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HomeLocal / Area News5TH CIRCUT COURT DECISION ON GUN SILENCERS 06/21/24

5TH CIRCUT COURT DECISION ON GUN SILENCERS 06/21/24

Paxton v. Dettelbach, No. 23-10802 (5th Cir. 2024)

Three individuals and the State of Texas filed a lawsuit seeking to enjoin federal statutes that criminalize the creation of 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 plaintiffs argued that these federal regulations violated their Second Amendment rights. In 2021, Texas had enacted a law stating that a firearm suppressor manufactured in Texas and remaining in Texas is not subject to federal law or regulation.

The United States District Court for the Northern District of Texas granted summary judgment in favor of the federal government, holding that the plaintiffs lacked standing to bring their claims. The court did not address the merits of the plaintiffs’ Second Amendment claims.

The United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision. The court found that the individual plaintiffs failed to demonstrate an injury in fact, a requirement for standing, because they did not express a serious intention to engage in conduct proscribed by law. The court also found that Texas did not have standing to bring the lawsuit. The state’s claim that it had a quasi-sovereign interest in its citizens’ health and well-being was found to be wholly derivative of the personal Second Amendment interests of its citizens. Furthermore, the court found that Texas’s claim that it had a sovereign interest in the power to create and enforce a legal code was not implicated in this case. The court concluded that the plaintiffs lacked standing to challenge the federal statutes.

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
Case: 23-10802 Document: 60-1 Page: 1 Date Filed: 06/21/2024
No. 23-10802
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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No. 23-10802
3
[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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4
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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No. 23-10802
5
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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No. 23-10802
7
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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No. 23-10802
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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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No. 23-10802
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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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No. 23-10802
11
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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No. 23-10802
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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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