Earlier this month Missouri Attorney General Catherine Hanaway filed a lawsuit against the ATF on behalf of the state of Missouri, arguing that the National Firearms Act is unconstitutional under the Second Amendment, at least as it applies to suppressors and short-barreled rifles. There was one individual plaintiff joining Hanaway’s lawsuit: Jefferson County Sheriff Dave Marshak.
Marshak, though, isn’t involved in the lawsuit in his official capacity as sheriff. In the initial complaint, Marshak says he “values his personal privacy and does not want the federal government to obtain identifying information about his personally owned firearms, including information such as his name, physical appearance and characteristics, date of birth, demographic information, fingerprints, home address, or the make, model, caliber, physical dimensions, serial number, legal classification, quantity, or physical location of his firearms.”
In an interview with the Arnold-Imperial Leader, Marshak says he wants to see the federal government constrained to operate within the limits of the Constitution. And to those constituents who might worry about what this might mean for violent crime, Marshak says there’s no reason for alarm.
“The lawsuit does not seek to legalize criminal possession of firearms or prevent law enforcement from prosecuting someone who uses a firearm in the commission of a crime,” he said. “Commercial firearm purchases would also remain subject to applicable federal laws, including background-check requirements.
“From a law-enforcement perspective, my concern is criminal behavior,” he said. “If someone illegally possesses a firearm or uses a firearm to rob, assault or kill someone, we should aggressively investigate that crime, arrest the offender and hold that person accountable.”
Marshak also said he does not believe removing the restrictions to own short-barreled rifles and suppressors would increase gun violence.
The lawsuit filed by Hardaway and Marshak poses arguments that are almost identical to the ones made in the Jensen/Silencer Shop cases, and I don’t think it’s a coincidence that the attorney general decided to file suit after a federal judge in Texas ruled that the NFA’s registration requirements are an unconstitutional exercise of legislative power now that the NFA’s taxes on suppressors and short-barreled firearms have been zeroed out. Hardaway is trying to build on Jensen/Silencer Shop, and I expect that she’ll be successful in doing so.
The big question at the moment is what the ATF will say in its response to the complaint. President Donald Trump has allegedly told DOJ not to appeal its loss in Jensen/Silencer Shop, and if the Justice Department isn’t going to defend the NFA’s registration scheme in the Fifth Circuit, it would be odd for them to try to uphold it in a district court in the Eighth Circuit.
If DOJ/ATF chooses not to defend the statutes in question, it’s possible that the district court judge assigned to the case will look for an outside entity to do so. That’s what happened in another case filed in federal court in Texas called Ziegenfuss v. Martin. After Texas Attorney General Ken Paxton declined to defend several “sensitive places” in state statute, the federal judge appointed Southern Methodist University law professor Eric Ruben and former judge Gregg Costa to defend the “gun-free zones” instead.
The ATF’s reply to Missouri’s challenge to the NFA provisions is due in early October, just a few days after the deadline to appeal Jensen/Silencer Shop to the Fifth Circuit. I’m eager to see what the Justice Department will do with both of these lawsuits… and what the judges overseeing the litigation will decide to do if the DOJ does decline to defend the NFA’s registration requirements going forward.
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