OCTOBER TERM, 1991
Syllabus
UNITED STATES
v. THOMPSON/CENTER ARMS CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL
CIRCUIT
No. 91-164. Argued January 13, 1992-Decided June 8, 1992
Respondent manufactures the "Contender" pistol and, for a short
time, also manufactured a kit that could be used to convert the
Contender into a rifle with either a 21-inch or a lO-inch barrel.
The Bureau of Alcohol, Tobacco and Firearms advised respondent that
when the kit was possessed or distributed with the Contender, the
unit constituted a "firearm" under the National Firearms Act (NFA
or Act), 26 U. S. C. § 5845(a)(3), which defines that term to
include a rifle with a barrel less than 16 inches long, known as a
short-barreled rifle, but not a pistol or a rifle having a barrel
16 inches or more in length. Respondent paid the $200 tax levied by
§ 5821 upon anyone "making" a "firearm" and filed a claim for a
refund. When its refund claim proved fruitless, respondent brought
this suit under the Tucker Act. The Claims Court entered summary
judgment for the Government, but the Court of Appeals reversed,
holding that a short-barreled rifle "actually must be assembled" in
order to be "made" within the NF A's meaning.
Held: The judgment is affirmed.
924
F.2d 1041, affirmed.
JUSTICE SOUTER, joined by THE CHIEF JUSTICE and JUSTICE
O'CONNOR, concluded that the Contender and conversion kit when
packaged together have not been "made" into a short-barreled rifle
for NFA purposes. Pp. 509-518.
(a) The language of § 5845(i)-which provides that "[t]he term
'make', and [its] various derivatives ... , shall include
manufacturing ... , putting together ... , or otherwise producing a
firearm"-clearly demonstrates that the aggregation of separate
parts that can be assembled only into a firearm, and the
aggregation of a gun other than a firearm and parts that would have
no use in association with the gun except to convert it into a
firearm, constitute the "making" of a firearm. If, as the Court of
Appeals held, a firearm were only made at the time of final
assembly (the moment the firearm was "put together"), the statutory
"manufacturing ... or otherwise producing" language would be
redundant. Thus, Congress must have understood "making" to cover
more than final assembly, and some disassembled aggregation of
parts must be included. Pp. 509-512.
506
(b) However, application of the ordinary rules of statutory
construction shows that the Act is ambiguous as to whether, given
the fact that the Contender can be converted into either an
NFA-regulated firearm or an unregulated rifle, the mere possibility
of its use with the kit to assemble the former renders their
combined packaging "making." Pp. 512-517.
(c) The statutory ambiguity is properly resolved by applying the
rule of lenity in respondent's favor. See,
e. g., Crandon v.
United States, 494 U. S. 152, 168. Although it is a tax
statute that is here construed in a civil setting, the NFA has
criminal applications that carry no additional requirement of
willfulness. Making a firearm without approval may be subject to
criminal sanction, as is possession of, or failure to pay the tax
on, an unregistered firearm. Pp. 517-518.
JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that the rule
of lenity prevents respondent's pistol and conversion kit from
being covered by the NFA, but on the basis of different
ambiguities: whether a firearm includes unassembled parts, and
whether the requisite "inten[tJ to be fired from the shoulder"
existed as to the short-barrel component. Pp. 519-523.
SOUTER, J., announced the judgment of the Court and delivered an
opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined.
SCALIA, J., filed an opinion concurring in the judgment, in which
THOMAS, J., joined,
post, p. 519. WHITE, J., filed a
dissenting opinion, in which BLACKMUN, STEVENS, and KENNEDY, JJ.,
joined,
post, p. 523. STEVENS, J., filed a dissenting
opinion,
post, p. 525.
James A. Feldman argued the cause for the United
States.
On the briefs were Solicitor General Starr, Assistant Attorney
General Peterson, Deputy Solicitor General Wallace, Kent L. Jones,
Gilbert S. Rothenberg, and Steven W Parks.
Stephen P. Halbrook argued the cause and filed a brief
for respondent. *
JUSTICE SOUTER announced the judgment of the Court and delivered
an opinion, in which THE CHIEF JUSTICE and JUSTICE O'CONNOR
join.
Section 5821 of the National Firearms Act (NFA or Act), see 26
U. S. C. § 5849, levies a tax of $200 per unit upon any-
* Richard E. Gardiner filed a brief for Senator
Larry E. Craig et al. as
amici curiae urging affirmance.
507
one "making" a "firearm" as that term is defined in the Act. N
either pistols nor rifles with barrels 16 inches long or longer are
firearms within the NFA definition, but rifles with barrels less
than 16 inches long, known as short-barreled rifles, are. §
5845(a)(3). This case presents the question whether a gun
manufacturer "makes" a short-barreled rifle when it packages as a
unit a pistol together with a kit containing a shoulder stock and a
21-inch barrel, permitting the pistol's conversion into an
unregulated long-barreled rifle,1 or, if the pistol's barrel is
left on the gun, a short-barreled rifle that is regulated. We hold
that the statutory language may not be construed to require payment
of the tax under these facts.
I
The word "firearm" is used as a term of art in the NF A.
It means, among other things, "a rifle having a barrel or
barrels of less than 16 inches in length .... " § 5845(a)(3). "The
term 'rifle' means a weapon designed or redesigned, made or remade,
and intended to be fired from the shoulder and designed or
redesigned and made or remade to use 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
cartridge." § 5845(c).
The consequence of being the maker of a firearm are serious.
Section 5821(a) imposes a tax of $200 "for each firearm made,"
which "shall be paid by the person making the firearm," § 5821(b).
Before one may make a firearm, one must obtain the approval of the
Secretary of the Treasury, § 5822, and § 5841 requires that the
"manufacturer, importer, and maker ... register each firearm he
manufactures, imports, or makes" in a central registry maintained
by the Secretary of the Treasury. A maker who fails to comply with
the NFA's provisions is subject to criminal penalties of up to
10
1 Unregulated, that is, under the NFA.
508
years' imprisonment and a fine of up to $10,000, or both, which
may be imposed without proof of willfulness or knowledge. §
5871.
Respondent Thompson/Center Arms Company manufactures a
single-shot pistol called the "Contender," designed so that its
handle and barrel can be removed from its "receiver," the metal
frame housing the trigger, hammer, and firing mechanism. See 27 CFR
§ 179.11 (1991) (definition of frame or receiver). For a short time
in 1985, Thompson/Center also manufactured a carbine-conversion kit
consisting of a 21-inch barrel, a rifle stock, and a wooden
fore-end. If one joins the receiver with the conversion kit's rifle
stock, the 21-inch barrel, and the rifle fore-end, the product is a
carbine rifle with a 21-inch barrel. If, however, the shorter,
pistollength barrel is not removed from the receiver when the rifle
stock is added, one is left with a lO-inch or "short-barreled"
carbine rifle. The entire conversion, from pistol to longbarreled
rifle takes only a few minutes; conversion to a shortbarreled rifle
takes even less time.
In 1985, the Bureau of Alcohol, Tobacco and Firearms advised
Thompson/Center that when its conversion kit was possessed or
distributed together with the Contender pistol, the unit
constituted a firearm subject to the NFA. Thompson/Center responded
by paying the $200 tax for a single such firearm, and submitting an
application for permission under 26 U. S. C. § 5822 "to make, use,
and segregate as a single unit" a package consisting of a serially
numbered pistol, together with an attachable shoulder stock and a
21-inch barrel. Thompson/Center then filed a refund claim. After
more than six months had elapsed without action on it, the company
brought this suit in the United States Claims Court under the
Tucker Act, 28 U. S. C. § 1491, arguing that the unit registered
was not a firearm within the meaning of the NFA because
Thompson/Center had not assembled a short-barreled rifle from its
components. The Claims Court
509
entered summary judgment for the Government, concluding that the
Contender pistol together with its conversion kit is a firearm
within the meaning of the NFA. 19 Cl. Ct. 725 (1990).
The Court of Appeals for the Federal Circuit reversed, holding
that a short-barreled rifle "actually must be assembled" in order
to be "made" within the meaning of the NFA.
924
F.2d 1041, 1043 (1991). The Court of Appeals expressly declined
to follow the decision of the Court of Appeals for the Seventh
Circuit in
United States v.
Drasen, 845 F.2d
731, cert. denied, 488 U. S. 909 (1988), which had held that an
unassembled "complete parts kit" for a short-barreled rifle was in
fact a short-barreled rifle for purposes of the NFA. We granted
certiorari to resolve this conflict. 502 U. S. 807 (1991).
II
The NFA provides that "[t]he term 'make', and the various
derivatives of such word, shall include manufacturing (other than
by one qualified to engage in such business under this chapter),
putting together, altering, any combination of these, or otherwise
producing a firearm." 26 U. S. C. § 5845(i).2 But the provision
does not expressly address the question whether a short-barreled
rifle can be "made" by the aggregation of finished parts that can
readily be assembled into one. The Government contends that
assembly is not necessary; Thompson/Center argues that it is.
A
The Government urges us to view the shipment of the pistol with
the kit just as we would the shipment of a bicycle
2 The phrase "other than by one qualified to engage in such
business under this chapter" apparently refers to those
manufacturers who have sought and obtained qualification as a
firearms manufacturer under 26 U. S. C. § 5801(a)(1), which
requires payment of a $1,000 occupational tax. Rather than seek
such qualification, Thompson/Center applied for permission to make
a firearm as a nonqualified manufacturer under § 5822, which
requires payment of the $200 per firearm "making tax" under §
5821(a).
510
that requires some home assembly. "The fact that a shortbarrel
rifle, or any other 'firearm,' is possessed or sold in a partially
unassembled state does not remove it from regulation under the
Act." Brief for United States 6.
The Government's analogy of the partially assembled bicycle to
the packaged pistol and conversion kit is not, of course, exact.
While each example includes some unassembled parts, the crated
bicycle parts can be assembled into nothing but a bicycle, whereas
the contents of Thompson/Center's package can constitute a pistol,
a long-barreled rifle, or a short-barreled version. These
distinctions, however, do define the issues raised by the
Government's argument, the first of which is whether the
aggregation and segregation of separate parts that can be assembled
only into a shortbarreled rifle and are sufficient for that purpose
amount to "making" that firearm, or whether the firearm is not
"made" until the moment of final assembly. This is the issue on
which the Federal and Seventh Circuits are divided.
We think the language of the statute provides a clear answer on
this point. The definition of "make" includes not only "putting
together," but also "manufacturing ... or otherwise producing a
firearm." If as Thompson/Center submits, a firearm were only made
at the time of final assembly (the moment the firearm was "put
together"), the additionallanguage would be redundant. Congress
must, then, have understood "making" to cover more than final
assembly, and some disassembled aggregation of parts must be
included. Since the narrowest example of a combination of parts
that might be included is a set of parts that could be used to make
nothing but a short-barreled rifle, the aggregation of such a set
of parts, at the very least, must fall within the definition of
"making" such a rifle.
This is consistent with the holdings of every Court of Appeals,
except the court below, to consider a combination of parts that
could only be assembled into an NFA-regulated
511
firearm, either under the definition of rifle at issue here or
under similar statutory language. See
United States v.
Drasen, supra; United States v.
Endicott, 803 F.2d
506, 508509 (CA9 1986) (unassembled silencer is a silencer);
United States v.
Luce, 726 F.2d
47,48-49 (CAl1984) (same);
United States v.
Lauchli, 371 F.2d
303, 311-313 (CA7 1966) (unassembled machine guns are
machineguns).3 We thus reject the broad language of the Court of
Appeals for the Federal Circuit to the extent that it would mean
that a disassembled complete short-barreled rifle kit must be
assembled before it has been "made" into a short-barreled rifle.
The fact that the statute would serve almost no purpose if this
were the rule only confirms the reading we have given it.4
We also think that a firearm is "made" on facts one step removed
from the paradigm of the aggregated parts that can be used for
nothing except assembling a firearm. Two courts to our knowledge
have dealt in some way with claims that when a gun other than a
firearm was placed together
3 In
Drasen, a complete-parts kit was sold with a flash
suppressor, which, if affixed to the rifle barrel, would have
extended it beyond the regulated length. See
Drasen, 845 F.
2d, at 737. Because the
Drasen court concluded that such a
flash suppressor was not a part of the rifle's barrel, see
ibid., its holding is consistent with ours.
4 We do not accept the Government's suggestion, however, that
complete-parts kits must be taxable because otherwise manufacturers
will be able to "avoid the tax." Brief for United States 11.
Rather, we conclude that such kits are within the definition of the
taxable item. Failure to pay the tax on such a kit thus would
amount to evasion, not avoidance. In our system, avoidance of a tax
by remaining outside the ambit of the law that imposes it is every
person's right. "Over and over again courts have said that there is
nothing sinister in so arranging one's affairs as to keep taxes as
low as possible. Everybody does so, rich or poor; and all do right,
for nobody owes any public duty to pay more than the law demands:
taxes are enforced exactions, not voluntary contributions. To
demand more in the name of morals is mere cant."
Commissioner v.
Newman, 159 F.2d 848, 850-851
(CA2) (L. Hand, J., dissenting), cert. denied, 331 U. S. 859
(1947).
512
with a further part or parts that would have had no use in
association with the gun except to convert it into a firearm, a
firearm was produced. See
United States v.
Kokin, 365
F. 2d 595, 596 (CA3) (carbine together with all parts necessary to
convert it into a machinegun is a machinegun), cert. denied, 385 U.
S. 987 (1966); see also
United States v.
Zeidman,
444 F.2d
1051, 1053 (CA7 1971) (pistol and attachable shoulder stock
found "in different drawers of the same dresser" constitute a
short-barreled rifle). Here it is true, of course, that some of the
parts could be used without ever assembling a firearm, but the
likelihood of that is belied by the utter uselessness of placing
the converting parts with the others except for just such a
conversion. Where the evidence in a given case supports a finding
of such uselessness, the case falls within the fair intendment of
"otherwise producing a firearm." See 26 U. S. C. § 5845(i).5
B
Here, however, we are not dealing with an aggregation of parts
that can serve no useful purpose except the assembly
5 Contrary to JUSTICE SCALIA'S suggestion, see
post, at
522, our understanding of these aggregations of parts, shared by a
majority of the Court (those who join this opinion and the four
Members of the Court in dissent, see
post, p. 523 (WHITE,
J., joined by BLACKMUN, STEVENS, and KENNEDY, JJ., dissenting)
(any aggregation of parts necessary to assemble a firearm is
a firearm)), applies to all the provisions of the Act, whether they
regulate the "making" of a firearm,
e. g., 26 U. S.
C. § 5821(a), or not, see,
e. g., § 5842(b)
(possession of a firearm that has no serial number); § 5844
(importation of a firearm); § 5811 (transfer of a firearm). Since,
as we conclude, such a combination of parts, or of a complete gun
and an additional part or parts, is "made" into a firearm, it
follows, in the absence of some reason to the contrary, that all
portions of the Act that apply to "firearms" apply to such a
combination. JUSTICE SCALIA does not explain how we would be free
to construe "firearm" in a different way for purposes of those
provisions that do not contain the verb "to make." Our normal
canons of construction caution us to read the statute as a whole,
and, unless there is a good reason, to adopt a consistent
interpretation of a term used in more than one place within a
statute.
513
of a firearm, or with an aggregation having no ostensible
utility except to convert a gun into such a weapon. There is, to be
sure, one resemblance to the latter example in the sale of the
Contender with the converter kit, for packaging the two has no
apparent object except to convert the pistol into something else at
some point. But the resemblance ends with the fact that the
unregulated Contender pistol can be converted not only into a
short-barreled rifle, which is a regulated firearm, but also into a
long-barreled rifle, which is not. The packaging of pistol and kit
has an obvious utility for those who want both a pistol and a
regular rifle, and the question is whether the mere possibility of
their use to assemble a regulated firearm is enough to place their
combined packaging within the scope of "making" one.6
1
Neither the statute's language nor its structure provides any
definitive guidance. Thompson/Center suggests guidance may be found
in some subsections of the statute governing other types of weapons
by language that expressly covers combinations of parts. The
definition of "machinegun," for example, was amended by the Gun
Control Act of
6 Thompson/Center suggests that further enquiry could be avoided
when it contends that the Contender and carbine kit do not amount
to a "rifle" of any kind because, until assembled into a rifle,
they are not" 'made' and 'intended to be fired from the shoulder.'
" Brief for Respondent 8. From what we have said thus far, however,
it is apparent that, though disassembled, the parts included when
the Contender and its carbine kit are packaged together have been
"made" into a rifle. The inclusion of the rifle stock in the
package brings the Contender and carbine kit within the "intended
to be fired from the shoulder" language contained in the definition
of rifle in the statute. See 26 U. S. C. § 5845(c). The only
question is whether this combination of parts constitutes a
short-barreled rifle. Surely JUSTICE SCALIA'S argument would take
us over the line between lenity and credulity when he suggests that
one who makes what would otherwise be a short-barreled rifle could
escape liability by carving a warning into the shoulder stock. See
post, at 523 (SCALIA, J., concurring in judgment).
514
1968 to read that "[t]he term shall also include ... 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."
26 U. S. C. § 5845(b).7 In 1986, the definition of "silencer" was
amended by the Firearms Owners' Protection Act to "includ[e] any
combination of parts, designed or redesigned, and intended for use
in assembling or fabricating a firearm silencer .... " See 26 U. S.
C. § 5845(a)(7); 18 U. S. C. § 921(a)(24).
Thompson/Center stresses the contrast between these references
to "any combination of parts" and the silence about parts in the
definition of rifle in arguing that no aggregation of parts can
suffice to make the regulated rifle. This argument is subject to a
number of answers, however. First, it sweeps so broadly as to
conflict with the statutory definition of "make," applicable to all
firearms, which implies that a firearm may be "made" even where not
fully "put together." If this were all, of course, the conflict
might well be resolved in Thompson/Center's favor. We do not,
however, read the machine gun and silencer definitions as
contrasting with the definition of rifle in such a way as to raise
a conflict with the broad concept of "making."
The definition of "silencer" is now included in the NF A only by
reference, see 26 U. S. C. § 5845(a)(7), whereas its text appears
only at 18 U. S. C. § 921(a)(24), in a statute that itself contains
no definition of "make." Prior to 1986 the definition of "firearm"
in the NF A included "a muffler or a silencer for any firearm
whether or not such firearm is included within this definition." 26
U. S. C. § 5845(a)(7) (1982 ed.). Two Courts of Appeals held this
language to include
7 At the same time, the definition of "destructive device" was
amended to include "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 readily be assembled."
26 U. S. C. § 5845(f). This appears to envision by its terms only
combinations of parts for converting something into a destructive
device.
515
unassembled silencers that could be readily and easily
assembled. See
United States v.
Endicott, 803 F. 2d,
at 508
509; United States v.
Luce, 726 F. 2d, at
48-49.
In 1986, Congress replaced that language with "any silencer (as
defined in section 921 of title 18, United States Code)." Pub. L.
99-308, § 109(b), 100 Stat. 460. The language defining silencer
that was added to 18 U. S. C. § 921 at that same time reads: "The
terms 'firearm silencer' and 'firearm muffler' mean any device for
silencing, muffling, or diminishing the report 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 assembly or fabrication." Pub. L. 99-308, § 101, 100
Stat. 451.
Thompson/Center argues that if, even before the amendment, a
combination of parts was already "made" into a firearm, the "any
combination of parts" language would be redundant. While such a
conclusion of redundancy could suggest that Congress assumed that
"make" in the NFA did not cover unassembled parts, the suggestion
(and the implied conflict with our reading of "make") is proven
false by evidence that Congress actually understood redundancy to
result from its new silencer definition. Congress apparently
assumed that the statute reached complete-parts kits even without
the "combination" language and understood the net effect of the new
definition as expanding the coverage of the Act beyond
complete-parts kits. "The definition of silencer is amended to
include any part designed or redesigned and intended to be used as
a silencer for a firearm. This will help to control the sale of
incomplete silencer kits that now circumvent the prohibition on
selling complete kits." H. R. Rep. No. 99-495, p. 21 (1986).
Because the addition of the "combination of parts" language to the
definition of silencer does not, therefore, bear the implication
Thompson/Center
516
would put on it, that definition cannot give us much guidance in
answering the question before us.8
We get no more help from analyzing the machinegun definition's
reference to parts. It speaks of "any combination" of them in the
possession or control of anyone person. Here the definition sweeps
broader than the aggregation of parts clearly covered by "making" a
rifle. The machinegun parts need not even be in any particular
proximity to each other. There is thus no conflict between
definitions, but neither is much light shed on the limits of
"making" a short-barreled rifle. We can only say that the notion of
an unassembled machine gun is probably broader than that of an
unassembled rifle. But just where the line is to be drawn on
shortbarreled rifles is not demonstrated by textual
considerations.
2
Thompson/Center also looks for the answer in the purpose and
history of the NFA, arguing that the congressional purpose behind
the NFA, of regulating weapons useful for criminal purposes, should
caution against drawing the line in such a way as to apply the Act
to the Contender pistol and carbine kit. See H. R. Rep. No. 1337,
83d Cong., 2d Sess., A395 (1954) (the adoption of the original
definition of rifle was intended to preclude coverage of antique
guns held by collec-
8JU8TICE SCALIA upbraids us for reliance on legislative history,
his "St. Jude of the hagiology of statutory construction."
Post, at 521. The shrine, however, is well peopled (though
it has room for one more) and its congregation has included such
noted elders as Justice Frankfurter: "A statute, like other living
organisms, derives significance and sustenance from its
environment, from which it cannot be severed without being
mutilated. Especially is this true where the statute, like the one
before us, is part of a legislative process having a history and a
purpose. The meaning of such a statute cannot be gained by
confining inquiry within its four corners. Only the historic
process of which such legislation is an incomplete fragment-that to
which it gave rise as well as that which gave rise to it-can yield
its true meaning."
United States v.
Monia, 317 U. S. 424, 432 (1943)
(dissenting opinion).
517
tors, "in pursuance of the clearly indicated congressional
intent to cover under the National Firearms Act only such modern
and lethal weapons, except pistols and revolvers, as could be used
readily and efficiently by criminals or gangsters") .
It is of course clear from the face of the Act that the NF A's
object was to regulate certain weapons likely to be used for
criminal purposes, just as the regulation of short-barreled rifles,
for example, addresses a concealable weapon likely to be so used.
But when Thompson/Center urges us to recognize that "the Contender
pistol and carbine kit is not a criminal-type weapon," Brief for
Respondent 20, it does not really address the issue of where the
line should be drawn in deciding what combinations of parts are
"made" into shortbarreled rifles. Its argument goes to the quite
different issue whether the single-shot Contender should be treated
as a firearm within the meaning of the Act even when assembled with
a rifle stock.
Since Thompson/Center's observations on this extraneous issue
shed no light on the limits of unassembled "making" under the Act,
we will say no more about congressional purpose. Nor are we helped
by the NFA's legislative history, in which we find nothing to
support a conclusion one way or the other about the narrow issue
presented here.
III
After applying the ordinary rules of statutory construction,
then, we are left with an ambiguous statute. The key to resolving
the ambiguity lies in recognizing that although it is a tax statute
that we construe now in a civil setting, the NF A has criminal
applications that carry no additional requirement of willfulness.
Cf.
Cheek v.
United States, 498 U. S. 192, 200 (1991)
("Congress has ... softened the impact of the common-law
presumption [that ignorance of the law is no defense to criminal
prosecution] by making specific intent to violate the law an
element of certain federal criminal
518
tax offenses"); 26 U. S. C. §§ 7201, 7203 (criminalizing willful
evasion of taxes and willful failure to file a return). Making a
firearm without approval may be subject to criminal sanction, as is
possession of an unregistered firearm and failure to pay the tax on
one, 26 U. S. C. §§ 5861, 5871. It is proper, therefore, to apply
the rule of lenity and resolve the ambiguity in Thompson/Center's
favor. See
Crandon v.
United States, 494 U. S. 152, 168 (1990)
(applying lenity in interpreting a criminal statute invoked in a
civil action);
Commissioner v.
Acker, 361 U. S. 87, 91 (1959).9
Accordingly, we conclude that the Contender pistol and carbine kit
when packaged together by Thompson/Center have not been "made" into
a short-barreled rifle for purposes of the NF A.lO The judgment of
the Court of Appeals is therefore
Affirmed.
9 The Government has urged us to defer to an agency
interpretation contained in two longstanding Revenue Rulings. Even
if they were entitled to deference, neither of the rulings, Rev.
Rul. 61-45, 1961-1 Cum. Bull. 663, and Rev. Rul. 61-203, 1961-2
Cum. Bull. 224 (same), goes to the narrow question presented here,
addressing rather the question whether pistols with short barrels
and attachable shoulder stocks are shortbarreled rifles. We do not
read the Government to be relying upon Rev. Rul. 54-606, 1954-2
Cum. Bull. 33, which was repealed as obsolete in 1972, Rev. Rul.
72-178, 1972-1 Cum. Bull. 423, and which contained broader language
that "possession or control of sufficient parts to assemble an
operative firearm ... constitutes the possession of a firearm."
Reply Brief for United States 10.
10 JUSTICE STEVENS contends that lenity should not be applied
because this is a "'tax statute,'"
post, at 526, rather than
a "criminal statute," see
post, at 525, n. 1, quoting
Crandon v.
United States, 494 U. S. 152, 168
(1990). But this tax statute has criminal applications, and we know
of no other basis for determining when the essential nature of a
statute is "criminal." Surely, JUSTICE STEVENS cannot mean to
suggest that in order for the rule of lenity to apply, the statute
must be contained in the Criminal Code. See,
e. g., United
States v.
Universal C.
I. T. Credit Corp.,
344 U. S.
218,221-222 (1952) (construing the criminal provisions of the
Fair Labor Standards Act, 29 U. S. C. §§ 215, 216(a)). JUSTICE
STEVENS further suggests that lenity is inappropriate because we
construe the statute today
519
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
I agree with the plurality that the application of the N ational
Firearms Act (NFA) to Thompson/Center's pistol and conversion kit
is sufficiently ambiguous to trigger the rule of lenity, leading to
the conclusion that the kit is not covered. I disagree with the
plurality, however, over where the ambiguity lies-a point that
makes no difference to the outcome here, but will make considerable
difference in future cases. The plurality thinks the ambiguity
pertains to whether the making of a regulated firearm includes (i)
the manufacture of parts kits that can possibly be used to assemble
a regulated firearm, or rather includes only (ii) the manufacture
of parts kits that serve no useful purpose except assembly of a
regulated firearm.
Ante, at 512-513, 517. I think the
ambiguity pertains to the much more fundamental point of whether
the making of a regulated firearm includes the manufacture, without
assembly, of component parts where the definition of the particular
firearm does not so indicate.
As JUSTICE WHITE points out, the choice the plurality worries
about is nowhere suggested by the language of the statute: § 5845
simply makes no reference to the "'utility'" of aggregable parts.
Post, at 524 (dissenting opinion). It
does, however,
conspicuously combine references to "combination of parts" in the
definitions of regulated silencers, machineguns, and destructive
devices with the absence of any such reference in the definition of
regulated rifles. This, rather than the utility or not of a given
part in a given parts assemblage, convinces me that the provision
does not encom-
"'in a civil setting,'" rather than a "criminal prosecution."
Post, at 526. The rule of lenity, however, is a rule of
statutory construction whose purpose is to help give authoritative
meaning to statutory language. It is not a rule of administration
calling for courts to refrain in criminal cases from applying
statutory language that would have been held to apply if challenged
in civil litigation.
520
pass Thompson/Center's pistol and conversion kit, or at least
does not do so unambiguously.
The plurality reaches its textually uncharted destination by
determining that the statutory definition of "make," the derivative
of which appears as an operative word in 26 U. S. C. § 5821 ("There
shall be levied, collected, and paid upon the making of a firearm a
tax at the rate of $200 for each firearm made"), covers the making
of parts that, assembled, are firearms. Noting that the "definition
of 'make' includes not only 'putting together,' but also
'manufacturing ... or otherwise producing a firearm,'" the
plurality reasons that if "a firearm were only made at the time of
final assembly (the moment the firearm was 'put together'), the
additionallanguage would be redundant."
Ante, at 510.
This reasoning seems to me mistaken. I do not think that if
"making" requires "putting together," other language of the
definition section ("manufacturing" and "otherwise producing")
becomes redundant. "Manufacturing" is qualified by the
parenthetical phrase "(other than by one qualified to engage in
such business under this chapter)," whereas "putting together" is
not. Thus, one who assembles a firearm
and also engages in the
prior activity of producing the component parts can be
immunized from being considered to be making firearms by
demonstrating the relevant qualification, whereas one who merely
assembles parts manufactured by others cannot. Recognition of this
distinction is alone enough to explain the separate inclusion of
"putting together," even though "manufacturing" itself includes
assembly. As for the phrase "otherwise producing," that may well be
redundant, but such residual provisions often are. They are often
meant for insurance, to cover anything the draftsman might
inadvertently have omitted in the antecedent catalog; and if the
draftsman is good enough, he will have omitted nothing at all. They
are a prime example of provisions in which "iteration is obviously
afoot,"
Moskal v.
United States, 498 U. S. 103, 120 (1990)
(SCALIA, J., dissenting), and
521
for which an inflexible rule of avoiding redundancy will produce
disaster. In any event, the plurality's own interpretation (whereby
"manufacturing" a firearm does not require assembling it, and
"putting together" is an entirely separate category of "making")
renders it not a bit easier to conceive of a nonredundant
application for "otherwise producing."
The plurality struggles to explain why its interpretation
("making" does not require assembly of component parts) does not
itself render redundant the "combination of parts" language
found elsewhere in 26 U. S. C. § 5845, in the definitions of
machinegun and destructive device, §§ 5845(b) and (f), and in the
incorporated-by-reference definition of silencer, § 5845(a)(7)
(referring to 18 U. S. C. § 921). See
ante, at 513-516. I do
not find its explanations persuasive, particularly that with
respect to silencer, which resorts to that last hope of lost
interpretive causes, that St. Jude of the hagiology of statutory
construction, legislative history. As I have said before, reliance
on that source is particularly inappropriate in determining the
meaning of a statute with criminal application.
United
States v.
R. L. c.,
503 U. S. 291, 307 (1992)
(opinion concurring in part and concurring in judgment).
There is another reason why the plurality's interpretation is
incorrect: It determines what constitutes a regulated "firearm" via
an operative provision of the NFA (here § 5821, the
making
tax) rather than by way of § 5845, which defines firearms covered
by the chapter. With respect to the definitions of machineguns,
destructive devices, and silencers, for instance, the reference to
"combination of parts" causes parts aggregations to be firearms
whenever those nouns are used, and not just when they are
used in conjunction with the verb "make" and its derivatives. Thus,
the restrictions of § 5844, which regulate the importation of
"firearm[s]" (a term defined to include "machinegun[s]," see §
5845(a)(6)), apply to a "combination of parts from which a
machinegun can be assembled" (because that is part of the
definition of
522
machine gun)
even though the word "make" and its
derivatives do not appear in § 5844. This demonstrates, I say, the
error of the plurality's interpretation, because it makes no sense
to have the firearms regulated by the NFA bear one identity (which
includes
components of rifles and shotguns) when they are
the object of the verb "make," and a different identity (excluding
such components) when they are not. Section 5842(a), for example,
requires anyone "making" a firearm to identify it with a serial
number that may not be readily removed; § 5842(b) requires any
person who "possesses" a firearm lacking the requisite serial
number to identify it with one assigned by the Secretary of the
Treasury. Under the plurality's interpretation, all the firearms
covered by (a) are not covered by (b), since a person who
"possesses" the components for a rifle or shotgun does not possess
a firearm, even though a person who "makes" the components for a
rifle or shotgun makes a firearm. For similar reasons, the tax
imposed on "the making of a firearm" by § 5821 would apply to the
making of components for rifles and shotguns, but the tax imposed
on "firearms transferred" by § 5811 would not apply to the transfer
of such components. This cannot possibly be right. *
Finally, even if it were the case that unassembled parts could
constitute a rifle, I do not think it was established in
*The plurality, as I read its opinion, relies on the derivative
of "make" that appears in § 5821, not that appearing (in a quite
different context) in the definition of "rifle." See 26 U. S. C. §
5845(c) ("The term 'rifle' means a weapon designed or redesigned,
made or remade ... "). I think it would not be possible to rely
upon the use of "made" in § 5845(c), where the context is obviously
suggestive of assembled rather than unassembled rifles. But even if
the plurality means to apply its interpretation of "make" to §
5845(c), it still does not entirely avoid the problem I have
identified. The definition of "any other weapon," another in §
5845's arsenal of defined firearms, does not contain relevant uses
of the verb "make" or any derivative thereof. See 26 U. S. C. §
5845(e). It necessarily follows that "any other weapon" will mean
one thing when a making tax is at hand but something else when a
transfer tax is.
523
this case that respondent manufactured (assembled or not) a
rifle "having a barrel or barrels of less than 16 inches in
length," which is what the definition of "firearm" requires, §
5845(a)(3). For the definition of "rifle" requires that it be
"intended to be fired from the shoulder," § 5845(c), and the only
combination of parts so intended, as far as respondent is concerned
(and the record contains no indication of anyone else's intent), is
the combination that forms a rifle with a 21-inch barrel. The kit's
instructions emphasized that legal sanctions attached to the
unauthorized making of a shortbarreled rifle, and there was even
carved into the shoulder stock itself the following: "WARNING.
FEDERAL LAW PROHIBITS USE WITH BARREL LESS THAN 16 INCHES."
Since I agree (for a different reason) that the rule of lenity
prevents these kits from being considered firearms within the
meaning of the NF A, I concur in the judgment of the Court.
JUSTICE WHITE, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and
JUSTICE KENNEDY join, dissenting.
The Court of Appeals for the Federal Circuit concluded that, to
meet the definition of "firearm" under the National Firearms Act
(NF A), 26 U. S. C. § 5845(a)(3), "a shortbarreled rifle actually
must be assembled."
924 F.2d
1041, 1043 (1991) (footnote omitted). I agree with the
plurality that this pinched interpretation of the statute would
fail to accord the term "make" its full meaning as that term is
defined, § 5845(i), and used in the definition of the term "rifle,"
§ 5845(c). Because one "makes" a firearm not only in the actual
"putting together" of the parts, but also by "manufacturing ... or
otherwise producing a firearm," Congress clearly intended that the
"making" include a "disassembled aggregation of parts,"
ante, at 510, where the assemblage of such parts results in
a firearm. In short, when the components necessary to assemble a
rifle are produced and held in
524
conjunction with one another, a "rifle" is, not surprisingly,
the result.
This was the difficult issue presented by this case, and its
resolution, for me, is dispositive, as respondent Thompson/ Center
concedes that it manufactures and distributes together a collection
of parts that may be readily assembled into a short-barreled rifle.
Indeed, Thompson/Center's argument concerning statutory
construction, as well as its appeal to the rule of lenity, does not
suggest, nor does any case brought to our attention, that one may
escape the tax and registration requirements the NFA imposes on
those who "make" regulated rifles simply by distributing as part of
the package other interchangeable pieces of sufficient design to
avoid the regulated definition. The plurality nevertheless draws an
artificial line between, on the one hand, those parts that "can
serve no useful purpose except the assembly of a firearm" or that
have "no ostensible utility except to convert a gun into such a
weapon," and, on the other hand, those parts that have "an obvious
utility for those who want both a pistol and a regular rifle."
Ante, at 512-513.
I cannot agree. Certainly the statute makes no distinction based
on the "utility" of the extra parts. While the plurality prefers to
view this silence as creating ambiguity, I find it only to signal
that such distinctions are irrelevant. To conclude otherwise is to
resort to "'ingenuity to create ambiguity'" that simply does not
exist in this statute.
United States v.
James,
478 U. S. 597,
604 (1986), quoting
Rothschild v.
United States,
179 U. S. 463,
465 (1900). As noted by the Government, when a weapon comes within
the scope of the "firearm" definition, the fact that it may also
have a nonregulated form provides no basis for failing to comply
with the requirements of the NF A. Brief for United States
13-14.
The Court today thus closes one loophole-one cannot circumvent
the NF A simply by offering an unassembled collection of parts-only
to open another of equal dimension-one
525
can circumvent the NFA by offering a collection of parts that
can be made either into a "firearm" or an unregulated rifle. I
respectfully dissent.
JUSTICE STEVENS, dissenting.
If this were a criminal case in which the defendant did not have
adequate notice of the Government's interpretation of an ambiguous
statute, then it would be entirely appropriate to apply the rule of
lenity.l I am persuaded, however, that the Court has misapplied
that rule to this quite different case.
I agree with JUSTICE WHITE, see
ante, at 523-524, and
also with the plurality, see
ante, at 511, that respondent
has made a firearm even though it has not assembled its constituent
parts. I also agree with JUSTICE WHITE that that should be the end
of the case, see
ante, at 524, and therefore, I join his
opinion. I add this comment, however, because I am persuaded that
the Government should prevail even if the statute were
ambiguous.
The main function of the rule of lenity is to protect citizens
from the unfair application of ambiguous punitive statutes.
Obviously, citizens should not be subject to punishment without
fair notice that their conduct is prohibited by law.2 The
1 See,
e. g., Crandon v.
United
States, 494 U. S.
152, 168 (1990) ("Finally, as we have already observed, we are
construing a criminal statute and are therefore bound to consider
application of the rule of lenity. To the extent that any ambiguity
over the temporal scope of [18 U. S.
C.] § 209(a) remains,
it should be resolved in petitioners' favor unless and until
Congress plainly states that we have misconstrued its intent");
Commissioner v.
Acker, 361 U. S. 87, 91 (1959)
("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''') (citations
omitted).
2 Ambiguity in a
criminal statute is resolved in favor of
the defendant because "'a fair warning should be given to the world
in language that the common world will understand, of what the law
intends to do if a certain line is passed'" and because "of the
seriousness of criminal penalties, and because criminal punishment
usually represents the moral con-
526
risk that this respondent would be the victim of such
unfairness, is, however, extremely remote. In 1985, the Government
properly advised respondent of its reading of the statute and gave
it ample opportunity to challenge that reading in litigation in
which nothing more than tax liability of $200 was at stake. See
924 F.2d
1041, 1042-1043 (CA Fed. 1991). Moreover, a proper construction
of the statute in this case would entirely remove the risk of
criminal liability in the future.
The plurality, after acknowledging that this case involves "a
tax statute" and its construction "in a civil setting,"
ante, at 517, nevertheless proceeds to treat the case as
though it were a criminal prosecution. In my view, the Court should
approach this case like any other civil case testing the
Government's interpretation of an important regulatory statute.
This statute serves the critical objective of regulating the
manufacture and distribution of concealable firearms-dangerous
weapons that are a leading cause of countless crimes that occur
every day throughout the Nation. This is a field that has long been
subject to pervasive governmental regulation because of the
dangerous nature of the product and the public interest in having
that danger controlled.3 The public interest in carrying out the
purposes that motivated the enactment of this statute is, in my
judgment and on this record, far more compelling than a mechanical
application of the rule of lenity.
Accordingly, for this reason, as well as for the reasons stated
by JUSTICE WHITE, I respectfully dissent.
demnation of the community, [and therefore] legislatures and not
courts should define criminal activity."
United States v.
Bass, 404 U.
S. 336, 348 (1971).
3 See,
e. g., Gun Control Act of 1968, 18 U. S. C. § 921
et seq.; Arms Export Control Act, as amended Pub. L. 94-329,
90 Stat. 744,22 U. S. C. §2778;
United States v.
Biswell, 406
U. S. 311, 316 (1972) (acknowledging that the sale of firearms
is a "pervasively regulated business").
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