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SERVICES, INC.
SCALIA, J., dissenting

sumption that Kodak is without such interbrand power, I believe we are compelled to reverse the judgment of the Court of Appeals. I respectfully dissent.

Syllabus

UNITED STATES v. THOMPSON/CENTER ARMS CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

No. 91–164. Argued January 13, 1992—Decided June 8, 1992 Respondent manufactures the “Contender” pistol and, for a short time,

also manufactured a kit that could be used to convert the Contender into a rifle with either a 21-inch or a 10-inch barrel. The Bureau of Alcohol, Tobacco and Firearms advised respondent that when the kit was possessed or distributed with the Contender, the unit constituted a "firearm” under the National Firearms Act (NFA or Act), 26 U. S. C. $ 5845(a)(3), which defines that term to include a rifle with a barrel less than 16 inches long, known as a short-barreled rifle, but not a pistol or a rifle having a barrel 16 inches or more in length. Respondent paid the $200 tax levied by $ 5821 upon anyone “making” a "firearm” and filed a claim for a refund. When its refund claim proved fruitless, respondent brought this suit under the Tucker Act. The Claims Court entered summary judgment for the Government, but the Court of Appeals reversed, holding that a short-barreled rifle “actually must be as

sembled" in order to be “made” within the NFA's meaning. Held: The judgment is affirmed. 924 F. 2d 1041, affirmed.

JUSTICE SOUTER, joined by THE CHIEF JUSTICE and JUSTICE O'CONNOR, concluded that the Contender and conversion kit when packaged together have not been “made” into a short-barreled rifle for NFA purposes. Pp. 509-518.

(a) The language of $ 5845(i)—which provides that "[t]he term ‘make', and [its] various derivatives ... , shall include manufacturing . . putting together ..., or otherwise producing a firearm”—clearly demonstrates that the aggregation of separate parts that can be assembled only into a firearm, and the aggregation of a gun other than a firearm and parts that would have no use in association with the gun except to convert it into a firearm, constitute the “making” of a firearm. If, as the Court of Appeals held, a firearm were only made at the time of final assembly (the moment the firearm was “put together"), the statutory “manufacturing ... or otherwise producing” language would be redundant. Thus, Congress must have understood “making” to cover more than final assembly, and some disassembled aggregation of parts must be included. Pp. 509-512.

Opinion of SOUTER, J.

(b) However, application of the ordinary rules of statutory construction shows that the Act is ambiguous as to whether, given the fact that the Contender can be converted into either an NFA-regulated firearm or an unregulated rifle, the mere possibility of its use with the kit to assemble the former renders their combined packaging “making.” Pp. 512-517.

(c) The statutory ambiguity is properly resolved by applying the rule of lenity in respondent's favor. See, e. g., Crandon v. United States, 494 U. S. 152, 168. Although it is a tax statute that is here construed in a civil setting, the NFA has criminal applications that carry no additional requirement of willfulness. Making a firearm without approval may be subject to criminal sanction, as is possession of, or failure to pay the tax on, an unregistered firearm. Pp. 517-518.

JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that the rule of lenity prevents respondent's pistol and conversion kit from being covered by the NFA, but on the basis of different ambiguities: whether a firearm includes unassembled parts, and whether the requisite “inten[t] to be fired from the shoulder" existed as to the short-barrel component. Pp. 519–523.

SOUTER, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 519. WHITE, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and KENNEDY, JJ., joined, post, p. 523. STEVENS, J., filed a dissenting opinion, post, p. 525.

James A. Feldman argued the cause for the United States. On the briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Kent L. Jones, Gilbert S. Rothenberg, and Steven W. Parks.

Stephen P. Halbrook argued the cause and filed a brief for respondent.*

JUSTICE SOUTER announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and JUSTICE O'CONNOR join.

Section 5821 of the National Firearms Act (NFA or Act), see 26 U. S. C. $ 5849, levies a tax of $200 per unit upon any

*Richard E. Gardiner filed a brief for Senator Larry E. Craig et al. as amici curiae urging affirmance.

Opinion of SOUTER, J.

1

one “making” a “firearm” as that term is defined in the Act. Neither pistols nor rifles with barrels 16 inches long or longer are firearms within the NFA definition, but rifles with barrels less than 16 inches long, known as short-barreled rifles, are. $5845(a)(3). This case presents the question whether a gun manufacturer “makes" a short-barreled rifle when it packages as a unit a pistol together with a kit containing a shoulder stock and a 21-inch barrel, permitting the pistol's conversion into an unregulated long-barreled rifle, or, if the pistols barrel is left on the gun, a short-barreled rifle that is regulated. We hold that the statutory language may not be construed to require payment of the tax under these facts.

I The word “firearm” is used as a term of art in the NFA. It means, among other things, “a rifle having a barrel or barrels of less than 16 inches in length ...." $5845(a)(3). "The term 'rifle' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.” $5845(c).

The consequence of being the maker of a firearm are serious. Section 5821(a) imposes a tax of $200 “for each firearm made,” which “shall be paid by the person making the firearm,” $ 5821(b). Before one may make a firearm, one must obtain the approval of the Secretary of the Treasury, $ 5822, and $5841 requires that the “manufacturer, importer, and maker ... register each firearm he manufactures, imports, or makes” in a central registry maintained by the Secretary of the Treasury. A maker who fails to comply with the NFA's provisions is subject to criminal penalties of up to 10

1 Unregulated, that is, under the NFA.

Opinion of SOUTER, J.

years' imprisonment and a fine of up to $10,000, or both, which may be imposed without proof of willfulness or knowledge. $5871.

Respondent Thompson/Center Arms Company manufactures a single-shot pistol called the “Contender,” designed so that its handle and barrel can be removed from its “receiver,” the metal frame housing the trigger, hammer, and firing mechanism. See 27 CFR $ 179.11 (1991) (definition of frame or receiver). For a short time in 1985, Thompson/Center also manufactured a carbine-conversion kit consisting of a 21-inch barrel, a rifle stock, and a wooden fore-end. If one joins the receiver with the conversion kit's rifle stock, the 21-inch barrel, and the rifle fore-end, the product is a carbine rifle with a 21-inch barrel. If, however, the shorter, pistollength barrel is not removed from the receiver when the rifle stock is added, one is left with a 10-inch or "short-barreled” carbine rifle. The entire conversion, from pistol to longbarreled rifle takes only a few minutes; conversion to a shortbarreled rifle takes even less time.

In 1985, the Bureau of Alcohol, Tobacco and Firearms advised Thompson/Center that when its conversion kit was possessed or distributed together with the Contender pistol, the unit constituted a firearm subject to the NFA. Thompson/Center responded by paying the $200 tax for a single such firearm, and submitting an application for permission under 26 U. S. C. $ 5822 “to make, use, and segregate as a single unit” a package consisting of a serially numbered pistol, together with an attachable shoulder stock and a 21-inch barrel. Thompson/Center then filed a refund claim. After more than six months had elapsed without action on it, the company brought this suit in the United States Claims Court under the Tucker Act, 28 U. S. C. $ 1491, arguing that the unit registered was not a firearm within the meaning of the NFA because Thompson/Center had not assembled a short-barreled rifle from its components. The Claims Court

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