[These are the briefs of the Government in the Thompson/Center v. US to the US Supreme Court. The brief(s) of Thompson/Center were not available.] UNITED STATES OF AMERICA, PETITIONER v. THOMPSON/CENTER ARMS COMPANY, A DIVISION OF THE K. W. THOMPSON TOOL COMPANY, INC. No. 91-164 October Term, 1991 November 20, 1991 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT BRIEF FOR THE PETITIONER KENNETH W. STARR, Solicitor General, SHIRLEY D. PETERSON, Assistant Attorney General, LAWRENCE G. WALLACE, Deputy Solicitor General, KENT L. JONES, Assistant to the Solicitor General, GILBERT S. ROTHENBERG, STEVEN W. PARKS, Attorneys, Department of Justice, Washington, D.C. TABLE OF AUTHORITIES Cases: CFTC v. Schor, 478 U.S. 833 (1986) Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) Chisom v. Roemer, 111 S. Ct. 2354 (1991) Haynes v. United States, 390 U.S. 85 (1968) National Muffler Dealers Ass'n v. United States, 440 U.S. 472 (1979) Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38 (D.N.H. 1988) United States v. Alpers, 338 U.S. 680 (1950) United States v. Catanzaro, 368 F. Supp. 450 (D. Conn. 1973) United States v. Combs, 762 F.2d 1343 (9th Cir. 1985) United States v. Correll, 389 U.S. 299 (1967) United States v. Drasen, 845 F.2d 731 (7th Cir.), cert. denied, 488 U.S. 909 (1988) United States v. Endicott, 803 F.2d 506 (9th Cir. 1986) United States v. Kokin, 365 F.2d 595 (3d Cir. 1966), cert. denied, 385 U.S. 987 (1966) United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966) United States v. Luce, 726 F.2d 47 (lst Cir. 1984) United States v. Smith, 477 F.2d 399 (8th Cir. 1973) United States v. Thompson, 202 F. Supp. 503 (N.D. Cal. 1962) United States v. Woods, 560 F.2d 660 (5th Cir. 1977), cert. denied, 435 U.S. 906 (1978) United States v. Zeidman, 444 F.2d 1051 (7th Cir. 1971) Statutes: Anti-Injunction Act, 26 U.S.C. 7421 Declaratory Judgment Act, 28 U.S.C. 2201 Firearms Owners' Protection Act, Pub. L. No. 99-308, section 101, 100 Stat. 451 Gun Control Act of 1968, Pub. L. No. 90-618, section 201, 82 Stat. 1231 National Firearms Act, 26 U.S.C. 5801 et seq. 26 U.S.C. 5801 26 U.S.C. 5880(a)(1) 26 U.S.C. 5802 26 U.S.C. 5811 26 U.S.C. 5821 26 U.S.C. 5821(a) 26 U.S.C. 5822 26 U.S.C. 5841 26 U.S.C. 5841(b) 26 U.S.C. 5844 26 U.S.C. 5845 26 U.S.C. 5845(a) 26 U.S.C. 5845(a) (l)-(5) 26 U.S.C. 5845(a) (3) 26 U.S.C. 5845(a) (6)-(8) 26 U.S.C. 5845(a) (7) 26 U.S.C. 5845(b) 26 U.S.C. 5845(c) 26 U.S.C. 5845(e) 26 U.S.C. 5845(f) 26 U.S.C. 5845(i) 26 U.S.C. 5848 26 U.S.C. 5848(a) 26 U.S.C. 5861(d) 26 U.S.C. 5861 26 U.S.C. 5871 18 U.S.C. 921(a) (24) Miscellaneous: Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers: Hearings on H.R. 641 and Related Bills Before the Subcomm. on Crime of the House Comm. on the Judiciary, 97th Cong., 2d Sess. (1984) 37 Fed. Reg. 11,896 (1972) H.R. Rep. No. 1337, 83d Cong., 2d Sess. (1954) H.R. Rep. No. 1577, 90th Cong., 2d Sess. (1968) H.R. Rep. No. 495, 99th Cong., 2d Sess. (1986) Rev. Rul. 61-45, 1961-1 C.B. 663 Rev. Rul. 61-203, 1961-2 C.B. 224 S. Rep. No. 1501, 90th Cong., 2d Sess. (1968) OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-17a) is reported at 924 F.2d 1041. The petition for rehearing and suggestion of rehearing en banc were denied without opinion (Pet. App. 33a, 34a). The opinion of the Claims Court (Pet. App. 18a- 32a) is reported at 19 Cl. Ct. 725. JURISDICTION The judgment of the court of appeals was entered on January 30, 1991. The order denying the petition for rehearing was entered on March 29, 1991 (Pet. App. 33a). The Chief Justice extended the time for filing a petition for a writ of certiorari to and including July 27, 1991. The petition was filed on July 26, 1991, and was granted on October 7, 1991. The jurisdiction of this Court rests upon 28 U.S.C. 1254(l). STATUTORY PROVISIONS INVOLVED The relevant portions of Sections 5821, 5841, 5845 and 5861 of the National Firearms Act, as amended, 26 U.S.C. 5821, 5841, 5845, 5861, are set forth at Pet. App. 35a-37a. QUESTION PRESENTED Respondent manufactures pistols and "conversion kits" that allow the pistols readily to be converted into rifles with 10-inch barrels. Under the National Firearms Act, a manufacturer who "makes" a rifle with a barrel shorter than 16 inches (a short- barrel rifle) must register the firearm in the National Firearms Registry and pay a tax of $ 200. 26 U.S.C. 5841, 5845(a) (3). The question presented is whether respondent "makes" a short- barrel rifle by packaging and distributing the pistol together with the conversion kit and is therefore required to register the firearm and pay the tax due under the National Firearms Act. STATEMENT 1. The Thompson/Center Arms Company (Thompson) manufactures a single-shot pistol (the "Contender" model) with a receiver that is designed, as a commercially attractive feature, to accept interchangeable barrels of differing lengths and calibers. Thompson also manufactures a "conversion kit" that includes a long barrel and a rifle stock that may be attached to the Contender pistol receiver to convert it into a rifle (Pet. App. 2a). [footnote 1] If the shorter, pistol-length barrel is not removed from the receiver when the rifle stock is added, however, the resulting combination is a "short-barrel rifle" that falls within the definition of a "firearm" under Section 5845(a)(3) of the National Firearms Act, 26 U.S.C. 5845(a) (3). [footnote 2] The maker of a "firearm," as so defined, is required to pay a tax of $ 200 for each weapon and register it in the National Firearms Registry. 26 U.S.C. 5821, 5841(b). Moreover, it is a crime punishable by a fine of up to $ 10,000, or imprisonment for up to ten years, or both, for a person "to receive or possess" a "firearm" if it "is not registered to him" (26 U.S.C. 5861(d), 5871). The conversion kit manufactured by Thompson is quick, and easy to use. [footnote 3] By employing "simple, readily available tools," "a short-barrel rifle could be assembled in less than five minutes -- even more easily and readily than a long-barrel rifle -- since the barrels would not have to be changed" (Pet. App. 29a). In 1985, Thompson was advised by the Bureau of Alcohol, Tobacco and Firearms (BATF) that, when the conversion kit was possessed or distributed with the Contender pistol, the unit constituted a firearm subject to the Act (Pet. App. 3a). [footnote 4] In response to this advice, Thompson submitted an Application to Make and Register a Firearm and paid the applicable $ 200 tax for the making of a single such firearm (id. at 21a). The application sought permission "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. [footnote 5] BATF approved the application. Thompson then filed a tax refund claim, asserting that the unit it had registered was not a "firearm" because the component parts of the Contender conversion kit and pistol had not been assembled by Thompson as a short-barrel rifle (Pet. App. 22a). 2. When the refund application was not approved, Thompson commenced this action in the Claims Court. [footnote6] The court held that the Contender pistol, when possessed together with the conversion kit, constitutes a short-barrel rifle and is therefore a "firearm" under the Act (Pet. App. 18a-32a). The court specifically rejected Thompson's argument that the component parts of the pistol and kit must first be assembled as a short-barrel rifle before they could be deemed to be a firearm (id. at 29a-30a). The court concluded that both the language of Section 5845 and its legislative history, together with the relevant case law and "ordinary common sense," lead "inexorably to [the] conclusion that the Contender pistol in conjunction with the [conversion kit] is a firearm under the National Firearms Act" (Pet. App. 31a). The court therefore granted summary judgment to the government (id. at 32a). 3. The court of appeals reversed. The court concluded that a short-barrel rifle "actually must be assembled" (Pet. App. 4a-5a) in order to be "made" within the meaning of the statute (id. at 6a). The court based its conclusion on the statutory description of a short-barrel rifle as one "having" a barrel less than 16 inches in length (26 U.S.C. 5845(a)(3)) and stated that such a "firearm must exist in fact, not in contemplation, to be 'made' within the meaning of the statute" (Pet. App. 5a). The court further noted that other provisions of the Act require registration of any "combination of parts" used to convert an unregulated weapon into a machine gun or other "destructive device" (26 U.S.C. 5845(b) and (f)), but the statute has no similar, specific provision requiring registration of a "combination of parts" for use in converting a weapon into a short-barrel rifle (Pet. App. 7a-8a). The court acknowledged that, in United States v. Drasen, 845 F.2d 731, cert. denied, 488 U.S. 909 (1988), the Seventh Circuit had "held that complete but unassembled short-barrel rifle parts kits were 'rifles' within the meaning of Section 5845(c)" (Pet. App. 17a). The court concluded, however, that, to the extent "that Drasen is inconsistent with our decision here, we decline to follow it" (ibid.). SUMMARY OF ARGUMENT The court of appeals' holding in this case does grave violence to the statutory scheme carefully crafted by Congress. The National Firearms Act draws no distinctions based upon rate of fire, magazine capacity or criminal appeal in imposing registration and tax requirements on concealable weapons such as short-barrel rifles. A rifle is regulated 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). The fact that a short-barrel rifle, or any other "firearm," is possessed or sold in a partially unassembled state does not remove it from regulation under the Act. Many ordinary products (including rifles and shotguns) are commonly sold in a partially unassembled state. To say that a product thus produced has not been "made" until it is fully assembled by the purchaser runs contrary to "ordinary common sense" (Pet. App. 31a). For more than thirty years, the Treasury has consistently ruled that pistols with short barrels that are held in conjunction with a conversion kit that includes a shoulder stock are regulated as short-barrel rifles under the Act. This consistent administrative interpretation of the definitional terms of the Act by the agency responsible for its enforcement is entitled to substantial deference. In amending statutory provisions that concern different types of firearms, Congress has recognized that "complete kits" for assembling a regulated firearm are subject to regulation under the Act. H.R. Rep. No. 495, 99th Cong., 2d Sess. 21 (1986). Prior to the decision in this case, the courts of appeals had consistently reached this same conclusion. The comprehensive statutory scheme that Congress erected would be rendered ineffective if manufacturers were allowed to circumvent the Act by the simple expedient of manufacturing and selling otherwise regulated firearms in a partially unassembled state. The decision in this case thus ignored this Court's admonition that the language of a statute should "not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress." United States v. Alpers, 338 U.S. 680, 681-682 (1950). ARGUMENT A PISTOL WITH A BARREL SHORTER THAN 16 INCHES THAT IS PACKAGED FOR DISTRIBUTION TOGETHER WITH A CONVERSION KIT CONTAINING AN ATTACHABLE SHOULDER STOCK IS A REGULATED "FIREARM" UNDER THE NATIONAL FIREARMS ACT A. The National Firearms Act Regulates All Short Barrel Rifles And Similar Weapons That Are Capable Of Concealment The National Firearms Act (26 U.S.C. 5801 et seq.) was enacted in 1934 to restrict access to certain comprehensively-defined, undesirable classes of weapons. See H.R. Rep. No. 1337, 83d Cong., 2d Sess. A395 (1954); Haynes v. United States, 390 U.S. 85, 87-88 (1968). The Act's restrictions apply to two general types of weapons: (i) concealable rifles, shotguns, and similar weapons; and (ii) exotic and especially lethal weapons. The concealable weapons that are regulated under the Act include short-barrel shotguns (With barrels less than 18 inches), short-barrel rifles (with barrels less than 16 inches), and "any other" shotgun, rifle or smooth-bored pistol "capable of being concealed on the person." 26 U.S.C. 5845(a) (l)-(5) and (e). The exotic and especially lethal weapons that are regulated under the Act include machineguns, silencers, and "destructive devices" such as bombs, grenades, rockets, missiles, mines or similar devices. 26 U.S.C. 5845(a) (6)- (S) and (f). Any weapon that falls within either regulated category is termed a "firearm" under the Act. 26 U.S.C. 5845(a). All such "firearms" must be registered in a national registry (26 U.S.C. 5841) and every person who manufacturers, transfers, imports or deals in "firearms" is subject to special occupational and excise taxes under the Act (26 U.S.C. 5801, 5802, 5811, 5821). To enforce these broad regulatory provisions, Congress has enacted substantial criminal penalties for possession of unregistered "firearms" and for any other failure to comply with the requirements of the Act. 26 U.S.C. 5871. See p. 3, supra. The narrow issue in this case is whether a Contender pistol with a 10-inch barrel, packaged for distribution together with an attachable shoulder stock and a long barrel, constitutes a "short- barrel" rifle subject to the registration and tax provisions of the Act. Although the court below emphasized that the Contender is not a "gangster-type" weapon (Pet. App. 15a), the fact that the Contender, in its original form, is a single shot target pistol is immaterial. The Act draws no distinctions based on rate of fire, magazine capacity or criminal appeal in imposing registration and tax requirements on concealable weapons. The question whether a short-barrel rifle is used more often for "criminal" than for "sporting" purposes is not relevant under the Act. [footnote 7] A rifle is regulated 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). Precisely because of the infinite variety with which weapons may be designed, the statutory regulation of concealable weapons necessarily employs broadly inclusive classifications. Section 5845(a) (3) of the Act thus includes within the definition of a regulated "firearm" any "rifle having a barrel or barrels of less than 16 inches in length." 26 U.S.C. 5845(a) (3). A "rifle," in turn, is defined broadly in Section 5845(c) as 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. 26 U.S.C. 5845(c). The Act requires any person who makes such a weapon to register it (26 U.S.C. 5841(b)), and the term "make" is, in turn, broadly defined in Section 5845(i) to "include"-. manufacturing * * *, putting together, altering, any combination of these, or otherwise producing a firearm. 26 U.S.C. 5845(i). As this Court has observed, in order to accomplish the comprehensive objectives of the statute, "the acts of making and transferring firearms are broadly defined" under the National Firearms Act. Haynes v. United States, 390 U.S. at 88. B. Pistols With Short Barrels And Attachable Shoulder Stocks Are Regulated As Short-Barrel Rifles Under The National Firearms Act 1. When the components necessary to assemble a rifle are produced and held in conjunction with one another, a "rifle" is the result. A unit that includes a receiver, a 10-inch barrel, and a shoulder stock is literally a weapon "designed * * * and intended to be fired from the shoulder" with "a barrel or barrels of less than 16 inches in length." 26 U.S.C. 5845(a)(3) and (c). The fact that it may be possessed and sold in a partially unassembled state does not render it any less a "firearm" within the contemplation of the Act. See United States v. Drasen, 845 F.2d at 737. By concluding that a firearm is not "made" until it is fully assembled (Pet. App. 4a), the court of appeals failed to follow the plain language and evident meaning of the statute. As the Seventh Circuit concluded in United States v. Drasen, by placing the registration and tax requirements on persons "manufacturing * * * or otherwise producing a firearm" (26 U.S.C. 5845(i)), the statute applies directly to manufacturers who distribute "a complete parts kit ready to be assembled." 845 F.2d at 737. See also United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977) (the statute "does not specify that the parts must be assembled before it applies"), cert. denied, 435 U.S. 906 (1978); United States v. Luce, 726 F.2d 47, 49 (1st Cir. 1984) ("Congress clearly intended this common sense interpretation"); United States v. Zeidman, 444 F.2d 1051, 1053 (7th Cir. 1971) (pistol and attachable shoulder stock found "in different drawers of the same dresser" constitute a short-barrel rifle that is "required to be registered" under the Act). After all, many ordinary products (including rifles and shotguns) are commonly sold in a partially unassembled state, and to say that a product thus produced has not been "made" until it has been fully assembled by the purchaser runs counter to "ordinary common sense" (Pet. App. 31a). [footnote 8] Indeed, to conclude that a manufacturer does not "make" a firearm if the weapon is shipped and sold in a partially unassembled state is as unpersuasive as arguing that a bicycle manufacturer does not "make" a bicycle if it is shipped or sold with the handlebars and seat unattached. See note 8, supra. If a firearms manufacturer packages as a unit all of the parts needed readily to assemble a firearm, the manufacturer has "made" a firearm in any ordinary sense of the term. See United States v. Woods, 560 F.2d at 665 ("to reason otherwise would be to frustrate or defeat the very purpose of the statute"). If the contrary were true, any manufacturer would be able to avoid the tax and registration requirements of the Act by the rudimentary artifice of marketing its products in a "kit" form that requires some assembly by the purchaser. [footnote 9] Accordingly, in both United States v. Lauchli, 371 F.2d 303, 311-313 (7th Cir. 1966), and United States v. Kokin, 365 F.2d 595, 596 (3d Cir. 1966), cert. denied, 385 U.S. 987 (1966), the courts held that the transfer of parts from which operative machine guns could be assembled constituted the transfer of machine guns under the Act. [footnote 10] Similarly, in United States v. Luce, 726 F.2d 47, 48-49 (lst Cir. 1984), and United States v. Endicott, 803 F.2d 506, 508-509 (9th Cir. 1986), the courts held that the unassembled component parts of silencers constituted silencers within the meaning of the Act. As the First Circuit stated in United States v. Luce, 726 F.2d at 48-49, although the Act "does not expressly define 'silencer' to include component parts of a silencer that are 'readily available [and capable of assembly] with only a brief and minimal effort,' we agree with the district court that Congress clearly intended this common sense interpretation." [footnote 11] In the present case, the court of appeals attempted to distinguish these decisions on the basis that they "involved unassembled parts that could only be assembled as illegal firearms" (Pet. App. 17a). [footnote 12] This purported distinction, however, is both factually inaccurate and legally irrelevant. It is factually inaccurate because the M-1 carbine in Kokin and the pistol in Zeidman were operational, unregulated weapons; they were subject to the Act because they were held in conjunction with components suitable for ready alteration of the weapons to regulated form. See United States v. Zeidman, 444 F.2d at 1053 (alterable to short-barrel rifle); United States v. Kokin, 365 F.2d at 596 (alterable to machinegun). See also United States v. Drasen, 845 F.2d at 732 (manufacturer's parts kit was one that "might or might not be assembled to form a short-barrel rifle"). The asserted distinction is also legally irrelevant because, when a weapon comes within the scope of the "firearm" definition, the fact that it may also have a non- regulated form is not a permissible basis for failing to comply with the registration and tax requirements of the Act. No such exception appears in the statute. See 26 U.S.C. 5841(b), 5845(a). The comprehensive statutory scheme that Congress sought to erect would be rendered ineffective if manufacturers were allowed to circumvent the Act by the simple expedient of manufacturing and selling otherwise regulated firearms in a partially unassembled state. Requiring criminal prosecutions to depend upon the fortuity of recovering a cache of "fully assembled" weapons would similarly frustrate the important statutory purpose of discouraging trafficking in potentially dangerous firearms. Although the Thompson short-barrel rifle is not likely to be the weapon of choice of common street criminals, the holding in this case (that unassembled rifle parts do not come within the purview of the National Firearms Act) would logically apply equally to an Uzi (see United States v. Combs, 762 F.2d 1343 (9th Cir. 1985)) [footnote 13] or other far more dangerous weapons. [footnote 14] Congress manifestly never intended the "nonsensical" result that only fully assembled weapons come within the purview of the Act. United States v. Drasen, 845 F.2d at 736. 2. The Treasury has consistently ruled that pistols with short barrels and "attachable" shoulder stocks are subject to regulation as short-barrel rifles under the National Firearms Act. See Rev. Rul. 61-45, 1961-1 C.B. 663; Rev. Rul. 61-203, 1961-2 C.B. 224. These rulings specifically determined that pistols with "conversion kits" similar to the Contender system are regulated under the Act. The rulings have been uniformly applied by the Treasury and have remained in effect at all times since their initial promulgation in 1961. This consistent administrative interpretation of the definitional terms of the Act by the agency responsible for its enforcement should be given substantial deference. See National Muffler Dealers Ass'n v. United States, 440 U.S. 472, 476-477 (1979); United States v. Correll, 389 U.S. 299, 307 (1967). [footnote 15] Respondent mistakenly asserts (Br. in Opp. 3, 13-18) that the agency has been inconsistent in its application of the statute to the Contender system. Respondent claims to be puzzled by the fact that the agency approved the separate marketing of a complete Contender pistol or a complete Contender rifle but determined that the joint marketing of the pistol with the conversion kit is subject to regulation. See id. at 3-4. There is neither a puzzle in these rulings nor an inconsistency in the agency's analysis. 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 permits the pistol to be assembled as a short-barrel rifle in less than five minutes (see note 3, supra), 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, 803 F.2d at 508; United States v. Luce, 726 F.2d at 48- 49; United States v. Woods, 560 F.2d at 665. The agency's rulings have consistently drawn and applied this very distinction for more than 30 years. See Rev. Rul. 61-45, supra; Rev. Rul. 61-203, supra. Because this consistent administrative interpretation reasonably implements the statute, it should be followed in this case. See CFTC v. Schor, 478 U.S. 833, 844 (1986); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-845 (1984). C. Other Provisions Of The National Firearms Act Are Consistent With And Do Not Alter This Conclusion The court of appeals erred in concluding that the "common sense interpretation" (United States v. Luce, 726 F.2d at 49) that the other courts of appeals have reached -- to include partially unassembled, but complete, weapons kits within the definition of "firearms" under the Act -- would render other parts of the Act "either awkward or superfluous" (Pet. App. 6a). 1. The Act defines a "rifle" to "include any such weapon which may be readily restored to fire a fixed cartridge." 26 U.S.C. 5845(c) (emphasis added). The court of appeals reasoned that, if a firearm were deemed "made" without complete assembly, the additional statutory coverage of firearms that "may be readily restored" to use would then be superfluous (Pet. App. 6a-7a). That reasoning is erroneous. A complete but partially unassembled weapon, such as the Contender with its conversion kit, is a "rifle" because, when fully assembled with the shoulder stock, it falls squarely within the definition of a rifle. A weapon that once was a rifle, but which now lacks some essential component -- such as a firing pin -- is "include[d]" within the statutory definition of a "rifle" if it "may be readily restored" to use (26 U.S.C. 5845(c) (emphasis added)). [footntoe 16] See United States v. Smith, 477 F.2d 399 (8th Cir. 1973) (per curiam) (even though the barrel was welded shut, it could be "readily restored" to use in eight hours); United States v. Catanzaro, 368 F. Supp. 450, 452 n.3, 453 (D. Conn. 1973) (weapon could be "readily restored" to use in approximately one hour). The statutory inclusion of incomplete or nonfunctioning firearms that can be "readily restored" to use supports the conclusion that the statute also applies to complete, but partially unassembled, firearms kits. There is no reason to suppose that Congress would have intended to "include" weapons that require hours of reassembly within the definition of a "rifle" but exclude weapons that require "only a brief and minimal effort to assemble" from the manufacturer's kit. United States v. Endicott, 803 F.2d at 508. As the Seventh Circuit concluded in rejecting this same argument, a "rifle that has been disassembled for some reason is clearly in the same category as an identical collection of rifle parts that has not yet been assembled. The statute covers both." United States v. Drasen, 45 F.2d at 736. 2. In 1968, Congress amended the definition of "machinegun" in Section 5845(b) of the National Firearms Act to "include" the receiver of a machinegun by itself and any "combination of parts" from which a machinegun can be made or that can be used to convert another weapon into a machinegun. Gun Control Act of 1968, Pub. L. No. 90-618, section 2011 82 Stat. 1231. The court of appeals concluded (Pet. App. 12a-14a) that, by specifically including a "combination of parts" from which a machinegun can be assembled within the statutory definition of "machinegun" in 1968, Congress necessarily intended to exclude a "combination of parts" from which a short-barrel rifle can be assembled from the statutory definition of "rifle" under the Act. [footntoe 17] The court of appeals' reasoning is based on a serious misreading of history. The Gun Control Act of 1968 was enacted in the wake of 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: 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 firearms 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). Congress 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 problem 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 National Firearms Act of 1968 as "strengthening and clarifying amendments." Id. at 26. One of the "strengthening and clarifying amendments" enacted in 1968 was the expansive definition of "machinegun" added in Section 5845(b) of the Act. This amendment codified the rationale of the decision in United States v. Kokin, 365 F.2d at 596, which previously had held that a complete 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 "receiver" or "frame" of a machinegun, or any part designed for converting a weapon into a machinegun, is subject to regulation under the Act. See 26 U.S.C. 5845(b); S. Rep. No. 1501, supra, at 45-46. See also note 17, supra. It distorts history as well as logic to suggest that, by expanding the scope of the National Firearms Act and enlarging the scope of regulation for machineguns to "include" certain individual gun parts as well as conversion kits and complete parts kits used to make a "machinegun," [footnote 18] Congress 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 had correctly concluded prior to the decision in this case, the 1968 amendments to the National Firearms Act did not alter the "common sense" result 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. Darsen, 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 F.2d at 665 (the statute "does not specify that the parts must be assembled before it applies"); United States v. Endicott, 803 F.2d at 509. See also Pet. App. 31a. As the court of appeals stated in United States v. Wood, "to reason otherwise would be to frustrate or defeat the very purpose of the statute." 560 F.2d at 665. This conclusion is 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, judicial or administrative construction of the National Firearms Act. [footnote 19] Cf. Chisom v. Roemer, 111 S. Ct. 2354, 2368 (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 important category of elections from that protection."). Eighteen years after the Gun Control Act of 1968, Congress again amended the National Firearms Act, this time specifically to provide that the term "silencer" includes a "combination of parts" from which a silencer can be assembled. See 26 U.S.C. 5845(a)(7), 18 U.S.C. 921(a)(24). In expressly adding the "combination of parts" language to the definition of the term "silencer," Congress explicitly recognized that "complete kits" for firearm silencers already were regulated under the Act without that additional statutory language. See H.R. Rep. No. 495, 99th Cong., 2d Sess. 21 (1986). The stated purpose for the amendment to include a "combination of parts" in the definition of "silencer" was "to control the sale of incomplete silencer kits that now circumvent the prohibition on selling complete kits." [footnote 20] Ibid. (emphasis added). Congress thus recognized, as the other courts of appeals consistently have held, that a "complete parts kit" (United States v. Drasen, 845 F.2d at 737) was subject to regulation under the Act even before the phrase "combination of parts" was added to bring "incomplete [parts] kits" for certain firearms also within the Act's coverage. See, e.g., United States v. Endicott, 803 F.2d at 508 (a complete parts kit is regulated "if only a brief and a minimal effort is required to assemble the complete design by reason of the nature and location of the parts"); United States v. Lauchli, 371 F.2d at 311-313; United States v. Kokin, 365 F.2d at 596 (before the "combination of parts" language was added to the statutory definition of "machineguns," an unregulated carbine "together with all the parts necessary to convert it into * * * [a machine gun]" constituted a regulated "machinegun" under the Act). Prior to the decision in this case, the courts of appeals had uniformly held that a complete, but partially unassembled, weapon constitutes a "firearm" under the Act. See, e.g., United States v. Drasen, 845 F.2d at 736-737; United States v. Endicott, 803 F.2d at 508; United States v. Woods, 560 F.2d at 665 (the statute "does not specify that the parts must be assembled before it applies"). They had thus consistently rejected the claim that "the statute did not cover unassembled rifles." United States v. Drasen, 845 F.2d at 735, 736-737 ("[c]ommon sense permits no other conclusion"). 3. The decision of the court of appeals poses a serious threat to civil and criminal enforcement of the National Firearms Act. While the court of appeals apparently believed that this case merely presented the question of who pays the excise tax (the manufacturer or the purchaser who assembles the firearm) (Pet. 4a), the opinion drastically diminishes the breadth of the statute by requiring that a firearm be fully assembled to be subject to regulation (Pet. App. 5a). Since the same statutory definitions apply equally to the civil and criminal enforcement sections of the Act, the court of appeals' approach would enable defendants to claim that the government must now prove that the complete, but partially unassembled, weapon found in their possession had once been fully assembled in the form of a regulated firearm. [footnote 21] Manufacturers and importers of regulated firearms could also seek to circumvent the Act in like manner. [footnote 22] In reaching its conclusion that a complete parts kit --which takes less than five minutes to assemble into a short-barrel rifle -- is not a "firearm" under the Act, the court of appeals ignored this Court's admonition that the language of a statute should "not be distorted under the guise of construction, or so limited by construction as to defeat the manifest intent of Congress." United States v. Alpers, 338 U.S. 680, 681-682 (1950). While the Thompson short-barrel rifle is not itself a weapon of mass destruction, it would be simple enough to drive an Uzi through the eye of the Federal Circuit's needle. Congress never intended to allow a loophole in its regulatory structure that would be large enough for provisioning an army. See United States v. Drasen, 845 F.2d at 736. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. KENNETH W. STARR, Solicitor General, SHIRLEY D. PETERSON, Assistant Attorney General, LAWRENCE G. WALLACE, Deputy Solicitor General, KENT L. JONES, Assistant to the Solicitor General, GILBERT S. ROTHENBERG, STEVEN W. PARKS, Attorneys NOVEMBER 1991 FOOTNOTES 1. The receiver of the pistol is the metal frame housing the action, trigger and hammer. The rifle shoulder stock is a wooden support that attaches to the rear of the receiver and rests against the shoulder during firing. The rifle forend is a wooden piece that attaches under the barrel and provides a forward handrest to support the rifle during firing (Pet. App. 19a n.1). 2. The Contender pistol has a 10-inch barrel (Pet. App. 2a). A "rifle" results when the sho4lder stock is added to the pistol receiver, for the weapon in that form is designed "to be fired from the shoulder" (26 U.S.C. 5845(c)). A "rifle" with a barrel less than 16 inches long (commonly referred to as a "short-barrel rifle") is a "firearm" subject to the registration and tax requirements of the National Firearms Act (26 U.S.C. 5845(a)(3)). 3. Indeed, the process is so simple that, in a demonstration conducted in open court, counsel for respondent was able to alter the pistol into a short-barrel rifle in a matter of a few minutes (Pet. App. 29a). 4. BATF also informed Thompson, however, that the separate marketing of a complete pistol and a complete carbine would not by itself fall within the scope of the Act (Pet. App. 3a, 21a). BATF had provided Thompson with this same advice 14 years earlier (in 1971), when Thompson first inquired as to the legality of using the Contender pistol receiver to make a single-shot carbine with a barrel 18 inches long and a full shoulder stock (Pet. App. 2a). 5. See C.A. App. 123. Under the National Firearms Act, a manufacturer must first make application and receive permission from the Treasury Department to make a firearm subject to the requirements of the Act (26 U.S.C. 5822). Thompson elected not to seek qualification as a firearms manufacturer under 26 U.S.C. 5801(a)(1) (which requires payment of an occupational tax of $ 1,000) and instead sought permission to make firearms as a non- qualified manufacturer under 26 U.S.C. 5821(a) (which requires payment of a $ 200 tax for each firearm made). 6. Thompson had previously filed suit in federal district court seeking a declaratory judgment that the Contender pistol and the Contender Carbine Kit did not comprise a "firearm" under the National Firearms Act. Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38 (D.N.H. 1988). The district court held that it lacked subject matter jurisdiction over Thompson's suit under the Anti- Injunction Act (26 U.S.C. 7421) and the tax exception to the Declaratory Judgment Act (28 U.S.C. 2201). 686 F. Supp. at 44. 7. While respondent maintains that the users of the Contender system "are generally law-abiding" (Br. in Opp. 2), respondent ultimately acknowledges that the short-barrel rifle resulting from use of its conversion kit "would have no sporting utility" (ibid.). 8. For example, rifles are packaged, shipped and sold with their bolts (and sometimes other parts) detached and could not be fired until fully assembled. Shotguns are manufactured and marketed with removable barrels. But it could hardly be said that gun manufacturers such as Remington Arms, Uzi and Thompson therefore do not "manufacture" guns. That would be like saying that Schwinn does not "manufacture" bicycles. 9. In United States v. Woods, 560 F.2d at 664, the court specifically rejected the claim that partial disassembly can defeat the obvious breadth of the statute: "The fact that the weapon was in two pieces when found is immaterial considering that only a minimum of effort was required to make it operable." Ibid. See also United States v. Zeidman, 444 F.2d at 1053. 10. After Lauchli and Kokin were decided, the definition of "machinegun" was amended by the Gun Control Act of 1968, Pub. L. No. 90-618, section 201, 82 Stat. 1231, specifically to include a "combination of parts" from which a machinegun could be assembled. 26 U.S.C. 5845(b). See pp. 19-23, infra. 11. In 1986, Congress codified the result of Luce and Endicott by amending the definition of "silencer" to include a "combination of parts" from which a silencer may be assembled in the Firearms Ownerst Protection Act, Pub. L. No. 99-308, section 101, loo Stat. 451. See 26 U.S.C. 5845(a)(7); 18 U.S.C. 921(a)(24). See pp. 24- 25, infra. 12. The court of appeals also considered it important (Pet. App. 4a-5a) that Congress could have employed different statutory language -- e.g., a rifle that "could have" a short barrel, rather than a rifle "having" a short barrel -- if it had intended the Act to embrace rifles sold in a partially unassembled state. Although different statutory language might more clearly embrace unassembled rifles, that hardly demonstrates that Congress did not intend that result here. See United States v. Drasen, 845 F.2d at 733 (emphasis added): The statute could have defined a rifle as also including the parts thereof that could be readily assembled to form a functioning weapon. The omission of some clarifying language does not mean, however, that a reasonable interpretation of the statute does not yield the same result. 13. The court of appeals erred in relying (Pet. App. 16a-17a) on United States v. Combs, supra, for the proposition that the weapon must be fully assembled to constitute a "firearm." In that case, the defendant was found in possession of an Uzi carbine that already had a short barrel attached to it. 762 F.2d at 1345. No one has ever questioned that a firearm is "made" if a short barrel is already attached to the rifle. The question presented in this case, which the Ninth Circuit had no need to consider in Combs, is whether a pistol possessed together with a conversion kit that enables the pistol to be readily converted into a short-barrel rifle constitutes a "firearm," regardless of whether the parts have actually been assembled in that form. 14. Respondent suggests that its Contender system is not as powerful 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 machinegun. If Uzi were to manufacture a "conversion" kit" to alter its carbine to a short-barrel rifle, it would be subject to the same regulatory 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 magazine size. The same standards apply to all rifles; they are regulated if they have short barrels. 26 U.S.C. 5845(a) (3). 15. Deference is afforded to the Treasury's published interpretations of tax statutes because: "Congress has delegated to the * * * Commissioner [of Internal Revenue], not to the courts, the task of prescribing 'all needful rules and regulations for the enforcement' of the Internal Revenue Code. 26 U.S.C. section 7805(a)." United States v. Correll, 389 U.S., at 307. That delegation helps ensure that in "this area of limitless factual variations," ibid., like cases will be treated alike. It also helps guarantee that the rules will be written by "masters of the subject," United States v. Moore, 95 U.S. 760, 763 (1878), who will be responsible for putting the rules into effect. National Muffler Dealers Ass'n v. United States, 440 U.S. at 477. In 1972, responsibility for administering and enforcing the provisions of the National Firearms Act was delegated within the Treasury Department to BATF. See 37 Fed. Reg. 11,896 (1972). 16. In adding the "readily restored" language to the statute, "Congress specifically intended to overcome United States v. Thompson, 202 F. Supp. 503 (N.D. Cal. 1962), holding that a firearm with a missing firing pin was not a firearm under the Act." United States v. Drasen, 845 F.2d at 736 (citing S. Rep. No. 1501, 90th Cong., 2d Sess. 46 (1968)). The Senate Report states that the amendment was intended merely to "clarif[y]" the definition of the term "rifle" and was "consistent with the administrative construction of existing law." S. Rep. No. 1501, supra, at 46. The "administrative construction" of the statute to which the Senate Report refers included the Treasury Rulings that a short-barrel pistol held in conjunction with an attachable shoulder stock constitutes a short-barrel rifle under the Act. See Rev. Rul. 61- 45, supra; Rev. Rul. 61-203, supra. 17. The court also appeared to believe (Pet. App. 14a) that, since the statute expressly regulated a "combination of parts" for use in converting a non-regulated weapon into a "machinegun" or a "destructive device" (see 26 U.S.C. 5845(b) and (f)), it should not be read impliedly to regulate a "combination of parts" to convert a pistol into a short-barrel rifle (see 26 U.S.C. 5845(a)(3)). The question whether a "conversion kit" for converting a pistol into a short-barrel rifle is, by itself, subject to regulation is not presented in this case. Instead, this case presents the question whether the "conversion kit" when possessed or distributed together with the pistol -- in a unit that constitutes a complete, partially unassembled short-barrel rifle -- is regulated as a firearm under the Act. As the Seventh Circuit stated in United States v. Drasen, 845 F.2d at 737, "[w]e are concerned [in this case] only with complete parts kits for short-barrel rifles." With respect to a complete parts kit, the courts of appeals consistently have held heretofore that "[the statute] does not specify that the parts must be assembled before [the statute] applies." United States v. Woods, 560 F.2d at 665. See also United States v. Kokin, 365 F.2d at 596. 18. Congress evidently perceived "machineguns" to be so inherently dangerous that single constituent parts were made subject to regulation under the Act. As the Seventh Circuit stated in United States v. Drasen, 845 F.2d at 737: Parts for [weapons such as machine guns), which are regulated without limitation, are therefore parts with only one purpose, so that a single part could reasonably be subject to regulation. 19. 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 unregistered firearm" (id. at 100). Congress amended Section 5848 of the National Firearms Act to avoid this result by prohibiting the use of registration information against the person filing it "as evidence * * * in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing" of that information 26 U.S.C. 5848(a). See S. Rep. No. 1501, supra, at 26. 2O. Consistent with the description of pre-1986 law set forth in the House Report, Edward Owen, Chief, Firearms Technology Branch of the BATF, testified in hearings held prior to the statutory amendments specifically defining the term firearm "silencer" to include silencer parts or combinations of silencer parts, that the BATF treated a "kit that [i]s complete enough to assemble a suppressor * * * in the same fashion as a functional device," and, hence, that a complete silencer "kit" was itself "a silencer subject to registration" under then-existing law. Armor Piercing Ammunition and the Criminal Misuse and Availability of Machineguns and Silencers: Hearings on H.R. 641 and Related Bills Before the Subcomm. on Crime of the House Comm. on the Judiciary, 97th Cong., 2d Sess. 122, 132 (1984). See also United States v. Luce, supra; United States v. Endicott, supra. 21. As the cases cited in this brief reflect, prosecutions under the National Firearms Act often involve weapons that are recovered in a partially unassembled state. See United States v. Drasen, 845 F.2d at 736-737; United States v. Endicott, 803 F.2d at 508; United States v. Luce, 726 F.2d at 49; United States v. Kokin, 365 F.2d at 596. 22. The National Firearms Act prohibits the importation of regulated firearms for commercial sales. Importation is restricted to use for governmental agencies and scientific or research purposes. 26 U.S.C. 5844. [Respondent's Brief was not available] UNITED STATES OF AMERICA, PETITIONER v. THOMPSON/CENTER ARMS COMPANY, A DIVISION OF THE K.W. THOMPSON TOOL COMPANY, INC. No. 91-164 October Term, 1991 January 6, 1992 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. TABLE OF AUTHORITIES Cases: Commissioner v. Portland Cement Co., 450 U.S. 156 (1981) Gould v. Gould, 245 U.S. 151 (1917) Haynes v. United States, 390 U.S. 85 (1968) Heivering v. winmill, 305 U.S. 79 (1938) Morgan v. United States, 564 F.2d 803 (8th Cir. 1977) Rowan Cos., Inc. v. United States, 452 U.S. 247 (1981) Sonzinsky v. United States, 300 U.S. 506 (1937) Thompson/Center Arms Co. v. Baker, 686 F. Supp. 38 (D.N.H. 1988) United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989) United States v. Cartwright, 411 U.S. 546 (1973) United States v. Correll, 389 U.S. 299 (1967) United States v. Cowper, 503 F.2d 130 (6th Cir. 1974), cert. denied, 420 U.S. 930 (1975) United States v. DeBartolo, 482 F.2d 312 (lst Cir. 1973) United States v. Endicott, 803 F.2d 506 (9th Cir. 1986) United States v. Freed, 401 U.S. 601 (1971) United States v. Gonzalez, 719 F.2d 1516 (Ilth Cir. 1983), cert. denied, 465 U.S. 1037 (1984) United States v. Herbert, 698 F.2d 981 (9th Cir.), cert. denied, 464 U.S. 821 (1983) United States v. Kokin, 365 F.2d 595 (3d Cir.), cert. denied, 385 U.S. 987 (1966) United States v. Lauchli, 371 F.2d 303 (7th Cir. 1966) United States v. Luce, 726 F.2d 47 (lst Cir. 1984) United States v. Mittleider, 835 F.2d 769 (10th Cir. 1987), cert. denied, 485 U.S. 980 (1988) United States v. Ranney, 524 F.2d 830 (7th Cir. 1975), cert. denied, 424 U.S. 922 (1976) United States v. Shilling, 826 F.2d 1365 (4th Cir. 1987), cert. denied, 484 U.S. 1043 (1988) United States v. Thomas, 531 F.2d 419 (9th Cir), cert. denied, 425 U.S. 996 (1976) United States v. Williams, 872 F.2d 773 (6th Cir. 1989) White v. Aronson, 302 U.S. 16 (1937) Statutes and regulation: Gun Control Act of 1968, Pub. L. No. 90-618, Tit. II, section 201, 82 Stat. 1231 26 U.S.C. 5845(a) 26 U.S.C. 5845(a)(1) 26 U.S.C. 5845(a)(4) 26 U.S.C. 5845(a)(5) 26 U.S.C. 5845(a)(7) 26 U.S.C. 5845(b) 26 U.S.C. 5845(c) 26 U.S.C. 5845(f) 26 U.S.C. 5845(i) 26 U.S.C. 5861 26 U.S.C. 5871 26 U.S.C. 6110(j)(3) 26 U.S.C. 7805 26 C.F.R. 179.29 (1955) 27 C.F.R. 71.41(d) (iii) (B) Miscellaneous: 4 BATF Quarterly Bulletin (1990) 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 Rev. Rul. 59-340, 1959-2 C.B. 375 Rev. Rul. 61-45, 1961-1 C.B. 663 Rev. Rul. 61-2031 1961-2 C.B. 224 Rev. Rul. 72-178, 1972-1 C.B. 423 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 device" all include combinations of parts, see 26 U.S.C. 5845(b), 5845(a) (7), 5845(f), while the NFA definition 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 decisions (as well as consistent administrative practice, see pp. 7-13, infra) had interpreted those provisions to include combinations of parts, in effect ratifying those decisions. [footnote 1] See United States v. Lauchli, 371 F.2d 303, 311-313 (7th Cir. 1966) (machineguns); United States v. Kokin, 365 F.2d 595, 596 (3d Cir.), cert. denied, 3S5 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 categories, 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 "destructive 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." [footnote 2] In addition, the NFA's definition of "rifle" is in one respect broader than its definitions of "machinegun," "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). [footnote 3] The term "make" does not appear in the NFA definitions of "machinegun," "silencer," or "destructive device." Yet, the NFA defines "make," as well as its "various derivatives," to include "putting 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 statutory definition of "rifle" was in no need of amendment 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 assemble it into a short-barrel rifle, to be fired from the shoulder. The particular uses that particular purchasers will make of the unit obviously is not a matter within respondent's control. Nothing in the NFA requires 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). [footnote 4] And, in any event, by producing and selling 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 statute. 3. Respondent argues that Treasury's interpretation 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 requirement" (Resp. Br. 22-23). As we explain in our opening brief (at 15 & n.15), this Court has long held that Treasury regulations "if found to 'implement the congressional mandate in some reasonable manner,' must be upheld." United States v. Cartwright, 411 U.S. 546, 550 (1973), quoting United States v. Correll, 389 U.S. 299, 307 (1967). Accord Commissioner v. Portland Cement Co., 450 U.S. 156, 169 (1981) (citing cases); Helvering v. Winmill, 305 U.S. 79, 83 (1938). Neither case cited by respondent (Resp. Br. 21-22) is to the contrary. Gould v. Gould, 245 U.S. 151, 153 (1917), involved a pure question of statutory construction, uninfluenced 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 administrative 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 taxpayer, the case weakens, rather than strengthens, respondentfs 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 making and transferring firearms are broadly defined," Haynes v. 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 prosecution, that fact alone does not convert it into a criminal statute. [footntoe 5] 4. Respondent contends (Resp. Br. 26-29) that the governmentfs interpretation of the statute has been inconsistent. Under that interpretation, manufacture or sale of a pistol alone does not constitute manufacture or sale of a short-barrel rifle. Nor does manufacture or sale of individual parts of a short-barrel rifle, such as a rifle stock and barrel, that are insufficient, when assembled, to constitute a complete weapon. 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 manufacture 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 respondent -- an unpublished letter written by a BATF official, 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 "[t]he possession or control of sufficient parts to assemble an operative firearm constitutes the possession of a firearm." That Ruling, whose plain language directly controls this case, applied to all firearms under the NFA, not merely short- barrel rifles. [footnote 6] 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 firearms under the NFA. That ruling is perfectly consistent with Treasury's position both in Rev. Rul. 54-606 and today. There is no indication that the pistols at issue in Rev. Rul. 56-296 were possessed together 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, "[w]ith the pistol barrel removed, * * * can be inserted into a one piece rifle frame with a .22 caliber barrel having a length of over 16 inches" was not possession of a firearm. Rev. Rul. 59-340, 1959-2 C.B. 375. The weapon at issue in that ruling could be assembled only as a pistol or as a "rifle with a * * * barrel having a length of over 16 inches." Ibid. Since it was apparently not possible to assemble the weapon 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 case. The crucial distinction overlooked by respondent is that the weapon at issue here is fully functional as a short-barrel rifle, and thus is a firearm under the NFA. In 1961, Treasury issued two rulings that continued 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 attachable shoulder stock affixed, or held by the possessor of such a weapon, is a short barrel rifle and, hence, within the purview of the National Firearms Act" (emphasis 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 shoulder stocks are firearms, while pistols with long barrels (greater than 16 inches) and attachable shoulder stocks are not firearms. The weapons at issue here are plainly within the former category. [footnote 7] 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" issue 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 position, however, did not "repudiate]" the substantive rule announced in Rev. Rul. 54-606, as respondent contends. Resp. Br. 38. First, Treasury did not withdraw or declare obsolete 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 classification 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. 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 regulations" (emphasis added). Rev. Rul. 54-606 applied not only to pistols sold with attachable parts for conversion 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, section 201, 82 Stat. 1231, Congress incorporated 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 destructive device. Thus, Rev. Rul. 54-606 was in part superseded 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 forward 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 explained when initiating its process of periodic review of past rulings, a revenue ruling is declared obsolete 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, etc." Ibid. Treasury expressly cautioned that "[t]he public announcement 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 "revoked" when "the position in the previously published ruling is not correct and the correct position is being stated in the new ruling. Rulings which have been revoked have no further effect." Ibid. Rev. Rul. 54-606 has never been "revoked." c. Respondent cites (Resp. Br. 3-4, 29-30) a number of informal exchanges of unpublished letters between private parties and BATF officials in support of his contention that the administrative interpretation 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 consistent course of administrative interpretation [footnote 8] -- such unpublished, informal letters, often written by subordinate agency officials, could not disprove our contention that Treasury's administrative interpretation has been consistent. Under 26 U.S.C. 6110(j)(3), "[u]nless the secretary otherwise establishes by regulations, 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 rulings 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 written -- including the individuals to whom they were addressed, the questions asked by these individuals, and the nature of contemporaneous or prior conversations 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, respondent 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 Contender pistol and a complete Contender long-barrel 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 registration scheme, such as the NFA, requires the drawing of lines. [footnote 9] Congress has entrusted the administration 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). Consequently, 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 itself. In addition, there is an important distinction between respondent's weapon and a rifle that has been altered by sawing off the barrel. Once an individual 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 not 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 possessing such systems could evade NFA regulation and avoid detection. Similarly, as we explain in our opening brief (at 16), Treasury reasonably has determined that separate 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 shoulder stock from respondent's kit) does. [footnote 10] That distinction is based on the statutory distinction between long- and short-barrel rifles. Manufacture and sale of each weapon separately -- as well as separate possession by the manufacturer of both weapons in the course of conducting separate manufacturing and marketing operations, see Resp. Br. 16 -- does not constitute 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 legislative proposals to Congress, not this Court. Moreover, 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. [footnote 11] Despite respondent's evident disdain (Resp. Br. 14) for Congress's desire to tax and register such weapons, respondent's position would pose a substantial 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 FOOTNOTES 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, Congress's failure similarly to redefine the term "rifle" suggests simply that Congress did not intend similarly to narrow the definition of rifle. 2. Indeed, as our opening brief notes (at 23), Congress expressly 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. 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 quotation 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 subject 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, restrictions 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 National 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. 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 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 (lst 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 v. 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 (Ilth 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. 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. v. Baker, 686 F. Supp. 38, 43 (D.N.H. 1988). 6. Respondent cites (Resp. Br. 27) a 1952 regulation, codified 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. 7. Respondent repeatedly comments (Resp. Br. 2 n.2, 14, 29 n.38, 33 n.4) that Treasury has exempted from the NFA registration 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. 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 Services 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 interchangeable 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 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. 9. Even respondent concedes that certain lines must be drawn. Thus, respondent would apparently concede that possession 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 firearm. 10. 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. 11. Respondent asserts that "[t]he [Federal Circuit's] opinion 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 -- rifles, shotguns, and "any other weapon" as defined in the NFA -- that do not have "combination 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 partially unassembled, weapons.