Silencing the Culture Wars?

T he political fight over firearms regulation is not a matter of public safety but a matter of culture war. If you doubt that, consider a related case: We still have on the books anti-switchblade laws that were adopted by states such as Colorado in a national moral panic following the premiere of West Side Story. Without those knife-control laws, the United States surely would have degenerated into a dystopian hellscape straight from the minds of . . . Leonard Bernstein and Stephen Sondheim.

We should be so lucky. But we Americans remain hostages to the movies, as the pending fight over Texas’s “silencer” law surely will demonstrate.

Sound suppressors — popularly known as “silencers” to the great irritation of the sort of person who will officiously correct you if you say “clip” when you mean “magazine” — are commonplace items throughout much of the world, including in most of Europe, where some shooting clubs will go so far as to require their use as a matter of courtesy. In many European countries, you can buy a suppressor at a sporting-goods store with no more paperwork than is required to buy a pair of hiking boots. In real life, a firearm equipped with a suppressor doesn’t make that cute little “pew!” sound that it emits when James Bond is using one — it sounds like a gun going off, but more quietly.

Suppressors are popular with hunters who do not wish to have their hearing damaged but also find it difficult to handle a rifle deftly while wearing gigantic protective earmuffs.

In the United States, we have a cumbrous federal regulatory apparatus under which the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulates the sale and transfer of suppressors in accordance with the National Firearms Act of 1934. (The states add another level of potential regulation, but suppressors are legal in all but eight of them.) Acquiring a suppressor requires a considerable pile of paperwork, an extensive background check, the payment of a special federal transfer tax, etc. The waiting time for getting approval can run more than a year. On top of that, lending someone a suppressor can put both of you at risk of becoming federal felons, and so those who own suppressors sometimes take the extraordinary step of forming a legal trust to take ownership of the accessory, so that family members who have been added to the trust can take the suppressor down to the shooting range without legal peril.

Texas means to change that — and, if it is successful, Texas’s effort will change a lot more than the noise level at the shooting ranges in Houston. The firearms may be muffled, but the regulatory shot will be heard from coast to coast.

Under the freshly signed Texas legislation, it will be legal for a Texas resident to buy a suppressor manufactured and sold in Texas without any federal permission, on the theory that the federal government’s regulatory powers under the “interstate commerce” clause are limited to — radical idea! — interstate commerce.

This is a theory that has been considered — and rejected — more than once by the Supreme Court. But the Supreme Court has on many occasions demonstrated its ability to get things wrong consistently for long periods of time. The most infamous of the abuses of the interstate-commerce clause was blessed by the Court in the case of Wickard v. Filburn. Among the economically illiterate superstitions that captivated the government of Franklin D. Roosevelt was the idea that American businesses were simply too productive, and it therefore ordered limits on the production of certain products, including wheat, in order to save Americans from the terrors of material abundance and low prices. Roscoe Filburn, a farmer in Ohio, ignored the federal limits on wheat production, because he was not involved in interstate commerce — the wheat was being consumed on his own farm rather than sold on the open market. But the feds disagreed and Filburn lost his case, with the Court creating, ex nihilo, an outrageously broad interpretation of federal powers: Filburn’s actions were neither interstate nor commerce, but the Court reasoned that they might produce a “substantial economic effect on interstate commerce,” if, for example, Filburn’s growing his own wheat kept him from buying wheat commercially grown in Pennsylvania. Wickard’s standard creates a federal power without limitation: Washington could, under this reasoning, superintend parallel-parking rules in Tuscaloosa, Ala., under the theory that a car parked ten inches from the curb rather than six inches might interfere with an Amazon delivery van and thereby exert a “substantial economic effect on interstate commerce” at least as great as Roscoe Filburn’s. This expansive and ridiculous line of argument was unfortunately endorsed by, among others, Justice Antonin Scalia, in the case of Gonzales v. Raich, in which California argued that the federal government had no legitimate power to forbid the medicinal use of marijuana grown in California by California residents within California’s borders.

The inflation of the interstate-commerce power has been opposed both by libertarians skeptical of federal economic regulation and by progressives who seek a freer hand in drug policy and other matters within the states they control. One hopes that the Californians remember Gonzales v. Raich as the Texas suppressor law works its way through the courts, rather than responding with the usual cry of the culture war: “Eek!”

We have a different Supreme Court today than we had when Gonzales v. Raich was under consideration — a Court that is more conservative, if not wildly so. (You might call it not radically conservative but conservatively conservative.) Upholding Texas’s right to regulate what happens within its own borders would invite — it would practically force — the reconsideration and reduction of federal regulatory powers touching everything from drugs to agriculture to environmental standards. That would cause some political upheaval and economic uncertainty, but it would also help to reestablish one of the underappreciated and seemingly forgotten facts of American life: We have 50 states for a reason. For that outcome, to which the question of suppressor regulation is only incidental, a period of considerable regulatory disorder is a price worth paying.

Resurrecting a more robust model of federalism — recognizing that New Jersey can be New Jersey while Texas is Texas — could help to dissipate some of the culture-war energy that has made our politics, especially our presidential elections, such a horror-show in recent years. But that kind of effective federalism requires that both sides agree to let the other side be — and there is much more political juice to be had by taking the opposite approach and nationalizing every issue and every disagreement. Political careers are not made by minding one’s own business and cultivating contentedness. In this regard, the political branches have failed us. Perhaps the Supreme Court will do better this time.

On this matter, the Court owes us more than silence.