Analysis of the Supreme Court Opinion by Stephen P. Halbrook, Counsel for Thompson/Center Arms
On June 8, 1992, the U.S. Supreme Court ruled that the Contender pistol and carbine kit are not a short-barreled rifle under the National Firearms Act, 26 U.S.C. §5845(a)(3). This means that a consumer may possess the pistol with its 10 ” barrel and may use the kit parts to make a rifle with the 21” barrel, as long as the shoulder stock is not assembled onto the receiver at the same time as the 10” barrel.
Justice Souter, joined by Chief Justice Rehnquist and Justice O’Connor, wrote the opinion of the Court. The Court stated the issue to be whether a short-barreled rifle is “made” by the aggregation of finished parts that can be readily assembled.
The government noted that a bicycle is still a bicycle even when unassembled. The Court rejects this analogy, because the Contender items can be assembled three different ways, and are intended to be assembled only two ways.
Justice Souter wrote that “a set of parts that could be used to make nothing but a short-barreled rifle” would, if there is an “aggregation” of such, be a short-barreled rifle. The opinion states that “a combination of parts that could only be assembled into an NFA-regulated firearm” would be such a firearm.[1] Further, a non-NFA gun becomes an NFA firearm if “placed together with a further part or parts that would have no use in association with the gun except to convert it into a firearm.” As examples, the court mentions a carbine with a machinegun conversion kit,[2] and a pistol and attachable shoulder stock found in different drawers of the same dresser.
The opinion notes that some parts could be used without assembling a firearm, but finds that unlikely because of “the utter uselessness of placing the converting parts with the others except for just such a conversion.” This suggests that the parts must be in close physical proximity, and questions a prosection based on mere constructive possession.[3]
By contrast, the Contender parts are capable of assembly as a long-barreled rifle. The Court minimizes the fact that other NFA firearms, but not rifle, have combination-of-parts definitions.[4] It states that a firearm is “made” not just if it is “put together,” but also if it is “otherwise produced.” 26 U.S.C. §5845(i).
Souter writes that, while a rifle may be a combination of parts, the definition of machinegun as a combination of parts in the possession of a person (§5845(b)) “sweeps broader than the aggregation of parts clearly covered by ‘making’ a rifle. The machinegun parts need not even be in any particular proximity to each other.”[5]
Souter recognizes the object of the NFA to regulate certain weapons likely to be used in crime, but finds no guidance here or in the legislative history.
The opinion concludes that the statute is ambiguous, and that the NFA has criminal penalties and no requirement of willfulness. Thus, the Court applies the rule of lenity,[6]i.e., that ambiguous criminal statutes are interpreted against the government and in favor of persons to whom they may apply, and concludes that the Contender pistol and carbine kit are not a short-barreled rifle.
Justice Scalia, joined by Justice Thomas, wrote a concurring opinion. Scalia agrees with the plurality opinion by Souter that the rule of lenity applies. He opine that the ambiguity arises over whether mere parts constitute a “firearm,” not over whether a parts kit has a useful non-NFA purpose, the criterion of the plurality which is not found in the statute. The key to why the Contender items are not a short-barreled rifle is the fact that other NFA firearms are defined as combinations of parts, while “rifle” is not.
Scalia rejects the plurality’s imputed redundancy between “putting together” and “otherwise producing a firearm” as definitions of “make.” The plurality’s interpretation creates a redundancy in rejecting the significance of combination-of-parts definitions.
The plurality’s reliance on a committee report instead of the statute to explain the definition of silencer, according to Scalia, “resorts to that last hope of lost interpretive causes, that St. Jude of the hagiology of statutory construction, legislative history. As I have said before, reliance on that source is particularly inappropriate in determining the meaning of a statute with criminal application.”
Scalia also points out that a “rifle” in §5845(c) is “intended to be fired from the shoulder,” whereas the Contender items are intended to be fired from the shoulder only with a 21-inch barrel. The shoulder stock itself is carved with a warning not to use with a barrel less than 16 inches.
Justice White, joined by Justices Blackmun, Stevens, and Kennedy, dissented. This dissent would have held that the Contender items are an NFA firearm because they are “a collection of parts that may be readily assembled into a short-barreled rifle.” While noting of the plurality opinion that the statute is silent about whether parts have utility for non-NFA purposes, the statute is equally silent about a “readily assembled” test.
Justice Stevens also filed a dissenting opinion. He states that he would have applied the rule of lenity and held for Thompson/Center had this been a criminal case, but does not explain why different rules should apply for criminal and civil cases to interpret the same statutory term. Here, Stevens would find that the parts are a short-barreled rifle. Stevens then set forth the following, which is the only policy-driven statement made in any of the opinions: “This statute serves the critical objective of regulating the manufacture and distribution of concealable firearms – dangerous weapons that are a leading cause of countless crimes that occur every day throughout the Nation.” Stevens does not claim that the Contender items are used in crime, or explain why the statute applies here.
Based on their ridicule of the government’s position at oral argument, the fact that Justices White and Kennedy dissented is somewhat surprising.[7] All four dissenting Justices were well aware that even BATF regarded the Contender parts as not being an NFA firearm if two receivers were present, one for the pistol and one for the rifle. Yet this went unmentioned as the four opined that any parts that could be assembled into a short-barreled rifle are such a rifle.
The decision is a tremendous victory in several respects. Law-abiding firearm owners won,[8] and BATF lost, the first case the Supreme Court has ever decided on the classification of a specific firearm. This sends a strong message to BATF not to classify anything and everything as an NFA firearm.
More importantly, the Court applied the rule of lenity and rejected the rule of deference in construction of the National Firearms Act, and the same rule will apply to Title I of the Gun Control Act. Lower courts have deferred to BATF on matters under these statutes,[9]a practice which should now end. This case should help defeat BATF’s attempt to manufacture an ambiguity and extend the scope of the Unsoeld amendment relating to the assembly of rifles from imported parts.
The Second Amendment was not mentioned in any opinion. However, the plurality fashioned a concept of a legitimate purpose, which could carry over into cases involving bans on possession by law-abiding persons. Certainly, O’Conner, who grew up as a firearms owner on a ranch in Arizona, will remind the other justices of the legitimacy of gun ownership. Souter’s justification of reliance on legislative history – a key to understanding the Second and Fourteenth Amendments – will bolster the literal, textual reading of the Second Amendment suggested by Rehnquist in Verdugo-Urquidez. Thomas has become a Scalia ally on adherence to the text. This is an asset in any firearms case, because often the statutes are judicially stretched because of such policies as set forth by Stevens.
The plurality stated that it granted certiorari to resolve a conflict between the Federal Circuit and the Seventh Circuit. Such a “conflict” was hardly extensive, and the cases involved different products. Perhaps the court granted certiorari just because the government lost, or perhaps the Court wished to consider a case involving legitimate firearms use for once, instead of criminal possession or misuse. The bottom line is that the Court took, and favorably decided, a case involving firearms and law-abiding persons.
