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

No. 91-164

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Iu the Supreme Court of the United States

OCTOBER TERM, 1991

UNITED STATES OF AMERICA, PETITIONER

THOMPSON /CENTER ARMS COMPANY, A DIVISION OF THE

K.W. THOMPSON TOOL COMPANY, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

Department of Justice

Wasi ington, D.C. 205230

(202) 514-2217

TABLE OF AUTHORITIES

Cases: Page

Chisom Vv. Roemer, 111 S. Ct. 2354 (1991) 6-7

Haynes V. United State 8, 390 U.S. 85 (1968) 6

United States v. Drasen:

665 F. Supp. 598 (N.D. Ill. 1987) - eee x

845 F.2d 731 (7th Cir.), cert. denied, 488 U. s.

SERBS: ele ee ees oe, @ 7, 8

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

SER Eire RSL a con Se Re

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

cert. denied, 385 U.S. 987 (1966) .......... 4,5

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

RE EE RE gO = «RO na a 4,6

United States v. Woods, 560 F.2d 660 (5th Cir.

1977), cert. denied, 435 U.S. 906 (1978) _........ 4,6

Statutes:

Gun Control Act of 1968, Pub. L. No. 90-618, 82

Stat. 1213:

S 301, 2 Stat. 1230 ................... ve reer 7

§ 201, S62 Stat. 1231 _...............0....0........... 4

National Firearms Act, 26 U.S.C. 5801 et seq.:

LE lf” eT 2

26 U.S.C. 5845 (a) (2) 000. oo . 2

26 U.S.C. 5845(a) (3) . iacpempeneenes 1,2

26 U.S.C. 5845(b) - 4,5

26 U.S.C. 5848... Pinata cceecsaenmeiitins 6

26 U.S.C. 5848 (1) (1964). siianmuens 7

26 U.S.C. 5848(a) ascusbuseceweteniniensasas 7

Miscellaneous:

H.R. Rep. No. 1577, 90th Cong., 2d Sess. (1968) .... 5

Rev. Rul. 54-606, 1954-2 C.B.33 4,7,8

Rev. Rul. 61-45, 1961-1 C.B. 663 3, 4,8

Rev. Rul. 61-203, 1961-2 C.B. 224 _. 8,4,8

Rev. Rul. 72-178, 1972-1 C.B. 423 a ~ T8

S. Rep. No. 1501, 90th Cong., 2d Sess. (1968) _ 6,7

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No, 91-164

UNITED STATES OF AMERICA, PETITIONER

v.

THOMPSON, CENTER ARMS COMPANY, A DIVISION OF THE

K.W. THOMPSON TOOL COMPANY, INC.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. Much of respondent’s factual discussion relates to

its claim that the Thompson pistol and conversion kit

will generaily be used to produce “good” guns instead

of “bad” guns. See Br. in Opp. 2, 4, 5, 6-7, 15. As we

explain in the petition (Pet. 14), however, the ques-

tion whether a particular weapon is used more often

for “criminal” than for “sporting” purposes is not rele-

vant under the National Firearms Act. A rifle is regu-

late’ under the Act if it has a short barrel. No more is

required for the statute to apply. 26 U.S.C. 5845(a) (3).

Moreover, while respondent asserts that the “sports-

men who would use this product are generally law abid-

ing” (Br. in Opp. 2) (emphasis added), respondent ulti-

mately acknowledges that the short-barrel rifle resulting

from use of ils conversion kit “would have no sporting

(1)

2

utility” (ibid.).' Undeterred by this admission, respon-

dent nonetheless suggests that its Contender system should

not be subject to regulation because “a short-barrel rifle

is less tikely to be used in a crime than any other type

of firearm” (Br. in Opp. 6-7). Respondent thus appar-

ently believes that Congress should not have bothered to

regulate short-barrel rifles. It is beyond question, how-

ever, that Congress chose to do so. See 26 U.S.C.

5845(a) (3).

Short-barrel rifles and shotguns are regulated because

of their obvious potential for concealment. See 26 U.S.C.

5845(a)(2) and (3). Congress did not attempt to draw

the ephemeral line that respondent proposes between

“sporting” and “criminal” weapons.* Instead, Congress

chose categorically to regulate certain types of weapons

that it deemed generally reprehensible. Short-barrel rifles

and shotguns are at the very top of the list of weapons

that Congress chose to regulate. See 26 U.S.C. 5845(a).

1 Respondent claims that the “ ‘design’ of the manufacturer and

the ‘intent’ of the user is to make a pistol with a 10” [inch] barrel

or a rifle with a 21” [inch] barrel” (Br. in Opp. 5). Respondent

cites no evidentiary support for this assertion, and there is none.

Moreover, it is clear that the Thompson parts are also “designed”

and “intended” by the manufacturer to be interchangeable in a way

that produces a short-barrel rifle. Indeed, interchangeability is at

the heart of the Contender’s commercial concept. In fact, a short-

barrel rifle can be assembled from the Contender conversion kit

even more quickly and easily than a long-barrel rifle. See Pet. 3

& n.2.

2 Respondent suggests that its Contender system is not as power-

ful as an Uzi and implies that it should therefore be judged by a

different standard (Br. in Opp. 6). Respondent acknowledges (id.

at 6-7 n.4), however, that Uzi makes a carbine as well as a machine-

gun. If Uzi were to manufacture a “conversion kit” to alter its

carbine to a short-barrel rifle, it would be subject to the same regu-

latory framework as a “conversion kit” made by Thompson or any

other manufacturer. Regulation under the National Firearms Act

does not distinguish among rifles based upon their caliber or maga-

zine size. The same standards apply to all rifles: they are regulated

if they have short barrels. 26 U.S.C, 5845(a) (3).

3

Thompson’s disagreement with this legislative determina-

tion is not a valid basis for evasion of the statute’s

plain commands.

Although respondent attempts to portray its pistol and

conversion kit in glowing terms as a sportsman’s gun

(Br. in Opp. 3), neither the statute nor the case law

supports any distinction between “good” and “bad” short-

barrel rifles. It would have been simple enough for Thomp-

son to design its pistol and rifle parts in a way that would

prevent their interchangeability. Thompson’s commercial

interest in promoting the interchangeable features of its

weapon system, however, is unquestionably not a proper

basis for ignoring the statute. Nor is it a basis for

ignoring the Treasury rulings that have long provided

that a pistol possessed with an “attachable” shoulder

stock is regulated as a short-barrel rifle under the Na-

tional Firearms Act. Rev. Rul. 61-45, 1961-1 C.B. 663;

Rev. Rul. 61-203, 1961-2 C.B. 224.

2. Respondent mistakenly asserts (Br. in Opp. 3, 13-

18) that the Bureau of Alcohol, Tobacco and Firearms

(BATF) has been inconsistent in its application of the

statute to the Contender system. Respondent claims to

be puzzled by the fact that BATF has approved the

separate marketing of a complete Contender pistol or a

complete Contender rifle but has determined that the joint

marketing of the pisto] with the conversion kit is subject

to regulation. See Br. in Opp. 3-4.

There is no puzzle in these rulings. The BATF analy-

sis has not been inconsistent. A Contender pistol, when

sold by itself without a rifle stock, is not a short-barrel

rifle. A Contender rifle, when sold by itself without a

short barrel, is not a short-barrel] rifle. But a Contender

pistol, when sold or held with a conversion kit that per-

mits the pistol to be assembled as a short-barrel rifle

in less than five minutes (see Pet. 3 n.3), is subject to

regulation because it contains all the components of a

short-barrel rifle in user-ready form. See United States

V. Drasen, 845 F.2d 731, 736-737 (7th Cir.), cert. denied,

488 U.S. 909 (1988). See also United States v. Endicott,

d

803 F.2d 506, 508 (9th Cir. 1986) ; United States v. Luce,

726 F.2d 47, 48-49 (1st Cir. 1984); United States v.

Woods, 560 F.2d 660, 665 (5th Cir. 1977), cert. denied,

435 U.S. 906 (1978). The agency’s rulings have consist-

ently drawn and applied this very distinction for more

than 30 years. See Rev. Rul. 61-45, supra; Rev. Rul.

61-203, supra.

3. Respondent claims (Br. in Opp. 8-10) that, when

Congress amended the National Firearms Act in 1968, it

rejected the prior decisions and rulings that established

that a complete parts kit from which a regulated weapon

may be assembled is itself regulated under the Act (see

United States v. Kokin, 365 F.2d 595, 596 (3d Cir.),

cert. denied, 385 U.S. 987 (1966); Rev. Rul. 54-606,

1954-2 C.B. 33). Respondent draws this conclusion from

the fact that in the Gun Control Act of 1968, Pub. L. No.

90-618, § 201, 82 Stat. 1231, the definition of “‘machine-

gun” in Section 5845(b) of the National Firearms Act

was amended to “include” (i) the “frame or receiver of

any such weapon,” (ii) any “combination of parts” de-

signed for “converting a weapon into a machinegun,”

and (iii) any “combination of parts from which a ma-

chinegun can be assembled” (26 U.S.C. 5845(b)). Re-

spondent claims (Br. in Opp. 8-13) that, by specifically

“includ[ing|”” a “combination of parts” from which a

machinegun can be assembled within the statutory defini-

tion of “machinegun” in 1968, Congress necessarily in-

tended to exclude a “combination of parts” from which

a short-barrel rifle can be assembled from the statutory

definition of regulated “rifles” under the Act.

This argument is based on a serious misreading of

history. The Gun Control Act of 1968 was enacted soon

after the assassinations of Martin Luther King, Jr. and

Robert F. Kennedy. The Act represented a strong and

swift political reaction to those events. The objective of

the 1968 legislation was quite clearly to broaden, rather

than narrow, the provisions of the National Firearms Act.

The legislative findings in support of the Gun Control

Act of 1968 recited:

5

Handguns, rifles and shotguns have been the chosen

means to execute three-quarters of a million people

in the United States since 1900. The use of fire-

arms in violent crimes continues to increase today.

* * * No civilized society can ignore the malignancy

which this senseless slaughter reflects.

H.R. Rep. No. 1577, 90th Cong., 2d Sess. 7 (1968). Con-

gress noted its specific concern over the role played by

rifles and shotguns in this “senseless slaughter” (id. at 8) :

Of the 6,500 firearms murders in the United States

each year, 30 percent, or over 2,000, are committed

with rifles or shotguns. * * * President Kennedy,

Martin Luther King, Jr., Medgar Evers, and the 16

dead and 31 wounded victims of a deranged man

firing from the tower of the University of Texas

were all shot by rifles or shotguns.

It was against this background that Congress enacted

the Gun Control Act of 1968 to “aid in curbing the prob-

lem of gun abuse that exists in the United States.” S.

Rep. No. 1501, 90th Cong., 2d Sess. 23 (1968). Congress

succinctly described the revisions it enacted to the Na-

tional Firearms Act in 1968 as “strengthening and clari-

fying amendments.” /d. at 26.

One of the “strengthening and clarifying amendments”

enacted in 1968 was the expansive definition of “machine-

gun” added in Section 5845(b) of the Act. This amend-

ment codified the rationale of the decision in United

States v. Kokin, 365 F.2d at 596, which held that a com-

plete parts kit that could be used to make a machinegun

was subject to regulation under the National Firearms

Act (ibid.). The amendment also went much further,

however, and specified that a single part such as a “re-

ceiver” or “frame” of a machinegun, or any parts de-

signed for converting a weapon into a machinegun, is

subject to regulation under the Act. See 26 U.S.C. 5845

(bi; S. Rep. No. 1501, supra, at 45-46,

It distorts history as well as logic for respondent to

suggest (Br. in Opp. 8-10) that by enlarging the scope

‘

of regulation for machineguns in 1968 to “include” cer-

tain individual gun parts as well as conversion kits and

complete parts kits used to make a “machinegun,” Con-

gress meant to narrow the definition of other sections of

the Act to exclude from regulation an unassembled but

complete parts kit that can be used to make a short-

barrel “rifle.” As all of the courts of appeals that had

considered this question concluded prior to the decision

in this case, the 1968 amendments to the National Fire-

arms Act did not intend to alter the “common sense” re-

sult that a complete parts kit that can be assembled in

the form of a regulated weapon is subject to the Act. See

United States v. Drasen, 845 F.2d at 737; United States

v. Luce, 726 F.2d at 49 (“Congress clearly intended this

common sense interpretation.”); United States v. Woods,

560 I'.2d at 665 (the statute “does not specify that the

parts must be assembled before it applies’). See also

Pet. App. 3la. As the court of appeals stated in United

States v. Woods, “to reason otherwise would be to frus-

trate or defeat the very purpose of the statute.” 560

F.2d at 665.

This conclusion is quite obviously supported by history

as well as by common sense. No one who lived through

the events of that year could seriously contend that the

Gun Control Act of 1968 was enacted “to frustrate or

defeat” the regulation of short-barrel rifles and shotguns

or in any other manner to narrow the preexisting, judi-

cial or administrative construction of the National Fire-

arms Act.* Cf. Chisom v. Roemer, 111 S. Ct. 2354, 2368

* Indeed, one of the specific objectives of the 1968 amendments to

the National Firearms Act was to alter the result in Haynes v.

United States, 390 U.S. 85 (1968), which held that, under the Act

as it then existed, the privilege against compelled self-incrimination

would provide “a full defense to prosecutions either for failure to

register a firearm * * * or for possession of an unreyvistered firearm”

(id. at 100). Congress amended Section 5848 of the National Fire-

arms Act to avoid this result by prohibiting the use of registra-

tion information against the person filing it “as evidence * * * in

a criminal proceeding with respect to a violation of law occurring

—

7

(1991) (“It is difficult to believe that Congress, in an

express effort to broaden the protection afforded by the

Voting Rights Act, withdrew, without comment, an im-

portant category of elections from that protection.”’).

4. The Treasury has also consistently ruled that a

complete parts kit for use in assembling a regulated

weapon is subject to the Act. This “common sense” con-

clusion was expressed in Rev. Rul. 54-606, 1954-2 C.B.

33, which stated:

Where an individual, partnership, company, asso-

ciation, or corporation has possession or control of

sufficient parts to assemble an operative firearm as

defined in section 5848(1) of the Internal Revenue

Code of 1954, the possession or control thereof con-

stitutes a “firearm.” *

In 1972, this Ruling—along with more than 100 other

rulings issued under the Internal Revenue Code chapters

dealing with alcohol, tobacco and firearms regulation—

was “declared to be obsolete.” Rev. Rul. 72-178, 1972-1

C.B. 423.° By declaring Rev. Rul. 54-606 to be “obsolete,”

prior to or concurrently with the filing” of that information, 26

U.S.C. 5848(a). See S. Rep. No. 1501, supra, at 26.

‘The Gun Control Act of 1968, Pub. L. No. 90-618, § 201, 82

Stat. 1230, relocated the definition of “firearm” from Section

5848(1), 26 U.S.C. (1964), to Section 5845(a) of the Internal Reve-

nue Code. See S. Rep. No. 1501, supra, at 44.

5In United States v. Drasen, 845 F.2d at 736, the court of ap-

peals concluded that, in enacting the Gun Control Act of 1968, Con-

gress intended to incorporate this ruling as part of the “administra-

tive construction of existing law.” Jbid. See S. Rep. No. 1501,

supra, at 46. The Drasen court concluded, moreover, that the “rul-

ing did not amend the statute, but was in keeping with the com:

mon sense interpretation of the statute.” 845 F.2d at 735.

It appears that none of the parties in Drasen were aware that

Rev. Rul. 54-606, supra, had been declared obsolete in 1972. Indeed,

respondent’s counsel, who now tries to make much of this fact (Br.

in Opp. 27-29), himself filed an amicus brief in Drasen without

noting that the Ruling had been declared obsolete. See Gov't. Opp.

to Mot. for Attorneys Fees in Ct. App. 8.

8

however, the Treasury did not revoke or repudiate the po-

sition set forth in the Ruling. To the contrary, as the

agency noted, a ruling may become obsolete solely because

“the subject matter of the ruling is now specifically cov-

ered by regulations.” 1972-1 C.B. 423. With respect to

Rev. Rul. 54-606, the statutory inclusion of parts kits for

“machineguns” in the 1968 amendments to the National

Firearms Act had been paralleled by even earlier regula-

tory rulings that had concluded that pistols with short

barrels and “attachable” rifle stocks were subject to reg-

ulation as short-barrel rifles. See Rev. Rul. 61-45, 1961-1

C.B. 663; Rev. Rul. 61-203, 1961-2 C.B. 224. These rul-

ings specifically determined that pistol “conversion kits”

similar to the Contender system were regulated under the

Act. These rulings have been uniformly applied by

BATF and have remained in effect at all times since their

initial promulgation in 1961. Respondent thus errs in con-

tending (Br. in Opp. 28-29) that a complete kit for as-

sembling a regulated short-barrel rifle from an unregu-

lated pistol has not consistently been subject to regula-

tion under the agency’s rulings.

5. Respondent attempts to distinguish United States

v. Drasen on the theory that Drasen “does not apply to

the products at issue” (Br. in Opp. 24). Since Drasen,

like the present case, involved a complete parts kit for

the assembly of short-barrel rifles (845 F.2d at 732-736),

it is unclear what respondent means. Moreover, in

Drasen, as in the present case, the manufacturer’s parts

kit was one that “might or might not be assembled to

form a short-barrel rifle’ (845 F.2d at 732). See also

Pet. 13 n.9.°

® The district court in Drasen specifically noted that, under the

government’s theory of the statute, “a person who deals in |[long-

barrel rifle} parts [who] also happens to possess independently a

single short-barrel part” would be subject to regulation under the

National Firearms Act. 665 F. Supp. 598, 613 (N.D. Ill, 1987),

9

The only relevant difference between the two decisions

is that in Drasen the court of appeals agreed with the

numerous, prior decisions holding that a complete, but

partially unassembled, regulated weapon constitutes a

“firearm” under the Act. See Pet. 12-13. By contrast,

in the decision below, the court of appeals disagreed with

that conclusion and furthermore attempted to distinguish

these prior decisions on the legally irrelevant basis that

the Contender system is not a “gangster-type” weapon

(Pet. App. 15a).

The conflict thus created among the courts of appeals

by the decision in this case threatens to undermine basic

enforcement of the Act. See Pet. 15-16. While respondent

glibly forecasts that the decision below “will not cause

the sky to fall” (Br. in Opp. 7), respondent offers no ex-

planation of how, under the decision in this case, the

National Firearms Act may be enforced against the

street criminal or importer who maintains a regulated

short-barrel rifle in a partially unassembled state. While

other courts of appeals, as well as the Claims Court in

this case (Pet. App. 28a-3la), have concluded that Con-

gress intended to prohibit this facile circumvention of

the Act, the decision in this case expressly allows that

result.

For the foregoing reasons and those stated in the

petition, the petition for writ of certiorari should be

granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

AuGusT 1991

WU. S. GOVERNMENT PRINTING OFFICE; 1991 28206! 45051