). In 

Cuccinelli, the Commonwealth of Virginia filed suit challenging the 

“individual mandate” provision of the Affordable Care Act. 656 F.3d at 266. 

As its basis for standing, Virginia argued that it had a sovereign interest in 

creating and enforcing its legal code, namely the Virginia Health Care 

Freedom Act (“VHCFA”), which provided, in relevant part, that “no 

resident of this Commonwealth . . . shall be required to obtain or maintain a 

policy of individual insurance coverage.” Id. at 267–68. As the Fourth Circuit 

rightly explained: “the VHCFA regulates nothing and provides for the 

administration of no state program. Instead, it simply purports to immunize 

Virginia citizens from federal law. In doing so, the VHCFA reflects no 

exercise of ‘sovereign power,’ for Virginia lacks the sovereign authority to 

nullify federal law.” Id. at 270. Rather, what Virginia was really trying to do 

was “escape [the Mellon] bar merely by codifying its objection to the federal 

statute in question.” Id. The Fourth Circuit refused to permit such an endaround, which would have improperly “convert[ed] the federal judiciary into 

a ‘forum’ for the vindication of a state’s ‘generalized grievances about the 

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conduct of government.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 106 

(1968)).

Like Virginia, Texas cannot avoid the Mellon bar by legislative fiat. 

Section 2.052 merely purports to immunize Texas citizens making silencers

in Texas from federal firearms law. It therefore reflects no exercise of Texas’s 

sovereign power and provides no standing for Texas to challenge the federal 

laws with which Section 2.052 conflicts. See Nuclear Regul. Comm’n, 78 F.4th 

at 836.

V.

For these reasons, we AFFIRM the judgment of the district court 

that the Plaintiffs lack standing.

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