Application of ATF Ruling 2011-4

[pdsmith505]

We recently had a somewhat spirited discussion regarding whether an SBR is made by simply having the parts to construct one in the same place at the same time.

United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992) was cited as relevant authority, as it revolved around the Contender kits that are sold with 1) a receiver, 2) a pistol-length barrel, 3) a pistol-grip, 4) a rifle-length barrel, and 5) a rifle stock. SCOTUS held that such a kit was not a "firearm" as defined by the NFA, because...

After applying the ordinary rules of statutory construction, then, we are left with an ambiguous statute. The key to resolving the ambiguity lies in recognizing that although it is a tax statute that we construe now in a civil setting, the NFA has criminal applications that carry no additional requirement of willfulness. Cf. Cheek v. United States, 498 U. S. 192, 200 (1991) ("Congress has ... softened the impact of the common-law presumption [that ignorance of the law is no defense to criminal prosecution] by making specific intent to violate the law an element of certain federal criminal tax offenses"); 26 U. S. C. §§ 7201, 7203 (criminalizing willful evasion of taxes and willful failure to file a return). Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U. S. C. §§ 5861, 5871. It is proper, therefore, to apply the rule of lenity and resolve the ambiguity in Thompson/Center's favor. See Crandon v. United States, 494 U. S. 152, 168 (1990) (applying lenity in interpreting a criminal statute invoked in a civil action); Commissioner v. Acker, 361 U. S. 87, 91 (1959).9 Accordingly, we conclude that the Contender pistol and carbine kit when packaged together by Thompson/Center have not been "made" into a short-barreled rifle for purposes of the NFA.

The judgment of the Court of Appeals is therefore Affirmed.

This was dismissed because it may not apply to a specific set of facts, other than the Thompson/Center Contender.

With that being said, the ATF issued Ruling 2011-4 which holds (citing the Thompson/Center case):

A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they:
(a) serve no useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length; or
(b) convert a complete weapon into such an NFA firearm.

A firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts within a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel or barrels of 16 inches or more in length).

A firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel or barrels of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol).

A firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle.

Here we have an ambiguous statute and a regulatory agency defining the scope of the term "making" when applied to NFA "firearms".

Auer v. Robbins, 519 U.S. 452 (1997) held, in part:

Because the regulation's critical phrase "subject to" comfortably bears the meaning the Secretary assigns, his interpretation of his own test is not "plainly erroneous," and thus is controlling.

And Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) held, in part:

(a) With regard to judicial review of an agency's construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute..

Would I be incorrect to conclude, based on Thompson/Center, Auer, Chevron, and ATF Ruling 2011-4, that the ATF's opinion regarding making of SBR's is, in fact, controlling authority? Certainly SCOTUS could overrule Auer and Chevron, but wouldn't lower courts be bound by such to accept the ATF's ruling?

If so, would it be legally incorrect to assume the logical corollary from the first holding in 2011-4 that:

A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is NOT made when unassembled parts are placed in close proximity in such a way that they:
(a) serve SOME useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length

And, because of that, an AR-15 PISTOL is not made into an SBR simply because it is in close proximity to a shoulder stock and a rifle length upper because:

A firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel or barrels of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol).

Especially since the dicta of 2011-4 states:

Therefore, so long as a parts kit or collection of parts is not used to make a firearm
regulated under the NFA (e.g., a short-barreled rifle or “any other weapon” as defined by
26 U.S.C. 5845(e)), no NFA firearm is made when the same parts are assembled or reassembled in a configuration not regulated under the NFA (e.g., a pistol, or a rifle with a
barrel of 16 inches or more in length).

 

[Frank Ettin]

....Would I be incorrect to conclude, based on Thompson/Center, Auer, Chevron, and ATF Ruling 2011-4, that the ATF's opinion regarding making of SBR's is, in fact, controlling authority? Certainly SCOTUS could overrule Auer and Chevron, but wouldn't lower courts be bound by such to accept the ATF's ruling?....

Not necessarily.

Both Auer and Chevron concern judicial review of regulations adopted by the respective agencies pursuant to (1) express statutory authority; and (2) in accordance with the procedures set out in the Administrative Procedures Act (including public notice of proposed rule making and opportunity for public comment). Thus the rules in those cases are distinguishable from this ATF ruling adopted administratively for guidance. Would the same standard apply? We really don't know absent some court decisions more directly on point.

It's also useful to reflect on the difference between legal counsel and legal advocacy.

In general, legal counseling is about examining a client's situation and goals and helping map out possible strategies for achieving those goals while avoiding or minimizing legal risks. The idea is to avoid problems, not just to win if problems come up. That is an inherently conservative activity. We looks for statutes and case law that provide clear direction -- not just good arguments.

But when the client has already gotten himself stuck in the quicksand, the time has past for being conservative. It's now necessary to look for any arguments that have a decent chance of winning.

So if I have a client who has been indicted for the unlawful possession of an unregistered SBR based on constructive possession of parts I would certainly argue Ruling 2011-4, and anything else that might work. But when offering counsel, while I would consider the Ruling I'd also be clear that it didin't necessarily resolve all doubts.