Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner v. THOMPSON/CENTER ARMS COMPANY

No. 91-164

January 13, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:01 a.m.

APPEARANCES:

JAMES A. FELDMAN, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

STEPHEN P. HALBROOK, ESQ., Fairfax, Virginia; on behalf of the Respondent.

PROCEEDINGS

11:01 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in 91-164, United States against Thompson/Center Arms Company.

Mr. Feldman, you may proceed.

ORAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER

MR. FELDMAN: Thank you, Mr. Chief Justice and may it please the Court:

This case arises from a suit for a refund of the tax on the making of a firearm, in this case a short-barrel rifle, by the respondent Thompson/Center Arms Company. It raises the question whether manufacture of a complete but partially unassembled short-barrel rifle constitutes the making of a firearm under the National Firearms Act.

Now, the facts of the case are not complex. Respondent segregated as a unit -- those are the terms that respondent used in its application to pay the tax -- segregated in a unit all of the parts that are necessary to constitute a short-barrel rifle. In particular, that included a pistol, which is not itself a firearm under the act, and a shoulder stock that converts the pistol to one that can be fired from the shoulder.

Now, the facts that were found by the claims court and are undisputed are that the shoulder stock can fit onto the pistol in less than 5 minutes. It's easily attachable. Therefore, a short-barrel rifle can be finally assembled merely by attaching the shoulder stock in an operation that takes less than 5 minutes. Now, the system --

QUESTION: So that you can make the short-barreled rifle out of everything that comes in that kit?

MR. FELDMAN: Yes. The kit consists of a pistol -- now, that itself is not a short-barrel rifle because it's designed to be fired from the hand. But also in the kit are essentially three additional pieces, a shoulder stock, and that attaches by taking off the pistol grip and attaching --

QUESTION: Which makes it into a potential rifle.

MR. FELDMAN: That makes it into a weapon that is designed to be fired from the shoulder, undoubtedly.

QUESTION: What are the other pieces?

MR. FELDMAN: The other pieces are a longer barrel that can be substituted for the shorter barrel, and a fore-end, a wooden piece that fits under the barrel.

QUESTION: And that wouldn't be covered, either.

MR. FELDMAN: Those pieces -- right. If you attach all of the pieces in the kit you have a long-barrel rifle, and a long-barrel rifle is not itself a firearm under the act. That's correct.

QUESTION: What the other side says is yes, somebody could attach the stock to the pistol, but that's not what it's sold for. Nobody wants to shoot a pistol with a shoulder piece. Somebody could saw off a rifle in less than 5 minutes, too -- saw the barrel down -- so why doesn't that come under the act?

MR. FELDMAN: That's correct, but as far as the sawed-off rifle goes I think there's some important distinctions between a readily attachable shoulder stock that attaches right onto a pistol and a sawed-off rifle or shot-gun. First, rifles themselves, a fully assembled rifle or shot-gun is not a firearm under the act. Now, for -- to take the position that that was a firearm because you simply could saw off the barrel would be to mean essentially that all rifles and all shot-guns are firearms.

QUESTION: Well, what if you sold it together with a saw?

MR. FELDMAN: Even if you sell it together with a saw, a saw is not itself a part of a -- it's not a part of a rifle. It's not something that's designed to be assembled or added to a rifle. It's a tool that's used.

QUESTION: Well, what if the person manufactured and sold an assembled rifle and an assembled pistol and they were interchangeable in their parts so that it could -- theoretically these things could be broken apart and reassembled as a short-barreled rifle?

MR. FELDMAN: Well, I think that's actually the hardest case here. I would say that the logic of our argument suggests that the statute -- and I think the statute could be interpreted such that that would be a firearm. However, I also think that in that case there would be an additional consideration, which is what you have is a complete rifle and a complete pistol, and neither of those are firearms under the act.

QUESTION: Well, so what's the answer?

MR. FELDMAN: The current position that ATF has taken, partly as a matter of its enforcement discretion, is that that is not a firearm if they're complete and fully assembled.

QUESTION: But that's not perhaps logical in light of your legal argument here today, is it?

MR. FELDMAN: No, I don't -- I wouldn't say that. I think it is -- the logic of our argument could -- under the logical argument the statute could be extended so far as to read that, but the problem is there's conflicting lines of --

QUESTION: Is there an intent requirement under this statute?

MR. FELDMAN: The intent is actually right in the words of the statute. To be a rifle something has to be designed, made, and intended to be fired from the shoulder. I think it's undisputably --

QUESTION: You don't have to have an intent as to barrel length, that it be a short-barreled --

MR. FELDMAN: No. I would say you have to have knowledge as to barrel length. You certainly would have to know, and it's unquestionable that in this case respondent knew what the barrel length of its weapon was, but I don't think -- and you would have to know in the case of a parts kit that these other kits could be -- that the shoulder stock could be added to the pistol.

You have to know that what you have is a short-barrel rifle, but what you -- you don't have to intend that it be a short-barrel rifle, and in particular if you're a manufacturer I think the manufacturer -- Thompson, in this case -- manufacturer's intent is really entirely irrelevant in the sense -- intent as to what the consumer is going to do.

Thompson has designed and made a weapon with the parts easily attachable. It may or may not intend for consumers to do all sorts of things with that, but that intent is -- it just doesn't -- it's not operative in this case so long as the parts are easily -- can be easily assembled and put together.

QUESTION: The record certainly doesn't indicate that anybody -- any -- has anybody ever used this contraption, if I may call it, as a short-barreled rifle?

MR. FELDMAN: There's no --

QUESTION: Has any sportsman ever used it that way?

MR. FELDMAN: I'm not aware whether any sportsman --

QUESTION: Has any criminal ever used it that way?

MR. FELDMAN: There's nothing in the record about a -- that a criminal has used it.

QUESTION: Why would you want a shoulder-fired pistol? I can't understand that. I can understand why you would want to saw off a powerful weapon like a rifle so you can carry it more easily and commit a crime with it, but why would you want to fit a shoulder piece to a pistol?

MR. FELDMAN: I mean, essentially the prohibition on short-barrel rifles is based on the idea that a short-barrel rifle is more accurate than a rifle and yet more concealable than -- I mean, more accurate --

QUESTION: Than a pistol, that's right.

MR. FELDMAN: -- than a pistol.

QUESTION: That's right.

MR. FELDMAN: And more concealable --

QUESTION: Right.

MR. FELDMAN: -- than a rifle.

QUESTION: So this one would be no more accurate than a pistol, I assume -- the barrel is not any longer -- but less concealable than a pistol.

MR. FELDMAN: There's all -- I don't think there's anything in the record as to precisely how accurate this would be or whether someone would or would not want to use this for criminal --

QUESTION: But Mr. Feldman, are there criminal penalties for possessing -- I mean, this is -- as it comes before us it's a tax case, but is it not the case that the same provisions, the same definitions govern criminal liability for possession of this thing?

MR. FELDMAN: Yes.

QUESTION: And don't we usually apply a rule of lenity to criminal cases?

MR. FELDMAN: Well, let me actually -- let me retract that yes and put it in two parts. The question as to what is a firearm is identical under the tax provisions or under the criminal prosecution provisions.

QUESTION: And do you concede it has to be interpreted the same way for both?

MR. FELDMAN: The question of what is a firearm. There may or may not be additional intent requirements from the basis of proceeding under one of the criminal prohibitions that may require some further intent when there's a criminal prosecution.

QUESTION: May or may not? What's the position of the Government? Is there an intent requirement?

MR. FELDMAN: The position of the Government is that the only intent requirement is that you know that it's a firearm, that that puts you on --

QUESTION: That's what I thought.

MR. FELDMAN: I mean, excuse me, you know that it's a weapon.

QUESTION: Right. So that if we agree with the Government we're going to be interpreting this provision, which is at least ambiguous, in a manner that's going to make a crime what persons might readily think is not a crime.

MR. FELDMAN: Your Honor, I think that that would prove entirely too much. Like any other tax statute, like other regulatory matters where there's regulations that are enforced by -- or a regulatory scheme that's enforced by criminal penalties, the fact that there are potential criminal penalties lurking in the background doesn't mean that the regulatory scheme should always be interpreted against the Government.

QUESTION: But haven't some of our cases held in the field of taxation that even though we're dealing with a tax case here, if there are criminal penalties then you apply the rule of lenity?

MR. FELDMAN: I don't recall any that have specifically dealt with tax cases and the rule of lenity. There are cases that talk about where there's been no consistent regulatory interpretation of a statute -- they're primarily older cases -- but that have discussed the fact that you might then interpret a statute so as to give fair notice to the taxpayer in favor of the taxpayer.

In this case, where you're talking about the registration by a manufacturer of firearms, there's no question that the manufacturer had sufficient fair notice, and in any event, it's not the kind of criminal -- this is not the kind of criminal prosecution where those fair notice concerns are most prominent.

QUESTION: But don't -- aren't you going to have to interpret it the same way in a criminal prosecution?

MR. FELDMAN: Again, you would have to -- you certainly would have to interpret what is a firearm the same way in a criminal prosecution.

QUESTION: So why do you say those concerns aren't present here? They're not present in this particular case, but we're giving meaning to language which could ultimately be applied in a criminal case.

MR. FELDMAN: First of all, I think the argument that we're making is something that would be appropriate in a criminal case, but if -- where you're addressing criminal cases, the criminal prohibitions -- for instance there's a criminal prohibition against possessing an unregistered -- an unregistered weapon that's required to be registered. The term possessing there, for instance, may carry some further intent requirement that's not applicable where you're talking about whether you have to pay the tax and register the firearm initially.

QUESTION: Although you deny that.

MR. FELDMAN: It is our position that there's not --

QUESTION: It may. It may if you lose.

MR. FELDMAN: There's -- currently the courts of appeals -- most courts of appeals have held that the -- for the criminal -- in a criminal prosecution the intent requirement is that you know that it's a firearm, that that puts people on sufficient notice to know that they should check and see what the legal requirements are with respect to that weapon before they possess a firearm. That's in the general sense.

QUESTION: How do you deal with the Gould case?

MR. FELDMAN: The Gold -- excuse me.

QUESTION: Well, Gould or Gold, G-o-u-l-d v. Gould, decided in 19 -- 1970, about -- saying that statutes levying taxes establish a rule not to extend their provisions by implication.

MR. FELDMAN: I think that -- two ways. First, I think the language of this -- of the statute here readily lends itself to the interpretation of that proposal.

QUESTION: So you're not extending it by implication.

MR. FELDMAN: That's right. But I'd also say that Gould is a case, and as are the other cases cited by respondent on this point, where there was no established administrative construction of the statute. There have been numerous cases where the Court has dealt with established administrative construction of tax statutes and has deferred to the Government's interpretation.

QUESTION: Well, has this always been the Government's position --

MR. FELDMAN: Yes.

QUESTION: -- the one that you're now --

MR. FELDMAN: Yes. You can trace it back -- there was originally a revenue ruling in 1954 which applied to any firearm under the National Firearms Act and said that -- essentially that whether the parts are attached or not, they still would constitute a firearm if they're all that are necessary to make it.

There were two revenue rulings in 1961.

QUESTION: So you don't think this is any different than if the only thing that was sold here was a kit with a stock and a rifle barrel -- I mean, a short rifle barrel? It wasn't assembled, but it was -- could be readily assembled.

MR. FELDMAN: I'm not sure if I understand the hypothetical. If it --

QUESTION: Let's assume that it had a stock and it had a short barrel, and whatever else that it would -- necessary to make a short-barreled rifle.

MR. FELDMAN: That's right. It's our position that that would be the same -- that that is the same case.

QUESTION: That is the same case, isn't it?

MR. FELDMAN: And indeed, if the Federal circuit's interpretation of the statute were adopted, a criminal or a gang of criminals, or anyone in fact, could amass a cache of short-barrel rifles or other NFA weapons simply by buying them in a partially unassembled state, with one or two pieces missing, leaving them there in a warehouse or storehouse until they're ready to be used and then attaching the final piece and going out and using them.

QUESTION: Well, except for the fact that in that case there's only one thing they would do with them if they did anything at all, whereas that is not true here.

MR. FELDMAN: Well, that may or may not be true in that case. In fact, if this were -- if the Federal circuit's interpretation of the act were adopted, manufacturers could easily make weapons that are far more sinister than the particular weapon that we're talking about here -- weapons that are semi-automatic. They're have higher caliber, and so on, that have some utility and could be fired as a pistol, and then they sell them with a shoulder stock that you can just clip right on to the handle. All of those cases would be governed by the determination here, and any manufacturer could sell those and people could stockpile them, and they wouldn't be subject to the -- they wouldn't have to register them.

QUESTION: The same horrible exists as long as the parts are interchangeable, whether they sell them that way or not. Criminals who want to do that can do it even under your interpretation. All they have to do is buy the barrels and the stocks and the -- what do you call the part in the middle, the receiver?

MR. FELDMAN: Receiver.

QUESTION: The receivers separately. I mean, that horrible exists under any interpretation of this law.

MR. FELDMAN: Yes, but weapons could be specifically designed and intended by the manufacturers to be -- by a single manufacturer just precisely so they'd have, for instance, the maximum criminal utility and so that there's a piece or two that's missing when you purchase them so that technically they're some other weapon which someone may want to use for some other purpose at that time.

So long as all these parts are segregated as a unit, which is what the -- what respondent has said in his application to pay the tax that was due in here, it is as much a firearm as is a bicycle that you buy that has handlebars that the ultimate consumer has to attach.

QUESTION: At what point does the manufacturer pay the tax? When it puts the component -- or the parts in a separate package, or when they come off the assembly line?

MR. FELDMAN: I would certainly be willing to go along with what respondent put in its application to pay the tax, which is segregate as a unit.

QUESTION: Well, does that mean when it puts it in its storehouse ready for shipment?

MR. FELDMAN: Yes. Well, whenever these parts are put together as a unit so that you just need the final part to be -- just need the final attachment and you have a firearm. The statute itself, the statutory language, talks about manufacturing --

QUESTION: So that when the barrel comes off one assembly line and the stock off another assembly line, there's no tax, but then they owe you the tax when they put the two together in a box? Is that the way it works?

MR. FELDMAN: When they're associated together. It's the same thing as if they were just making short-barrel rifles. They wouldn't -- there's some point if you go far back -- let's say they were specifically manufacturing short-barrel rifles and nothing else. There's some point far enough back in the manufacturing process where you don't yet have a short-barrel rifle and then at some point you do. I don't think it's --

QUESTION: Well, but under your theory if they have an inventory with any number of stocks and any number of barrels at some point I suppose that they've got the potential of assembling a weapon --

MR. FELDMAN: That's right.

QUESTION: -- for which the tax is required.

MR. FELDMAN: That's right, and when those parts are segregated as a unit -- let me suggest another case, which is where what they're making is a full rifle and a full -- and a pistol, and they're marketing them entirely separately.

It happens that there are some interchangeable parts. The shoulder stock is inter -- the shoulder stock can fit onto the pistol but it's maybe not even their intent to do so, or that anyone should even know that. If they're making them in the same building they're making two different weapons, and if neither weapon is a firearm, then they're not making firearms.

QUESTION: Well, suppose this kit is shipped as a complete rifle. There's a receiver. There's the stock and the barrel and the receiver, but all disassembled. What --

MR. FELDMAN: If it is a long barrel it's just a long-barrel rifle and not a firearm.

QUESTION: So it's only the omission of the receiver that is the incident that requires the payment of the tax?

MR. FELDMAN: I'm not sure I understand. The -- once you have the pistol, or actually it's the receiver --

QUESTION: Well, you tax them now for having the kit, and the kit has the barrel and the stock.

MR. FELDMAN: That's right. It has the barrel, the stock, plus a completed pistol. Once you have -- let me put it this way. Once you have the receiver from the pistol and the barrel from the pistol and the shoulder stock, which is everything you need for a short-barrel rifle, regardless of whether those three units are -- happen to be attached to each other at a particular --

QUESTION: Well, what -- the kit now contains a barrel and a stock, correct? A 16-inch barrel and a stock, isn't that correct, or am I incorrect?

MR. FELDMAN: Yes, that's correct. No -- the kit contains a pistol with, I think, a 10-inch barrel, then in addition -- it has a pistol that has already a 10-inch barrel attached to it. In addition, the pistol -- the kit contains a longer barrel and a shoulder stock.

QUESTION: Well, are the kit and the pistol sold together?

MR. FELDMAN: Yes. That -- that's what raises the issue. Had they just sold the kit they wouldn't have a firearm because it couldn't be used as a weapon at that point.

QUESTION: Well, what is the receiver --

QUESTION: Suppose it included -- excuse me.

QUESTION: Well, what is a receiver, Mr. Feldman?

MR. FELDMAN: The receiver is the part of the gun -- firearm that contains the mechanism of the gun. It's the middle part, the part that contains the cartridge and where the explosion occurs.

QUESTION: So you have three parts to a rifle, a stock, a receiver, and a barrel?

MR. FELDMAN: I think -- yes. For purposes of this case, that's all -- you really only have to look at those three parts.

QUESTION: And suppose they sold those three parts disassembled. What result?

MR. FELDMAN: Well, again, if the barrel were a short barrel it would be a short --

QUESTION: No, no. No, it's a long barrel, it's a 16-inch, and it's a stock, and it's a receiver, all dissembled, but they're capable of being purchased by someone who already owns one of these pistols and being converted in a prohibited way.

MR. FELDMAN: That conversion kit -- the kit by itself that just contains those parts wouldn't be a firearm, because --

QUESTION: So it's only the absence of the receiver that makes it an illegal kit.

MR. FELDMAN: No, it's the presence -- I don't mean to be quarreling with you on the hypothetical, but it's the presence of the pistol that makes it a complete kit. As soon as you have all the parts in one kit that are necessary to constitute a short-barrel rifle you have a short-barrel rifle. As with any other consumer item --

QUESTION: All right, then let me ask a different way, and I guess if you have the disassembled pistol, all of the parts, and the disassembled rifle, all of the parts, and you sell them as two weapons, that's a violation in your view.

MR. FELDMAN: Yeah. If you sell -- if you have a disassembled pistol and a disassembled rifle and you sell them separately --

QUESTION: All of the parts for each and they're sold together.

MR. FELDMAN: That would also be a violation. That's right --

QUESTION: But if you had an assembled rifle and an assembled pistol which could be disassembled and reassembled into a short-barreled rifle, you say no violation.

MR. FELDMAN: I think that fact without more -- again, I think that that's a hard case, because there are two -- really two lines of reasoning there. One is that once you have all the parts that are necessary to quickly and easily constitute a short-barrel rifle you have a short-barrel rifle.

Under -- that reasoning I think would suggest that you would in that case, but on the other hand, Congress did exclude long-barrel rifles as firearms under the act. And I think, at least we've taken the position thus far, that given that exclusion once you have the weapon assembled in a complete rifle it is a long-barrel rifle and you can't recharacterize it as something else.

QUESTION: Mr. Feldman, I didn't understand -- I didn't understand the position you were taking to be in accord with the answer you just gave. I had assumed that if the retailer of a gun, if he should sell in one package a pistol which is disassembled but it's in a box -- it's in a separate box wrapped in ribbon and everything, and then he sells in another box a disassembled rifle with the interchangeable parts, but in a separate box and tied with a ribbon, is that a violation because he's making the sale of the two simultaneously?

MR. FELDMAN: If they're both disassembled and he's making the simultaneous --

QUESTION: Yes, right.

MR. FELDMAN: -- sales to the same customer?

QUESTION: To the same customer.

MR. FELDMAN: I think if there's knowledge that those parts can be reassembled as a short-barrel rifle --

QUESTION: I see. Okay, so he sells one -- he sells the pistol, and then the customer says I'd also like to buy a rifle, and he sells the rifle.

MR. FELDMAN: I think it would depend if there's knowledge on everybody's part that those parts can be put together quickly and readily as a short-barrel rifle.

QUESTION: Unless it's a full -- fully assembled pistol and a fully assembled rifle, then it doesn't matter. So the store owner could say well, let me put this together for you, and he puts it together, and he puts the gun together, and he says now you can buy both. Is that -- that's what the law is.

MR. FELDMAN: I think if they're fully assembled without more -- again, if the store owner suggests to the customer I'm going to put them together for you but these -- really it's the whole unit and this really should be made -- you can go take this home, in fact you ought to if you want to make a short-barrel rifle, I think that that might raise a different issue. But at least without more, the fact that you have two complete weapons, at least up to now we've taken the position that that's not an NFA firearm.

QUESTION: Well, you -- perhaps I misunderstood you. I thought at the outset you said that intent is not a requirement but that keeps creeping back into the argument, or am I mistaken? Is intent a component of your argument?

MR. FELDMAN: As a general matter it's not. There may be cases like that.

QUESTION: Yes, except that with reference to every example you insert the word intent.

QUESTION: Knowledge.

MR. FELDMAN: No, I -- first of all knowledge -- as Justice White just mentioned, knowledge is what I would use, not intent. It's not the intent to manufacture the short-barrel rifle. You do have to have knowledge. Both Thompson would have to have it. I think a user would have to have it in a prosecution. Knowledge that it can be readily and quickly assembled as a short-barrel rifle in order for it to be a short-barrel rifle, and I think that is one of the requirements of the act.

QUESTION: Well, Mr. Feldman, we are -- this is a question of statutory construction, which means what did Congress mean by these words, and don't you think it's relevant in inquiring about what Congress intended to cover? Isn't it relevant that hardly anybody in his right mind would ever anticipate that this kit would ever be used to assemble and use a short-barreled rifle.

MR. FELDMAN: First of all, I'm not sure I would agree with your characterization about anybody in their right mind.

QUESTION: Well, I asked you awhile ago, the record -- you have no record of anybody ever using this kit to make a short-barreled rifle. That's because -- and especially you would think it was such a dangerous thing to do you would -- some -- even a dumb criminal would have used it --

MR. FELDMAN: I think it --

QUESTION: -- for this purpose, but no one in history has ever used it for that purpose.

MR. FELDMAN: We haven't attempted to put in information in the record about this particular weapon, because in our view it's nothing. The particular weapon at issue --

QUESTION: Well, that may be so, but I just asked you isn't it relevant to what Congress might have intended to -- if hardly anybody in his right mind would have thought this would ever be used as a short-barreled rifle?

MR. FELDMAN: I think that what Congress thought about this particular weapon actually is not important. The important point is that the same principles would apply to a weapon that was a semi-automatic weapon from which you could -- with a much higher caliber that was specifically designed to be operational -- most operational as a short-barrel rifle, but that could be used with a pistol grip attached instead of the shoulder stock.

QUESTION: Well, Mr. Feldman, let me, if I may, raise -- that raises a definitional question. You mention in your brief that the definition of machine gun includes a reference to the unassembled parts. Is my recollection correct?

MR. FELDMAN: That's correct.

QUESTION: And you said it was not significant that the definition of rifle did not have any reference to unassembled parts simply because what Congress was doing when it included the unassembled parts within the meaning of machine gun was codifying prior judicial decisions and that's all it was doing. Is that correct?

MR. FELDMAN: I think that's not quite right. That's one of the things they were doing. They were overhauling the definition to codify those prior judicial decisions, also to expand the definition of machine gun.

QUESTION: Why, then, at least to the extent that they were codifying, and to the extent that in your view the definition of rifle should include the unassembled possibilities anyway, why didn't they also overhaul the definition of rifle to make it very clear that your view was correct?

MR. FELDMAN: They -- well, actually I don't know why they didn't. There's no indication in the legislative history as to why they didn't.

QUESTION: But what we're left with are two definitions, and I think one literally follows the other, doesn't it, in which the machine gun definition does refer to the unassembled parts and the rifle definition does not.

MR. FELDMAN: That's correct, but --

QUESTION: Anyone looking at that would say well, they can't mean that the unassembled components of a rifle, including possibly a short barrel, would be a rifle.

MR. FELDMAN: I think when Congress was --

QUESTION: But isn't that so? Wouldn't anyone reasonably contrasting those two definitions find that significance in the contrast?

MR. FELDMAN: I think that would be a misleading way to look at it in this case. First -- in the first place --

QUESTION: Well, it might be misleading, but isn't that the way that probably a person hitting the statute cold would read it?

MR. FELDMAN: I'm not sure that they would. For one thing, the rifle definition is different from the machine gun -- definition. The rifle definition itself includes the word make, which is defined to mean manufacture, put together, alter, or otherwise produce. It's about as broad a definition as you can get.

That word doesn't occur in the machine gun definition, and if you actually look at the statute carefully, Congress may have thought that it wasn't necessary to tinker with that. But I think equally important, when Congress added those words to the machine gun definition it was adding a receiver alone as an NFA firearm, a receiver of a machine gun. It didn't intend to do that with respect to short-barrel rifles. It was also adding items that could be used to convert a rifle into a machine gun. It didn't intend to do that with short-barrel rifles.

In other words, it was overhauling the definition of machine gun, something -- it did not intend to tinker with the preexisting definition of rifles, which by consistent administrative practice --

I'd like to make one other point which is I think I might have been misleading before, which is I said that our interpretation dates back to 1954. I intended to continue that it goes to 1961, and actually that specific '54 ruling that I referred to has since been declared obsolete, but the '61 rulings are still fully in force.

I'd like to reserve the balance of my time.

QUESTION: Very well, Mr. Feldman.

Mr. Halbrook, we'll hear from you.

ORAL ARGUMENT OF STEPHEN P. HALBROOK ON BEHALF OF THE RESPONDENT

MR. HALBROOK: Thank you, Mr. Chief Justice, and may it please the Court:

It is ATF's position that a complete pistol and a complete rifle -- that is, two receivers, a short barrel, a long barrel, and a shoulder stock -- do not constitute an NFA weapon unless actually assembled as such. These are the words of the Deputy Assistant Secretary of the Treasurer Edward Stevenson, which is in the court of appeals appendix at 43.

QUESTION: May I ask you a question that I intended to ask your opponent but just didn't get a chance to get in? What is the caliber of this weapon?

MR. HALBROOK: It's a 22 rim fire caliber.

QUESTION: It's just a 22.

MR. HALBROOK: It's a minor caliber. However, you can interchange these barrels -- that's a commercially attractive feature of this firearm -- with other calibers so that, for example, the company that's in the record offers 30-30 rifle barrels for hunting deer, things like that, so it is interchangeable. The unit here is a 22 rim fire.

QUESTION: Do you have to change the receiver in order to do that?

MR. HALBROOK: No, you don't, Your Honor. That's the beauty of this particular kind of firearm. It's only a single shot, so it doesn't have a different mechanism for different calibers. You change the barrels. You can use the same receiver to have -- for example, a 30-30 -- if you have it in the carbine version, you can have 30-30 deer barrel, or you could use a 22 rim fire barrel for like target shooting or squirrel hunting or something minor like that.

QUESTION: What's rim fire? I'm not familiar with that term. What is that?

MR. HALBROOK: Well, rim fire cartridge is the smallest cartridge made, and it only means that the firing pin hits the rim of the cartridge to make it go off, whereas most bigger calibers have a center fire which hits the primer --

QUESTION: I see. The pin goes through, yes.

MR. HALBROOK: -- in the middle.

But the only issue here is whether a consumer has to have two receivers instead of just one receiver. The receivers are identical. I'm not sure how well this --

QUESTION: I want you to get to this part of the argument, but I thought that if you had two receivers -- the Government responded to our questions that there would still be liability if they were disassembled.

MR. HALBROOK: That's post hoc attorney talk in this Court for the first time. The agency's position --

QUESTION: All right. That's what I want to make very clear. Now, you said the agency took this position --

MR. HALBROOK: The agency has never taken that --

QUESTION: -- in 1943?

MR. HALBROOK: I'm sorry, Justice Kennedy.

QUESTION: When did the agency take this position?

MR. HALBROOK: For the first time in 1985 the agency took the position that you could have a complete pistol and a complete carbine. And when you look at the quotation from Mr. Stevenson that I read -- when my open, he said that means two receivers, a short barrel, long barrel, and a shoulder stock. The agency has never said that a complete carbine and a complete pistol if they're disassembled makes them into short-barrel rifles, because you disassemble these to clean them or for a lot of other -- to change barrels, for other purposes. That's an argument that we've heard for the first time in this Court, and that argument was never made in the *claims court.

QUESTION: So your understanding of the case is that it is the absence of the receiver that causes -- in the kit that causes the problem here.

MR. HALBROOK: That's accurate, and that's throughout the record in this case. All the correspondence between ATF Director Higgins and Thompson/Center Arms and between Mr. Stevenson, the Treasury official, make that clear.

QUESTION: And it would create some problems if they constitute an impermissible firearm assembled or disassembled but do not constitute it assembled, because as you say, there are possession laws as well, and every time the owner who buys these things assembled, which wouldn't be a violation, when he takes the two apart to clean them he is suddenly in possession of an unlawful firearm.

MR. HALBROOK: Not only that -- that's accurate, Justice Scalia. Not only that, but ATF is well aware that the attractive feature of the Contender system is that you can change the barrel, so you're always changing barrels, even with just a pistol. Just leave the carbine kit out of the case, if you wish. The pistol is -- it's in the record. We have a company catalogue here, and they sell lots of different barrels for different target events and different kinds of hunting.

QUESTION: May I ask you a question in that regard? Supposing they sold a kit consisting of a receiver, a short barrel, and a shoulder stock -- just those three items -- disassembled, is that a firearm or not?

MR. HALBROOK: That's getting a lot closer to one, and the reason is that the definition of rifle does include the term intended to be fired from the shoulder. So that's getting in a very gray area, and I would think that a manufacturer would not want to do something like that.

QUESTION: Well, I understand a manufacturer doesn't want to take a lot of chances. My question is, would the statute define what I've described as a rifle?

MR. HALBROOK: Well, when we apply the rule of -- let me distinguish two kinds of rifles.

QUESTION: Well --

MR. HALBROOK: Of course, the answer is yes for a certain type -- yes.

QUESTION: You'd say that would be yes.

MR. HALBROOK: It would be --

QUESTION: Well, then, why --

MR. HALBROOK: If it's an instantly attachable shoulder stock.

QUESTION: Why does it stop being a rifle because they put a fourth item into the package?

MR. HALBROOK: My yes relates to the pistol and instantly attachable shoulder stock that those revenue rulings Mr. Feldman was talking about were talking about. They were intended only to be short-barrel rifles. They were made into short-barrel rifles. And in fact there's a readily restorable definition here that would continue my answer being yes, because once you put it together as a short-barrel rifle, even though you --

QUESTION: Well, I assume it's never been put together before. It's not been made before. They just sell these three parts in one kit. How can the statute cover that under your reading of the statute?

MR. HALBROOK: Well, if this --

QUESTION: I understand you're saying, well, it's past practice and we're willing to go along with it as sort of an administrative interpretation of the statute, but if we just look at plain language, it seems to me if we adopt your view of the plain language, that kit is not a firearm.

MR. HALBROOK: When we apply the rule of lenity to an ambiguous statute I agree that that would not be a firearm, and when we looked at the contrasting definitions, the three other NFA firearms that have combinations of parts definitions and the absence of that language here and the definition of make here as including putting together. And if I was in a criminal case I would definitely argue that that would not be a short-barrel rifle, the hypothetical.

QUESTION: It seems to me your argument applies equally to my hypothetical, that's what I'm saying to you. And the fact that the -- in practice -- apparently this company is not making criminal weapons. Nobody really has that flavor of the case. The problem in the case is if we adopt your view of the statute aren't we permitting weapons of the kind I describe to be sold as not counted -- covered by the statute?

MR. HALBROOK: Well, I don't think so. The circumvention argument applies to the beautiful shotgun on display downstairs that belonged to Chief Justice Earl Warren that could be sawed off probably in 30 or 40 seconds.

QUESTION: Well, no, I'm not talking about something that requires sawing off. I'm talking about three parts that have to be assembled but have never previously been assembled. Are they, quote, made, unquote, within the meaning of the statute? Your view is no.

MR. HALBROOK: My view would have to be no when we construe the statute strictly.

QUESTION: If we decide the case the way you ask us to, I think we'll have to say -- we'll have to say no as to all those hypotheticals -- the Uzi gun and all the other things the Government talks about.

MR. HALBROOK: But notice, though, that the statute says, intended to be fired from the shoulder, and if those parts are intended to be assembled and fired from the shoulder with a barrel less than 16 inches, it is by definition a short-barrel rifle.

QUESTION: Even though it's not yet been made.

MR. HALBROOK: It's a lot closer to being made, and if that intent element is there then a prosecutor would be over that hurdle. I think -- it's application of law to facts, and it depends on the circumstances, and the circumstances as far as this product go is that it's --

QUESTION: Well, suppose you put an instruction in the assembly I describe and say don't fire this from the shoulder, only fire it from the hip. This is just to be intended to be fired from the hip, kind of Western style.

MR. HALBROOK: Well, but the definition --

QUESTION: Like a (inaudible) rifle.

MR. HALBROOK: -- includes -- that's an objective standard as to what a shoulder stock is, and that's in the --

QUESTION: Well, but then that takes your intent out of the case, it seems to me. Once you've got the shoulder stock in there, that's enough to satisfy intended to be fired from the shoulder, isn't it?

MR. HALBROOK: That's not what the statute said. If the statute with criminal penalty says that to apply it to a person, it -- this object has to be intended to be fired from the shoulder, then it would depend on that person's intent.

QUESTION: Well, but most of the courts of appeals as I understand it have an intent requirement that they must know there's a violation, that, you know, it's a firearm (inaudible), which the tax statute doesn't have the same intent requirement in it.

MR. HALBROOK: Well, not completely. Most of the circuits -- not this Court, but most of the circuits have held that you don't even have to know it's an NFA firearm. All you have to know is it's any kind of gun and you're guilty, and there's three circuits that have gone away from that view now, but that's why this case is also so important.

It's in the record that tens of thousands of carbine kits were sold through 1985 with BATF approval, and if this statute really means what the Government says, all of those carbine kits that are possessed with those pistols -- these were sold by other companies -- all these tens of thousands of people are guilty of a felony offense, because there's no knowledge requirement in most circuits that you know that it's an NFA firearm, and if the difference here is that you're supposed to know it's an NFA firearm because only one receiver is present rather than two receivers being present, all these distinctions that really are not in the statute but the agency invented, then we've got a real problem with notice and due process and issues like that.

QUESTION: Well, it's not just the purchases of the past kits, it's any purchasers in the future who happened to purchase the rifle separately and then the pistol separately and then disassembled them.

MR. HALBROOK: If what the Government has said for the first time here today -- if that's accurate, then that's a real problem, because Thompson/Center has been marketing these kits -- not kits, but complete carbines and complete pistols -- since 1985 when BATF Director Steven Higgins ruled that that was not an NFA firearm, that one person in possession of both complete guns does not possess an NFA firearm.

I noticed in the Government briefs that they start using terms like separate marketing of these items as if they've got to go to different people, but the administrative record, the record in this case, is clear that the complete rifle and the complete pistol being possessed by a person, that's not considered a violation.

QUESTION: Justice -- well, how would you address Justice Stevens' problem, though? It really is a cause of no concern with respect to this firearm, but I can conceive of another firearm that indeed it is an easy means of evading the statute to simply sell interchangeable parts like this.

What would you say, that Congress should just pass a law that would enable these to be addressed by the regulating agency weapon by weapon?

MR. HALBROOK: I don't think Congress -- well, it certainly hasn't passed such a law, but I would say that that's why it's important, in applying law to facts as we're doing here, to look at the facts of the specific case, and if we interpret the statute narrowly to exclude this item from the National Firearms Act, we don't do anything about all these potential hypotheticals that the Government has raised.

There may be some circumstances where something is so on the verge of being a short-barrel rifle and so intended to be a short-barrel rifle that it is one, and the Court could easily say that this is not, and that these other items would be.

QUESTION: Mr. Halbrook, may I go back to one of the hypos that I think Justice Stevens referred to, and I'm not sure that I understood your answer. If I recall correctly, he said if we adopt your position here, don't we have to hold that the unassembled parts of the Uzi are also not covered by the statute? You didn't mean to concede, did you, that they would not be covered by the definition of machine gun --

MR. HALBROOK: That's accurate. That --

QUESTION: -- because machine gun includes -- specifically includes reference to unassembled parts.

MR. HALBROOK: Absolutely. Normally the term Uzi means a machine gun. Machine gun is defined as a combination of parts from which a machine gun can be assembled when possessed by a person. And when we made that clear in our brief that that's why all this would not apply to an Uzi, the Government came back and said well, just because it's more powerful that doesn't make any difference, but our point is that it's normally a different weapon.

Now, there is a --

QUESTION: No, but isn't the -- maybe I'm missing something. Isn't the simple answer that machine guns are defined in the statute to include unassembled parts, and isn't that the most immediate answer to the problem that Justice Stevens --

QUESTION: No, it's not, because my problem didn't -- was talking about a single shot. Not asking about my hypothetical --

QUESTION: Well, but the question --

QUESTION: -- my problem was talking about a single shot weapon that was sold disassembled.

QUESTION: I think we would proceed better if we all addressed our questions to counsel, let counsel respond, and then take our turn.

Would you answer Justice Souter's question?

MR. HALBROOK: Well, Justice Souter's question is -- the answer is yes, that the easy answer to that question is that an Uzi machine gun is defined as a combination of parts from which a machine gun can be assembled. That doesn't apply here, and that's the easy answer to the question about the distinction between rifle and machine gun as defined in the NFA.

QUESTION: Now, that's not the answer to my hypothetical. What is the answer to my hypothetical?

MR. HALBROOK: Your hypothetical, Justice Stevens, as I understand it is if we had a rifle, we had a shoulder stock not attached to the receiver, perhaps, and a barrel not attached to the receiver, and it's a short barrel, then that's getting a lot closer to being a short-barrel rifle because of the intended-to-be-fired-from-the-shoulder standard. And I might add that BATF agreed with my position that this --

QUESTION: I really would be grateful to you, and I just tried -- I don't want to use up everyone else's time. Is the answer yes or no to my hypothetical?

MR. HALBROOK: If it's packaged and intended to be sold together and --

QUESTION: Three parts sold separately, barrel -- short barrel, a stock -- a shoulder stock, and a receiver. Rifle or not?

MR. HALBROOK: Justice Stevens, that's one of those questions that the answer --

QUESTION: Can it be yes or no?

MR. HALBROOK: -- is maybe, because the statute doesn't clearly apply to that.

QUESTION: You said awhile ago that construction of the statute would mean that this is not a rifle, short-barreled rifle, until it's assembled. That's what you answered before.

MR. HALBROOK: The term rifle does not include combination of parts.

QUESTION: Okay.

MR. HALBROOK: That's a --

QUESTION: So it would not be a rifle as long as it's sold in three parts; isn't that right? That's what you said before.

MR. HALBROOK: If I was defending a criminal case, that's what I'd argue. But that's one of those cases about how hard facts make bad law. I realize the dilemma you're in, but that just doesn't -- that reasoning doesn't apply to this product.

QUESTION: (Inaudible).

(Laughter.)

QUESTION: You're supposed to help us out of our dilemma by -- you know, if you're asked a question that calls for a yes or no answer, it's surely preferable to say yes or no and then qualify, rather than just say -- you know, shrug your shoulders, so to speak.

MR. HALBROOK: Well, Chief Justice Rehnquist, my answer to that's going to be no, that that's not a rifle under the statute.

QUESTION: Yes, that's what you -- exactly you said before.

QUESTION: It's just what Justice White thinks you should answer.

(Laughter.)

MR. HALBROOK: Well, it's just a question --

QUESTION: Our problems are your problems.

MR. HALBROOK: -- in the one in the case at bar.

I want to point out just a little bit has been said about the rules of construction, about criminal statutes, taxing statutes, and the term deference perhaps might be addressed briefly.

We've argued two rules of construction, namely that a taxing statute, if it's ambiguous, as we believe the Government has manufactured ambiguity here, but then it does -- it's interpreted in favor of the taxpayer and against the Government, and the reasoning in the Gould case and in the White v. Aaronson case and others decided by this Court is that if Congress wants to tax something it should say so explicitly, that the application of law to fact should be clear enough so that people can obey the law.

But the more important rule I believe is the rule that this Court in the Crandon case last term addressed, the rule that an ambiguous term in a criminal statute has to be interpreted according to the rule of lenity against the Government and in favor of the person to whom it may apply.

An opinion written by Justice Stevens in which there was a strong concurring opinion by Justice Scalia talking about, in more detail, the fact that you never defer to the Government in respect to a statute with strong criminal penalties, which would, in Justice Scalia's words, replace the rule of lenity with a rule of severity.

But even if we get into the deference rule, then let me say this. The Government always cites the second part of the two-part test that Chevron USA discusses. The first part of that test is that if the statute is clear then there is to be no deference to agency opinion. Congress has spoken, and no deference is appropriate. It's only if a statute's ambiguous, and even then those cases are decided in civil matters, in matters without severe criminal consequences.

The example -- the actual case that I think Mr. Chief Justice Rehnquist was referring to about a rule of lenity being applied in a tax case was Commissioner v. Acker, where that was not even a criminal penalty. It was a strong civil penalty, however, and the rule of lenity was held still to apply, because the conduct was being punished even with the civil penalty.

But if -- even if we were to defer to the Government's interpretation, when you look at how the Government has interpreted this statute, how the agency interpreted the statute, particularly just after passage of the Gun Control Act of 1968 when the agency -- well, when Congress determined what is a combination of part -- what is a combination of parts plus intent, and what is not so defined, when Congress clarified how we interpret these definitions, the agency began to issue letter opinions where they held that the kinds of items we're talking about here were not considered to be short-barrel rifles. There is a consistent line of administrative interpretation between 1971 and 1985 that we've got in the record where the BATF said that a pistol and carbine kit is not a short-barrel rifle.

QUESTION: Now, Mr. Feldman says that the administrative constructions go back to 1961, I think, that support the Government's view. How do you deal with the administrative constructions that he's talking about?

MR. HALBROOK: Well, the 1961 revenue rulings only say that a pistol with an instantly attachable shoulder stock and no long barrel to give the combination a non-NFA purpose, that that's a short-barrel rifle. And those administrative interpretations are not very detailed.

QUESTION: But you say that's wrong, don't you?

MR. HALBROOK: Well, I say --

QUESTION: You just said a minute ago --

MR. HALBROOK: That's tougher than Justice Stevens' facts, because at least he's talking about three parts being disassembled.

QUESTION: Here's two.

MR. HALBROOK: Here's two, and it's an instantly attachable shoulder stock.

QUESTION: Exactly, but under your theory I would suppose that is not a -- that is not covered by the statute, because it isn't assembled.

MR. HALBROOK: Well --

QUESTION: Yes or no?

MR. HALBROOK: If they're right there together --

QUESTION: Not assembled. They're in a kit, and the kit's wrapped up in cellophane.

MR. HALBROOK: And if it goes together just like that in an instant like the revenue rulings in 1961, the answer is that I think that's getting really close to being a short-barrel rifle, but again --

QUESTION: Well, close -- you know, in some contexts close isn't enough.

MR. HALBROOK: That's correct, too. There's only one case -- these are all really difficult issues, but the Zeidman case that's out of the Seventh Circuit gives a fairly ambiguous answer to that question.

QUESTION: Do you accept that -- those revenue rulings or not?

MR. HALBROOK: I accept the --

QUESTION: As applied to exactly what they applied to.

MR. HALBROOK: I would, except that a shoulder -- yes. As far as the revenue rulings from 1961, we don't quarrel with those. The answer's yes.

QUESTION: Mr. White -- Justice White keeps pulling you back onto the wagon, you keep falling off again.

(Laughter.)

QUESTION: I don't see how you can accept those revenue rulings if you believe in your position.

MR. HALBROOK: Well, Justice Scalia, it's --

QUESTION: You mean you don't want to attack them. You're not interested in knocking them down, but you really disagree with them, don't you?

MR. HALBROOK: I would -- I have some disagreements with them on due process notice questions for those reasons, but they're very distinguishable from this case. They're not even close to the case we're dealing with here. Those are instantly attachable shoulder stocks, and the only purpose of them is to make short-barrel rifles, so at least you've got a little bit more in the statute than you have here.

QUESTION: You'd have to have -- you'd have to use a different theory than the one you're using. It wouldn't be the unassembled theory, it would be intended-to-be-fired-from-the-shoulder theory.

MR. HALBROOK: I would concur with that, that the intended to be fired from the shoulder, the design part of the definition -- the design is the manufacturer's purpose, really, and --

QUESTION: What do you say is the intent requirement under the statute?

MR. HALBROOK: The intended-to-be-fired-from-the-shoulder part of rifle -- the definition of rifle, and we say it's exactly what it says, a requirement that the Government prove that the item is intended to be fired from the shoulder, so that, for example, if here the only thing that's ever being made is a long-barrel rifle, 21-inch barrel, and a pistol with a 10-inch -- I'm sorry, the rifle has a 21-inch barrel, the pistol has a 10-inch barrel -- that's the way those parts are intended to be used.

As I see it, the Government has three hurdles in the statutory definition: intended to be fired from the shoulder, it's got to be a weapon, not a pile of parts -- it's got to be operable as a weapon -- and the make requirement, or the made requirement. So we don't feel like they have any of those here, and some of these really hard examples that Justice Stevens and Justice White have been mentioning, you're getting closer. You still really don't have all of those elements met, I don't think, but you've got the intended-to-be-fired-from-the-shoulder part of the definition.

QUESTION: No, but you have -- the two out of three are met in the hypotheticals. The intended-to-be-fired-from-the-shoulder might not be, but if you have either the two-part or the three-part short-barreled rifle, assuming when you put them together it's a short-barreled rifle, you have the same obstacle with the word made, and the same obstacle with the word weapon.

MR. HALBROOK: Yes, you do.

QUESTION: So those arguments really don't carry the day for you, it seems to me, unless you're willing to say those revenue rulings are wrong, but you might well be right on the intend-to-be-fired-from-the-shoulder because this can be used either way, with the pistol handle or with the shoulder stock.

MR. HALBROOK: And also the strong factual difference, too, though. Here, to put the shoulder stock on you've got to have the work space, you've got to have several different tools, and it takes 5 to 10 minutes.

QUESTION: Yes, but when you buy a lot of Christmas toys that you think you're -- readily assemble, and it take longer than that.

(Laughter.)

MR. HALBROOK: Right. That applies to the Contender --

QUESTION: I mean, you can't really rely on the difference between 5 minutes and just plugging it in, I don't think.

MR. HALBROOK: Well, I think the instant attachability at least is a factor, the fact that it's designed and intended to be done. And that's not the case here, because here we're dealing with items that are intended to be made only as a pistol or a long-barreled rifle.

So there's a lot of metaphysical issues about the application of law to facts, but I think that, as applied to this product, it's clear enough that the statute doesn't apply.

Just another comment about the deference rule, because we were talking about the fact that during the period 1971 through 1985 the Government said that the products here are not -- the types of products here are not encompassed in the National Firearms Act. This Court has held numerous times that you would owe more deference to a ruling that was set forth right after a statute passes than you would one made up by an agency decades later. And we feel like that's what happened here. In 1985, for the first time as we can determine, the agency held that a pistol and carbine kit is a regulated NFA firearm, even though it had held numerous times before that those items do not constitute an NFA firearm.

I would also point out in my remaining time that the statutory definitions -- we've talked a little bit about the contrasting definition of machine gun, for example, from a rifle. There are also two other terms in the statute that are defined in terms of combinations of parts, but only if intent is present, and again that goes against the Government's theory here that there's some kind of absolute liability combination of parts definition with no intent that applies to every NFA firearm.

Specifically, the term destructive device, for example, is defined as a combination of parts, as long as those parts are designed or intended to be assembled into a destructive device, and that's -- Congress recognizes there's parts that can go together in legitimate ways, as well as ways that would be, let's say, taxable under the National Firearms Act.

With the Government's theory of this case about a strict liability combination of parts, we would all have destructive devices in our homes because destructive device, for example, was defined to include a bomb, and that includes a Molotov cocktail, which is made out of a bottle, a rag, and gasoline. Those are parts that we all have, or objects that we all have in our households.

So to avoid results like that Congress has fashioned really three kinds of definitions in the National Firearms Act. One of those definitions is the one that the Government argues for here today as to all NFA arms, but it really only applies to machine guns. Capability is the only test in that definition, whether the parts can be assembled to a machine gun.

Then there's the two NFA firearms that are defined only in terms of combinations of parts as long as intent and/or design are shown, and that's the destructive device example, or the silencer.

And lastly would be, for example, a rifle, which is not defined in terms of a combination of parts, with or without intent. It's defined solely as a weapon that has actually been made and that is intended to be fired from the shoulder and that actually has to have a barrel of less than 16 inches.

So, when you look at the particularized definitions in each case here, Congress has not left these definitions wide open. It's repeatedly amended the National Firearms Act, probably a dozen times, and it's consistently refrained from defining rifle in a very broad way, consistently refrained from adopting combinations of parts definitions. So it's clear enough that if it wanted to adopt a definition that the Government contends for here, that it could do so, but it hasn't.

QUESTION: May I ask just one question about the typical practice in the industry when you sell long-barreled rifles? Are they generally sold by the factory to the dealer in a disassembled -- the shoulder stock in one part and the rifle in another?

MR. HALBROOK: They would be sold assembled, normally.

QUESTION: Assembled or disassembled?

MR. HALBROOK: Assembled.

QUESTION: They would be.

MR. HALBROOK: Yes, Justice Stevens.

There may be certain types of firearms that would have a barrel off of it that goes on -- like a shotgun perhaps might be sold that way, but normally firearms are assembled, particularly when you consider that there's lots of little parts and the consumer would not be able to put those together.

QUESTION: No, I understand that, but I thought sometimes the barrel might just be sold -- that there'd be in two parts. I thought sales in two parts was fairly common, but I'm wrong about that I --

MR. HALBROOK: Well, it's not in the record, but --

QUESTION: I shouldn't ask you about it.

MR. HALBROOK: A -- perhaps I shouldn't answer.

QUESTION: Well, I'm glad to have the answer.

MR. HALBROOK: Oh, if I may answer, a shotgun sometimes would be sold with the barrel disattached for shipment because it -- to make it not so long.

But in any event, this issue boils down to whether the consumer has to have two receivers or one receiver. The Government concedes that the complete pistol, the complete carbine, is not a short-barrel rifle. Nothing in the statute says -- or makes this distinction about one versus two receivers, but this presents a much more serious problem by the fact that a hunter or target shooter or any other person who may presently have a pistol and carbine kit made by another company, whether he's liable for 10 years' incarceration because he didn't know that the Government insists on two receivers instead of just one receiver.

So we feel like that's what this case boils down to. We feel like the court of appeals' opinion followed the statutory definitions carefully and correctly decided this case, and we believe it should be affirmed.

If there are no further questions, thank you, Your Honor.

QUESTION: Thank you, Mr. Halbrook.

Mr. Feldman, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF JAMES A. FELDMAN ON BEHALF OF THE PETITIONER

MR. FELDMAN: I'd like to just make a couple of brief points. One is, there was a lot of discussion about the administrative construction of the statute. We address that in our reply brief at pages 7 to 13. Respondent's point primarily rests on a bunch of unpublished letters written by subordinate officials at BATF.

Even among those, I fail to see any inconsistency except for one letter that was written in 1973, which we informed him in 1985 was incorrect. In any event, there's a statute that says those unpublished letters are not to be relied on or cited as precedent.

What we are citing as precedent for the established administrative construction that makes exactly the kinds of distinctions that we've been making here, is a series of revenue rulings. Again, we explain those in our reply brief at 7 to 13. Those are published rulings, and under the statute and regulations they are to be cited as precedent and intended to be as -- a precedent.

As far as the existence of combination of parts language in the statute with respect to machine guns and some of the other devices, these -- every -- it is true that what respondent has argued, which is that each of these attempts to modify the National Firearms Act have been -- involved hard-fought compromises.

The fact that Congress overhauled the machine gun definition in 1968 and added an entirely new definition of destructive devices which was not there before and in the course of those two things specified exactly what kinds of combinations of parts and in the case of machine guns what other individual parts not in combination were included and were not, I don't think it's fair to read from that that they intended to restrict or modify the -- what, from established administrative and judicial construction, the meaning of the statute had been prior to that time.

I just -- it's not a case -- it's really a case of trying to infer something from congressional silence, and I think that's an extremely perilous course, and I wouldn't infer what respondent infers from it in this case.

Finally, I think the ultimate question in this case is -- does not have to do with respondent's specific weapon, but the fact is that many -- that there are other firearms that are sold, he has mentioned, with the barrel detached, with the bolt detached, is very common in the case of rifles.

The mere fact that a part or two is missing -- it has to be assembled by the ultimate consumer with respect to a rifle, just as with respect to a bicycle or some other form of consumer good, the fact that a single piece has to -- or couple of pieces are missing that are easily attachable doesn't mean that it's not the manufacturer who has made that consumer good. It's the manufacturer who makes the consumer goods and the consumer who puts the final assembly together or adds the additional piece or adds a battery to a radio or whatever it may be.

If there are no further questions --

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Feldman.

The case is submitted.

(Whereupon, at 12:01 p.m., the case in the in the above-entitled matter was submitted.)