“In adding the ‘readily restored’ clause to [the definition of rifle in 26 U.S.C. § 5845(c) ], Congress specifically intended to overcome United States v. Thompson, 202 F.Supp. 503 (N.D.Cal.1962), holding that a firearm with a missing firing pin was not a firearm under the [National Firearms] Act.”
How later courts described this case
- “In adding the ‘readily restored’ clause to [the definition of rifle in 26 U.S.C. § 5845(c) ], Congress specifically intended to overcome United States v. Thompson, 202 F.Supp. 503 (N.D.Cal.1962), holding that a firearm with a missing firing pin was not a firearm under the [National Firearms] Act.”
- “It is well established that two indictments may be outstanding at the same time for the same offense if jeopardy has not attached to the first indictment. The government may then select the indictment under which to proceed at trial.”
- rejecting a vagueness challenge to the phrase “readily restored” in § 5845(c) defining “rifle”
Written by the judges who cited it.
The opinion
MANION, Circuit Judge,
dissenting.
I agree with the district court that § 5845 did not give the defendants fair notice that their conduct was illegal. Therefore, I respectfully dissent. Since the district court has thoroughly analyzed the issue in a published opinion, United States v. Drasen, 665 F.Supp. 598, 599-604, 607-14 (N.D.Ill.1987), I will add only a brief comment.
I have no quarrel with the majority’s observation that a person dealing in a highly regulated activity such as selling firearms must ascertain whether his activities are, in fact, regulated. Supra at 737-38. But that observation begs the question. I am willing to assume that the defendants made no attempt to determine whether selling the parts kits was illegal; the question we face, though, is whether, if the defendants had inquired, the statute would have fairly informed them that selling the parts kits was illegal.
The government is attempting to prosecute the defendants for selling a “combination of parts.” However, where Congress intended to regulate combinations of parts, it did so precisely and explicitly. For example, the definition of “machinegun,” § 5845(b), includes “combination of parts” language. Contrary to the government’s assertion (which the majority appears to have accepted, at 737), the “combination of parts” language does not simply refer to “any” part. The definition of “machine-gun” also includes “any part designed and intended solely and exclusively ... for use in converting a weapon into a machine-gun_” If the “combination of parts” language was sufficient to regulate “any” part, the “any part” language would have been unnecessary. The definition of “ma-chinegun” shows that when Congress wanted to regulate combinations of parts, or “any” parts, it knew how to do so with precision. Congress has not included such precise language in the definition of rifle.
Furthermore, I would not rely on Rev. Rui. 54-606 (issued in 1954) to clarify the definition of rifle and impose criminal liability on the defendants. Revenue rulings do not have the force of law; they represent only the IRS’ opinion of the law. See Flanagan v. United States, 810 F.2d 930, 934 (10th Cir.1987). More importantly, it is not even clear from the legislative history of the 1968 Gun Control Act that Congress intended to adopt Rev.Rul. 54-606. Al *739 though Congress stated that it intended to adopt “the administrative construction of existing law,” Congress did not mention the revenue ruling. Nor did Congress even mention its understanding of the administrative construction it said it was adopting. Thus, United States v. Board of Commissioners, 435 U.S. 110, 134 , 98 S.Ct. 965, 980 , 55 L.Ed.2d 148 (1978), cited by the majority, at 736, is inapposite: in that case, the legislative history of the re-enactments in which Congress adopted an administrative construction contained ample evidence that Congress knew exactly what the administrative construction was that it was adopting. See 435 U.S. at 132-35 , 98 S.Ct. at 979-81 . Besides, United States v. Board of Commissioners was not a criminal case involving fair notice.
Perhaps the majority’s construction of § 5845 is the “common sense” interpretation of that section; perhaps the majority’s construction is what Congress actually intended. But Congress did not express that intent clearly enough to provide fair notice to these defendants that their acts violated the law. As the majority admits, “to clarify the statute little additional language would have been needed to accomplish what the government claims Congress intended. The statute could have defined a rifle as also including the parts thereof that could be readily assembled to form a functioning weapon.” Supra at 733. But Congress did not include such language. We should not impose criminal liability based on imprecise statutory language, or on an old and obscure revenue ruling that Congress did not even mention in legislative history. Fair notice means that people should not have to speculate on how Congress (or a court) applies “common sense” when determining whether conduct is illegal. The district court correctly dismissed the six counts of the 13-count indictment dealing with the sales of the short-barrel rifle parts kits.