Amicus Curiae Brief — Merrick B. Garland, Attorney General, et al., Petitioners v. Michael Cargill
Supreme Court briefDec 22, 2023
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No. 22 976
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------MERRICK B. GARLAND, ATTORNEY GENERAL, et al.,
Petitioners,
v.
MICHAEL CARGILL,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE
PATRICK J. CHARLES
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------PORTER, WRIGHT, MORRIS &
ARTHUR LLP
L. BRADFIELD HUGHES
Counsel of Record
41 South High Street,
Suite 3000
Columbus, OH 43215
bhughes@porterwright.com
Telephone: (614) 227-2053
Facsimile: (614) 227-2100
Dated: December 22, 2023
Attorney for Amicus Curiae
Patrick J. Charles
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
Introduction and Interest of Amicus Curiae .......
1
Summary of the Argument ..................................
2
Argument .............................................................
3
I.
The Historical Background of 26 U.S.C.
§ 5845(b) ....................................................
3
A. The History of Regulating Machine
Guns at the State Level ......................
4
B. The History of the National Firearms
Act of 1934 ........................................... 17
C. The History of Enforcement Up
Through the World War II War-Trophy
Problem ................................................ 23
D. The National Firearms Act of 1934’s
Definition of a “Machine Gun” in
Summary ............................................. 32
Conclusion............................................................ 34
ii
TABLE OF AUTHORITIES
Page
CASES
Arizona v. Navajo Nation,
143 S. Ct. 1804 (2023) ...............................................4
Azar v. Allina Health Services,
139 S. Ct. 1804 (2019) ...............................................4
B&B Hardware, Inc. v. Hargis,
575 U.S. 138 (2015) ...................................................4
Brnovich v. Democratic National Committee,
141 S. Ct. 2321 (2021) ...............................................4
Cargill v. Garland,
57 F.4th 447 (5th Cir. 2023) ...................... 2, 3, 15, 16
Delaware v. Pennsylvania,
143 S. Ct. 696 (2023) .................................................3
Digital Realty Trust, Inc. v. Somers,
138 S. Ct. 767 (2018) .................................................4
Hardin v. BATFE,
65 F.4th 895 (6th Cir. 2023) ......................................3
Kisor v. Wilkie,
139 S. Ct. 2400 (2019) ...............................................4
Milner v. Department of Navy,
562 U.S. 562 (2011) ...................................................4
Sacket v. EPA,
143 S. Ct. 1322 (2023) ...............................................3
Wooden v. United States,
142 S. Ct. 1063 (2022) ...............................................4
iii
TABLE OF AUTHORITIES—Continued
Page
STATUTES AND CODES
26 U.S.C. § 5485(b) ......................................... 2-4, 33, 34
1929 Pa. Laws 777 ......................................................12
1933 Kan. Sess. Laws 76 ............................................13
National Firearms Act of 1934, Pub. L. No. 43474, 48 Stat. 1236 ..................................... 1, 17-19, 21
NEWSPAPER, JOURNAL, AND PERIODICAL SOURCES
1 Slain, 14 Hurt in Trappers’ War, COURIERJOURNAL (Louisville, KY), November 17, 1926 .........9
A Souvenir is Deadly, KANSAS CITY TIMES (MO),
December 18, 1945 ..................................................26
Allen Calls Session to Combat Gunman, BOSTON
GLOBE, January 10, 1927 ..........................................9
Auto-Ordnance Corporation, The Gun That
Makes One Man Equal Twenty, 7 POLICE JOURNAL (January 1921) ...................................................5
Civilians Warned to Report Explosive War Souvenirs, PITTSBURGH PRESS (PA), July 25, 1944 ........25
Clears New Law on Registration, SPOKESMANREVIEW (WA), September 2, 1934 ...........................22
James H. Collins, Browning Gun the Best in the
World, CHARLOTTE NEWS (NC), July 16, 1921...........7
Commissioner Says to Register War Trophies
and Guns, BIG SPRING WEEKLY HERALD (TX),
October 12, 1945......................................................28
iv
TABLE OF AUTHORITIES—Continued
Page
E.C. Crossman, A Pocket Machine Gun, SCIENTIFIC AMERICAN, October 16, 1920 .............................7
E.C. Crossman, Bootleggers Fight with Most
Modern Weapons, LOS ANGELES TIMES, December 5, 1926 ........................................................... 9, 11
E.C. Crossman, John Thompson’s Surprise
Party, ARMS AND THE MAN, November 1, 1920 .........7
Deadly Arsenals for Gang Gunmen Easy of Access, COURIER JOURNAL: MAGAZINE SECTION
(Louisville, KY), October 14, 1928 ..........................10
Death on the Mantel Shelf, LOS ANGELES TIMES,
April 11, 1948 .................................................... 28, 31
Eric A. Dime, An Effective Weapon to Combat
Bandits, 7 POLICE JOURNAL 7 (January 1921) ...... 5, 6
Discuss Plans for Pistol Legislation, RUTLAND
DAILY HERALD (VT), July 26, 1926 ..........................10
Don’t Have to Report Pistols, LOS ANGELES
TIMES, August 19, 1934 ...........................................22
Drive Under Way to “Pull Teeth” of Wartime
Trophies, JOURNAL NEWS (White Plains, NY),
June 18, 1947 ..........................................................30
The Federal Firearms Law, 82 AMERICAN RIFLEMAN 20 (September 1934)........................................21
Firearm Registration Provisions Explained,
REDWOOD GAZETTE (Redwood Falls, MN), September 13, 1934 .......................................................23
v
TABLE OF AUTHORITIES—Continued
Page
Firearms Law is Interpreted by Bernard Anderson, WINONA REPUBLICAN-HERALD (MN), September 14, 1934 .......................................................22
Firearms Sales May be Limited by Florida Law,
TAMPA DAILY TIMES (FL), March 17, 1933 ..............12
Firearms Tax Collection to Begin Quickly, PRESS
AND SUN-BULLETIN (Binghamton, NY), August
13, 1934 ...................................................................23
Gangsters Easily Acquire Machine Guns and
Pistols, MINNEAPOLIS TRIBUNE (MN), April 28,
1930 ...........................................................................9
Gangsters Use Machine Guns, CHATTANOOGA
DAILY TIMES (TN), February 26, 1927 .......................9
Government Cracks Down on Weapons, TIMES
(Shreveport, LA), May 19, 1947 ..............................30
Guarding the Mails, 74 AMERICAN RIFLEMAN 6
(November 1, 1926) .................................................11
Julian S. Hatcher, Machine Guns, 80 AMERICAN
RIFLEMAN 5 (June 1932) ............................................5
Here’s “Lowdown” on Firearms, LEADWOOD
PRESS (MO), September 21, 1934............................23
Inspect Vets’ Guns, YORK DISPATCH (PA), June 18,
1946 .........................................................................29
Kraemer Warns Veterans About Gun Souvenirs,
JOURNAL (Meriden, CT), September 28, 1945.........28
C.B. Lister, Firearms Laws in the 73d Congress,
82 AMERICAN RIFLEMAN 5 (July 1934) .....................20
vi
TABLE OF AUTHORITIES—Continued
Page
C.B. Lister, The Record for 1933, 81 AMERICAN
RIFLEMAN 8 (December 1933) ..................................12
C.B. Lister, What’s Ahead for 1934, 82 AMERICAN
RIFLEMAN 22 (January 1934) ..................................12
Anne LoPresti, List Automatic Weapon Souvenirs, U.S. Warns, DAYTON HERALD (OH), December 15, 1945.......................................................28
Machine Gun Fires from Hip, BIRMINGHAM POSTHERALD (AL), July 16, 1921 ......................................7
Machine Gun Thugs Kill Postal Employee,
WILKES-BARRE RECORD (PA), October 15, 1926 ........9
Machine Gun Used in Bank Hold-Up, BALTIMORE SUN, October 2, 1927 .......................................9
Mills at Work on National Legislation to Regulate Sales of Machine Guns, BROOKLYN EAGLE,
December 29, 1926 ....................................................9
Quentin R. Mott, Drawing the Teeth from Weapons of War, EVENING STAR (Washington, DC),
May 12, 1946 ...........................................................29
Must Register These Firearms, UNION COUNTY
JOURNAL (Marysville, OH), June 2, 1947 ................31
New Gun Statute is Explained at Capital, RENO
EVENING GAZETTE (NV), August 25, 1934 ...............22
No Tax Collected on Machine Guns, COURIERJOURNAL (Louisville, KY), December 26, 1934 .......23
On ‘Tommy Gun’ Trail, KANSAS CITY STAR (MO),
December 20, 1945 ..................................................27
vii
TABLE OF AUTHORITIES—Continued
Page
Our Business is Everybody’s Business, 81 AMERICAN RIFLEMAN 6 (March 1933) ...............................12
Police Get First of Submachine Guns, NEW YORK
HERALD, December 21, 1920 .....................................6
Register Automatic Weapons, Vets Told by Federal
Agency, LACROSSE TRIBUNE (WI), September
27, 1945 ...................................................................28
The Roll Call of 1933 Firearms Legislation, 81
AMERICAN RIFLEMAN 20 (March 1933) ....................13
The Roll Call of 1933 Firearms Legislation, 81
AMERICAN RIFLEMAN 38 (April 1933) .......................13
Rules on Souvenirs Summarized, BUREAU OF
NAVAL PERSONNEL INFORMATION BULLETIN 71
(February 1945) .......................................................27
Philip B. Sharpe, Sub-Machine Gun Performance, 82 AMERICAN RIFLEMAN 20 (December
1934) ..........................................................................7
William C. Snyder, Forest, Field and Stream,
BLUEFIELD DAILY TELEGRAPH (WV), September
16, 1934 ...................................................................22
Sullivan Law Change Needed to Prevent Bandits Buying New Machine Guns, BROOKLYN
EAGLE, December 27, 1926 ......................................10
Tax Unit Stresses Dangers of Explosive War
Trophies, PRESS DEMOCRAT (Santa Rosa, CA),
November 19, 1947..................................................30
Test of Thompson Submachine Gun, ARMY AND
NAVY REGISTER, April 9, 1921 ....................................6
viii
TABLE OF AUTHORITIES—Continued
Page
U.S. Warns of War-Gun Menace, Offers to Make
‘Em Safe for Free, BROOKLYN EAGLE, April 1,
1946 .........................................................................29
Veterans Warned to Register All Automatic
Guns, LOGAN DAILY NEWS (OH), November 28,
1945 .........................................................................27
War Trophies Going Under Regulations, MUNCIE
STAR (IN), October 26, 1951 ....................................32
Will Regulate Possession and Use of Pistols,
DAILY EVENING ITEM (Lynn, MA), August 30,
1926 ...........................................................................9
Yanks’ Souvenir Appetite Attested by Customs
Officials in Falls, GREAT FALLS TRIBUNE (MT),
July 5, 1945 .............................................................26
OTHER AUTHORITIES
ACTS AND RESOLVES PASSED BY THE GENERAL
ASSEMBLY OF THE STATE OF VERMONT (1923) .............5
ACTS OF THE LEGISLATURE OF WEST VIRGINIA:
REGULAR AND FIRST EXTRAORDINARY SESSIONS
(1925) .........................................................................5
ANNUAL REPORT OF THE COMMISSIONER OF
INTERNAL REVENUE (1941) .......................................24
ANNUAL REPORT OF THE COMMISSIONER OF
INTERNAL REVENUE (1948) .......................................32
ANNUAL REPORT OF THE COMMISSIONER OF
INTERNAL REVENUE (1951) .......................................32
ix
TABLE OF AUTHORITIES—Continued
Page
AUTOMATIC RIFLE (BROWNING) MODEL OF 1918:
SERVICE HANDBOOK (1921)................................. 15, 16
MURRAY BALDWIN, THE RELAXING TRIGGER (1920) ....... 16
BASIC FIELD MANUAL: THOMPSON SUBMACHINE
GUN CALIBER .45, M1928A1 (1941) ................... 14-16
Central Pacific Force, U.S. Pacific Fleet,
Souvenirs, Mailing and Transportation Of,
March 14, 1944 ........................................................26
PATRICK J. CHARLES, ARMED IN AMERICA: A
HISTORY OF GUN RIGHTS FROM COLONIAL
MILITIAS TO CONCEALED CARRY (2018) ....................11
PATRICK J. CHARLES, VOTE GUN: THE STORY OF
HOW GUN RIGHTS BECAME POLITICIZED IN THE
UNITED STATES (2023) ...................... 11, 20, 21, 28, 29
Department of Treasury, Press Release, Press
Service No. S-332, May 18, 1947, John T.
Gibson Papers (Independence, MO: Harry S.
Truman Presidential Library) ................................30
Firearms: Registration and Transfers Reported
Under the Provisions of the National Firearms
Act of June 26, 1934, Up to And Including
October 31, 1935, November 1, 1935, Homer
Cummings Papers (Charlottesville, VA:
University of Virginia Special Collections) ............24
JULIAN S. HATCHER, PISTOLS AND REVOLVERS AND
THEIR USE (1927) .....................................................15
x
TABLE OF AUTHORITIES—Continued
Page
JULIAN S. HATCHER, TEXTBOOK OF FIREARMS
INVESTIGATION, IDENTIFICATION AND EVIDENCE
(1935) .......................................................................14
Headquarters North African Theater of
Operations U.S. Army, Mailing of Explosive
Firearms, April 28, 1944 .........................................26
Headquarters Replacement Service, Circular
No. 1, February 27, 1945 .........................................26
Headquarters U.S. Army Forces Rear Echelon
China Burma India, Circular No. 17, February
15, 1944 ...................................................................26
Headquarters U.S. Forces India Burma Theater,
Circular No. 1, January 5, 1945 ..............................26
WILLIAM J. HELMER, THE GUN THAT MADE THE
TWENTIES ROAR (1969) ................................. 5, 6, 9, 11
H.R. Rep. No. 1780, 73d Cong., 2d Sess. (1934) .........20
13 INTERNAL REVENUE BULLETIN, No. 38
(September 17, 1934) ..............................................23
24 INTERNAL REVENUE BULLETIN: CUMULATIVE
BULLETIN 1945 (1945) ........................................ 25, 26
HORACE KEPHART, SPORTING FIREARMS (1938) ............16
MACHINE GUNS (1917) ............................................. 7, 15
2 MANUAL OF MILITARY TRAINING (1923) .....................16
xi
TABLE OF AUTHORITIES—Continued
Page
Memorandum from Henry Schneider, War
Trophy Safety Committee, to President
Harry S. Truman, July 24, 1947, Harry S.
Truman Papers, White House Central Files:
President’s Personal File (Independence, MO:
Harry S. Truman Presidential Library) .................30
Memorandum from Irving Perlmeter, Department of Treasury Public Relations Division,
to Charles W. Jackson, Office of Government
Reports, July 23, 1947, John T. Gibson
Papers (Independence, MO: Harry S. Truman
Presidential Library) ..............................................28
Memorandum from Secretary of War et al.,
Greetings [from NWTSP], April 30, 1947,
Harry S. Truman Papers, White House
Central Files: President’s Personal File
(Independence, MO: Harry S. Truman
Presidential Library) ..............................................30
NATIONAL FIREARMS ACT: HEARINGS BEFORE THE
COMMITTEE ON WAYS AND MEANS HOUSE OF
REPRESENTATIVES (1934) ..........................................11
HUGH B.C. POLLARD, A HISTORY OF FIREARMS
(1936) .......................................................................14
HUGH B.C. POLLARD, AUTOMATIC PISTOLS (1920) ........16
President’s News Conference, January 15, 1946,
Public Papers of Harry S. Truman 1945-1953
(Independence, MO: Harry S. Truman
Presidential Library) ..............................................29
xii
TABLE OF AUTHORITIES—Continued
Page
THE ROGET DICTIONARY OF SYNONYMS AND
ANTONYMS (1931) .....................................................14
ROGET’S THESAURUS OF THE ENGLISH LANGUAGE
IN DICTIONARY FORM (1936) .....................................14
SESSION LAWS OF THE STATE OF MINNESOTA
(1933)...............................................................13, 14
John Brabner Smith, Firearm Regulation, 1 LAW
& CONTEMP. PROBS. 400 (1933) ...............................10
W.H.B. SMITH, SMALL ARMS OF THE WORLD (1955)... 15, 16
JOHN C. SPARROW, HISTORY OF PERSONNEL
DEMOBILIZATION IN THE UNITED STATES ARMY
(1952) .......................................................................27
Statistics of Income Tax Stats Archive—1863 to
1999 Annual Reports and Internal Revenue
Service Data Books, IRS.GOV ............................. 24, 32
UNIFORM MACHINE GUN ACT (1932) ...................... 10, 11
U.S. Pacific Fleet and Pacific Ocean Areas,
Souvenirs, June 25, 1945 ........................................26
War Department, Adjutant’s General Office,
Processing of Baggage from Overseas, August
29, 1944 ...................................................................26
War Department, Circular No. 155, May 23,
1945 .........................................................................27
War Department, Circular No. 162, June 20,
1947 .........................................................................31
War Department, Circular No. 217, June 1,
1944 .........................................................................25
xiii
TABLE OF AUTHORITIES—Continued
Page
War Department, Circular No. 243, October 7,
1943 .........................................................................25
War Department, Circular No. 267, September
5, 1945 .....................................................................27
War Department, Circular No. 353, August 31,
1944 .........................................................................26
WAR PLANS DIVISION, MANUAL OF THE AUTOMATIC
RIFLE (1918) .............................................................16
WEBSTER’S NEW INTERNATIONAL DICTIONARY (2d
ed. 1934) ..................................................................14
WISCONSIN SESSION LAWS (1933) .................................14
1
INTRODUCTION AND INTEREST OF
AMICUS CURIAE1
This amicus curiae brief is submitted on behalf
of historian and legal scholar Patrick J. Charles to
educate the Court on the historical background of the
National Firearms Act (NFA) of 1934, Pub. L. No. 73474, 48 Stat. 1236, to include its genesis, drafting history, and subsequent enforcement.
Amicus curiae is the author of two books detailing
the social, intellectual, and legal history of our first federal firearms laws, and more than twenty articles on
the history of firearms regulation and the use of history as a jurisprudential tool. As a military historian,
amicus curiae is acutely familiar with the history of
weapons of war, including automatic weapons. Amicus
curiae’s scholarship has been cited and relied upon by
several Circuit Courts of Appeals and by members of
this Court. Amicus curiae currently serves as the Division Chief for the Air Force Historical Research
Agency’s (AFHRA) Oral History and Studies Division.
For over a decade, amicus curiae has served as a
United States Air Force (USAF) historian in several
capacities, to include recently serving as the head of
AFHRA’s Research Division, where amicus curiae
1
Amicus curiae certifies that no counsel for any party authored this brief in whole or in part and that no person or entity,
other than amicus curiae or his counsel, has made a monetary
contribution to this filing. When possible, this brief provides hyperlinks to assist the Court in accessing hard-to-find source documents. If the Court should have difficulty in locating any source
documents that are not hyperlinked within this brief, amicus curiae will happily provide them upon the Court’s request.
2
oversaw all official historical information and archival
requests for the USAF. The information and analysis
contained herein are solely those of the amicus curiae,
and not those of the USAF or the Department of Defense.
---------------------------------♦---------------------------------
SUMMARY OF THE ARGUMENT
In Cargill v. Garland, 57 F.4th 447, 459-62 (5th
Cir. 2023), the Fifth Circuit held that a bump-stock device could not be regulated as a machine gun under 26
U.S.C. § 5845(b) because the device does not operate by
a single mechanical function of the trigger. In reaching
this conclusion, the court stated that the phrase “by a
single function of the trigger” could not mean “a single
pull of the trigger,” and therefore concluded that a
bump-stock device could not be regulated as a machine
gun. Id. at 459. The Fifth Circuit’s interpretation of 26
U.S.C. § 5845(b) flies in the face of history. The historical record—to include the textual and drafting history
of the phrase “by a single function of the trigger”—
overwhelmingly points in one direction. From the
NFA’s inception, the definition of a “machine gun” encompassed every firearm capable of producing automatic fire through one manual action, operation, or
performance of the trigger. The inner working mechanics of the various automatic-fire capable firearms available at the time were irrelevant to lawmakers. Rather,
what was relevant was whether a respective firearm
could produce automatic fire by one continuous pull of
3
the trigger. And that is exactly what a non-mechanical
bump stock allows a firearm to do.
Absent this historical background, which no court
to date has been adequately briefed on, it is understandable why some lower federal courts, to include
the Fifth Circuit, have held that a bump-stock device
does not fall within 26 U.S.C. § 5845(b)’s definition of a
machine gun. See, e.g., Cargill, 57 F.4th at 459-62; Hardin v. BATFE, 65 F.4th 895, 898-902 (6th Cir. 2023).
However, once the background history surrounding 26
U.S.C. § 5845(b) is contextually examined, it becomes
abundantly clear that any firearm capable of producing automatic fire through one manual action, operation, or performance of the trigger falls within the
statute’s definition of a machine gun, which today includes certain firearms equipped with a bump-stock
device. The history prior to, contemporaneous with,
and immediately following the enactment of the NFA
bears this out, particularly the enforcement history up
through the mid-twentieth century.
---------------------------------♦---------------------------------
ARGUMENT
I.
The Historical Background of 26 U.S.C.
§ 5845(b)
When the text of a federal statute is somewhat
ambiguous, this Court has periodically relied upon the
statute’s background history to illuminate its purpose,
meaning, and application. See, e.g., Sackett v. EPA, 143
S. Ct. 1322, 1336-41 (2023); Delaware v. Pennsylvania,
4
143 S. Ct. 696, 711-12 (2023); Wooden v. United States,
142 S. Ct. 1063, 1072-74 (2022); Kisor v. Wilkie, 139
S. Ct. 2400, 2415-16 (2019); see also Arizona v. Navajo
Nation, 143 S. Ct. 1804, 1819-22 (2023) (Gorsuch, J.,
dissenting); Brnovich v. Democratic National Committee, 141 S. Ct. 2321, 2366 (2021) (Kagan, J., dissenting);
Digital Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 78283 (2018) (Sotomayor, J., concurring); B&B Hardware,
Inc. v. Hargis, 575 U.S. 138, 169 (2015) (Thomas, J., dissenting). Of course, if a statute’s background history is
“murky”—that is, the background history is more ambiguous than the text—it will not be countenanced.
Azar v. Allina Health Services, 139 S. Ct. 1804, 1815
(2019); see also Milner v. Department of the Navy, 562
U.S. 562, 572 (2011). Fortunately, as it pertains to the
background history of 26 U.S.C. § 5845(b), this is not
the case. The historical record—to include the textual
and drafting history of 26 U.S.C. § 5845(b)—overwhelmingly points in one direction. From the NFA’s inception, its definition of a “machine gun” encompassed
every firearm capable of producing automatic fire
through one manual action, operation, or performance
of the trigger. The history prior to, contemporaneous
with, and immediately following the enactment of the
NFA confirms this.
A. The History of Regulating Machine Guns
at the State Level
Although the advent of the machine gun goes back
at least to 1861, with the invention of the Gatling gun,
it was not until the 1920s that lawmakers seriously
5
considered regulating them.2 The reason for this delay
was essentially two-fold. First, until the 1920s, machine guns were not made readily available to the public. Such weapons were almost exclusively owned and
operated by the military and law enforcement agencies. Second, even if machine guns had been made
readily available, their large size and heavy weight
made it difficult for individuals to carry and transport
them.3
This all changed with the advent and commercial
availability of submachine guns; the most notable being the Auto-Ordnance Corporation’s Thompson Submachine Gun Caliber .45, or what is more commonly
known to history as the “Tommy Gun.”4 Weighing under ten pounds and consisting of only 38 parts, the
Tommy Gun was easy to transport and function.5
2
By 1925, only two states restricted the use of machine guns.
Neither state, however, outright prohibited their ownership, nor
legally defined what constituted a machine gun. See ACTS OF THE
LEGISLATURE OF WEST VIRGINIA: REGULAR AND FIRST EXTRAORDINARY SESSIONS 30-32 (1925); ACTS AND RESOLVES PASSED BY
THE GENERAL ASSEMBLY OF THE STATE OF VERMONT 127 (1923).
3
Eric A. Dime, An Effective Weapon to Combat Bandits, 7
POLICE JOURNAL 7 (January 1921) (“In the past to secure automatic fire it [was] necessary to use guns sixteen to twenty pounds
in weight. These weapons are complicated and require special and
long training and the [criminal] action . . . is over before these
guns can be brought into play.”).
4
For a useful short history on the development and evolution
of machine guns up through 1932, see Julian S. Hatcher, Machine
Guns, 80 AMERICAN RIFLEMAN 5-12 (June 1932).
5
The Auto-Ordnance Corporation that manufactured the
Tommy Gun expressly advertised these points. See WILLIAM J.
6
According to the Auto-Ordnance Corporation, the
Tommy Gun was the “gun that makes one man equal
twenty.”6 Through a mere flip of the “rocker pivot” this
submachine gun could transition between semi-automatic and automatic fire.7 In the semi-automatic fire
mode, the Tommy Gun could easily discharge a 100round drum magazine in a minute.8 Meanwhile, in automatic-fire mode, the same 100-round drum magazine—through one continuous or steady pull of the
trigger—ran empty in just over four seconds.9 That the
“rocker pivot” was placed in automatic-fire mode did
not necessarily mean, however, that when the trigger
was pulled, the Tommy Gun automatically fired the
ammunition that was contained within the attached
magazine or drum. Achieving automatic fire in automatic-fire mode was dependent upon how the operator
utilized his or her trigger finger. As several contemporaneous articles attest, in automatic-fire mode, the
Tommy Gun was capable of discharging a single shot
by the operator quickly pulling and releasing the trigger.10 Only if the trigger was “held back” did the Tommy
HELMER, THE GUN THAT MADE THE TWENTIES ROAR 271-72 (1969)
(containing reprints of Tommy Gun advertisements).
6
See Auto-Ordnance Corporation, The Gun That Makes One
Man Equal Twenty, 7 POLICE JOURNAL at back of front cover (January 1921).
7
Handbook of the Thompson Submachine Gun: Model of
1921, reprinted in HELMER, supra, at 235, 257-58.
8
Dime, supra, at 7.
9
Police Get First of Submachine Guns, NEW YORK HERALD,
December 21, 1920, at 2.
10
Test of Thompson Submachine Gun, ARMY AND NAVY REGISTER, April 9, 1921, at 355 (noting that the Tommy Gun “can
7
Gun “fire continuously[.]”11 The Tommy Gun’s singleshot capability in automatic-fire mode was something
that another popular automatic-fire capable firearm of
the time, the Browning M1918 automatic rifle, apparently could not replicate,12 but some earlier automaticfire capable firearms and machine guns could.13
[automatically] fire the contents of the magazine with a single
prolonged pull or fire a single shot by merely releasing the trigger”);
E.C. Crossman, John Thompson’s Surprise Party, ARMS AND THE
MAN, November 1, 1920, at 3, 4 (“After a few [automatic] bursts I
found that there was no trouble in firing one or two shots at a time
by prompt release of the trigger”); E.C. Crossman, A Pocket Machine
Gun, SCIENTIFIC AMERICAN, October 16, 1920, at 405 (“If the trigger
is held back [in automatic fire mode], the result is a verberating roar
of shots coming so fast that the ear cannot distinguish them apart.
This of course empties a twenty shot magazine in less than a second;
but the fire is easily controlled by the trigger pressure, and I found
no trouble in firing single shots merely by a quick pressure of the
trigger and instant release.”); see also Machine Gun Fires from Hip,
BIRMINGHAM POST-HERALD (AL), July 16, 1921, at 6 (quoting Army
Major A.B. Richeson as stating, “[The Tommy Gun] fires automatically as long as the trigger is held back, but single shots can be fired
by quick release of the trigger after each shot.”).
11
Philip B. Sharpe, Sub-Machine Gun Performance, 82
AMERICAN RIFLEMAN 20, 22 (December 1934).
12
See, e.g., James H. Collins, Browning Gun the Best in the
World, CHARLOTTE NEWS (NC), July 16, 1921, at 12 (syndicated
column noting that in “automatic fire” mode the Browning fired
eight rounds “in a second with one pull of the trigger”).
13
See, e.g., MACHINE GUNS 44 (1917), https://catalog.hathitrust.org/Record/008371130 (describing the 1917 Lewis automatic machine gun’s function as follows: “Automatic Fire—Within
the limits of the magazine capacity the gun continues to fire so
long as the trigger is held back and stops firing whenever the trigger is released. It follows therefore that the operator may at will
fire shots either singly or in groups of two, three, four, or of any
number up to the full magazine capacity”) (emphasis added).
8
9
Although the Tommy Gun was initially marketed
as an “anti-bandit gun,” it quickly became coveted by
criminals.14 Other automatic-fire capable firearms
were similarly coveted. Newspaper front pages across
the country contained headlines such as “Gangsters
Use Machine Guns,”15 “Machine Gun Used in Bank
Hold-Up,”16 and “Machine Gun Thugs Kill Postal Employee.”17 And it was not just the criminal use and
abuse of automatic-fire capable firearms that made national news headlines.18
To combat the machine-gun problem, both the National Crime Commission (NCC) and the National
Conference of Commissioners on Uniform State Laws
(NCCUSL) began exploring the feasibility of uniform,
state machine-gun legislation.19 It took roughly six
14
HELMER, supra, at 78-98; see also E.C. Crossman, Bootleggers Fight with Most Modern Weapons, LOS ANGELES TIMES,
December 5, 1926, part II, at 7. For many years, the Tommy Gun
was the most coveted firearm by criminals capable of producing
automatic fire. See Gangsters Easily Acquire Machine Guns and
Pistols, MINNEAPOLIS TRIBUNE (MN), April 28, 1930, at 2.
15
Gangsters Use Machine Guns, CHATTANOOGA DAILY TIMES
(TN), February 26, 1927, at 1.
16
Machine Gun Used in Bank Hold-Up, BALTIMORE SUN,
October 2, 1927, at 1.
17
Machine Gun Thugs Kill Postal Employee, WILKES-BARRE
RECORD (PA), October 15, 1926, at 1.
18
See, e.g., 1 Slain, 14 Hurt in Trappers’ War, COURIERJOURNAL (Louisville, KY), November 17, 1926, at 1-2.
19
Allen Calls Session to Combat Gunman, BOSTON GLOBE,
January 10, 1927, at 13; Mills at Work on National Legislation to
Regulate Sales of Machine Guns, BROOKLYN EAGLE, December 29,
1926, at 2; Will Regulate Possession and Use of Pistols, DAILY
EVENING ITEM (Lynn, MA), August 30, 1926, at 7; Discuss Plans
10
years for the NCC and NCCUSL to agree to the Uniform Machine Gun Act (UMGA), which sought to criminalize the possession and use of machine guns of any
kind, save for their possession and use by military, law
enforcement, or for some scientific purpose.20 As to
what legally constituted a “machine gun,” the UMGA
defined it as a “weapon of any description by whatever
name known, loaded or unloaded, from which more
than five shots or bullets may be rapidly, or automatically, or semi-automatically discharged from a magazine, by a single function of the firing device.”21
When the language of the UMGA was made publicly available, no one, at least that amicus curiae can
find, disputed its definition of a “machine gun” as being
too broad or too narrow. This was likely because the
UMGA’s definition encompassed the firing capabilities
of all the various machine guns, submachine guns, and
automatic-fire capable rifles and pistols widely known
at the time—i.e., the Tommy Gun, Browning M1918
automatic rifle, Colt Monitor, and 1914 Luger automatic pistol with a special 32-round snail drum magazine to name a few22—the very guns that everyone
for Pistol Legislation, RUTLAND DAILY HERALD (VT), July 26,
1926, at 3.
20
See UNIFORM MACHINE GUN ACT 3-9 (1932), https://catalog.
hathitrust.org/Record/102226124; see also John Brabner Smith,
Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400, 405 (1933).
21
UNIFORM MACHINE GUN ACT, supra, at 6, § 1 (emphasis
added).
22
See Deadly Arsenals for Gang Gunmen Easy of Access,
COURIER JOURNAL: MAGAZINE SECTION (Louisville, KY), October
14, 1928, at 4; Sullivan Law Change Needed to Prevent Bandits
11
agreed should not be in the hands of private persons.23
Of course, the UMGA’s definition of a “machine gun”
was not crafted out of thin air, nor without input from
outside interest groups, particularly from firearms
manufacturers and sporting, hunting, and shooting organizations.24 The UMGA’s definition was borrowed
from earlier machine gun laws enacted by state lawmakers.25 As for the UMGA’s use of the phrase “single
function,” it was borrowed directly from Pennsylvania’s 1929 law,26 which defined a “machine gun” as “any
Buying New Machine Guns, BROOKLYN EAGLE, December 27,
1926, at 1; Crossman, Bootleggers Fight with Most Modern Weapons, supra, at 7; see also HELMER, supra, at 123.
23
As the National Rifle Association noted in its November
1926 edition of American Rifleman, the “laws should be amended
to prohibit the use of machine-guns, howitzers, and field artillery
by civilians—honest or otherwise.” Guarding the Mails, 74 AMERICAN RIFLEMAN 6 (November 1, 1926).
24
For the history of sporting, hunting, and shooting organizations involvement in drafting and lobbying for uniform state
firearms legislation circa the early-to-mid twentieth century, see
PATRICK J. C HARLES , V OTE G UN: H OW G UN R IGHTS B ECAME
POLITICIZED IN THE UNITED STATES 35-39 (2023); PATRICK J.
CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM
COLONIAL MILITIAS TO CONCEALED CARRY 189-203 (2018). For a
few primary sources on this point, see NATIONAL FIREARMS ACT:
HEARINGS BEFORE THE COMMITTEE ON WAYS AND MEANS HOUSE
OF REPRESENTATIVES 38-39 (1934) (statement of NRA President
Karl T. Frederick).
25
UNIFORM MACHINE GUN ACT, supra, at 10-11 (compiling
the various state law definitions of a “machine gun” circa 1932).
26
Id. at 3.
12
firearm that fires two or more shots consecutively at a
single function of the trigger or firing device.”27
It was not until 1933 that state lawmakers faced
any political pushback when it came to defining what
legally constituted a “machine gun.” The pushback
came from several sporting, hunting, and shooting organizations, most notably the National Rifle Association (NRA). Importantly, neither the NRA nor the
other sporting, hunting, and shooting organizations opposed outlawing the possession or use of machine guns
by private individuals. They were emphatically supportive of such legislation.28 Rather, what the NRA and
the other sporting, hunting, and shooting organizations took issue with was that several state machine
gun bills were too “loosely drawn as to be inimical
to the interests of sportsmen using semiautomatic
guns. . . .”29 The NRA and other sporting, hunting, and
shooting organizations objected on these grounds to
27
1929 Pa. Laws 777, § 1.
See, e.g., C.B. Lister, What’s Ahead for 1934, 82 AMERICAN
RIFLEMAN 22 (January 1934) (“Senator [Royal Copeland] has indicated that . . . the machine gun is the weapon which needs to
be legislated against. On this point, of course, the sportsmen
agree with him.”); Firearms Sales May be Limited by Florida Law,
TAMPA DAILY TIMES (FL), March 17, 1933, at 7A (NRA SecretaryTreasurer C.B. Lister expressing support for any law that “absolutely prohibited to all except the military and police” the use and
possession of machine guns).
29
C.B. Lister, The Record for 1933, 81 AMERICAN RIFLEMAN
8 (December 1933); see also Our Business is Everybody’s Business,
81 AMERICAN RIFLEMAN 6 (March 1933) (objecting to any state
machine gun law where “the wording . . . is such as to outlaw
every semiautomatic pistol, rifle, and shotgun.”).
28
13
machine gun bills proposed in the states of North Dakota, Oregon, and Texas.30 Machine gun bills proposed
and passed in the states of Kansas, Minnesota, and
Wisconsin, however, did not draw these objections, and
were positively described as “sane,” “sensible,” and
“satisfactory.”31
While the 1933 Kansas law32 did not define what
constituted a “machine gun,” the 1933 Minnesota and
Wisconsin laws did. Beginning with the 1933 Minnesota law, a “machine gun” was defined as “any firearm
capable of automatically reloading after each shot is
fired, whether firing singly by separate trigger pressure or firing continuously by continuous trigger pressure. . . .”33 In accord with the UMGA, Minnesota’s
definition encompassed the firing capabilities of all the
various machine guns, submachine guns, and automatic rifles and pistols known at the time, especially
the multi-functional Tommy Gun. At the same time, at
the request of the NRA and other sporting, hunting,
and shooting organizations, Minnesota’s definition expressly excluded semi-automatic sporting rifles—that
is, unless someone “changed, altered, or modified” their
30
The Roll Call of 1933 Firearms Legislation, 81 AMERICAN
RIFLEMAN 20-21 (March 1933).
31
The Roll Call of 1933 Firearms Legislation, 81 AMERICAN
RIFLEMAN 38 (April 1933).
32
See 1933 Kan. Sess. Laws 76 (emphasis added).
33
SESSION LAWS OF THE STATE OF MINNESOTA 232, § 1(b)
(1933) (emphasis added).
14
respective sporting rifle as to fire “continuously by continuous trigger pressure. . . .”34
The 1933 Wisconsin law approached the definition
of a “machine gun” somewhat differently than that of
Minnesota. However, the legislative intent, purpose,
and overall scope was the same. Borrowing directly
from Pennsylvania’s law and the UMGA, Wisconsin
law defined a “machine gun” as “a weapon of any description by whatever name known from which more
than two shots or bullets may be discharged by a single
function of the firing device.”35 Here, as with previous
state machine gun laws, what was meant by the word
“function” was an action, operation, or performance.
A quick perusal of any contemporaneous dictionary
or thesaurus buttresses this interpretation.36 So too
do contemporaneous firearms texts and literature,
wherein the word “function” was often contextually
used to mean an action, operation, or performance.37
34
Id. at § 1(c).
WISCONSIN SESSION LAWS 245-46 (1933) (emphasis
added).
36
WEBSTER’S NEW INTERNATIONAL DICTIONARY 1019 (2d ed.
1934); THE ROGET DICTIONARY OF SYNONYMS AND ANTONYMS 13
(1931) (showing the words “function,” “act,” “operate,” and “perform” were synonymous); id. at 503 (same); ROGET’S THESAURUS
OF THE ENGLISH LANGUAGE IN DICTIONARY FORM 7 (1936) (showing the words “action,” “operate,” “function,” and “perform” were
synonymous); id. at 13 (same).
37
See, e.g., BASIC FIELD MANUAL: THOMPSON SUBMACHINE
GUN CALIBER .45, M1928A1, at 9, 10, 12 (1941), https://catalog.
hathitrust.org/Record/009993580; HUGH B.C. POLLARD, A HISTORY OF FIREARMS 178, 195, 214, 228 (1936); JULIAN S. HATCHER,
TEXTBOOK OF FIREARMS INVESTIGATION, IDENTIFICATION AND
35
15
To Minnesota and Wisconsin lawmakers, as well
as other state lawmakers, the inner working mechanics of the various machine guns, submachine guns, and
automatic rifles and pistols were irrelevant. Indeed,
many automatic-fire capable firearms principally relied on the recoil energy produced by each bullet’s discharge to effectuate automatic fire.38 However, the fact
remains that many automatic-fire capable firearms up
to this point in history mechanically operated somewhat differently.39 There is simply no historical evidence, at least that amicus curiae could find, to suggest
that late 1920s and early 1930s state lawmakers were
remotely concerned with any of the inner working
mechanics, to include the trigger mechanics, of the various machine guns, submachine guns, and automatic
rifles and pistols known at the time. Rather, what was
EVIDENCE 7, 8, 61, 65, 73, 96, 197, 230 (1935); JULIAN S. HATCHER,
PISTOLS AND REVOLVERS AND THEIR USE 137, 138 (1927).
38
See, e.g., W.H.B. SMITH, SMALL ARMS OF THE WORLD 165
(1955) (“submachine guns, of course, are recoil operated weapons
on the elementary blowback principle”) (emphasis added); BASIC
FIELD MANUAL, supra, at 1 (“The Thompson submachine gun . . .
is an air-cooled, recoil-operated, magazine fed weapon”) (emphasis added). Much like these early twentieth century automaticfire capable firearms, the modern bump stock principally relies on
recoil energy to effectuate automatic fire. See Cargill, 57 F.4th at
459.
39
Compare AUTOMATIC RIFLE (BROWNING) MODEL OF 1918:
SERVICE HANDBOOK 20-27 (1921), https://catalog.hathitrust.org/
Record/009568367 (detailing the “functioning” of the Browning
automatic rifle), with Handbook of the Thompson Submachine
Gun: Model of 1921, supra, at 250-55 (detailing the “operating
principle” of the Tommy Gun); see also Hatcher, Machine Guns,
supra, at 5-12; MACHINE GUNS, supra, at 3-134.
16
relevant to these state lawmakers was whether the respective firearm could, like the bump-stock devices at
issue here, produce automatic fire by one continuous
pull, action, operation, or performance of the trigger.40
If the answer to that question was “yes,” then such
firearms were within the scope of the restriction. To
interpret the “by a single function of the trigger” or
“firing device” language otherwise—as the Fifth Circuit has41—would mean that the Tommy Gun and
other contemporaneous, multi-functional submachine
40
This is indeed how automatic-fire capable firearms were
designed and generally understood to function. See, e.g., SMITH,
supra, at 162 (“A submachine gun is a light weight weapon . . .
[that] differs from the standard type of semi-automatic pistol
(from which it was originally evolved) by the fact that it can fire
cartridges full automatically so long as the trigger is held
back.”); 2 MANUAL OF MILITARY TRAINING 8 (1923), https://catalog.
hathitrust.org/Record/100822959 (noting that an automatic rifle
“differs from the service rifle and the semi-automatic rifle in that
by one continuous squeeze of the trigger it will load, fire and eject
cartridges automatically”); WAR PLANS DIVISION, MANUAL OF THE
AUTOMATIC RIFLE 49 (1918), https://catalog.hathitrust.org/Record/010883826 (“As a result of the gunner holding the trigger to
the rear [automatic fire is accomplished]”) (emphasis added).
41
Cargill, 57 F.4th at 459-62. If “by a single function of the
trigger” meant a single mechanical function of the trigger, as the
Fifth Circuit suggests, then the term “trigger mechanism” would
have been used. The term “trigger mechanism” was most often
used in firearms texts and manuals to describe the actual mechanical function of the trigger. See, e.g., BASIC FIELD MANUAL,
supra, at 8, 9, 14; HORACE KEPHART, SPORTING FIREARMS 91, 92,
146 (1938); Handbook of the Thompson Submachine Gun: Model
of 1921, supra, at 252, 261; AUTOMATIC RIFLE (BROWNING) MODEL
OF 1918, supra, at 21, 23, 43, 44; MURRAY BALDWIN, THE RELAXING TRIGGER 13, 25, 31, 39-41 (1920); HUGH B.C. POLLARD, AUTOMATIC PISTOLS 40, 42 (1920).
17
guns and automatic-fire capable firearms conceivably
fell outside the definition of a “machine gun,” given
that these firearms, even when placed in automaticfire mode, could technically fire a single shot with a
quick pull and release of the trigger. Yet state lawmakers circa the late 1920s and early 1930s clearly had
these very firearms in mind when they enacted their
respective machine-gun laws.42 They would have perceived no meaningful distinction between those firearms and the bump-stock firearms disputed here.
B. The History of the National Firearms
Act of 1934
In the initial draft of H.R. 9066—which was the
House version of what would eventually become the
NFA of 1934—the definition of what constituted a “machine gun” was as follows: “The term ‘machine gun’
means any weapons designed to shoot automatically
or semiautomatically twelve or more shots without
reloading.”43 Given that this definition encompassed
many semi-automatic firearms typically used by members of the sporting, hunting, and shooting community,
the NRA emphatically objected to it. It was, in fact,
42
There is no substantiated historical evidence circa the
1920s and 1930s, at least that amicus curiae can find, which
shows that state lawmakers understood the word “function” in
their respective machine-gun laws to mean the “mechanical function of a single trigger pull.” See also supra note 41.
43
For a full copy of the original H.R. 9066, see NATIONAL
FIREARMS ACT, supra, at 1-3. This definition of a “machine gun”
was included at the request of the Department of Justice. Id. at
14.
18
former NRA President Karl T. Frederick’s “first criticism” of H.R. 9066 in his testimony delivered before a
hearing of the House Ways and Means Committee. According to Frederick, the definition of a “machine gun”
in H.R. 9066 was “inadequate and unsatisfactory” because it was underinclusive and would exclude any automatic-fire capable firearms that held magazines of
“less than 12 shots.”44 Frederick elaborated:
The well-known Thompson submachine gun
[or Tommy Gun], which has figured in the papers extensively; the so-called “Browning” automatic fire rifle or the Monitor rifle, which is
a somewhat similar weapon designed for police use, are both in fact capable of being operated automatically and semi-automatically.
The number of shots which they may discharge is dependent solely on the size or the
content of the magazine and if you use those
guns with magazines holding only 11 shots
they would not be, within the terms of this bill
a machine gun.45
After several back-and-forth exchanges between
Frederick and members of House Ways and Means
Committee, Frederick proffered an alternative definition of a “machine gun” for the Committee members to
consider—a definition which borrowed its language
from earlier state machine-gun laws—laws that the
NRA had emphatically endorsed. The alternative “machine gun” definition proffered by the NRA read as
44
45
Id. at 39.
Id.
19
follows: “A machine gun or submachine gun as used in
this act means any firearm by whatever name known,
loaded or unloaded, which shoots automatically more
than one shot without manual reloading, by a single
function of the trigger.”46 Frederick then expounded
upon how this definition of a “machine gun” would not
apply to any semi-automatic firearms—that is, firearms that could not fire multiple rounds with one continuous pull of the trigger.47 This definition of a
“machine gun” would, however, apply to any to automatic-fire capable firearms:
[Y]ou may look at the automatic pistol which
is the standard weapon of the United States
Army. That has an automatic discharge of the
empty cartridge and a reloading principle
which is operated by the force of the gas from
the exploded cartridge. But with a single pull
of the trigger only one shot is fired. You must
release the trigger and pull it again for the second shot to be fired. You can keep firing that
as fast as you can pull your trigger. But that
is not properly a machine gun. . . .48
By the conclusion of the hearing, the NRA ultimately proved successful in convincing the House
Ways and Means Committee to shelve H.R. 9066 and
replace it with a bill that was acceptable to sportsmen,
46
Id. at 40.
Id. at 40-41.
48
Id.
47
20
H.R. 9741.49 H.R. 9741 defined a “machine gun” as “any
weapon which shoots, or is designed to shoot, automatically or semi-automatically, more than one shot, without manual reloading, by a single function of the
trigger,”50 or in layman’s terms, any “weapon designed
to shoot more than one shot without reloading and by
a single pull of the trigger.”51
Of course, convincing the House to accept this definition of a machine gun was only half the battle. The
NRA turned its attention towards the Senate. At the
start of the Senate Subcommittee on Racketeering and
Crime hearing over what would eventually become the
NFA of 1934, it appeared that the Subcommittee’s
chairman, New York senator Royal S. Copeland, was
intent on the Senate enacting its own bill, and any differences between the House and Senate versions of the
bill would be worked out during a Joint Conference
Committee.52 However, following two days of hearings,
Copeland met privately with NRA President Frederick
and NRA Executive Vice President Milton A. Reckord
to work out a deal.53 Therein, Copeland agreed to allow
Frederick and Reckord to make constructive changes
to any bill of their choosing.54 In return, Frederick and
49
CHARLES, VOTE GUN, supra, at 51-53; see also C.B. Lister,
Firearms Laws in the 73d Congress, 82 AMERICAN RIFLEMAN 5, 17
(July 1934).
50
73 H.J. 757 (June 13, 1934).
51
H.R. Rep. No. 1780, 73d Cong., 2d Sess. 2 (1934).
52
CHARLES, VOTE GUN, supra, at 53-55.
53
Id. at 56.
54
Id.
21
Reckord agreed that the NRA would work with
Copeland in producing a bill that would prevent criminals from obtaining firearms in interstate commerce.55
Unsurprisingly, the bill that Frederick and
Reckord chose was H.R. 974156—the very bill that the
NRA had previously endorsed—which again defined a
“machine gun” as “any weapon which shoots, or is designed to shoot, automatically or semi-automatically
more than one shot, without manual reloading, by a
single function of the trigger.”57 H.R. 9741, in its final
form, was introduced by Representative Robert L.
Doughton on May 28, 1934, passed both houses in midJune, and signed into law as the NFA by President
Franklin D. Roosevelt on June 26, 1934.58
Not long after the NFA was enacted, several NRA
members expressed confusion over the law’s registration requirements, particularly whether any semiautomatic rifles or pistols needed to be registered with
federal authorities.59 NRA Secretary-Treasurer C.B.
Lister immediately sent out several statements on
what legally constituted a “machine gun” under the
NFA. In an August 1934 statement, Lister stated that
only those firearms “designed to shoot more than one
55
56
Id.
Lister, Firearms Laws in the 73d Congress, supra, at
17-18.
57
58
73 H.J. 757 (June 13, 1934).
National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat.
1236.
59
See, e.g., The Federal Firearms Law, 82 AMERICAN RIFLE-
MAN 20 (September 1934).
22
shot, without reloading, by a single pull of the trigger”
qualified as machine guns under the NFA.60 A month
later, in a letter to the editor of the sporting, hunting,
and shooting newspaper column “Forest, Field and
Stream,” Lister wrote that the NFA’s machine gun
“provisions apply only to full automatic arms which
function continuously until the magazine capacity has
been exhausted by a single pressure on the trigger or
other firing device.”61
The NRA was not alone in sending out guidance
as to what constituted a “machine gun” under the NFA.
So too did several federal officials who had received
public information requests regarding the NFA’s scope.
Minnesota-based U.S. Marshal Bernard Anderson, for
one, sent out a letter clarifying that under the NFA “ordinary manual loading or autoloading” firearms did
not need to be registered.62 However, any firearm that
“discharges the entire magazine capacity” by “one pull
on the trigger” did.63 St. Louis, Missouri-based Internal
Revenue collector Thomas J. Sheehan issued a similar
60
New Gun Statute is Explained at Capital, RENO EVENING
GAZETTE (NV), August 25, 1934, at 7 (emphasis added); see also
Clears New Law on Registration, SPOKESMAN-REVIEW (WA),
September 2, 1934, at 13.
61
William C. Snyder, Forest, Field and Stream, BLUEFIELD
DAILY TELEGRAPH (WV), September 16, 1934, at 10 (emphasis
added); see also Don’t Have to Report Pistols, LOS ANGELES TIMES,
August 19, 1934, part vi, at 2.
62
Firearms Law is Interpreted by Bernard Anderson,
WINONA REPUBLICAN-HERALD (MN), September 14, 1934, at 8.
63
Id.
23
statement, noting that only firearms that “continue to
shoot on one pull of the trigger” need to be registered
under the NFA.64 The same guidance was issued by
Internal Revenue collectors in other states,65 and was
made applicable nationally upon the publication and
distribution of the September 17, 1934 edition of the
Internal Revenue Bulletin.66
C. The History of Enforcement Up to
Through the World War II War-Trophy
Problem
It was not long after Congress enacted the NFA of
1934 that sales of machine guns, submachine guns,
and automatic rifles and pistols were effectively under
control.67 So too was the “machine gun” registration
process under the then uncontroversial Internal Revenue “continue to shoot” guidance. From June 26, 1934,
through October 31, 1935, Internal Revenue registered
a total of 11,413 “machine guns & machine rifles” under said guidance as follows:
64
Here’s “Lowdown” on Firearms, LEADWOOD PRESS (MO),
September 21, 1934, at 1.
65
See, e.g., Firearm Registration Provisions Explained, REDWOOD GAZETTE (Redwood Falls, MN), September 13, 1934, at 7;
Firearms Tax Collection to Begin Quickly, PRESS AND SUN-BULLETIN (Binghamton, NY), August 13, 1934, at 3.
66
13 INTERNAL REVENUE BULLETIN 38, No. 38 (September
17, 1934), https://catalog.hathitrust.org/Record/100892898.
67
No Tax Collected on Machine Guns, COURIER-JOURNAL
(Louisville, KY), December 26, 1934, at 12.
24
Machine Gun Type or Category
# Registered
Thompson Sub-Machine Gun
(Auto-Ordnance Corp.)
7,094
Thompson Sub-Machine Gun
(Other Registrations)
1,364
Miscellaneous and Foreign
Manufacture Machine Guns
821
Browning Rifle (Automatic)
50
Colt Patena Firearms Mfg. Co.
Machine Guns and Rifles
2,045
Hyde Arms Corp. Machine Guns
and Rifles
34
Foreign Imported Machine Guns
and Rifles
5
Total
11,41368
Six years later, Internal Revenue applied the same
“continue to shoot” guidance to a grand total of 158,532
“machine gun” registrations.69 However, the events of
68
See Firearms: Registration and Transfers Reported Under
the Provisions of the National Firearms Act of June 26, 1934, Up
to And Including October 31, 1935, November 1, 1935, Homer
Cummings Papers, Box 103, Folder Attorney General Personal
File—Firearms and National Firearms Act (Charlottesville, VA:
University of Virginia Special Collections), https://bit.ly/3RiPy6i.
69
ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REVENUE 29 (1941), https://www.irs.gov/pub/irs-soi/41dbfullar.pdf.
For the other Internal Revenue annual reports, see Statistics
of Income Tax Stats Archive—1863 to 1999 Annual Reports and
Internal Revenue Service Data Books, IRS.GOV, https://www.irs.gov/
statistics/soi-tax-stats-archive-1863-to-1999-annual-reports-andirs-data-books. The reason this number is so high circa 1941 was
25
World War II quickly exposed a flaw in Internal Revenue’s registration process when U.S. military members
began mailing back dangerous war trophies, including
enemy explosives and automatic weapons found on the
battlefields. These dangerous war trophies later found
their way onto public streets and thoroughfares.70
The federal government initially responded by
publishing guidance via several circulars.71 Yet as
World War II dragged on, the problem of dangerous
war trophies entering the United States only got
worse. In 1944, both the War Department and the
Department of Navy responded by publishing and
disseminating additional guidance on the subject.
U.S. military members were informed that they could
“bring back small items of enemy equipment” save for
“explosives, and . . . other items the usefulness of
which in the service, or need for training purposes . . .
or the value as scrap metal outweighs their value as
trophies as determined by the theater commanders,”72
the outbreak of World War II, wherein U.S. manufacturers were
tasked with mass producing these automatic weapons of war.
70
See, e.g., Civilians Warned to Report Explosive War Souvenirs, PITTSBURGH PRESS (PA), July 25, 1944, at 6.
71
See War Department, Circular No. 243, October 7, 1943,
https://bit.ly/46RGTO9 (prohibiting military members from mailing “explosives” and “firearms capable of being concealed on the
person”); 24 INTERNAL REVENUE BULLETIN: CUMULATIVE BULLETIN 1945, at 457 (1945) (noting how on October 22, 1943, the
Bureau of Customs issued an ineffective circular regarding the
importation of firearms from the war).
72
War Department, Circular No. 217, June 1, 1944, at 4-5,
https://bit.ly/3RxzQWi.
26
but only on the condition that they first obtain a “certificate in duplicate signed by [their] superior officer
stating . . . [they are] officially authorized by the theater commander to retain” any particular war trophy.73
These instructions, if followed to the letter, would have
prevented most explosives and automatic weapons
from entering the United States.74 Unfortunately, they
were not, and the dangerous war-trophy problem persisted. It did not help that the Bureau of Customs was
too understaffed to check every returning military
member’s baggage and customs paperwork.75
73
War Department, Circular No. 353, August 31, 1944, at 5,
https://bit.ly/3TklREQ.
74
For some examples of how the War Department’s instructions were relayed down the chain-of-command, see U.S. Pacific
Fleet and Pacific Ocean Areas, Souvenirs, June 25, 1945,
https://bit.ly/487plhY; Headquarters Replacement Service, Circular No. 1, February 27, 1945, https://bit.ly/3t21O3f; Headquarters
U.S. Forces India Burma Theater, Circular No. 1, January 5,
1945, https://bit.ly/3TgNGxw; War Department, Adjutant’s General Office, Processing of Baggage from Overseas, August 29,
1944, https://bit.ly/3TiMV7b; Headquarters North African Theater of Operations U.S. Army, Mailing of Explosive Firearms, April
28, 1944, https://bit.ly/3TjqU8n; Central Pacific Force, U.S. Pacific Fleet, Souvenirs, Mailing and Transportation Of, March 14,
1944, https://bit.ly/3Tdatug; Headquarters U.S. Army Forces
Rear Echelon China Burma India, Circular No. 17, February 15,
1944, https://bit.ly/3RzBMgZ.
75
24 INTERNAL REVENUE BULLETIN: CUMULATIVE BULLETIN
1945, at 457. This is not to say, however, that the Bureau of Customs did not stop any dangerous, automatic war trophies from
entering the country. See, e.g., Yanks’ Souvenir Appetite Attested
by Customs Officials in Falls, GREAT FALLS TRIBUNE (MT), July
5, 1945, at 1; A Souvenir is Deadly, KANSAS CITY TIMES (MO),
December 18, 1945, at 2.
27
Come 1945, the dangerous war-trophy problem
had reached a point that both the War Department and
the Department of Navy, in conjunction with the Department of Justice and Department of Treasury, issued new guidance that was much more explicit in
prohibiting explosives and “firearms of the automatic
type” as lawful war trophies.76 As to what constituted
a firearm of the “automatic type,” the new guidance
listed “machine guns, submachine guns, or any type of
gun in which the number of shots or bullets may be
discharged with one continuous pull of the trigger.”77
And to ensure that this new guidance reached those
military members and veterans who had already returned stateside, Internal Revenue issued press releases on the subject that were reprinted in local
newspapers across the country.78 Each press release
76
War Department, Circular No. 155, May 23, 1945, at 4-5,
https://bit.ly/47NZDzr; Rules on Souvenirs Summarized, BUREAU
OF NAVAL PERSONNEL INFORMATION BULLETIN 71 (February
1945), https://catalog.hathitrust.org/Record/000635337.
77
War Department, Circular No. 155, supra, at 5 (emphasis
added). In September 1945, given the continuance of the wartrophy problem, the War Department issued a directive limiting
each returning military member only one small, non-automatic
firearm souvenir from the battlefront. See War Department, Circular No. 267, September 5, 1945, at 8, https://bit.ly/3RyQbtZ.
The War Department’s crackdown on these unlawful war trophies
during demobilization was so severe that it was common for returning military members to haphazardly discard them out of
train windows. JOHN C. SPARROW, HISTORY OF PERSONNEL DEMOBILIZATION IN THE UNITED STATES ARMY 215 (1952), https://bit.ly/
3Rd5YNL.
78
See e.g., On ‘Tommy Gun’ Trail, KANSAS CITY STAR (MO),
December 20, 1945, at 3; Veterans Warned to Register All Automatic Guns, LOGAN DAILY NEWS (OH), November 28, 1945, at 2;
28
made it clear that federal law required “any firearms
of the automatic type, such as machine pistols, machine guns, submachine guns, or any type of gun from
which bullets may be discharged with one continuous
pull of the trigger” to be registered with Internal Revenue.79 Alternatively, military members and veterans,
at no charge to them, could elect to have Internal Revenue render the respective automatic-fire capable firearm inoperable.80
By 1946, however, the dangerous war-trophy problem had not improved. The death toll resulting from
these trophies was now in the thousands,81 prompting
lawmakers to introduce new firearms legislation.82 The
dangerous war-trophy problem was so serious that
even President Harry S. Truman acknowledged it in a
Commissioner Says to Register War Trophies and Guns, BIG
SPRING WEEKLY HERALD (TX), October 12, 1945, at 7; Kraemer
Warns Veterans About Gun Souvenirs, JOURNAL (Meriden, CT),
September 28, 1945, at 1.
79
Register Automatic Weapons, Vets Told by Federal Agency,
LACROSSE TRIBUNE (WI), September 27, 1945, at 8.
80
See, e.g., Anne LoPresti, List Automatic Weapon Souvenirs, U.S. Warns, DAYTON HERALD (OH), December 15, 1945, at
14.
81
Memorandum from Irving Perlmeter, Department of
Treasury Public Relations Division, to Charles W. Jackson, Office
of Government Reports, July 23, 1947, John T. Gibson Papers,
box 4, folder War Trophies (Independence, MO: Harry S. Truman
Presidential Library), https://bit.ly/4831NLc. By 1948, it was
estimated that 54,000 people had been injured by dangerous war
trophies. See Death on the Mantel Shelf, LOS ANGELES TIMES,
April 11, 1938, part II, at 4.
82
CHARLES, VOTE GUN, supra, at 75-77.
29
press conference. Truman assured the public that the
government would continue to take steps to prevent
these dangerous “implements of destruction from getting into the wrong hands.”83 And while lawmakers debated whether to enact new firearms legislation to deal
with the dangerous war-trophy problem, the Truman
administration pressed forward with the federal campaign of urging military members and veterans to
bring their firearm war trophies to local law enforcement agencies, who would then determine whether
said trophies were in compliance with the NFA.84
Come 1947, it had become clear to lawmakers that
enacting new firearms legislation to deal with dangerous war trophies was not politically feasible.85 As a
result, the political course of action taken was one of
“education over legislation” through the establishment of the National War Trophy Safety Program
(NWTSP). 86 The NWTSP was controlled by a special joint committee made up of officials from the
83
President’s News Conference, January 15, 1946, Public
Papers of Harry S. Truman 1945-1953 (Independence, MO: Harry
S. Truman Presidential Library), https://www.trumanlibrary.gov/
library/public-papers/15/presidents-news-conference-0.
84
See, e.g., Inspect Vets’ Guns, YORK DISPATCH (PA), June 18,
1946, at 11; Quentin R. Mott, Drawing the Teeth from Weapons of
War, EVENING STAR (Washington, DC), May 12, 1946, at C5; U.S.
Warns of War-Gun Menace, Offers to Make ‘Em Safe for Free,
BROOKLYN EAGLE, April 1, 1946, at 8; Must Be Registered, ATLANTA CONSTITUTION, January 6, 1946, at 3B (noting that any
firearm “designed to shoot more than one shot by a single pull of
the trigger” is a “machine gun” under the NFA).
85
CHARLES, VOTE GUN, supra, at 76-77.
86
Id. at 78.
30
Department of Treasury, War Department, Department of Navy, and the NRA. The NWTSP’s objectives
were (a) to promote “public safety in the handling of
war trophies”87 and (b) to ensure that any firearm trophies inviolate of the NFA were either registered with
Internal Revenue or rendered inoperable.88 As for
which firearm trophies needed to be registered as machine guns or rendered inoperable, the NWTSP’s guidance stipulated any “pistol or rifle designed to fire more
than one shot with each pull of the trigger . . . ”89 Follow-on press releases and government directives regarding the NWTSP contained similar guidance.90
87
Memorandum from Henry Schneider, War Trophy Safety
Committee, to President Harry S. Truman, July 24, 1947, Harry
S. Truman Papers, White House Central Files: President’s Personal File, box 630, folder 2177, National Rifle Association of
America (Independence, MO: Harry S. Truman Presidential Library), https://bit.ly/48bJ7ZO.
88
Department of Treasury, Press Release, Press Service
No. S-332, May 18, 1947, John T. Gibson Papers, box 4, folder
War Trophies (Independence, MO: Harry S. Truman Presidential
Library), https://bit.ly/3GGct6R (“Except as to the statutory requirement for registration of machine guns and similarly fully automatic weapons, the committee program will be entirely of a
voluntary and educational nature.”). See also Drive Under Way to
“Pull Teeth” of Wartime Trophies, JOURNAL NEWS (White Plains,
NY), June 18, 1947, at 7; Government Cracks Down on Weapons,
TIMES (Shreveport, LA), May 19, 1947, at 8.
89
Memorandum from Secretary of War et al., Greetings [from
NWTSP], April 30, 1947, Harry S. Truman Papers, White House
Central Files: President’s Personal File, box 630, folder 2177,
National Rifle Association of America, https://bit.ly/3t3yE3P (emphasis added).
90
See, e.g., Tax Unit Stresses Dangers of Explosive War Trophies,
PRESS DEMOCRAT (Santa Rosa, CA), November 19, 1947, at 3
31
April 11, 1948, Los Angeles Times Political Cartoon
on Dangerous War Trophies.
(“Any weapon designed or altered so it is capable of firing more
than one shot with one continuous pull of the trigger, such as a
machine gun or machine pistol” must be registered.); Must Register These Firearms, UNION COUNTY JOURNAL (Marysville, OH),
June 2, 1947, at 2 (“Any firearms . . . capable of firing more than
one shot with one continuous pull of the trigger, such as a machine gun or machine pistol” need to be registered.); War Department, Circular No. 162, June 20, 1947, at 2, https://bit.ly/48aiYKW
(“registration of automatic-type firearms, such as machine guns,
submachine guns, or any type of gun from which a number of
shots may be discharged with one continuous pull of the trigger,
is mandatory [to be registered] under the provisions of the [NFA].”).
32
The NWTSP ran from May 194791 through October
1951.92 During that time, more than 100,000 firearm
trophies were inspected by federal, state, and local officials associated with the NWTSP, and more than
15,000 were registered as “machine guns” with Internal Revenue via the “one continuous pull of the trigger”
standard.93 And although the NWTSP formally ended
in October 1951, up through at least 1972, the Department of Treasury continued to work closely with the
Department of Defense in adjudicating which firearm
trophies brought stateside by military members and
veterans needed to be registered under the NFA’s “one
continuous pull of the trigger” standard.94
D. The National Firearms Act of 1934’s Definition of a “Machine Gun” in Summary
As outlined above, the background history of the
NFA of 1934 overwhelmingly points in one direction.
From the NFA’s inception, its definition of a “machine
gun” encompassed every firearm capable of producing
91
ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REV57 (1948), https://www.irs.gov/pub/irs-soi/48dbfullar.pdf
(noting May 23, 1947, as the official start date).
92
War Trophies Going Under Regulations, MUNCIE STAR
(IN), October 26, 1951, at 4 (press release noting the deactivation
of the War Trophy Safety Committee).
93
ANNUAL REPORT OF THE COMMISSIONER OF INTERNAL REVENUE 62 (1951), https://www.irs.gov/pub/irs-soi/51dbfullar.pdf.
94
For evidence of this, see Statistics of Income Tax Stats
Archive—1863 to 1999 Annual Reports and Internal Revenue Service
Data Books, IRS.GOV, https://www.irs.gov/statistics/soi-tax-statsarchive-1863-to-1999-annual-reports-and-irs-data-books.
ENUE
33
automatic fire through one manual action, operation,
or performance of the trigger. To lawmakers living at
that time, the inner working mechanics of the various
automatic-fire capable firearms were irrelevant. What
was relevant was whether a respective firearm could,
like the bump-stock devices at issue here, produce automatic fire by one continuous pull of the trigger. Not
only does the history prior to and contemporaneous
with the enactment of the NFA support this interpretation, but so too does the enforcement history up
through the mid-twentieth century, particularly during and immediately after World War II. To interpret
26 U.S.C. § 5845(b) as the Fifth Circuit has recently
done would essentially mean that tens of thousands, if
not hundreds of thousands, of federal machine gun registrations over the course of many decades were done
improperly.
---------------------------------♦---------------------------------
34
CONCLUSION
For the foregoing reasons, the Fifth Circuit’s unduly narrow construction of 26 U.S.C. § 5845(b) is at
odds with how the statute has been consistently interpreted since its enactment. The Court should reverse
the decision.
Respectfully submitted,
PORTER, WRIGHT, MORRIS &
ARTHUR LLP
L. BRADFIELD HUGHES
Counsel of Record
41 South High Street,
Suite 3000
Columbus, OH 43215
bhughes@porterwright.com
Telephone: (614) 227-2053
Facsimile: (614) 227-2100
Dated: December 22, 2023
Attorney for Amicus Curiae
Patrick J. Charles
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.