In recent weeks, select organizations have made the claim that items regulated by the National Firearms Act of 1934 (NFA) are illegal to possess in Texas and four other states with large NFA markets. These states include Alaska, Oklahoma, Tennessee, and Washington. This claim is false.
NFA items ARE LEGAL to own and possess in all five of the aforementioned states.
The basis of the claim hinges upon a flagrant misrepresentation of the law. Texas Penal Code states:
Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(6) armor-piercing ammunition;
(7) a chemical dispensing device;
(8) a zip gun; or
(9) a tire deflation device.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
The code then goes on to clarify the instances under which civilian possession of an NFA item is legal:
(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
As you can see, lawful registration in accordance with the National Firearms Act is a “defense to prosecution”. In Texas, any “defense to prosecution” has to be disproven by the state beyond a reasonable doubt. If reasonable doubt is established that the item in question is properly registered, the state requires that the defendant be acquitted.
In practical terms, this defense will only come into play if a law enforcement officer in Texas requests to see your proof of registration for an NFA item, and you are unable to produce the proper paperwork. On the other hand, if an individual is arrested for the possession of an NFA item, all he or she would need to do to avoid charges is show their ATF Tax Stamp for each NFA item. Nearly all prosecutors understand that even if a person doesn’t have their tax stamp when arrested, producing it at trial will raise enough of a reasonable doubt to make a conviction impossible. As a result, most prosecutors are not interested in pursuing cases that will obviously end in acquittal. Doing so could result in malicious prosecution charges.
This defense is similar to how Texas handles drivers who are caught operating a motor vehicle without a license. They too have a defense to prosecution, and will be acquitted if the driver can produce a driver’s license in court that was valid at the time of their offense (Tex. Trans. § 521.025(d)).
When discussing the legality of NFA items, bear in mind that Texas is by far the largest NFA market in the country. In terms of suppressors, Texas has 86,579 in circulation as of March, 2014, according to the ATF’s 2014 Annual Statistical Update of Firearms Commerce in the United States. With a combined total of 136,182 registered suppressors, AK, OK, TN, TX, and WA make up nearly 25% of the market. Although there are slight variations amongst defense to prosecution laws in different states, and although better statutes would be ideal, all five of these states allow civilians to own and possess NFA items in a similar manner to Texas. The ATF would not have approved the transfer of over 136,000 suppressors to these states if they were illegal.
The American Suppressor Association is the unified voice of the suppressor industry. The interests of suppressor manufacturers, distributors, dealers, and consumers are our only priorities. Although we will work in 2015 to enact stronger policy surrounding existing defense to prosecution laws, our primary initiatives on the state level will remain the passage of state ownership, hunting, and shall certify legislation across the country. We will not be fooled by fabricated issues.