Opposition Brief — United States v. Thompson/Center Arms Co.

| Sagveme Court, U.S,

FILED

No. 91-164 AG 20 BS

HE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

UNITED STATES OF AMERICA,

Petitioner

Vv.

THOMPSON /CENTER ARMS COMPANY, a Division of the

K.W. THOMPSON TOOL CoMPANY, INC.,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

STEPHEN P. HALBROOK *

10605 Judicial Drive

Suite B-3

Fairfax, VA 22030

(703) 385-8610

Attorney for Respondent

* Counsel of Record

—————————————— assay

WILGON - Eras Printinc Co., Inc. - 789-0086 . Waswincron. D.C 20001

QUESTION PRESENTED

Whether the Contender single-shot pistol and carbine

kit, which are intended to be made only as a pistol with

a 10” barrel and as a rifle with a 21” barrel, nonethe-

less constitute a rifle having a barrel of less than 16” in

length under the Internal Revenue Code, § 5845(a) (3),

even though not made as such and even though the

United States concedes that use of two receivers would

remove these parts from such taxation.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..............0... i

TABLE OF AUTHORITIES ........... iv

STATEMENT OF THE CASE... 1

SE 8

I. THE DEFINITIONS OF “RIFLE” AND

OTHER RELEVANT TERMS PRECLUDE

CLASSIFICATION OF THE CONTENDER

PISTOL AND CARBINE KIT AS AN NFA

a x

A. The Narrow Definition of “Rifle” Contrasted

with Broader NFA Definitions 8

B. When Congress Intended to Define a Type of

Rifle as Including a Combination of Parts,

It Did So, and Then Only If Intent is

TEE ee 10

C. The Firearms Owner’s Protection Act of

1986 and the Crime Control Act of 1990... 12

D. The Government Would Expand The Defini-

tion to Include A Product Capable Of Being

Made Into A Taxable Rifle... 13

II. THE DEFINITIONS AT ISSUE MUST BE

CONSTRUED IN FAVOR OF THE TAX-

ES ES ETE A 19

III. THE CIRCUITS ARE NOT IN CONFLICT... 21

A. No Other Reported Cases Concern a Pistol

Se Saleen 21

B. While Flawed, Drasen Does Not Apply to the

Products at Issue... SP aa ae 24

C. At the Government’s Urging, Drasen Was

Based on a Revenue Ruling Which Was

a add a NE ee 27

RE inhenbil 30

iv

TABLE OF AUTHORITIES

CASES Page

Alinco Life Ins. Co. v. United States, 178 Ct. Cl.

813, 373 F.2d 336 (1967)... 21

Commissioner v. Acker, 361 U.S; 87 (1959) 2... 20

Commissioner v. Engle, 464 US. 206 ( 1984)... 20

Gould v. Gould, 245 U.S. 151 (1917)... 19

Hanover Bank v. Commissioner, 369 U.S. 672

REY FOREGO ee nae a 21

Haynes v. United States, 390 U.S. 85 (1968) ......7, 17, 19

Hoffman Estates v. Flipside, 455 U.S. 489 (1982)... 12

Martin v. Harrington & Richardson, Inc., 743 F.2d

cae Coen Gee 27

Russello v. United States, 464 U.S. 16 (1983)... 20

Sonzinsky v. United States, 300 U.S. 506 (1937)... 7,19

Thompson/Center Arms Co. v. Baker, 686 F. Supp.

II I inlet i 19

United States v. Anderson, 885 F.2d 1248 (5th Cir

RETR EE Engen oe 18

United States v. Bass, 404 U.S. 336 (1971)... 20

United States v. Biswell, 406 U.S. 311 (1972)........ 17

United States v. Bradley, 892 F.2d 634 (7th Cir.

Peickstucuichisiaica ee 25

United States v. Catanzaro, 368 F. Supp. 450 (D.

i ee Teton hs Lats BAL Soe 23

United States v. Combs, 762 F.2d 1343 (9th Cir.

BF EE ee be ee kN Ad AP ere a 23

United States v. Cosey, 244 F. Supp. 100 (E.D.

Ee Rr yey eee 16

United States v. Drasen, 665 F. Supp. 598 (N.D.

Ill. 1987), rev’d 845 F.2d 731 (7th Cir. 1988),

cert. denied, 488 U.S. 909 (1988)... is 24-30

United States v. Endicott, 803 F.2d 506 (9th Cir.

ee ae ae 22

United States v. Freed, 401 U.S. 601 (1971) 7,18

United States v. Kokin, 365 F.2d 595 (3rd Cir.

| RRR LSE soe eR RE aE Ty 5 22

United States v. Lauchli, 371 F.2d 303 (7th Cir

ATE SES eR ace LE: 9 Oe ee 21

United States v. Luce, 726 F.2d 47 (1st Cir. 1984). 22

United States v. Miller, 307 U.S. 174 (1939) 7

v

TABLE OF AUTHORITIES—Continued

United States v. Posnjak, 457 F.2d 1110 (2nd Cir.

PEERS OE TROLL TEPER

United States v. Rose, 695 F.2d 1356 (10th Cir.

1982), cert. denied 104S.Ct.128..... ss

United States v. Seven Miscellaneous Firearms,

503 F. Supp. 565 (D.D.C. 1980).

United States v. Smith, 477 F.2d 399 (8th Cir.

a PRT =D ee Seta a

United States v. ysasesesat 492 F.2d 962 (7th

Cir. I wioshdlbceiaatidilis cite ad LO

1977), cert. denied 435 US. 906 EE

CONSTITUTION, STATUTES AND

REGULATIONS

U.S. Constitution, Second Amendment _ Sa:

18 U.S.C. § 921 (a) Tk 12

18 U.S.C. § 922(r)

18 U.S.C. § 925(d) (3)

26 U.S.C. § 5821

26 U.S.C. § 5822

26 U.S.C.§5845...

| aan

| | ee

a

SE A ee een

26 U.S.C. § 5845(e). Ee ES

SES ane

I Oem

ET SE ea ne

Firearms Owner’s Protection Act, §§ 101, 109,

P.L. 99-308, 100 Stat. 451 (May 19, 1986) .

P.L. 99-408, § 10, 100 Stat. 920 (Aug. 28, 1986) x

RR See AT aS ll

| cae ichieteidintenedlle

27 C.F.R. § 179.11 Ade Dn tee? ene REE DER a so

OTHER AUTHORITIES

ATF Ruling 83-5, ATFB 1983-3,35 sis

CONG. REC., S5362-63 (May 6,1986)

Page

7

» 16, 22

14

passim

passim

6,9, 25

_... passim

23

23

9,15

. 12, 25

12

29

8

29

. 10, 16

25

vi

IN THE

TABLE OF AUTHORITIES—Continued Supreme Court of the United States

Page

OCTOBER TERM, 1991

Rev. Rul. 54-606, 1954-2, C.B. 33 000. 27-29

Rev. Rul. 72-178, 1972-1, C.B. 423 00. 28-29

Wright & Rossii ARMED AND CONSIDERED

DANGEROUS: A SURVEY OF FELONS AND | No. 91-164

THEIR FIREARMS (1986) 7

UNITED STATES OF AMERICA,

Petitioner

Vv.

THOMPSON/CENTER ARMS COMPANY, a Division of the

K.W. THOMPSON TOOL CoMPANY, INC.,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

The Contender sporting pistol has been made by Thomp-

son/Center Arms* since 1967. It has a 10” barrel, is

inconcealable, and is a single shot, requiring each car-

tridge to be loaded and unloaded by hand before another

shot can be fired. Out of 400,000 Contender pistols man-

ufactured, the company is unaware of a single person

ever using a Contender in a crime. The pistol has taken

top honors as the leading pistol for hunting and target

competition. (App. 2a; Court of Appeals Appendix 56-

57.)

* Respondent has no parent companies or subsidiaries.

2

The Thompson/Center carbine kit consists of a 21”

barrel, a wooden foreend to hold the carbine while shoot-

ing, and a shoulder stock. Removal of the 10” pistol

barrel, foreend, and hand grip allows use of the pistol

frame or receiver (the part which holds internal parts

and to which the barrel and stock attach) to be assem-

bled with the carbine kit parts to make a carbine (a type

of rifle). The following conspicuous warning is molded on

the carbine shoulder stock: “WARNING. FEDERAL

LAW PROHIBITS USE WITH BARREL LESS THAN

16 INCHES.” More detailed warnings to avoid violation

of the National Firearms Act (“NFA”) are included in

the Lit instructions. App. 2a.

Sportsmen, who would provide the only market for

the Contender pistol and carbine kit, have no incentive

to make a rifle with a barrel less than 16”. The sports-

men who would use this product are generally law-abid-

ing, and also the 10” pistol barrel used with a shoulder

stock would have no sporting utility.

Nor would criminals have any motive to make a rifle

with a barrel under 16” from the Contender pistol and

carbine kit. A Contender with a 10” barrel and a huge

shoulder stock is even less concealable than a Contender

pistol. No criminal demand for single shot firearms

exists."

A retired BATF expert examined a complete Contender

pistol and a complete Contender carbine. It took him

over 10 minutes to remove and assemble parts on these

guns in such a way as to simulate the time it would take

' Indeed, the Bureau of Alcohol, Tobacco, and Firearms (“BATF”)

has removed large numbers of semiautomatic pistols with instantly

attachable shoulder stocks, and rifles with barrels less than 16”, from

the NFA. Almost all items on BATF’s curio and relic list are short-

barrel rifles removed from the NFA because they are “not likely to

be used as a weapon.” 26 U.S.C. Section 5845(a) (last sentence) :

Appeals Appendix 48-49.

3

to convert a pistol into a carbine using a carbine kit.

(Appeals Appendix 48. )

Any rifle or shotgun barrel is capable of being readily

made into a short-barrel NFA firearm with a hacksaw.

A 21” Contender carbine barrel can be cut off in 25

seconds with a common hacksaw. (Appeals Appendix

103-104.) Moreover, a complete Contender pistol and a

complete Contender carbine are capable of having parts

exchanged to make an NFA firearm, but BATF concedes

that these items do not constitute a short-barrel rifle.

In 1971, Rex D. Davis, the BATF Director, wrote to

Thompson /Center as follows:

You.asked if it would be legal to utilize the receiver

of the Contender pistol in making up a single shot

carbine with a barrel 18 inches long and with a full

shoulder stock.

You are advised that the manufacture of a carbine

such as you describe, by utilizing a pistol action,

would be legal and the firearm so produced would not

= within the purview of the National Firearms

ae

In view of the interchangeable barrel capabilities

of your Contender action, we believe that it would be

in the public interest for you to include a cautionary

Statement with each firearm. This statement would

serve to advise the purchaser that any reduction of

the barrel length of the carbine to less than 16

inches, whether by substitution of the carbine barrel

with one of your pistol barrels or otherwise, or the

reduction of the overall length of the weapon to

less than 26 inches would constitute the making of a

firearm within the purview of Section 5845(a) of

- National Firearms Act. (Appeals Appendix 31-

) :

In 1973, BATF addressed the “Sportsman’s Kit,” con-

sisting of a pistol with interchangeable 16” and 4” bar-

rels and a shoulder stock. The BATF Assistant Director

4

determined that the items are not an NFA firearm, and

recommended that the manufacturer provide warnings

not to attach the shoulder stock to the gun when the

4” barrel is installed. (Appeals Appendix 34.) Several

more letter rulings over the years repeated that to be

an NFA rifle, the shoulder stock must be attached. (£.g.,

id. at 35-38, 60). The government does not mention these

letter rulings. See Petition 3 n.3.

The above was disregarded by a subordinate employee

who wrote a letter in 1985 claiming that the Contender

pistol and carbine kit just introduced by Thompson/

Center Arms was a short-barrel rifle under the NFA,

even though not assembled as such. BATF happily ad-

ministered the NFA in the years 1968-1985 without the

sky falling, despite its view that pistols and carbine kits

are not NFA firearms.

The purpose of the conversion kit is to make a rifle

with a 21” barrel, not, as the government states in its

version of the Question Presented, to “allow the pistols

readily to be converted into rifles with 10-inch barrels.” 2

That is like saying that Thompson/Center manufactures

rifles with 21” barrels that “allow” the barrels readily

to be sawed off, or that the company manufactures fire-

arms that “allow” persons readily to murder other

persons.

The government claims that a unit that includes a

receiver, 10” barrel, and shoulder stock “is literally a

weapon ‘designed . . . and intended to be fired from the

shoulder’ ” with a barre] less than 16”. Petition 7. This

is not the case if the unit includes a 21” barrel with

warnings and instructions not to assemble a rifle with a

* Also in the Question Presented the government incorrectly as-

serts that Thompson/Center “manufactures” conversion kits. Kits

were manufactured only for a brief period in 1985. Only one pistol

and carbine kit were possessed as a unit in connection with the

payment of the $200 tax and the claim for a refund.

es Se

5

barrel under 16”. No “weapon” exists unless it is as-

sembled, because mere parts cannot be fired. The “de-

sign” of the manufacturer and the “intent” of the user

is to make only a pistol with a 10” barrel or a rifle with

a 21” barrel.

The government misrepresents the version of the facts

set forth by the Court of Appeals. That court allegedly

claimed that “the short-barrel Contender rifle” is unlike

silencers because it is not a gangster device. Petition 14,

claiming to cite App. 15a. Instead, the court found that

the pistol and carbine kit with 21” barrel is not a short-

barrel rifle.

The government refers to “the distinction between

‘good’ and ‘bad’ short-barrel rifles that the court of

appeals seeks to draw.” Petition 14. To the contrary,

the court found that the items at issue are not a short-

barrel rifle at all.

The government also distorts the Court of Appeals’

discussion of contrasting “combination-of-parts” defini-

tions. The Court was concerned with the definitions of

machinegun, destructive device, and silencer as including

a complete combination of parts from which such weap-

ons could be assembled (with various intent standards) ,

and the lack of any such definition of rifle. App. 7a-8a.

Yet the government misreads the court as being con-

cerned with a combination of parts to convert a weapon

into a rifle. Petition 10. The court did not remotely sug-

gest, as does the government, that this case concerns

whether a conversion kit alone is regulated by the NFA.°

Petition 10-11.

* Until now the parties and courts have been concerned only with

the lefinitions of machinegun, destructive device, and silencer as

including a combination of parts from which a complete weapon can

be assembled. Only now is the government interjecting the irrele-

vant definition of machinegun as including “any part designed and

intended solely and exclusively, or combination of parts designed and

6

In still another red herring, the government claims

that the Court of Appeals concluded that a “firearm’—

by implication, any NFA “firearm’—is not “made”

until assembled. Petition 7. Yet the court acknowledged

the varied definitions of “firearm” in the NFA, which de-

fines machineguns and certain other weapons as being

made when a complete combination of unassembled parts

is possessed, but does not so define rifles. The court’s

opinion is not a serious threat to the enforcement of the

NFA because it does not require “that a firearm be fully

assembled.” Petition 15. The court ruled that a rifle and

carbine kit which will never be assembled as a short-

barrel rifle, is not such a rifle. The opinion does not

address other NFA “firearms” other than to acknowledge

that some types (such as machinegun) need not be as-

sembled. Accordingly, the government’s whining about

trafficking in dangerous “firearms” and circumvention

of the NFA evaporates. Petition 15-16.

The government contradictorily assets that sporting

or criminal use in defining a weapon is irrelevant, but

that the court’s opinion will allow weapons of mass de-

struction. Petition 14, 16. It raises the bogeyman word

“Uzi,” failing to note that normally that term refers

to a machinegun and thus is subject to a combination of

parts definitions.‘ Generally, a short-barrel rifle is less

intended, for use in converting a weapon into a machinegun. .. .”

26 U.S.C. § 5845(b). Only the next phrase of that subsection is rele-

vant here—‘“any combination of parts from which a machinegun can

be assembled if such parts are in the possession or under the control

of a person.”

Contrary to the government, destructive device is not defined to

include a mere conversion kit. Petition 11 n.8. Rather, 26 U.S.C.

§ 5845(f)(3) requires that all the parts to assemble a complete

destructive device must be present: “any combination of parts

either designed or intended for use in converting any device into a

destructive device ... and from which a destructive device may be

readily assembled.”

* A cosmetically-similar semiautomatic model Uzi is imported into

the United States only because BATF found it to be particularly

7

likely to be used in crime than any other type of firearm,

including a long barrel rifle.» BATF has removed numer-

ous short-barrel rifles, including semiautomatics, from

the NFA because they are not likely to be used as weap-

ons." Under these circumstances, the Court of Appeals

opinion—that items that will never be made into a short-

barrel rifle do not constitute a short-barrel rifle—will not

cause the sky to fall.

The Court of Appeals’ decision contains no general

Statements of constitutional or statutory jurisprudence,

Instead, it merely applies the law to the obscure, specific

factual situation of the Contender pistol and carbine kit.

The government’s claims that the decision “drastically”

erodes the NFA and that this case has “exceptional ad-

ministrative importance” ring hollow. Petition 6.

Since passage of the NFA in 1934, this Court has never

granted certiorari in a case where the only claim is that

a court misapplied a definition of a type of firearm to a

specific set of facts. NFA issues of interest to the Court

have included the constitutional] power of Congress to

pass the NFA as a revenue measure, the Second Amend-

ment, registration and self-incrimination, and scienter.’

suitable for sporting purposes. 18 U.S.C. §925(d)(3); United

States v. Rose, 695 F.2d 1356, 1357 (10th Cir. 1982), cert. denied,

104 S.Ct. 123. As in the case at bar, “the carton, the instructions,

and the firearm itself contained warnings that modification of the

firearm was unlawful.” No one would suggest that the importer was

responsible for the owner quickly and easily sawing off the barrel in

that case.

5J. Wright and P. Rossi, ARMED AND CONSIDERED DAN-

GEROUS: A SURVEY OF FELONS AND THEIR FIREARMS

94-95 (1986). Plaintiff’s Claims Court Exhibits A58. The study

= conducted under the auspices of the National Institute of

ustice.

® See 26 U.S.C. § 5845(a) (last sentence ).

" Sonzinsky V. United States, 300 U.S. 506 (1937); United States

V. Miller, 307 U.S. 174 (1939); Haynes v. United States, 390 U.S.

85 (1968) ; United States vy. Freed, 401 U.S. 601 (1971).

8

This case is of importance to Thompson/Center and to

sportsmen who would be able to use Contender pistols

and carbines without the need to purchase a separate

receiver for each. However, the government has not

shown that the Court of Appeals’ decision warrants this

Court’s review.

ARGUMENT

I. THE DEFINITIONS OF “RIFLE” AND OTHER

RELEVANT TERMS PRECLUDE CLASSIFICATION

OF THE CONTENDER PISTOL AND CARBINE KIT

AS AN NFA FIREARM

A. The Narrow Definition of “Rifle” Contrasted with

Broader NFA Definitions

The Contender pistol and carbine kit is intended for

use as a pistol with a 10” barrel and a rifle with a 21”

barrel. Neither of these guns are “firearms” as techni-

cally defined in 26 U.S.C. Sec. 5845 (a).

Mere capacity to convert a gun into an NFA firearm

does not make the gun an NFA firearm. Otherwise, all

long-barrel rifles would be short-barrel rifles, merely be-

cause the barrels can be quickly sawed off. Indeed, the

government does not argue that a mere combination of

parts which could be, but are not in fact and are not in-

tended to be, made and assembled into an NFA firearm,

constitute an NFA firearm. It agrees that a Contender

pistol and a Contender carbine (each with its own sep-

arate receiver)* do not constitute NFA firearms.

As reenacted in 1968, the definition of “rifle” in the

National Firearms Act, § 5845(c), is as follows: “The

term ‘rifle’ means a weapon designed or redesigned, made

or remade, and intended to be fired from the shouldey

and designed or redesigned and made or remade to use

’The receiver is the housing to which the barrel, stock, and

internal parts attach. See 27 C.F.R. § 178.11 (“firearm frame or

receiver’).

9

the energy of the explosive in a fixed cartridge to fire

only a single projectile through a rifled bore for each

single pull of the trigger, and shall include any such

weapon which may be readily restored to fire a fixed cart-

ridge.” The last definitional clause was added in 1968,

The 1968 amendments also included the following defi-

nition: “The term ‘make’ and the various derivatives of

such word, shall include manufacturing . . ., putting to-

gether, altering, any combination of these, or otherwise

producing a firearm.” 26 U.S.C. § 5845(i).

Thus, “the term rifle 4means a weapon ... made or

remade” (§ 5845[c]), and “the term ‘make’ . . . Shall

include . . . putting together” (§ 5845[i]). The definition

of “make” as “putting together” would have no meaning

if a mere combination of parts which had never been put

together as such constituted “a rifle having a barrel or

barrels of less than 16 inches in length” as used in

§ 5845 (a) (3).

By contrast, those firearms ( i.e., machineguns and over

-50 caliber rifles) which are defined in terms of combina-

tions of the parts, are “made” even before being “put

together.” * These firearms are “made” when a combina-

tion of parts from which such firearms may be assembled

are “manufactur/ed] or otherwise produc[ed]”

($ 5845[i]), subject to, in the case of over .50 caliber

rifles, the parts being designed or intended and readily

capable of being assembled as such.

A Contender pistol and carbine kit fit neither of the

two definitions of “rifle” having a barrel less than 16”.

*26 U.S.C. § 5845(b) provides: “The term ‘machinegun’ means

- any combination of parts from which a machinegun can be

assembled if such parts are in the possession or under the control

of a person.” §5845(f) defines “destructive device” to include a

non-sporting rifle with a bore over .50 inches (or caliber), and a

combination of parts designed or intended to assemble such a rifle,

if the parts can be “readily converted” into such a rifle.

10

Mere parts never assembled as such neither constitute

a “weapon” that “shoots,” nor are they “restorable” to

something they have never been."®

In sum, the 1968 Act introduced several new precise

and carefully distinguishable terms. The term “rifle” is

restricted to a “weapon” which is “made or remade,”

terms which include “putting together,” and also includes

an item which can be “readily restored” to be a rifle,

which assumes that the item is being returned to a pre-

vious condition. By contrast, “machinegun” was amended

to include, inter alia, “a combination of parts from which

a machinegun can be assembled.” Obviously, Congress

did not intend the latter definition to apply to “rifle.”

B. When Congress Intended to Define a Type of Rifle

as Including a Combination of Parts, It Did So, and

Then Only If Intent is Present

In the Gun Control Act of 1968, Congress wrote or

rewrote definitions for two kinds of rifles: short barrel

rifles, and rifles with bores of more than one-half inch in

diameter (“destructive devices”). Congress sharply con-

trasted the definitions of these two kinds of rifles.

Congress broadly defined a “destructive device” in

§ 5845(f) in part as follows:

. (2) any type of weapon by whatever name

known which will, or which may be readily con-

verted to, expel a projectile by the action of an ex-

plosive or other propellant, the barrel or barrels of

which have a bore of more than one-half inch in di-

ameter, except a shotgun . . .; and (3) any combina-

1° “The ‘readily restorable’ definition defines weapons which previ-

ously could shoot... but will not in their present condition.” ATF

Ruling 83-5, ATFB 1983-3, 35. “The term which Congress saw fit

to use in the statute, ‘restorable’, is defined by Webster ‘to bring

back to a former or normal condition, as by repairing... .’” United

States v. Seven Miscellaneous Firearms, 503 F. Supp. 565, 574

(D.D.C. 1980).

11

tion of parts either designed or intended for use in

converting any device into a destructive device as

defined in subparagraphs (1) and (2) and from

which a destructive device may be readily assembled.

The term “destructive device” shall not include any

. . . rifle which the owner intends to use solely for

sporting purposes. (Emphasis added. )

The above was intended to include large bore military

rifles without sporting uses, and combinations of parts

intended to be assembled as such, The NFA definitions

of both “rifle’ and “destructive device” include fully

made (assembled) weapons. However, while a “rifle”

(including a short-barrel rifle) includes “any such

weapon which may be readily restored to fire a fixed

cartridge,” a rifle with a bore of more than one-half inch

in diameter is a destructive device if it “may be readily

converted to expel a projectile’. The broader “readily

converted” language does not require that a device have

previously been a destructive device. As a practical mat-

ter, the “readily-convertible” definition could not apply to

“rifle,” since every rifle is readily convertible to a short-

barrel rifle by use of a hacksaw.

Neither definition includes a mere combination of parts

from which a short-barrel rifle or rifle with bore over one

half inch can be assembled. Only the latter includes “any

combination of parts either designed or intended for use

in converting any device into a destructive device .. . and

from which a destructive device may be readily as-

sembled.” § 5845(f) (3).

This demonstrates that Congress rejected a strict “com-

bination of parts” definition for NFA firearms in general,

requiring in the case of destructive devices the elements

both of design or intent," and capability of being readily

"! While “intended” normally refers to the intent of the person in

possession, “design” refers to the intent of the manufacturer and

the predominant use of a product. A product merely capable of

12

assembled. Congress did not adopt an absolute liability

standard for rifles to encompass a combination of parts

which are expressly not intended to be assembled with

a barrel less than 16” in length.

C. The Firearms Owner’s Protection Act of 1986 and

the Crime Control Act of 1990

In the 1986 amendments enacted as the Firearms Own-

ers’ Protection Act, Congress revisited and had ample

opportunity to expand the definition of particular fire-

arms by addition of “combination of parts” language such

as already existed for machineguns and destructive de-

vices. It did enact similar language in reference to two

types of firearms, but did not do so in reference to the

term “rifle.”

The term “silencer” was not defined before 1986. The

Firearms Owners’ Protection Act added the following:

“The terms ‘firearm silencer’ and ‘firearm muffler’ mean

any device for silencing, muffling, or diminishing the re-

port of a portable firearm, including any combination of

parts, designed or redesigned, and intended for use in

assembling or fabricating a firearm silencer or firearm

muffler, and any part intended only for use in such as-

sembly or fabrication.” 26 U.S.C. § 5845(a) ( 7), incor-

porating 18 U.S.C. § 921(a) (24) (emphasis added).'

This precludes any interpretation that a mere combina-

tion of parts, without intent, is a silencer.

illegal use is not “designed” for the illegal use. Thus, “items which

are principally used for nondrug purposes, such as ordinary pipes,

are not ‘designed for use’ with illegal drugs.” Hoffman Estates vy.

Flipside, 455 U.S. 489, 501 (1982).

'2 Moreover, in connection with a new provision in 18 U.S.C.

§ 921(a)(17)(B) concerning certain ammunition, the following defi-

nition was enacted: “ ‘handgun means any firearm including a pistol

or revolver designed to be fired by the use of a Single hand. The

term also includes any combination of parts from which a handgun

can be assembled.” P.L. 99-408, Section 10, 100 Stat. 920 (Aug. 28,

1986) (emphasis added).

13

In the Crime Control Act of 1990, Congress amended

the Gun Control Act to provide: “It shall be unlawful

for any person to assemble from imported parts any semi-

automatic rifle or any shotgun which is identical to any

rifle or shotgun prohibited from importation under

$ 925(d) (3) of this chapter as not being particularly

suitable for or readily adaptable to sporting purposes.

.-” 18 U.S.C. § 922(r). In other words, a “rifle’ does

not exist until it is “assemble[d]” from “parts” (in this

case, “imported parts’’).

By such enactments, Congress has again clearly ex-

pressed its intent that a combination-of-parts definition

does not apply to rifles, and that even where it applies

to certain NFA firearms, an intent requirement may

exist." BATF concedes that a combination-of-parts

theory does not apply to possession of a complete pistol

and a complete carbine, but illogically argues such theory

if only one receiver is present. Nothing in the NFA

justifies this expansion of the statute.

D. The Government Would Expand The Definition to

Include A Product Capable Of Being Made Into A

Taxable Rifle

Any conventional rifle can be made into an NFA fire-

arm in a few seconds by sawing off the barrel. The gov-

ernment argues that mere capability of being made into

an NFA firearm causes the Contender pistol and carbine

kit to be an NFA firearm.

The government assumes that there is nothing to pre-

vent a consumer from attaching the shoulder stock to the

pistol. Imprisonment of ten years and a $10,000 fine

seems adequate incentive to encourage consumers to ob-

'* The definitions of “destructive device” and “firearm silencer”

both require that the combinations of parts be designed and/or in-

tended to be assembled as such. Only “machinegun” does not include

the intent requirement. “Rifle” has no combination of parts defini-

tion, with or without intent.

14

tain the Secretary’s permission and pay a $200 tax before

making a short barrel rifle. 26 U.S.C. §§ 5821, 5822,

5871. The government could also argue that there is

nothing to prevent a dealer from selling Contender pis-

tols and not paying income tax on the profits. Yet

Thompson/Center is no more responsible for someone

else’s failure to pay a tax than it would be responsible

for a murder committed with a Contender pistol and

carbine kit.

BATF acknowledges that a complete pistol and com-

plete carbine are not within the scope of the NFA unless

the components are actually assembled as a short barrel

rifle. (App. 3a) A complete pistol and a complete rifle

are just as capable of assembly into a short barrel rifle

as is a pistol and carbine kit, but do not constitute an

NFA firearm unless “actually assembled” as such. The

Petition’s failure to mention this is revealing.

At oral argument, counsel showed the Claims Court

actual samples of a complete pistol and a complete car-

bine—each with its own separate receiver—and illustrated

with various tools how the barrels, shoulder stock, and

grip are removed and assembled. (Appeals Appendix

107-109.) The government uses this demonstration to

argue that a pistol and carbine kit may be used to

“create” an NFA firearm. Petition 3 n.2. In fact, it

showed that a complete pistol and a complete carbine—

which is concededly not an NFA firearm—can be used

to make such a firearm.

This demonstrates the absurdity of the agency’s “one

receiver” theory. If the pistol and carbine kit use the

same receiver, a short-barrel rifle allegedly exists, even

though one is never created. If two receivers are present

—one for the pistol and one for the carbine—a_ short-

barrel rifle admittedly does not exist. Nothing in the

statute sanctions this contradictory result.

15

The NFA defines some firearms as combinations of

parts (machineguns), others as combinations of parts

with intent (destructive devices, silencers), and _ stil]

others without any such definition (rifles). The govern-

ment ignores these differences and claims that rifles are

implicitly defined the same as machineguns.

“Rifle” means a “weapon” that has been ‘made”’

($ 5845(c)), not parts from which a weapon “can be

made.” Any rifle “can be made” into an NFA firearm by

sawing off the barrel.'* The government does not attempt

to explain why other NFA firearms have combinatiun-of-

parts definitions but “rifle” does not.

Similarly, the government’s discussion of the term

“make” in § 5845(i) ignores why Congress saw fit to

include “putting together” as a definition. There must

be at least something that must be “put together” before

it is an NFA firearm, or this definition would not exist.

It must be an NFA firearm—such as “rifle’—that is not

defined as a combination of parts. The government’s

focus on the definition of “make” as “or otherwise pro-

ducing a firearm” begs the question, for it does not ad-

dress when a firearm is made or produced,

The government assumes that lack of intent to make

a Contender pistol and carbine kit into a short barrel

rifle is irrelevant. However, all the evidence in the record

is that no owner would have any intent to make such a

rifle. The very definition of rifle includes the terms “in-

tended to be fired from the shoulder.” § 5845(c). It

was never suggested in this case that Thompson /Center

or anyone else did or would possess a pistol and carbine

kit with the intent to make a weapon with a short barrel

to be fired from the shoulder.

The government seems to assume that if a tax crime can be

“quickly and easily” committed, then it already has been committed.

Yet one has not murdered someone just because one could “quickly

and easily” do so, and one has not violated the Internal Revenue

Code just because one could “quickly and easily” do so.

16

When Congress intended that combinations of parts

possessed with a certain “intent” were NFA firearms,

it said so. §§ 5845/f) (3); 5845(a) (7) (incorporating

18 U.S.C. § 921(a)(24)). No such definition exists for

“rifle.”

In ordinary English, to be “restored” means to return

to a previous condition. Congress recognized this in en-

acting both “readily restored” and “combination of parts”

definitions of “machinegun.” “The ‘readily restorable’

definition defines weapons which previously could shoot

... but will not in their present condition.” ATF Ruling

83-5, ATFB 1983-3, 35.

The government argues that Congress would not have

adopted a readily-restorable test without also adopting a

readily-convertible (or readily-makable) test. Petition

9. Congress did not do so, because every rifle is readily

convertible in seconds by sawing to be a short-barre!

rifle. It adopted no readily-makable test because pistol

and rifle parts may be interch&ngeable; indeed, the gov-

ernment agrees that a complete pistol and complete car-

bine, while interchangeable, are not a short-barrel rifle.

Perhaps Congress adopted a readily restorable test be-

cause the item had been a functional NFA firearm, was

presumably possessed with intent to restore to such a

weapon, and could be so restored in seconds ( e.g., using a

nail for a firing pin, such as in United States v. Cosey,

244 F. Supp. 100, 102 (E.D. La. 1965).

For whatever reasons, Congress chose the word “re-

store.” The Contender pistol and carbine kit “can be

assembled”—the government is careful not to say “re-

stored”—into a short-barrel rifle in less than five min-

utes. Petition 9 n.7.

The government suggests that the Court’s opinion would

have a detrimental impact on enforcement of the firearms

laws. No basis exists for this assertion. The only prac-

17

tical impact of the decision is that consumers need not

purchase a complete pistol and a complete rifle—each

with an identical receiver—but may purchase a pistol

and rifle parts with only one receiver for use with each.

The government argues that some products, such as a

bicycle, are shipped unassembled." Petition 8. To use

the same analogy, no one would say that bicycle handle

bars are clubs, or that chains are weapons, just because

they could be so used. Further, a bicycle is intended to

be assembled into one and only one product, and is not

defined in technical, legal terms in a taxing statute with

criminal penalties. A better analogy would be a bottle,

gas, and a rag, which constitute a Molotov-cocktai]—an

NFA firearm—only if assembled or intended to be as-

sembled as such.’*

The government misreads Haynes v. United States,

890 U.S. 85, 88 (1968), which states only that “the acts

of making and transferring firearms are broadly de-

fined.” Petition 7. This only says that any making or

transferring of a firearm are encompassed within the

statute, not that the firearms themselves are broadly

defined. See United States vy. Biswell, 406 U.S. 311, 313

n.2 (1972) (“the sawed-off rifles... fell under 26 U.S.C.

$ 5845’s technical definition of ‘firearms’”) In fact, the

NFA definition of “firearm” encompasses such guns as

are generally known to be highly regulated, not such in-

nocuous sporting guns as a Contender pistol and carbine

The government also states that rifles may be sold with bolts

detached, and that shotguns have removable barrels. Petition 8 n.5.

There is nothing in the record concerning this point. It could be

that the bolts may be inserted in five seconds.

‘© As stated in United States vy. Posnjak, 457 F.2d 1110, 1119

(2nd Cir. 1972): “When, however, the components are capabie of

conversion into both such a device and another object not covered

by the statute, intention to convert the components into the ‘destruc-

tive device’ may be important.”

18

kit." The National Firearms Act “may well be premised

on the theory that one would hardly be surprised to

learn that possession of hand grenades is not an innocent

act. They are highly dangerous offensive weapons. . . .”

United States v. Freed, 401 U.S. 601, 609 (1971). As

noted by Justice Brennan, concurring: “the firearms cov-

ered by the Act are major weapons such as machine guns

and sawed-off shotguns. . . . Without exception, the

likelihood of governmental regulation of the distribution

of such weapons is so great that anyone must be pre-

sumed to be aware of it.” Jd. at 616.

The government position in this case does not pass the

above “smell test” set forth in Freed. No one would ever

guess, much less presume, that a Contender pistol and

carbine kit are supposedly a “major weapon” and an

NFA firearm. Defendant argues that the NFA is gen-

erally applicable to “gangster-type” weapons, but does

not contest that the Contender pistol and carbine kit is

not a criminal-type weapon. Defendant’s argument re-

duces to absurd, bureaucratic hair-splitting nowhere

suggested in the statute: an NFA firearm exists if only

one Contender receiver is used to make a pistol and

carbine, but does not exist if two identical Contender

receivers are used. Nothing in the statute even hints

at this arbitrary distinction invented by the agency.

17 As stated in United States v. Anderson, 885 F.2d 1248, 1250

(5th Cir. 1989) (en banc):

As used in the Act, the word “firearms” is a term of art that

includes primarily weapons thought to be of a military nature

and of no legitimate use for sport or self-defense. .. .

Instead, the term is defined in the Act so as to narrow its

meaning vastly in most respects. . . . Generally speaking, all

such categories of ordinary rifles, pistols and shotguns as

might be found in a gun shop are excluded from its meaning,

with only a few easily-concealable items such as sawed-off shot-

guns included, along with machine guns.

19

II. THE DEFINITIONS AT ISSUE MUST BE CON-

STRUED IN FAVOR OF THE TAXPAYER

Given the clear language of the statutory definitions,

the Contender pistol and carbine kit do not constitute

taxable “firearms” under § 5845(a). At the very least,

considerable doubt exists as to whether the items are

taxable.'* Thus, this case comes under the rule set forth

in Gould v. Gould, 245 U.S. 151, 153 (1917):

In the interpretation of statutes levying taxes it

is the established rule not to extend their provisions

by implication, beyond the clear import of the lan-

guage used, or to enlarge their operations so as to

embrace matters not specifically pointed out. In

ease of doubt they are construed most strongly

against the government, and in favor of the citizen.

The definitions in the National Firearms Act are sub-

ject to the above rule of construction. “On its face it

[the NFA] is only a taxing measure... .” Sonzinsky

v. United States, 300 U.S. 506, 513 (1937). “In the

exercise of its constitutional power to lay taxes, Congress

may select the subjects of taxation, choosing some and

omitting others.” Jd. at 512.

In addition, since it provides serious criminal penalties

for violation, the National Firearms Act must be inter-

18 The government claims that the items here are “clearly” regu-

lated weapons. Petition 5. In the court below it conceded: “When

the facts of this case are compared to the language of § 5845, the

statutory terms alone do not clearly indicate whether the Contender

pistol and conversion kit together constitute a firearm.” Appellee

Brief 12.

19 Haynes V. United States, 390 U.S. 85, 88 (1968) described the

National Firearms Act as “an interrelated statutory system for

the taxation of certain classes of firearms.” “The making and

transfer taxes under the NFA are a form of excise tax.” Thompson/

Center Arms Co. Vv. Baker, 686 F. Supp. 38, 42 (D.N.H. 1988)

(holding that the Contender carbine kit must be litigated as a tax

refund claim).

20

preted in favor of lenity. “We are here concerned with

a taxing act which imposes a penalty. The law is settled

that ‘penal statutes are to be construed strictly,’ . . . and

that one ‘is not to be subjected to a penalty unless the

words of the statute plainly impose it’... .” 7° Commis-

sioner V. Acker, 361 U.S. 87, 91 (1959).

The presence in NFA of three vastly different ‘“com-

bination of parts” definitions, and the absence thereof

in the definition of “rifle,” indicates that no such defi-

nitions apply to “rifle.” Commissioner v. Engle, 464 U.S.

206, 223 (1984) states: “We must dismiss the Commis-

sioner’s reconstruction of the legislative intent as mere

wishful thinking .... We have noted that ‘[t]he true

meaning of a single section of a statute in a setting as

complex as that of the revenue acts, however precise its

language, cannot be ascertained if it be considered apart

- from related sections. .. .’”

Russello v. United States, 464 U.S. 16, 23 (1983) dis-

tinguishes a section of a criminal statute which “speaks

broadly” of certain acts, from other sections with “less

expansive language,” and states:

“!W]here Congress includes particular language in

one section of a statute but omits it in another sec-

tion of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the dis-

parate inclusion or exclusion.” ... We refrain

from concluding here that the differing language in

the two subsections has the same meaning in each.

20“ ‘Ambiguity concerning the ambit of criminal statutes should

be resolved in favor of lenity.’. .. ‘When choice has to be made

between two readings of what conduct Congress has made a crime,

it is appropriate before we choose the harsher alternative, to require

that Congress should have spoken in language that is clear and

definite.” United States v. Bass, 404 U.S. 336, 347-48 (1971)

(construing Gun Control Act terms in favor of felon in possession

of firearms),

21

“Rifle” having no definition like “combination of parts

when possessed with only one receiver,” such definition

may not be imposed by bureaucratic or judicial fiat. As

stated in Hanover Bank v. Commissioner, 369 U.S. 672,

687-88 (1962) :

We are not at liberty . . . to add to or alter the

words employed to effect a purpose which does not

appear on the face of the statute... . Nevertheless,

the Government now urges this Court to do what

the legislative branch of the Government failed to

do or elected not to do. This of course, is not within

our province.

The government argues that the kit would allow a

manufacturer to “avoid the tax.” Petition 8. Yet it is

perfectly legitimate to avoid taxation simply by not mak-

ing a taxable product. As Judge Learned Hand re-

marked, “Over and over courts have said that there is

nothing sinister in so arranging one’s affairs as to keep

taxes as low as possible.” Alinco Life Ins, Co. v. United

States, 178 Ct.Cl. 813, 373 F.2d 336, 345 (1967).

III. THE CIRCUITS ARE NOT IN CONFLICT

A. No Other Reported Cases Concern a Pistol and

Carbine Kit

This is a case of first impression. Other than the

Court of Appeals’ decision, no other Court has ever

addressed whether a pistol and carbine kit intended only

for making a rifle with a barrel over 21” nonetheless

constitutes a rifle with a barrel under 16”. The circuits

are not in conflict.

The government argues that a pre-1968 machinegun

case is somehow relevant, because it was decided before

Congress adopted “combination-of-parts” language. The

government does not cite United States v. Lauchli, 371

F.2d 303, 311 (7th Cir. 1966), which stated “that the

purchasers demanded operable machineguns, the defend-

22

ant assembled seven of them... .” The government does

rely on United States v. Kokin, 365 F.2d 595, 596 (3rd

Cir. 1966), but the conviction was affirmed “in the cir-

cumstances elaborated in the opinion of the district

court... .” Id. at 596. While unpublished, that opinion

was available to the court in Lanchli, which states: “As

in United v. Kokin, . . . this defendant even assisted

in the assembly of seven of the weapons.” 371 F.2d at

313.

Besides machineguns, the government discusses si-

lencers, which are equally irrelevant to the definition of

“rifle.” 2! Petition 8, 14. These silencer cases are further

inapplicable because Congress revisted the issue in 1986,

and determined which combination of parts would con-

stitute silencers—i.e., parts “designed or redesigned, and

intended for use in assembling or fabricating a firearm

silencer.”** This precludes combinations of parts which

could be, but are not “intended” to be, assembled as

silencers.

In United States v. Woods, 560 F.2d 660, 664-65 (5th

Cir. 1977), cert. denied 435 U.S. 906 (1978), for pur-

poses of finding probable cause for a search, the court

held that a short barrel found near the rest of a shot-

gun “was capable of being ‘readily restored to fire a

21 The government relies on United States v. Endicott, 803 F.2d

506 (9th Cir. 1986) and United States v. Luce, 726 F.2d 47 (1st Cir.

1984). Unlike the pistol and carbine kit, there was only one manner

in which to assemble these silencer parts, that manner was unlawful,

and the parts “could be joined together within a few seconds.” Luce,

726 F.2d at 49; Endicott, 803 F.2d at 509. These opinions approved

jury instructions, and did not state as a matter of law that all such

combinations of parts were silencers. See 803 F.2d at 508-509.

2218 U.S.C. Sec. 921(a)(24); 26 U.S.C. Sec. 5845(a)(7). By

requiring intent, the statutory amendment repudiates Endicott and

Luce, which required no intent. Thus, Congress rejected these deci-

sions on the very point for which the government relies on them—

a strict liability, no intent, combination-of-parts definition for every

NFA firearm.

23

fixed shotgun shell’... .”** Nothing in the case suggests

that the short barrel was possessed for some innocent,

nontaxable purpose.** The jury may well have heard

evidence that the barrel had previously been attached

to the rest of the weapon. By contrast, in the case at

bar, the short barrel is possessed only for use in pistol

configuration.

The government claims that United States v. Combs,

762 F.2d 1343, 1345 (9th Cir. 1985) is inapplicable (Pe-

tition 14 n.11), yet that case held a person to have

“made” a short barrel rifle under Section 5845(i) be-

cause he assembled it as such:

The Uzi rifle is sold in the United States with a 16-

inch barrel and has a warning imprinted on it that

it is illegal to modify the weapon in any way. In

addition, the instructional manual that comes with

the Uzi states that to take out the 16-inch barrel and

replace it with a shorter barrel creates an illegal

weapon. The evidence at trial indicated that the

barrel originally attached to the rifle was detached

and the shortened barrel installed in its place... .

Combs bought the shorter barrel and installed it.

Thus the Uzi was altered by Combs and therefore

was “made” within the terms of the statute. Id. at

1347. (Emphasis added).

*3 None of the cases cited by the government, except Drasen, infra,

involve a rifle. E.g., United States v. Smith, 477 F.2d 399 (8th Cir.

1973) (machinegun). In United States v. Catanzaro, 368 F. Supp.

450, 452 (D. Conn. 1973), which involved a readily restorable sawed-

off shotgun, the court denied a motion to dismiss an indictment, and

thus did not find that the item was an NFA firearm beyond a reason-

able doubt. In neither of those cases were there legitimate, non-NFA

uses for the items in question.

24 Whether used with a shoulder stock or on a pistol, a shotgun

(smooth bore) barrel under 18” makes an NFA firearm. 26 U.S.C.

§ 5845(a)(1), (5), (d), and (e). By contrast, the 10” Contender

pistol barrel has a legitimate non-NFA purpose. Accordingly, com-

parisons to shotgun barrels are irrelevant.

24

B. While Flawed, Drasen Does Not Apply to the Prod-

ucts at Issue

The primary case relied on by the government is United

States v. Drasen, 665 F. Supp. 598 (N.D. Ill. 1987),

rev'd 845 F.2d 731 (7th Cir. 1988), cert. denied 488 U.S.

909 (1988). However, the Contender pistol and carbine

kit is easily distinguishable from this opinion in which

two judges could not agree with two other judges on

whether rifle parts kits can be “rifles” for purposes of

a pretrial motion to dismiss the indictment.”

The district court rejected the government’s argu-

ment that the “readily restored” definition of “rifle”

includes parts from which a rifle had never been con-

structed, because “all persons of common intelligence

understand ‘restore’ to mean ‘return to a previous con-

dition.’ People are not required to divine the govern-

ment’s secret modification of that definition... .” 665

F. Supp. at 603. The “weapon” definition of rifle does

not apply because “the court has great difficulty seeing

how the never-assembled constituent parts of a rifle

are themselves a weapon ‘made’ to fire.” Jd. at 608.

In a 2-1 opinion, the Court of Appeals reversed and

remanded to allow the fact finder to decide the issue.

The court framed the issue to concern “constituent parts

of a rifle’ (845 F.2d at 732)—again distinguishing that

ease from the case at bar, in which indisputably the

long barrel is the part of a rifle, and the short barrel is

the part of a pistol.

The Drasen majority substitutes the euphemism “com-

mon sense interpretation” when it is unable to explain

the clearly different definitions of rifle and machinegun.

Id. at 731. Its reading into the statute of an implicit

“combination-of-parts” definition for all NFA firearms

is plainly inconsistent with the explicit “intent” require-

25 The government’s account of what Drasen “found” ignores that

the case was remanded for trial. Petition 12-13.

ae

25

ments in the definitions of destructive device and si-

lencer.** This explains why the Congressional sponsors

of new “combination of parts” language in the Firearms

Owners’ Protection Act of 1986 filed an amici curiae brief

against the government’s position in Drasen.”

The majority opinion in Drasen is based on an intel-

lectually nihilistic inability to explain why an NFA “rifle”

has no combination-of-parts definition, but three other

NFA firearms do have such definitions. It is at a total

loss to explain why rifle is defined as an operable

“weapon”—‘“intended to be fired from the shoulder” at

that—or as a “readily restorable” weapon, but that a

machinegun is a weapon, a readily restorable weapon,

or a combination of parts from which a complete weapon

can be assembled.”*

26 The court was flatly wrong in asserting (845 F.2d at 735) that

Congress did not amend the definition of silencer to include a com-

bination-of-parts-plus-intent definition for “silencer.” §§ 101, 109,

P.L. 99-308, 100 Stat. 451, 460 (May 19, 1986).

27 Amici included Senators Orrin E. Hatch and James A. McClure

and Congressman Larry E. Craig. 845 F.2d at 732 n.4. Congressman

Craig put forward as a floor amendment in the House the new defini-

tions of silencer and machinegun. Senators Hatch and McClure

explained the new definition of machinegun, which concerned con-

version parts only. 132 Conc. Rec. H1700 (Apr. 9, 1986); 132

Conc. Rec. 85362-5363 (May 6, 1986).

*8The majority’s insinuation that the “combination-of-parts”

definition means that “every single [machinegun] part could be

subject to regulation” is nonsense. 845 F.2d at 737; see Petition 9.

(It is unclear how this proves that rifle has some kind of implicit

combination-of-parts definition.) The definition is not “any machine-

gun or part thereof,” but is “any combination of parts from which

a machinegun can be assembled if such parts are in the possession

or under the control of a person.” § 5845(b). As noted by Senators

Hatch and Kennedy in debate on the 1986 amendments, most

machinegun parts are not even regulated. 132 Conc. Rec. S5362-63

(May 6, 1986).

The Drasen majority's argument was repudiated in United States

Vv. Bradley, 892 F.2d 634, 636 (7th Cir. 1990), because “a statutory

26

Since the Drasen majority cannot explain why “rifle”

has no combination-of-parts language but other firearms

do, it attacks this “nonsensical statutory distinction” en-

acted by Congress and adds that “defendants would have

us draw the conclusion that for some inexplicable reason

Congress intended to distinguish short-barrel rifles.” *

845 F.2d at 736-37. Congress can conjure up any “non-

sense” it wishes, and give or not give “explicable” reasons,

when it decides what to tax and what not to tax, and

the latter is not thereby a “loophole” for courts to

abrogate.

Since it seeks to impose a strict liability, combination-

of-parts definition for all NFA firearms, the Drasen ma-

jority carefully ignores the definition of destructive de-

vice. A combination of parts from which a destructive

device “could” be assembled—such as a bottle, firecracker,

and paint thinner—is not such a device unless intent to

do so exists. United States v. Tankersley, 492 F.2d 962,

966-67 (7th Cir. 1974). “While the components sep-

arately have social utility, in combination they form a

destructive device. . . .” Jd. The Contender pistol and

carbine kit is no more an “unassembled” short-barrel rifle

than gasoline, bottles, and rags in a household are “un-

assembled” Molotov cocktails and hence “destructive

devices,”

Drasen assumes that a manufacturer of a parts kit is

responsible for a consumer committing a tax offense, i.e.,

making a short barrel rifle without following the pro-

cedures in the NFA. Yet firearms manufacturers are

not responsible if a consumer commits a murder with a

}

machinegun” exists only “if one person has possession or control of

all of the parts.”

29 Yet as Judge Manion noted in dissent, “the definition of

‘machinegun’ shows that when Congress wanted to regulate com-

binations of parts, or ‘any’ parts, it knew how to do so with preci-

sion. Congress has not included such precise language in the defini-

tion of rifle.” Id. at 738.

27

firearm. Martin v. Harrington & Richardson, Inc., 743

F.2d 1200, 1205 (7th Cir. 1984) held that “criminal

misuse of a handgun is not a foreseeable consequence of

gun manufacturing.” If a handgun manufacturer is not

responsible for a murder, it is difficult to understand why

Thompson/Center is being held responsible because some

consumer “could” commit a tax offense.

The majority opinion in Drasen frankly admits that the

pertinent terms could easily be interpreted to exclude the

items in question from being NFA firearms.” The court

thereby completely disregards the cardinal principles that

tax statutes are to be construed in favor of taxpayers,

and that criminal statutes are to be resolved in favor

of lenity.

C. At the Government’s Urging, Drasen Was Based

on a Revenue Ruling Which Was Revoked in 1972

The Petition is conspicuously silent about a revenue

ruling on which the government relied in Drasen and in

the Claims Court in this litigation. This silence may be

attributable to the fact that only on appeal did Thompson /

Center discover that the agency had long ago declared

the ruling to be obsolete.

The Claims Court opined that “published revenue rul-

ings are given weight, as they represent the agency’s

official interpretation of the statute... . Rev. Rul. 54-

606, 1954-2, C.B. 33, held that possession of sufficient

parts to assemble a firearm constitutes possession of a

firearm.” Appendix 28a. The Court then (id. n.2) cited

3° The Court admits: “Applying the facts of this case, the statute

on its face is not clear. ... It is apparent that to clarify the statute,

little additional language would have been needed to accomplish what

the government claims Congress intended. The statute could have

defined a rifle as also including the parts thereof that could be

readily assembled to form a functioning weapon. ... This definition

{‘make’] suggests that, to produce a firearm, ‘putting together’ the

parts is necessary.” /d. at 733.

28

Drasen, 845 F.2d at 736, which is the only published

opinion ever to approve this 1954 Revenue Ruling.”

Instead of informing the court that Revenue Ruling

54-606 had been declared obsolete in 1972, the prosecu-

tion in Drasen claimed that the ruling “squarely decides

the issue before this court.” ** The Drasen majority re-

lied primarily on Revenue Ruling 54-606. In arguing

that the Supreme Court not grant Drasen’s petition for

certiorari, the Solicitor General relied principally on the

revenue ruling.”

While unknown to the Claims Court, to the Drasen

majority, and to this Court when it considered Drasen’s

petition, the Department of the Treasury officially re-

pudiated Rev. Ruling 54-606 in 1972. Because Congress

clarified in the Gun Control Act of 1968 which NFA fire-

arms would be defined as combinations of parts and

which would not, Revenue Ruling 72-178, 1972-1, C.B.

423-24 held:

31In the Claims Court, the government repeatedly assured the

court that Revenue Ruling 54-606 had never been modified or re-

voked. E.9., Memo. in Opp. to Plaintiff's Mot. for Sum. Jud. at 4.

82 Reply Brief for the United States, United States v. Drasen,

U.S. Court of Appeals for the Seventh Circuit, at 8.

33 See Memorandum for the United States in Opposition, Drasen

v. United States, U.S. Sup. Ct., No. 88-430, at 2 which describes

the dismissal of the indictment by the district court and states:

The court of appeals, in a split decision, reversed (Pet. App.

1-16). The court relied on a formal ruling of the Commissioner

of Internal Revenue interpreting the statute, after it was

adopted in 1954, to reach the possession of sufficient parts to

assemble an operative firearm. Rev. Rul. 54-606, 1954-2 C.B. 33.

The Solicitor General made several more references to the ruling

and never informed the Court that the ruling had been revoked in

1972.

%4 Rev. Ruling 54-606 was not mentioned in the entire legislative

record which culminated in the 1968 legislation. Without being

aware of the ruling, Congress repudiated it except with regard to

machineguns.

ee ee ee er

29

Numerous changes in the law . . . necessitated a

review of all outstanding revenue rulings issued

under Chapter[] .. . 53 of the Internal Revenue

Code of 1954 (the National Firearms Act]... .

It has been determined that the following list of

revenue rulings are inapplicable either in whole or

in part to the current law and regulations ... .

Therefore, these revenue rulings are found to be

no longer in effect, and are hereby declared to be

obsolete. Rev. Rul. No... . 54-606.

Nothing in the current regulations, 27 C.F.R. § 179.11,

reflects or relates to Revenue Ruling 54-606 in any way.”

The ruling was declared obsolete because it was “in-

applicable either in whole or in part to the current law

and regulations.” Rev. Rul. 72-178. The “current law”

was, of course, the 1968 amendments which clarified

which firearms under the National Firearms Act include

combinations of parts and which do not.

The court’s lack of knowledge of this revocation has

resulted in a grave miscarriage of justice. The Drasen

case involved a criminal prosecution in which the liberties

of citizens were at stake. It is unknown whether govern-

mental counsel in Drasen—the Solicitor General, the De-

partment of Justice attorneys, the U.S. attorney’s office

or BATF counsel—were aware that Revenue Ruling 54-

606 was revoked. It is inconceivable that the 2-1 appellate

decision in Drasen, or the Claims Court opinion in this

case, would have heavily relied on a ruling known to be

obsolete. The respective court’s knowledge of this obsolete

status may well have led to the opposite result.

85 27 C.F.R. § 179.11 includes definitions of terms. The definitions

of “rifle,” “machinegun,” and other firearms simply repeat verbatim

the definitions in 26 U.S.C. § 5845. BATF has not published a single

ruling which embodies the content of the revoked ruling, even though

“it is the policy of the Bureau to publish in the [ATF] Bulletin all

substantive rulings necessary to promote a uniform application of

all laws administered by the Bureau... .” 27 C.F.R. § 71.41(d).

30

In sum, Drasen—the government’s main “precedent’’—

is based on a revenue ruling which, unbeknown to the

court, had been declared obsolete. The government’s

amnesia about its promotion of this revoked ruling illus-

trates the unreasonableness of its position in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

STEPHEN P. HALBROOK *

10605 Judicial Drive

Suite B-3

Fairfax, VA 22030

(708) 385-8610

Attorney for Respondent

August 1991 * Counsel of Record