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

Supreme Cov

PILED

No. 91-164

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 WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE PETITIONER

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

202) 514-2217

TABLE OF AUTHORITIES

Cases: Page

Commissioner V. Portland Cement Co., 450 U.S.

a aspembiasot 6

Gould v. Gould, 245 U.S. 151 (1917) ....000000.. 6

Haynes Vv. United States, 390 U.S. 85 (1968) _...... 6

Helvering V. Winmill, 305 U.S. 79 (1938) —....0000..... 6

Morgan Vv. United States, 564 F.2d 803 (8th Cir.

RRB RYERE ER Ry cE EE Ap ey oa aR 5

Rowan Cos., Ine. V. United States, 452 U.S. 247

a celsiueneinebines 13

Sonzinsky Vv. United States, 300 U.S. 506 (1937) ..... 6

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

Teen a caamaiaiéeudione 7

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

RB IRE AEROS Ae eer ey a 5

United States v. Cartwright, 411 U.S. 546 (1973).. 6

United States vy. Correll, 389 U.S. 299 (1967) . . 6,14

United States v. Cowper, 503 F.2d 130 (6th Cir.

1974), cert. denied, 420 U.S. 930 (1975) —.......... 5

United States Vv. DeBartolo, 482 F.2d 312 (1st Cir.

a eiainnies 5

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

see EER SURE EES Ls RS ae ee 2

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

United States v. Gonzalez, 719 F.2d 1516 (11th

Cir. 1983), cert. denied, 465 U.S. 1037 (1984) .. 5

United States v. Herbert, 698 F.2d 981 (9th Cir.),

cert. denied, 464 U.S. 821 (1983) —...........-0..... 5

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

cert. denied, 385 U.S. 987 (1966) ......................... 2

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

BREESE TERS Rais C0 LSS a EMR 7a Sora 2

United States Vv. Luce, 726 F.2d 47 (ist Cir.

NISSEN 2

United States v. Mitileider, 835 F.2d 769 (10th Cir.

1987), cert. denied, 485 U.S. 980 (1988) —......... 5

United States v. Ranney, 524 F.2d 830 (7th Cir.

1975), cert. denied, 424 U.S. 922 (1976) -........... 5

(1)

II

Cases—Continued:

Page

United States Vv. Shilling, 826 F.2d 1365 (4th Cir.

1987), cert. denied, 484 U.S. 1043 (1988) .

l'nited States Vv. Thomas, 531 F.2d 419 (9th Cir),

cert. denied, 425 U.S. 996 (1976)

United States Vv. Williams, 872 F.2d 773 (6th Cir.

1989)

White V. .

Aronson, 302 USS. 16 (1937) - a

Statutes and regulation:

a or

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

II, § 201, 82 Stat. 1231

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 U.S.C.

26 C.F.R.

27 C.F.R.

Miscellaneous

4 BATF Quarterly Bulletin (1990)

5845 (a)

5845 (a) (1)

5845 (a) (4)

5845 (a) (5) ) aa

5845 (a) (7) ommcnaai

SBES(D) .....-...2.-.-:scc0..cunee

SUES (EC) ...........-...-5--+--ssseieeu

5845 (f) snneuitiadia aa

5845 (i)

5861

5871

6110(j) (3)

7805

179.29 (1955)

71.41 (d) (iii) (B)

37 Fed. Reg. 11,696 (1972)

H.R. Rep. No. 1337, 83d Cong., 2d Sess. (1954)

H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986)

Rev. Proc. 67-6, 1967-1 C.B. 576

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

Rev. Rul. 56-296, 1956-1 C.B. 553

tev. Rul. 59-340, 1959-2 C.B. 375

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

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

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

11

10, 14, 16

16

2

aa

7,10, 11

9, 10,11

neat 10, 11

In the Supreme Cort of the United States

OCTOBER TERM, 1991

No. 91-164

UNITED STATES OF AMERICA, PETITIONER

Uv.

THOMPSON /CENTER ARMS COMPANY,

A DIVISION OF THE K.W. THOMPSON

TooL COMPANY, INC.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE PETITIONER

1. Respondent argues (Resp. Br. 6-14) that our

interpretation of the term “rifle’ in the National

Firearms Act is incorrect, because NFA definitions

of ‘“machinegun,” “silencer,” and “destruction de-

vice” all include combinations of parts, see 26 U.S.C.

5845(b), 5845(a) (7), 5845(f), while the NFA defi-

nition of “rifle” does not expressly refer to the status

of a combination of parts comprising a complete, but

partially unassembled, rifle.

Our opening brief shows (at 12 nn.10-11, 19-26)

that, at least with respect to the statutory definitions

of “machinegun” and “silencer,” Congress added

“combination of parts” language only after judicial

(1)

2

decisions (as well as consistent administrative prac-

tice, see pp. 7-13, infra) had interpreted those pro-

visions to include combinations of parts, in effect

ratifying those decisions.‘ See United States v.

Lauchli, 371 F.2d 303, 311-313 (7th Cir. 1966) (ma-

chineguns); United States v. Kokin, 365 F.2d 595,

596 (3d Cir.), cert. denied, 385 U.S. 987 (1966)

(machineguns); United States v. Endicott, 803 F.2d

506, 508-509 (9th Cir. 1986); (silencers); United

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

(silencers). Thus, the consistent trend of the case

law, well-known to Congress, was to interpret an

NFA “firearm” to include not only a complete, fully

assembled weapon that came within the NFA’s cate-

gories, but also a complete, but partially unassembled,

weapon that came within the NFA’s categories. The

fact that Congress ratified that interpretation with

respect to “machineguns,” “silencers,” and “destruc-

tive devices’”—the first two of which had been the

subject of appellate decisions—hardly shows that it

intended that it should not be employed with respect

to the remaining NFA categories, such as “rifles.” *

1 To be sure, Congress also added an intent requirement to

its definitions of “‘silencer’” and “destructive device.” Yet, if

the purpose of the amendment was to narrow the pre-existing,

consistent judicial and administrative interpretation of the

statute with respect to silencers and destructive devices, Con-

gress’s failure similarly to redefine the term “rifle” suggests

simply that Congress did not intend similarly to narrow the

definition of rifle.

* Indeed, as our opening brief notes (at 23), Congress ex-

pressly referred to the already-existing “prohibition on selling

complete kits” when it defined “silencer” in 1986 to include

complete and incomplete silencer kits. H.R. Rep. No. 495,

99th Cong., 2d Sess. 21 (1986).

3

In addition, the NFA’s definition of “rifle” is in

one respect broader than its definitions of ‘“machine-

gun,” “silencer,” or “destructive device.” Under the

NFA, a “rifle” is “a weapon * * * made * * * and

intended to be fired from the shoulder.” 26 U.S.C.

5845(c).° The term “make” does not appear in the

NFA definitions of ‘‘machinegun,” “silencer,” or “de-

structive device.” Yet, the NFA defines “make,” as

well as its “‘various derivatives,” to include “putting

8 Quoting (Resp. Br. 8 n.8) the House committee report for

the 1954 revision of the Internal Revenue Code, which added

the definition of “rifle” to the NFA, respondent contends that

the definition was adopted “to narrow the scope of rifles being

interpreted as subject to the NFA.” Resp. Br. 8. The quota-

tion in respondent’s brief, however, contains an ellipsis in

place of language making clear that Congress intended to

address a more particular problem. The material omitted

from the ellipsis is:

For example, under a technical interpretation of the term

“firearm,” blunderbusses, muzzle-loading shotguns, and

other ancient or antique guns have been considered sub-

ject to the National Firearms Act and in many instances

the requirements thereof have been imposed. As a result

of these interpretations, over a period of years, restric-

tions have been imposed on a certain class of persons,

namely, antique gun collectors, and it is felt that these

restrictions should be removed in pursuance of the clearly

indicated congressional intent to cover under the Na-

tional Firearms Act only such modern and lethal weapons,

except pistols and revolvers, as could be used readily and

efficiently by criminals or gangsters.

H.R. Rep. No. 1337, 83d Cong., 2d Sess. A395 (1954). While

the report makes clear that Congress intended to narrow the

statute to exclude “blunderbusses, muzzle-loading shotguns,

and other ancient or antique guns” from the Act, nothing

in the report suggests that Congress intended any retreat

from its requirement that short-barrel rifles be taxed and

registered under the NFA.

4

together * * * or otherwise producing a firearm.” 26

U.S.C. 5845(i). Nothing in the statute requires that

the “putting together” constitute a complete assembly ;

if there were any doubt on that point, the “otherwise

producing” clause lays it to rest. Thus, the statu-

tory definition of “‘rifle’ was in no need of amend-

ment to make clear that a complete, but partially

unassembled, short-barrel rifle is an NFA firearm.

2. Respondent points out that the NFA provides

that a “rifle” must be “intended to be fired from the

shoulder,” 26 U.S.C. 5845(c), and asserts that no one

“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.” Resp. Br. 18. Respondent,

however, does not deny that its unit consisting of a

pistol plus conversion kit containing a shoulder stock

is designed for use as a “rifle” that is “intended to be

fired from the shoulder.” Nor can respondent deny

that the unit is designed and marketed in a manner

that enables the purchaser, at his option, readily to as-

semble it into a short-barrel rifle, to be fired from the

shoulder. The particular uses that particular pur-

chasers will make of the unit obviously is not a matter

within respondent’s control. Nothing in the NFA re-

quires that a short-barrel rifle is subject to tax and

registration only if its manufacturer intends that it

be assembled with a short barrel. See 26 U.S.C. 5845

(a) (4).* And, in any event, by producing and selling

*This case is not a criminal prosecution, and the intent

requirements and other elements of a criminal offense under

the NFA’s criminal enforcement provisions, see 26 U.S.C.

5861 and 5871, are accordingly not at issue. Generally, in

criminal prosecutions under the NFA, the government must

prove that the defendant knew that the weapon at issue was

a firearm in the general sense, although he need not know

5

a weapon designed to be assembled with equal ease as

a short-barrel rifle or as a long-barrel one, respondent

satisfies any intent requirement implied by the stat-

ute.

3. Respondent argues that Treasury’s interpreta-

tion of the NFA is entitled to no deference because

ambiguities in tax statutes should be construed

against the government (see Resp. Br. 21-22) and

because the NFA “provides serious criminal penalties

for violation, and does not even have a willfulness re-

quirement” (Resp. Br. 22-23).

As we explain in our opening brief (at 15 & n.15),

this Court has long held that Treasury regulations “if

that the weapon was specifically covered by the NFA’s tax

and registration requirements. See, e.g., United States v.

DeBartolo, 482 F.2d 312, 316 (1st Cir. 1973) ; United States

v. Freed, 401 U.S. 601, 607 (1971) ; United States v. Shilling,

826 F.2d 1365, 1368 (4th Cir. 1987), cert. denied, 484 U.S.

1043 (1988) ; United States v. Cowper, 503 F.2d 130, 132 (6th

Cir. 1974), cert. denied, 420 U.S. 930 (1975); United States

v. Ranney, 524 F.2d 830, 832 (7th Cir. 1975), cert. denied,

424 U.S. 922 (1976) ; Morgan Vv. United States, 564 F.2d 803,

805 (8th Cir. 1977); United States v. Thomas, 531 F.2d 419,

420 (9th Cir.), cert. denied, 425 U.S. 996 (1976); United

States v. Mittleider, 835 F.2d 769, 774 (10th Cir. 1987), cert.

denied, 485 U.S. 980 (1988) ; United States v. Gonzalez, 719

F.2d 1516, 1522 (11th Cir. 1983), cert. denied, 465 U.S. 1037

(1984). Some courts have held that, in some doubtful cases,

the government must prove as well that the defendant had fair

notice the weapon was of a type that was subject to the NFA’s

requirements. United States v. Anderson, 885 F.2d 1248, 1251

(5th Cir. 1989) (en banc); United States v. Williams, 872

F.2d 773, 777 (6th Cir. 1989); cf. United States v. Herbert,

698 F.2d 981, 986 (9th Cir.), cert. denied, 464 U.S. 821 (1983).

No court, however, has engrafted onto the statute the further

requirement that the defendant must specifically intend to

violate the NFA.

6

found to ‘implement the congressional mandate in

some reasonable manner,’ must be upheld.” United

States v. Cartwright, 411 U.S. 546, 550 (1973), quot-

ing United States v. Correll, 389 U.S. 299, 307

(1967). Accord Commissioner v. Portland Cement

Co., 450 U.S. 156, 169 (1981) (citing cases) ; Helver-

ing v. Winmill, 305 U.S. 79, 83 (1938). Neither case

cited by respondent (Resp. Br. 21-22) is to the con-

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

volved a pure question of statutory construction, un-

influenced by any administrative construction of the

statute. In White v. Aronson, 302 U.S. 16, 20 (1937),

the Court construed a tax statute in favor of the

taxpayer where the taxpayer’s position was favored

both by ordinary commercial use of the language

employed in the statute and by consistent admin-

istrative practice—apparently known to Congress at

the time it re-enacted the statute without material

change—until just prior to the rulings. 302 U.S. at

20. In fact, because the established administrative

construction of the statute in White favored the tax-

payer, the case weakens, rather than strengthens, re-

spondent’s contention that deference is not owed to

Treasury’s construction of tax statutes.

Nor is respondent correct in treating the NFA as

a criminal] statute (see Resp. Br. 22-23, 26 n.34), and

thus subject to the rule of lenity. This Court has

recognized that the NFA is not a criminal statute, see

Sonzinsky v. United States, 300 U.S. 506, 513 (1937)

(“Nor is the subject of the tax described or treated as

criminal by [the NFA].’’), and that “the acts of mak-

ing and transferring firearms are broadly defined,”

Haynes vy. United States, 390 U.S. 85, 88 (1968).

Although the NFA’s provisions, like those of any tax

statute, may be invoked in the context of a criminal

7

prosecution, that fact alone does not convert it into a

criminal statute.*®

4. Respondent contends (Resp. Br. 26-29) that the

government’s interpretation of the statute has been

inconsistent. Under that interpretation, manufacture

or sale of a pistol alone does not constitute manufac-

ture or sale of a short-barrel rifle. Nor does manu-

facture or sale of individual parts of a short-barrel

rifle, such as a rifle stock and barrel, that are insuffi-

cient, when assembled, to constitute a complete wea-

pon. However, a manufacturer’s marketing of all of

the parts of a short-barrel rifle, such as a pistol with

a readily attachable rifle stock, constitutes manufac-

ture and sale of a short-barrel rifle under the NFA.

Under the consistent administrative interpretation,

the fact that a manufacturer makes or sell a longer

barrel together with the pistol and attachable rifle

stock is irrelevant; the addition of that part, which a

consumer can choose to attach to the short-barrel rifle

or not, cannot convert sale of a firearm into sale only

of a long-barrel rifle. This interpretation dates back

at least to 1954; only one document cited by respond-

ent—an unpublished letter written by a BATF offi-

cial, see note 8, infra—suggests otherwise, and long

before this litigation began the government made

clear that that letter was mistaken.

a. The published revenue rulings relating to the

question in this case have consistently adopted the

above interpretation. In 1954, the Treasury issued

Rev. Rul. 54-606, 1954-2 C.B. 33, which stated that

5 Indeed, respondent itself commenced this action as a civil

action for a refund of its tax payment pursuant to 26 U.S.C.

7422. See Thompson/Center Arms Co. Vv. Baker, 686 F. Supp.

38, 43 (D.N.H. 1988).

8

“t]he possession or control of sufficient parts to as-

semble an operative firearm constitutes the possession

of a firearm.” That Ruling, whose plain language di-

rectly controls this case, applied to all firearms under

the NFA, not merely short-barrel rifles.°

Two years later, in Rev. Rul. 56-296, 1956-1 C.B.

553, the Treasury determined that single-shot pistols

whose receivers are “susceptible but not confined to

use in either a single shot pistol or rifle’ are not fire-

arms under the NFA. That ruling is perfectly con-

sistent with Treasury’s position both in Rev. Rul. 54-

606 and today. There is no indication that the pis-

tols at issue in Rev. Rul. 56-296 were possessed to-

gether with attachable stocks. Possession of a pistol

—without simultaneous possession of an attachable

stock that would make it operable as a short-barrel

rifle—does not constitute possession of a firearm.

As respondent mentions (Resp. Br. 28), in 1959,

Treasury determined that possession of a pistol that,

* Respondent cites (Resp. Br. 27) a 1952 regulation, codi-

fied at 26 C.F.R. 179.29 (1955), which defined “making of a

firearm” as “the production or creating of a firearm by any

means, whether by manufacture, putting together of parts,

alternation, any combination thereof, or otherwise, and by

any process of manipulation or transformation of any other

weapon.” That definition, by including “by putting together

of parts * * * or otherwise,” supports our position. Like the

present statutory definition of “make” in 26 U.S.C. 5845(i),

see pp. 3-4, supra, the regulation does not require that all

parts be put together before a firearm is created. And the

term “or otherwise” indicates that the regulation was not

intended to give an exclusive list of all of the ways in which

a firearm can be made. The Department of the Treasury

addressed the subject of complete, but partially unassembled,

firearms two years later, in the Revenue Ruling discussed in

text.

9

“(with the pistol barrel removed, * * * can be in-

serted into a one piece rifle frame with a .22 caliber

barrel having a length of over 16 inches” was not pos-

session of a firearm. Rev. Rul. 59-340, 1959-2 C.B.

375. The weapon at issue in that ruling could be as-

sembled only as a pistol or as a “rifle with a * * *

barrel having a length of over 16 inches.” /bid. Since

it was apparently not possible to assemble the wea-

pon as a rifle with a barrel of less than 16 inches, it

was not a firearm under the NFA. Had respondent

manufactured a pistol with an attachable stock and a

long barrel such that it was not functional as a rifle

unless both the shoulder stock and the long barrel

were attached, Rev. Rul. 59-340 would control this

ease. The crucial distinction overlooked by respond-

ent is that the weapon at issue here is fully func-

tional as a short-barrel rifle, and thus is a firearm

under the NFA.

In 1961, Treasury issued two rulings that con-

tinued its consistent interpretation of the statute and

apply directly to this case. In Rev. Rul. 61-45, 1961-1

C.B. 663, the Department ruled that a pistol “having

a barrel less than 16 inches in length with an attach-

able shoulder stock affixed, or held by the possessor of

such a weapon, is a short barrel rifle and, hence, with-

in the purview of the National Firearms Act’ (em-

phasis added). In Rev. Rul. 61-203, 1961-2 C.B.

224, Treasury restated the principle of Rev. Rul. 61-

45 and added that a pistol that “has a barrel of 16

inches or more in length” is not a firearm, “even

though such weapon has an attached or attachable

shoulder stock.” The two 1961 rulings thus establish

that pistols with short barrels and attachable should-

er stocks are firearms, while pistols with long barrels

(greater than 16 inches) and attachable shoulder

10

stocks are not firearms. The weapons at issue here

are plainly within the former category.’

b. Respondent contends that Treasury’s position

has not been consistent because Rev. Rul. 54-606, the

first ruling to address the “combination of parts”’ is-

sue under the NFA, was withdrawn in 1972. In that

year, Treasury determined in Rev. Rul. 72-178, 1972-

1 C.B. 423, that Rev. Rul. 54-606, along with some

126 other revenue rulings, was “obsolete.” That po-

sition, however, did not “repudiate[]’’ the substan-

tive rule announced in Rev. Rul. 54-606, as respond-

ent contends. Resp. Br. 38.

First, Treasury did not withdraw or declare obso-

lete the two Revenue Rulings that are most relevant

to this case—Rev. Ruls. 61-45 and 61-203. Those two

rulings specifically address the issue here—the classi-

fication of pistols held together with parts sufficient to

convert them into short-barrel rifles. Without regard

to Rev. Rul. 54-606, those two rulings alone establish

that the interpretation at issue here is long-standing

and consistent.

7 Respondent repeatedly comments (Resp. Br. 2 n.2, 14, 29

n.38, 33 n.4) that Treasury has exempted from the NFA regis-

tration and tax requirements a number of firearms that the

Secretary has determined are “collector’s item[s] and [are]

not likely to be used as * * * weapon[s].”’ 26 U.S.C. 5845(a).

The question whether the Secretary should have exempted

respondent’s Contender weapon was not litigated in this case

and is not before this Court. Moreover, the fact that the

Secretary has exempted certain weapons that respondent

claims to be similar to his Contender pistol with conversion

kit suggests, if anything, the consistency of the administrative

interpretation of the statute. If the exempted weapons were

not otherwise thought to be NFA “firearms,” no purpose

would have been served by exempting them from the NFA’s

requirements.

11

Second, as Rev. Rul. 72-178, 1972-1 C.B. 423,

makes clear, one of the bases for the declaration of

obsolescence was that Rev. Rul. 54-606, like the

other 126 itemized rulings, was “inapplicable either

in whole or in part to the current law and regula-

tions” (emphasis added). Rev. Rul. 54-606 applied

not only to pistols sold with attachable parts for con-

version to short-barrel rifles, but also more generally

to combinations of parts sufficient to assemble any

firearm. In the Gun Control Act of 1968, Pub.L. No.

90-618, Tit. II, § 201, 82 Stat. 1231, Congress incor-

porated in the statutory definitions of “machinegun”’

and “destructive device’ language making clear that

those terms include a combination of parts that can be

assembled, respectively, into a machinegun or a destruc-

tive device. Thus, Rev. Rul. 54-606 was in part su-

perseded by the specific statutory terms of the 1968

statute with respect to machineguns and destructive

devices. By declaring Rev. Rul. 54-606, but not Rev.

Ruls. 61-45 and 61-203 “obsolete,” Treasury simply

recognized that fact. Its action did not in any way

repudiate the interpretation embodied in the “non-

obsolete” portion of Rev. Rul. 54-606 and carried for-

ward in Rev. Ruls. 61-45 and 61-203.

Finally, a Treasury determination that a previous

ruling is “obsolete” does not amount to a repudiation

of the substance of the prior ruling. As Treasury ex-

plained when initiating its process of periodic re-

view of past rulings, a revenue ruling is declared ob-

solete when it is “not * * * determinative with respect

to future transactions.” Rev. Proc. 67-6, 1967-1 C.B.

576, 578. A ruling may attain that status, inter alia,

“because of amendment of the statute, revision of the

regulations, application of court decisions, ete.” bid.

Treasury expressly cautioned that “[t]he public an-

12

nouncement that a particular ruling is [obsolete]

does not necessarily mean that the conclusion or the

underlying rationale has no current applicability.”

Ibid. (emphasis added). See also 4 BATF Quarterly

Bulletin at vi. (1990). By contrast, a ruling is “re-

voked” when “the position in the previously pub-

lished ruling is not correct and the correct position

is being stated in the new ruling. Rulings which have

been revoked have no further effect.” /bid. Rev. Rul.

54-606 has never been “‘revoked.”’

c. Respondent cites (Resp. Br. 3-4, 29-30) a num-

ber of informal exchanges of unpublished letters be-

tween private parties and BATF officials in support

of his contention that the administrative interpreta-

tion of the NFA has been inconsistent. Even if those

letters contradicted Treasury’s interpretation of the

NFA as found in published rulings—and a careful

reading of most of them discloses a basically consist-

ent course of administrative interpretation “—such

8 A number of the letters cited by respondent appear to have

involved either manufacture of complete, long-barrel rifles

(C.A. App. 31), or the sale of a shoulder stock for a pistol,

without simultaneous sale of the other parts of a weapon

(C.A. App. 35-36, 38), neither of which are NFA firearms.

The only letter cited by respondent that appears to depart

from Treasury’s consistent position regarding complete, but

partially unassembled, weapons is an unpublished, 1973 letter

from the Assistant Director of Technical and Scientific Serv-

ices at BATF. See C.A. App. 34. The letter states that the

sale of an unregistered “Sportsmans Kit, consisting of a Colt

Trooper revolver with a barrel length of 16 inches, an inter-

changeable 4-inch barrel and the RMAC gun rest” would not

violate the NFA. That letter was written by a subordinate

agency official and contradicted the official administrative

interpretation expressed in published rulings long before the

letter was written. In addition, respondent was on notice that

the letter contradicted the agency’s formal position before

13

unpublished, informal letters, often written by sub-

ordinate agency officials, could not disprove our con-

tention that Treasury’s administrative interpretation

has been consistent. Under 26 U.S.C. 6110(j) (3),

“Tujniess the secretary otherwise establishes by regu-

lations, a written determination may not be used or

cited as precedent.” See 27 C.F.R. 71.41(d) (iii) (B)

(published revenue rulings—but not unpublished rul-

ings or decisions—“may be cited and relied upon.’’)

Cf. Rowan Cos., Inc. v. United States, 452 U.S. 247,

261 n.17 (1981). In addition, as to the letters cited

by respondent, the context in which they were writ-

ten—including the individuals to whom they were

addressed, the questions asked by these individuals,

and the nature of contemporaneous or prior conversa-

tions or letters between the parties that might clarify

the meanings of the letters—is in many cases unclear,

making their interpretation particularly perilous.

5. Respondent argues that our interpretation of

the statute does not draw appropriate distinctions

among different sorts of weapons. For example, re-

spondent repeatedly notes (Resp. Br. 3, 6, 7, 9 n.10,

14 n.16, 15, 28) that, under our interpretation, a

conventional, long-barrel rifle is not a short-barrel

rifle under the NFA, despite the fact that it can be

made into one by sawing off the barrel. Similarly,

respondent states in a number of places (Resp. Br.

3, 6, 12-13, 16-17, 18-19, 20-21) that, under our

interpretation, separate marketing of a complete Con-

tender pistol and a complete Contender long-barrel

this litigation was commenced. When respondent’s counsel

brought the letter to the attention of Treasury officials in 1985,

he was informed by letter that “[t]he position stated in the

1973 letter involving the sportsman’s kit is not consistent

with ATF’s published rulings or the case law before or after

1973, and is incorrect.” C.A. App. 44.

14

rifle does not constitute sale of an NFA “firearm,”

while marketing of a Contender pistol together with

one part of a Contender rifle—the shoulder stock—

does constitute sale of an NFA “firearm.”

The short answer to respondent’s contention, as our

opening brief explains (at 15 & n.15), is that any

effort to administer a complex tax collection and reg-

istration scheme, such as the NFA, requires the draw-

ing of lines.’ Congress has entrusted the administra-

tion of the NFA to the Department of the Treasury.

See 26 U.S.C. 7805; 37 Fed. Reg. 11,696 (1972)

(delegation of regulatory authority to BATF). Con-

sequently, Treasury’s efforts to draw the necessary

lines “in this area of limitless factual variations,”

United States v. Correll, 389 U.S. 299, 307 (1967),

are entitled to considerable deference.

Treasury’s interpretation of the statute is sound.

Long-barrel rifles are not NFA firearms, despite the

fact that their barrels can be sawed off, for (at least)

three reasons. First, the NFA itself plainly subjects

only short-barrel rifles—not long-barrel rifles—to

taxes and registration as firearms. See 26 U.S.C.

5845(a). Hence, an interpretation of the statute

that would make all long-barrel rifles into firearms

would be in tension with the statutory language it-

self. In addition, there is an important distinction

*Even respondent concedes that certain lines must be

drawn. Thus, respondent would apparently concede that pos-

session of a short-barrel rifle with bolt detached—but easily

attachable—would constitute possession of a short-barrel rifle

under the NFA. See Resp. Br. 19 n.23. Respondent also

argues that “[a] ‘conversion kit’ to make an UZI short barrel

rifle is clearly not analogous to a Contender carbine kit to

make a long barrel rifle” (Resp. Br. 29), thus suggesting that

respondent might agree that such a UZI conversion kit would

be an NFA firarm.

15

between respondent’s weapon and a rifle that has

been altered by sawing off the barrel. Once an in-

dividual alters a long-barrel rifle by sawing off the

barrel, there is presumably no easy way to re-attach

the sawed-off portion of the barrel to re-create a

weapon that appears ndt to be subject to the NFA.

With respondent’s Contender pistol plus conversion

kit, however, an individual quickly and easily can

convert a non-NFA pistol into an NFA firearm and

back by starting with a Contender pistol and then

attaching and removing the shoulder stock. Treasury

reasonably determined that the easy conversion of

such systems into and out of the zone of firearm

regulation poses too great a risk that individuals pos-

sessing such systems could evade NFA regulation

and avoid detection.

Similarly, as we explain in our opening brief (at

16), Treasury reasonably has determined that sepa-

rate marketing of two complete, assembled weapons—

a Contender pistol and a Contender long-barrel rifle—

does not constitute marketing of a short-barrel rifle,

while marketing of one complete weapon (a Contender

pistol) plus some parts of another weapon (the shoul-

der stock from respondent’s kit) does.’ That distinc-

tion is based on the statutory distinction between

long- and short-barrel rifles. Manufacture and sale of

each weapon separately—as well as separate posses-

sion by the manufacturer of both weapons in the

course of conducting separate manufacturing and

'’ Contrary to respondent’s assumption (Resp. Br. 12-13,

16-17, 19, 20-21), Treasury has never determined that mere

possession of two receivers, together with interchangeable

parts sufficient to make one complete pistol and one complete

long-barrel rifle, could not constitute possession of a firearm.

16

marketing operations, see Resp. Br. 16—does not con-

stitute manufacture or sale of a firearm.

6. Finally, we note again that Congress has made

the determination that short-barrel rifles are subject

to the tax and registration provisions of the NFA. Of

no relevance here is respondent’s apparent belief

(Resp. Br. 2, 14) that Congress erred in making that

determination because concealable, short-barrel rifles

are not useful for criminal purposes. The criminal

utility of short-barrel rifles is not at issue in this case.

If respondent believes such weapons do not require

regulation under the NFA, it should address its legis-

lative proposals to Congress, not this Court. More-

over, respondent’s argument in this case would not

merely remove its particular pistol plus conversion

kit from coverage as an NFA firearm; it would also

remove any complete, but partially unassembled,

short-barrel rifle (including a highly dangerous semi-

automatic weapon) or shotgun, see 26 U.S.C. 5845(a)

(1), or “any other weapon” as defined in the NFA,

see 26 U.S.C. 5845(a) (5), from coverage as an NFA

firearm."' Despite respondent’s evident disdain (Resp.

Br. 14) for Congress’s desire to tax and register such

11 Respondent asserts that “[t]he [Federal Circuit’s] opin-

ion is not a serious threat to the enforcement of the NFA

because it does not require that just any NFA ‘firearm’ be

assembled” and “[t]he opinion does not address other NFA

‘firearms’ except to acknowledge that some types (such as

machinegun[s]) need not be assembled.” Resp. Br. 14. Yet,

the reasoning advanced by respondent and adopted by the

court of appeals makes no distinction between the various

categories of NFA firearms—trifles, shotguns, and “any other

weapon” as defined in the NFA—that do not have “combina-

tion of parts” language in their definitions. With respect to

each of them, a manufacturer could similarly circumvent tax

and registration provisions by marketing complete, but par-

tially unassembled, weapons.

17

weapons, respondent’s position would pose a substan-

tial threat to enforcement of the NFA.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JANUARY 1992

WY U.S. GOVERNMENT PRINTING OFFICE, 1992 312324 45236