Opposition Brief — Shane Cox, Petitioner v. United States

No. 18-7451

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

SHANE COX, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CICUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether petitioner was entitled to raise an entrapment-

by-estoppel defense against a federal prosecution on the ground

that he was misled by state officials.

2.

Whether

the

Second

Amendment

guarantees

possess short-barreled rifles and firearm silencers.

(I)

a

right

to

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-7451

SHANE COX, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-48a) is

reported at 906 F.3d 1170.

The order of the district court (Pet.

App. 49a-59a) is reported at 187 F. Supp. 3d 1282.

A second order

of the district court (Pet. App. 62a-74a) is reported at 235 F.

Supp. 3d 1221.

JURISDICTION

The judgment of the court of appeals was entered on October

16, 2018.

The petition for a writ of certiorari was filed on

January 14, 2019.

28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked under

2

STATEMENT

Following a jury trial in the United States District Court

for the District of Kansas, petitioner was convicted on one count

of possessing an unregistered short-barreled rifle, in violation

of 26 U.S.C. 5841, 5861(d), and 5871; five counts of transferring

an unregistered silencer, in violation of 26 U.S.C. 5812, 5841,

5861(e), and 5871; one count of making an unregistered silencer,

in violation of 26 U.S.C. 5822, 5841, 5861(f), and 5871; and one

count of engaging in the business of manufacturing and dealing in

silencers without having registered or paid the required tax, in

violation of 26 U.S.C. 5861(a) and 5871.

sentenced him to two years of probation.

court of appeals affirmed.

1.

The district court

Gov’t C.A. Br. 2-3.

The

Pet. App. 1a-48a.

The National Firearms Act (Act), 26 U.S.C. 5801 et seq.,

enacted in 1934, imposes a federal tax on the manufacture, sale,

and

transfer

include,

of

among

“firearm[s].”

other

items,

The

Act

defines

short-barreled

“firearm”

shotguns,

to

short-

barreled rifles, machineguns, bombs, grenades, and silencers.

26

U.S.C. 5845 (2012). The Act’s definition does not include commonly

used weapons such as handguns, shotguns, and rifles, or commonly

used accessories such as bullets.

See ibid.

We refer to the items

included in the Act’s definition as “NFA firearms.”

The Act requires manufacturers, importers, and dealers of NFA

firearms to register and pay an occupational tax.

26 U.S.C. 5801,

3

5802.

The

Act

also

requires

registration

with

the

National

Firearms Registration and Transfer Record and payment of an excise

tax of $200 upon the manufacture, importation, or transfer of an

NFA firearm.

26 U.S.C. 5811, 5812, 5821, 5822, 5841.

The Act

does not, however, prohibit the manufacture, sale, or possession

of properly registered and taxed NFA firearms.

It is a criminal offense, punishable by up to ten years in

prison and a $10,000 fine, to violate the Act’s requirements or to

possess an NFA firearm that has been transferred in violation of

the Act’s requirements.

2.

26 U.S.C. 5861(d), 5871.

In 2013, the State of Kansas enacted the Kansas Second

Amendment Protection Act, Kan. Stat. Ann. §§ 50-1201 et seq.

The

statute provides that a firearm or firearm accessory that is

“manufactured” and “owned” in Kansas and “remains within the

borders of Kansas” “is not subject to any federal law,” “including

any federal firearm or ammunition registration program,” “under

the authority of [C]ongress to regulate interstate commerce.”

§ 50-1204(a) (Supp. 2017).

Id.

The statute also purports to make it

a felony for any federal official to enforce any federal law

regarding a firearm or firearm accessory that is “manufactured”

and “owned” in Kansas and “remains within the borders of Kansas.”

Id. § 50-1206(b).

3.

Petitioner operated “Tough Guys, an army-surplus store

in Chanute, Kansas.”

Pet. App. 4a.

In 2014, petitioner began

4

manufacturing firearm silencers, which are firearm attachments

designed to suppress the sound of the shot.

Gov’t C.A. Br. 9-10.

Petitioner sold his homemade silencers at Tough Guys and displayed

them in a glass case next to a copy of the Kansas Second Amendment

Protection Act.

Pet. App. 4a.

Petitioner and Tough Guys neither

held a federal firearms license, nor registered the silencers, as

required by the National Firearms Act.

Petitioner’s

petitioner’s

Facebook.

Firearms

co-defendant,

silencers

and

and

Explosives

Jeremy

later

Pet. App. 4a-5a.

Kettler,

praised

its

bought

one

of

performance

on

The Bureau of Alcohol, Tobacco,

received

petitioner’s sale of silencers.

Id. at 5a.

a

telephone

Id. at 5a.

tip

about

During the ensuing

investigation, petitioner sold an unregistered silencer to an

undercover agent.

Gov’t C.A. Br. 10.

Agents also recovered an

unregistered short-barreled rifle from petitioner’s home.

4.

Ibid.

A federal grand jury in the District of Kansas indicted

petitioner and Kettler for violating the National Firearms Act.

Pet. App. 5a-6a.

Before trial, the government moved for a ruling

that reliance on the Kansas Second Amendment Protection Act is not

a valid legal defense to the National Firearms Act charges.

at 7a.

Id.

The district court allowed petitioner to refer to the

Kansas statute at trial to “contextualize the charged offenses,”

but agreed with the government that reliance on the state law was

not a defense to the federal charges.

Ibid.

5

The case proceeded to trial.

Pet. App. 8a.

During jury

deliberations, petitioner moved to dismiss the indictment, arguing

that the National Firearms Act exceeded Congress’s taxing power,

that it violated the Tenth Amendment, and (in the reply brief)

that

its

application

to

short-barreled

violated the Second Amendment.

court denied the motion.

rifles

Gov’t C.A. Br. 8.

and

silencers

The district

It held that the National Firearms Act

was a valid exercise of Congress’s taxing power, and that the

Second Amendment does not guarantee a right to keep and bear shortbarreled rifles and silencers because these items are not “in

common use by law-abiding citizens for lawful purposes.”

Pet.

App. 70a.

The jury found petitioner guilty on one count of possessing

an unregistered short-barreled rifle, in violation of 26 U.S.C.

5841, 5861(d), 5871; five counts of transferring an unregistered

silencer, in violation of 26 U.S.C. 5812, 5841, 5861(e), 5871; one

count of making an unregistered silencer, in violation of 26 U.S.C.

5822, 5841, 5861(f), 5871; and one count of engaging in the

business of manufacturing and dealing in silencers without having

registered or paid the required tax, in violation of 26 U.S.C.

5861(a), 5871. Gov’t C.A. Br. 2-3. After considering petitioner’s

asserted reliance on the Kansas Second Amendment Protection Act,

which the district court believed mitigated the offense, the court

sentenced petitioner to two years of probation.

Id. at 3, 53.

6

5.

The court of appeals affirmed.

Pet. App. 1a-48a.

The court of appeals first rejected petitioner’s argument

that, under the Due Process Clause of the Fifth Amendment, his

reliance on the Kansas Second Amendment Protection Act precluded

his prosecution under the National Firearms Act.

40a.

Pet. App. 33a-

The court explained that the Tenth Circuit “treat[s] such

due-process challenges as claims of entrapment by estoppel.”

at 36a.

Id.

To establish this defense, a defendant must show that (1)

“a government agent actively misled him about the state of the law

defining the offense”; (2) “the government agent was ‘responsible

for interpreting, administering, or enforcing the law defining the

offense’”; (3) “the defendant actually relied on the agent’s

misleading pronouncement in committing the offense”; and (4) “the

defendant’s reliance was ‘reasonable in light of the identity of

the agent, the point of law misrepresented, and the substance of

the misrepresentation.’”

Id. at 36a-37a (quoting United States v.

Hardridge, 379 F.3d 1188, 1192 (10th Cir. 2004)). Petitioner could

not

establish

the

second

element,

because

“the

misleading

government agent (the Kansas legislature)” was not “responsible

for interpreting, administering, or enforcing the law defining the

offense.”

fourth

Id. at 37a.

element,

Petitioner also could not establish the

because

pronouncement”

(the

unreasonable.

Ibid.

“his

Second

reliance

Amendment

on

the

Protection

misleading

Act)

was

Because the state statute refers to firearms

7

that remain “‘within the borders of Kansas,’” and because it

declares that such firearms are not “‘subject to any federal law

* * *

under the authority of [C]ongress to regulate interstate

commerce,’” the court considered it clear that “Kansas wasn’t

considering, and didn’t purport to limit, Congress’s taxing-clause

authority.”

Id. at 37a-38a (citations omitted).

The court of appeals also rejected petitioner’s claims that

the application of the National Firearms Act to short-barreled

rifles and silencers violates the Second Amendment.

22a-29a.

Pet. App.

The court observed that, under United States v. Miller,

307 U.S. 174 (1939), and District of Columbia v. Heller, 554 U.S.

570 (2008), short-barreled shotguns fall outside the scope of the

Second Amendment because they are “not typically possessed by lawabiding citizens for lawful purposes.”

Pet. App. 25a.

The court

determined that the same was true of short-barreled rifles, because

petitioner “ha[d] offered no meaningful distinction between the

two.”

the

Id. at 26a.

Second

Turning to silencers, the court explained that

Amendment

protects

“bearable

arms,”

“weapons of offence, or armour of defence.”

which

include

Id. at 27a (quoting

Heller, 554 U.S. at 581-582) (brackets omitted).

The court noted

that a silencer is a “firearm accessory,” “not a weapon in itself

(nor is it ‘armour of defence’).”

rifles

and

Amendment,

silencers

fall

the

concluded,

court

Ibid.

outside

the

the

Because short-barreled

scope

National

of

the

Second

Firearms

Act’s

8

regulation of them “doesn’t burden protected conduct.”

Id. at

29a.

Judge

Hartz

wrote

a

concurrence

“to

overreading [the court of appeals’] holding.”

caution

against

Pet. App. 48a.

He

emphasized that, although silencers are not “bearable arms,” the

court did not have “occasion to consider whether items that are

not themselves bearable arms but are necessary to the operation of

a firearm (think ammunition) are also protected.”

Ibid.

ARGUMENT

Petitioner maintains (Pet. 9-18) that, under the Due Process

Clause of the Fifth Amendment, his reliance on the Kansas Second

Amendment Protection Act was a defense to federal charges under

the National Firearms Act.

The court of appeals’ rejection of

petitioner’s entrapment-by-estoppel defense was correct and does

not conflict with any decision of any other court of appeals.

Petitioner

separately

contends

(Pet.

18-25)

that

the

Second

Amendment guarantees a right to possess short-barreled rifles and

silencers. The court of appeals’ contrary conclusions were correct

and do not conflict with the decision of any other court of

appeals.

1.

of

Further review is unwarranted.

A writ of certiorari is not warranted to review the court

appeals’

alternative

holdings

entrapment-by-estoppel defense.

rejecting

petitioner’s

9

a.

Petitioner begins (Pet. 9-15) by seeking review of the

court of appeals’ first reason for rejecting the entrapment-byestoppel defense:

was

not

its determination that the Kansas Legislature

“responsible

for

interpreting,

administering,

or

enforcing” the National Firearms Act. Pet. App. 37a. This holding

was correct and does not conflict with the decision of any other

court of appeals.

This Court has previously denied review of

petitions asking whether a defendant who relies on state officials’

misadvice

can

raise

an

entrapment-by-estoppel

defense

against

federal charges, and it should follow the same course here.

See,

e.g., Lemons v. United States, 568 U.S. 1012 (2012) (No. 12-5735);

Sariles v. United States, 566 U.S. 923 (2012) (No. 11-6568);

Hardridge v. United States, 552 U.S. 1208 (2008) (No. 07-8367);

Baker v. United States, 549 U.S. 840 (2006) (No. 05-11081).

The defense of entrapment by estoppel “is a narrow exception

to the general principle that ignorance of the law is no defense.”

United States v. Etheridge, 932 F.2d 318, 321 (4th Cir.), cert.

denied, 502 U.S. 917 (1991).

The defense is available only where

a responsible governmental official actively misleads a defendant

into believing that certain conduct is legal and the defendant

reasonably relies on those misleading statements.

See Cox v.

Louisiana, 379 U.S. 559, 571 (1965); Raley v. Ohio, 360 U.S. 423,

425-426 (1959).

As this Court’s decisions make clear, the person

who gives the advice on which the defendant relies must be a

10

governmental official who is responsible for enforcing the law at

issue or who is otherwise in a position to provide an authoritative

interpretation of the law.

See Cox, 379 U.S. at 571 (“[T]he

highest police officials of the city, in the presence of the

Sheriff and Mayor, in effect told the demonstrators that they could

meet where they did.”); Raley, 360 U.S. at 437 (chairman of the

state commission “clearly appeared to be the agent of the State in

a position to give

* * *

assurances” that the defendant could

decline to answer the commission’s questions); see also United

States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 674 (1973)

(reliance

on

agency”).

regulations

As

the

court

from

“the

responsible

of

appeals

administrative

recognized,

the

Kansas

Legislature is not responsible for enforcing federal law, and it

is not in a position to provide an authoritative interpretation of

federal law.

See Pet. App. 36a-37a.

Indeed, the contrary view

would subvert the Supremacy Clause, U.S. Const. Art. VI, Cl. 2,

because it would enable States to nullify federal law through

declarations

that

state

citizens

are

immune

from

federal

prosecution.

Numerous courts of appeals have held that the entrapment-byestoppel defense is not available when a defendant charged with a

federal crime claims to have been misled by state officials.

See,

e.g., United States v. Caron, 64 F.3d 713, 714-717 (1st Cir. 1995),

cert. denied, 518 U.S. 1027 (1996); United States v. Miles, 748

11

F.3d 485, 489 (2d Cir.) (per curiam), cert. denied, 135 S. Ct. 381

(2014); Etheridge, 932 F.2d at 320-321 (4th Cir.); United States

v. Spires, 79 F.3d 464, 466-467 (5th Cir. 1996); United States v.

Ormsby, 252 F.3d 844, 851 (6th Cir. 2001); United States v. Rector,

111 F.3d 503, 505-507 (7th Cir. 1997), overruled on other grounds

by United States v. Wilson, 169 F.3d 418 (7th Cir. 1999); United

States v. Brebner, 951 F.2d 1017, 1026-1027 (9th Cir. 1991); United

States v. Funches, 135 F.3d 1405, 1407 (11th Cir.), cert. denied,

524 U.S. 962 (1998); see also United States v. Stewart, 185 F.3d

112, 125 n.5 (3d Cir.), cert. denied, 528 U.S. 1063 (1999); United

States v. Achter, 52 F.3d 753, 755 (8th Cir. 1995).

Petitioner erroneously suggests (Pet. 12) that the decision

below conflicts with the Second Circuit’s decision in United States

v. Giffen, 473 F.3d 30 (2006).

The Second Circuit applies the

same rule that the Tenth Circuit applied here:

“[S]tate and local

officials cannot ‘bind the federal government to an erroneous

interpretation of federal law.’”

omitted).

Miles, 748 F.3d at 489 (citation

Giffen, the case on which petitioner relies, addressed

a different issue.

There, the Second Circuit dismissed an appeal

for lack of jurisdiction, but suggested in “nonbinding” dicta that

the entrapment-by-estoppel defense may be available where the

misleading

advice

comes

from

a

governmental

official

with

“apparent” rather than actual authority to enforce the law at

issue.

473 F.3d 38, 42 n.12.

Petitioner’s defense would fail

12

even under this broader theory, because the Kansas Legislature

lacks even the “apparent” authority to enforce federal law.

Petitioner

also

erroneously

contends

(Pet.

15)

that

the

decision below conflicts with the decisions of other courts that

“have explained that this particular

* * *

defense exists apart

from any mens rea requirement within the statute.”

Contrary to

petitioner’s suggestion, the court of appeals did not hold that

the scope of the entrapment-by-estoppel defense depends on the

mens

rea

requirement

in

the

National

Firearms

Act.

It

was

petitioner’s co-defendant, Kettler, who invoked the Act’s “mens

rea element” to “justify broadening the entrapment by estoppel”

defense in this context.

Pet. App. 43a, 45a.

“reject[ed]” that argument.

b.

The court of appeals

Id. at 45a.

In all events, this case would be a poor vehicle to

address the application of the entrapment-by-estoppel defense to

state misadvice about federal law, because the court of appeals’

decision

also

determination

rested

that

on

an

alternative

petitioner’s

ground:

reliance

on

the

state

court’s

law

was

unreasonable. Pet. App. 37a. Petitioner independently seeks (Pet.

15-18) review of this alternative holding, but the holding was

correct and does not conflict with the decision of any other court

of appeals.

As the court of appeals explained, the Kansas Second

Amendment Protection Act, on its own terms, covers only federal

legislation enacted “under the authority of [C]ongress to regulate

13

interstate commerce.”

Kan. Stat. Ann. § 50-1204(a) (Supp. 2017).

The state statute does not speak to laws such as the National

Firearms Act, which rests on Congress’s power to tax, see Sonzinsky

v. United States, 300 U.S. 506, 512 (1937).

The court’s factbound

analysis of state law does not warrant further review, and, even

if it did, this Court would normally “defer to the construction of

a state statute given it by the lower federal courts,” Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 499 (1985).

2.

A writ of certiorari is not warranted to review the court

of appeals’ holding that the Second Amendment does not protect

short-barreled rifles and silencers.

The court’s decision was

correct and does not conflict with the decision of any other court

of appeals.

a.

Petitioner first contends (Pet. 18-21) that the Second

Amendment protects short-barreled rifles.

But in United States v.

Miller, 307 U.S. 174 (1939), this Court held that the Second

Amendment does not guarantee a right to keep and bear shortbarreled shotguns.

Id. at 179.

And in District of Columbia v.

Heller, 554 U.S. 570 (2008), the Court “read Miller to say

* * *

that the Second Amendment does not protect those weapons not

typically possessed by law-abiding citizens for lawful purposes,

such as short-barreled shotguns.” Id. at 625. The Court explained

that this limitation “accords with the historical understanding of

the scope of the right,” because it is “fairly supported by the

14

historical tradition of prohibiting the carrying of ‘dangerous and

unusual

weapons.’”

Id.

at

625,

627;

see,

e.g.,

2

William

Blackstone, Commentaries 149 (1916) (“The offense of riding or

going armed with dangerous or unusual weapons is a crime against

the public peace.”).

The court of appeals correctly relied on Miller and Heller to

determine that the Second Amendment also does not protect shortbarreled rifles.

The court correctly observed that petitioner

“has offered no meaningful distinction between” short-barreled

rifles and short-barreled shotguns (but added that it “need not

opine on whether a sufficient factual record could be developed to

distinguish” between the weapons).

Pet. App. 26a.

The only other

court of appeals to have directly addressed the issue agrees that

“individuals

* * *

do not have the right to possess machineguns

or short-barreled rifles.”

United States v. Gilbert, 286 Fed.

Appx. 383, 386 (9th Cir.), cert. denied, 555 U.S. 1038 (2008).

Petitioner does not contend in this Court that there is any

meaningful distinction between short-barreled rifles and shortbarreled shotguns.

Petitioner instead suggests (Pet. 19) that the

Court should overrule Miller.

In Heller, however, this Court

explained that Miller’s holding that “the Second Amendment does

not protect

* * *

short-barreled shotguns” “accords with the

historical understanding of the scope of the right.”

625.

554 U.S. at

15

Petitioner

incorrectly

argues

(Pet.

19-20)

that

Miller’s

holding regarding short-barreled shotguns is out of date. Contrary

to petitioner’s contention, these weapons remain “dangerous and

unusual” today, and are not “in common use” by law-abiding citizens

for self-defense.

Heller, 554 U.S. at 627 (citation omitted).

Because they combine easy concealability with high destructive

power, they are “likely to be used for criminal purposes.”

United

States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992)

(plurality opinion); see, e.g., United States v. Marzzarella, 614

F.3d

85,

95

(3d

Cir.

2010)

(“[A]

short-barreled

shotgun

is

dangerous and unusual in that its concealability fosters its use

in illicit activity

* * *

[and] because of its heightened

capability to cause damage.”), cert. denied, 562 U.S. 1158 (2011);

United States v. Upton, 512 F.3d 394, 404 (7th Cir.) (“People do

not shorten their shotguns to hunt or shoot skeet.

Instead, the

shortened barrel makes the guns easier to conceal and increases

the spread of the shot when firing at close ranges -- facts that

spurred Congress to require the registration of all sawed-off

shotguns,

along

with

other

dangerous

weapons

like

bazookas,

mortars, pipe bombs, and machine guns.”), cert. denied, 555 U.S.

830 (2008); United States v. Fortes, 141 F.3d 1, 8 n.3 (1st Cir.)

(“[S]awed-off

shotguns

are

inherently

dangerous

[and]

lack

usefulness except for violent and criminal purposes.”), cert.

denied, 524 U.S. 961 (1998).

16

b.

Petitioner also contends (Pet. 21-25) that the Second

Amendment protects silencers.

The Second Amendment, by its terms,

protects the right to keep and bear “Arms.”

In Heller, this Court

interpreted the word “Arms” to mean “‘weapons of offence, or armour

of defence.’”

554 U.S. at 580 (brackets and citation omitted).

As the court of appeals correctly determined, a silencer is neither

a

weapon

nor

an

“‘armour

of

defence,’”

and

restrictions

on

silencers “don’t materially burden” one’s ability to use a gun for

“self-defense.”

Pet. App. 27a-28a & n.13 (citation omitted).

Petitioner

now

attempts

facilitate

self-defense,

to

but,

argue

(Pet.

according

24)

to

that

silencers

petitioner’s

own

testimony at trial, the “main purpose” of a silencer is that it

“just makes the shooting sport more enjoyable.”

(quoting trial transcript).

Gov’t C.A. Br. 34

And, as petitioner acknowledges (Pet.

21-22), the few courts to address the issue have agreed that the

Second Amendment does not protect silencers.

See United States v.

McCartney, 357 Fed. Appx. 73, 76 (9th Cir. 2009), cert. denied,

559 U.S. 1021 (2010); United States v. Perkins, No. 08-cr-3064,

2008 WL 4372821, at *4 (D. Neb. Sept. 23, 2008); State v. Dor, 75

A.3d 1125, 1130 (N.H. 2013); People v. Brown, 235 N.W. 245, 246

(Mich. 1931); see also United States v. Stepp-Zafft, 733 Fed. Appx.

327, 329-330 (8th Cir.) (per curiam), cert. denied, 139 S. Ct. 279

(2018).

17

Petitioner argues that the court of appeals’ decision “is in

tension” with the principle that the Second Amendment protects

“‘not only firearms, but also the related items and accessories

that made them usable.’”

Pet. 22 (citation omitted).

But the

court never denied that the Second Amendment protects ammunition

and other accessories that are necessary to make firearms usable

for self-defense.

In fact, Judge Hartz’s concurring opinion

expressly “caution[ed] against overreading [the] holding regarding

silencers,” explaining that the court “had no occasion to consider

whether items

that

are

not

themselves

bearable

arms

but

are

necessary to the operation of a firearm (think ammunition) are

also protected.”

Pet. App. 48a.

And petitioner’s claim fails

even under his own standard, because petitioner has failed to

explain how silencers are necessary to make firearms “usable.”

Petitioner also emphasizes (Pet. 21) that the court here

concluded that silencers fall outside the scope of the Second

Amendment because they are not arms at all, while courts in other

cases have concluded that they fall outside the scope of the Second

Amendment because they are dangerous and unusual.

See, e.g.,

McCartney,

even

357

Fed.

Appx.

at

76

(“Silencers”

dangerous and unusual than machine guns

* * *

“are

more

and are less common

than either short-barreled shotguns or machine guns.”); Perkins,

2008 WL 4372821, at *4 (“[S]ilencers/suppressors ‘are not in common

use by law-abiding citizens for lawful purposes.’”); Brown, 235

18

N.W. at 247 (describing silencers as part of “the arsenal of

* * *

the ‘gangster’” and contrasting them with “weapons usually relied

upon by good citizens for defense or pleasure”).

“This Court,

however, reviews judgments, not statements in opinions.”

Cutter Labs., 351 U.S. 292, 297 (1956).

Black v.

Petitioner’s observation

that different courts relied on different rationales to reach the

same conclusion thus does not establish a conflict warranting this

Court’s intervention.

To the contrary, this alternative rationale

provides an additional justification for the court of appeals’

holding, and an additional reason to deny review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

May 2019