J. D. FARMER, JR., PETITIONER V. STEPHEN E. HIGGINS, DIRECTOR BUREAU OF ALCOHOL, TOBACCO & FIREARMS No. 90-600 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The Respondent In Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 907 F.2d 1041. The district court's opinions (Pet. App. 12a-25a, 25a-33a) are not reported. JURISDICTION The judgment of the court of appeals was entered on July 11, 1990. A petition for rehearing was denied on August 30, 1990. Pet. App. 10a-11a. The petition for a writ of certiorari was filed on October 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Gun Control Act of 1968, as amended by the Firearms Owners' Protection Act of 1986, prohibits private persons from possessing or transferring machine guns. 2. Whether Congress has the power under the Commerce Clause to prohibit the private possession and transfer of machine guns. 3. Whether Congress's decision to prohibit the private possession and transfer of machine guns violates the Second Amendment. STATEMENT 1. The manufacture, possession and transfer of machine guns is regulated by the Gun Control Act of 1968, as amended, 18 U.S.C. 921 et seq., and by Chapter 53 of the National Firearms Act (NFA), 26 U.S.C. 5801 et seq. (NFA). The National Firearms Act adopts application and registration requirements for persons desiring to make certain types of firearms, including machine guns. 26 U.S.C. 5821, 5822, and 5841. /1/ The Act requires the Bureau of Alcohol, Tobacco and Firearms (ATF) to deny any application to make a firearm if the making or possession of the firearm would place the applicant in violation of law. 26 U.S.C. 5822. See also 26 U.S.C. 5812 (parallel provision regarding transfer of firearms). Thus, in reviewing applications under the National Firearms Act, the agency must determine whether approval is precluded by the Act itself, or by any other provision of law. The Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449, amended the Gun Control Act and restricted the transfer and possession of machine guns manufactured after May 19, 1986. Section 102 of those Amendments, 100 Stat. 453, codified at 18 U.S.C. 922(o), states: (1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machine gun. (2) This subsection does not apply with respect to -- (a) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. After enactment of the 1986 Amendments, the ATF issued implementing regulations proscribing the private possession of machine guns except as provided by the grandfather clause in 18 U.S.C. 922(o)(2)(B). See 27 C.F.R. 179.105(a) and (b). The exception for transfer or possession "by or under the authority of" federal or state governments was defined as follows, 27 C.F.R. 179.105(e): (A)pplications to make and register machine guns on or after May 19, 1986, for the benefit of a Federal, State or local governmental entity * * * will be approved if it is established by specific information that the machine gun is particularly suitable for use by Federal, State or local governmental entities and that the making of the weapon is at the request and on behalf of such an entity. 2. In October 24, 1986, petitioner sought permission from the ATF to make and register a machine gun for his personal collection. The ATF denied the application on February 7, 1987. The denial letter advised petitioner that 18 U.S.C. 922(o) "prohibits the making and manufacture of new machineguns for possession by private citizens," and that the ATF was therefore precluded from processing petitioner's application. Pet. App. 2a. Petitioner filed this suit in March 1987, challenging the constitutionality of 18 U.S.C. 922(o) and seeking a writ of mandamus to compel agency approval of his machine gun application. The district court dismissed those claims (Counts I-IV) on the ground that mandamus relief was not available to compel discretionary (as opposed to ministerial) agency action. Pet. App. 12a. Although it rejected petitioner's claims, the court agreed with petitioner's submission that 18 U.S.C. 922(o) was not a general ban on the possession of machine guns, and merely barred the otherwise unlawful possession of machine guns. The court reasoned that the exemption for machine guns possessed "under (the) authority of" a governmental unit authorized "all machine guns possessed pursuant to NFA licenses issued by (the ATF)." Pet. App. 18a. Thus, in the district court's view, 18 U.S.C. 922(o) banned the possession of machine guns only where a license could not issue for some other, independent reason. With the permission of the district court, petitioner amended his complaint to add a new count (Count V) challenging the disapproval of his application under the Administrative Procedure Act, 5 U.S.C. 701-706. Pet. App. 27a. The district court then ruled that the ATF's denial of petitioner's application was based on an erroneous interpretation of the statute. The court remanded the case to the ATF, ordering the agency to complete review of petitioner's application within 30 days of receipt of the court's order, or else to approve the application. Pet. App. 33a. 3. The government appealed. The court of appeals stayed the district court's order pending appeal, Pet. App. 3a, and on the merits reversed, holding that 18 U.S.C. 922(o) prohibits the private possession of machine guns not lawfully possessed before the date of enactment of the 1986 Amendments. Pet. App. 1a-9a. The court explained that Section 922(o) "explicitly provides that, aside from two specified exceptions, 'it shall be unlawful for any person to transfer or possess a machine gun.'" Pet. App. 6a. The district court's interpretation of the exception for machine guns possessed "under the authority of" a governmental entity, the court of appeals noted, would substantially vitiate the general prohibition and thereby render the statute meaningless. Moreover, the legislative history of the Firearms Owners' Protection Act of 1986, the court found, demonstrated clearly that this exception was intended to authorize only the possession of machine guns for the benefit of federal, state, or local governments. Pet. App. 7a. Finally, the court rejected petitioner's constitutional claims without discussion on the ground that they were meritless. Id. at 9a. ARGUMENT The decision below does not conflict with any decision of this Court or of another court of appeals and presents no question of public importance warranting this Court's review. After analyzing the text and legislative history of Section 922(o), the court of appeals correctly upheld the ATF's conclusion that Congress prohibited the possession of machine guns except (as relevant here) when authorized for the benefit of governmental entities, such as in the case of law enforcement officers. The court of appeals also correctly recognized that petitioner's Commerce Clause and Second Amendment arguments are plainly without merit. Finally, the court of appeals was correct in noting that this is a case of "first impression." Pet. App. 1a. Under these circumstances, further review by this Court is not warranted. 1. The Firearms Owners' Protection Act of 1986, with two exceptions, prohibits the possession or transfer of a machine gun. 18 U.S.C. 922(o)(1). The exception created by the "grandfather clause" for machine guns lawfully possessed before the Act became law, 18 U.S.C. 922(o)(2)(B), is clearly inapplicable here, because the gun in question has not yet been created. At issue instead is the scope of the other exception, which is limited to "possession by or under the authority of" the federal, a state, or a local government. 18 U.S.C. 922(o)(2)(A). The ATF has determined that private parties like petitioner cannot take advantage of that exception, and that conclusion, as the Eleventh Circuit explained, follows from the text and legislative history of the 1986 Act. Pet. App. 5a-9a. Before the Firearms Owners' Protection Act of 1986 became law, a person could possess a machine gun if he satisfied the requirements of the National Firearms Act. 26 U.S.C. 5822. The ATF reviewed applications to manufacture such guns under that law, and would deny an application if granting it would place the applicant in violation of the law. 26 U.S.C. 5822. For example, the ATF would deny an application from a convicted felon to manufacture a machine gun because the possession of a firearm by a convicted felon would violate 18 U.S.C. 922(g). The Firearms Owners' Protection Act of 1986 for the first time flatly prohibited the transfer and possession of machine guns. That ban affected not only private parties, but also military authorities and law enforcement officers, since they are "authorized" by federal law to carry firearms, which can (and sometimes does) include machine guns. E.g., 18 U.S.C. 3052 (FBI agents), 3053 (United States Marshals and their deputies), and 3056(c)(1)(B) (Secret Service agents); 50 U.S.C. 403f(d) (CIA personnel). Congress therefore created the exemption in 18 U.S.C. 922(o)(2)(A) in order to ensure that such parties would still be able to possess machine guns after the Firearms Owners' Protection Act of 1986 went into effect. Petitioner contends that the exception enables the ATF to "authorize" the manufacture of a machine gun as long as the applicant satisfies the requirements of the National Firearms Act, 26 U.S.C. 5822. But that interpretation of 18 U.S.C. 922(o)(2)(B) renders superfluous the general prohibition on the possession of machine guns in 18 U.S.C. 922(o)(1), because the National Firearms Act already outlawed the unauthorized manufacture of a machine gun. Section 922(o)(1), under petitioner's theory, did not change the status quo. Congress clearly held the contrary view, however, as proven by the grandfather clause. Petitioner's interpretation of the Firearms Owners' Protection Act of 1986 is therefore clearly unreasonable. The ATF's interpretation of the Firearms Owners' Protection Act of 1986 is also consistent with its legislative history. See Pet. App. 7a-9a. Section 922(o) was introduced "as a last minute amendment in the House of Representatives," Pet. App. 7a, and the members of the Senate sought to clarify their understanding of its reach. 132 Cong. Rec. 9600 (1986) (remarks of Sen. Dole). In a colloquy with Senator Dole, Senator Hatch explained that the exception would permit sales for military or police use, or to a licensed dealer for resale to the military. Ibid. He emphasized that: This provision certainly was not intended to disrupt in the slightest the current processes for supply of weaponry to our military or police forces. This amendment was designed to deal with crime guns, not weapons used to fight crime on a domestic or international scale. Ibid. The Senators then clarified that sales under the Arms Export Control Act would fall within the exemption, and that private researchers performing government services would also be exempt. Ibid. Finally, the Senators discussed whether the "under the authority of" phrase would allow a local police force to authorize its officers to purchase a machine gun to be owned by the officer rather than the police. Id. at 9601 (remarks of Sen. Dole). Senator Hatch responded that, ibid.: possession or transfer of those weapons would cease to enjoy the authorization of the State agency or subdivision when the officer was no longer on the police force. The police force would then have to exercise its authority to guarantee that the machinegun was transferred to another entity authorized by the State or the United States to possess such weaponry. This colloquy is irreconcilable with petitioner's construction of Section 922(o). The Senators would not have been at pains to define when possession was "under the authority" of the United States if individuals could still obtain approval from the ATF to possess machine guns for their own use. Distinctions such as those between police officers and former police officers would be meaningless. Indeed, if petitioner's interpretation of the Act were correct, there would have been no need to discuss the scope of its exceptions at all. /2/ Relying on Justice Scalia's concurring opinion in Crandon v. United States, 110 S. Ct. 997 (1990), petitioner maintains that the ATF's construction of Section 922(o) is not entitled to deference under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), because the ATF brings criminal prosecutions under Title 18 for violations of the gun control laws. Pet. 18-20. That argument lacks merit. The ATF is a component of the Department of the Treasury and does not bring criminal prosecutions under the gun control laws; instead, that authority is vested in the Department of Justice. 28 U.S.C. 516. At the same time, the ATF does have administrative responsibilities under the federal gun control laws, as explained above. The ATF's interpretation of the Firearms Owners' Protection Act of 1986 is therefore entitled to deference under Chevron. See National Rifle Ass'n v. Brady, No. 89-3345 (4th Cir. Sept. 13, 1990), slip op. 5-9 (ruling that Chevron applies to the ATF's interpretation of the Firearms Owners' Protection Act of 1986). 2. Petitioner argues that the prohibition on the private ownership of machine guns in 18 U.S.C. 922(o) exceeds Congress's power under the Commerce Clause. Pet. 22-25. That claims lacks merit. Congress has plenary authority to regulate interstate commerce by any rational means, which includes the regulation of intrastate activities that, considered as a class, have an effect on interstate commerce. See, e.g., Perez v. United States, 402 U.S. 146 (1971); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); United States v. Visman, No. 89-10630 (9th Cir. Nov. 28, 1990), slip op. 14698. For example, Wickard v. Filburn, supra, held that Congress has the authority under the Commerce Clause to regulate wheat grown wholly for home consumption even though that activity was purely local and was not regarded as commerce, because a wheat grower might otherwise purchase wheat on the open market. 317 U.S. at 125. This case fits comfortably within the rationale of the Filburn case. Perez v. United States, supra, is directly analogous. Perez upheld the constitutionality of the Consumer Credit Protection Act, 18 U.S.C. 891, which made it a federal offense to engage in "loan sharking" activities. Perez was convicted for purely intrastate activities that had no specific connection to interstate commerce. The Court rejected his contention that such a nexus was a prerequisite to the lawful exercise of congressional authority, even in a criminal case. The Court emphasized that when Congress chooses to regulate a class of activity without proof of connection to interstate commerce "the only function of (the) courts is to determine whether the particular activity regulated or prohibited is within the reach of the federal power." 402 U.S. at 152 (quoting United States v. Darby, 312 U.S. 100, 120-121 (1941)). "Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce." 402 U.S. at 154. "Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise as trivial, individual instances' of the class." Ibid. (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). Petitioner relies on United States v. Bass, 404 U.S. 336 (1971), Pet. 22-23, but that case is inapposite. Bass involved a question of statutory interpretation. At issue was a law prohibiting a convicted felon from receiving, possessing, or transporting a firearm "in commerce or affecting commerce," and the question was whether that phrase applied to the possession and receipt of a firearm, as well as to its transfer. The Court found unclear whether that law required proof of a specific nexus with interstate commerce, and resolved the ambiguity in the defendant's favor, ruling that the above-quoted phrase applied to all three offenses. Bass did not hold that Congress lacks the power to regulate the intrastate manufacture of machine guns. See Scarborough v. United States, 431 U.S. 563 (1977) (treating Bass as a statutory interpretation case). /3/ 3. Finally, the Gun Control Act of 1968 does not violate the Second Amendment. In United States v. Miller, 307 U.S. 174 (1939), the only decision by this Court construing the Second Amendment in this century, the Court rejected a challenge to provisions of the National Firearms Act prohibiting the interstate transportation of an unregistered firearm. The Court found no evidence that the firearm (a sawed-off shotgun) "has some reasonable relationship to the preservation or efficiency of a well regulated militia," and held that the possession of that firearm did not fall within the rights guaranteed by the Second Amendment. Id. at 178. Since Miller, the lower federal courts have concluded that the mere allegation that a firearm might be of value to a militia is insufficient to establish a right to possess that firearm under the Second Amendment. See, e.g., Cases v. United States, 131 F.2d 916, 922-923 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943); Cody v. United States, 460 F.2d, 34, 36-37 (8th Cir.), cert. denied, 409 U.S. 1010 (1972); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976). Petitioner does not suggest that the decision below conflicts with those rulings. In the absence of such a conflict, the decision below does not warrant review by this Court. Finally, the court of appeals in Warin, which like this case involved a machine gun, observed that the Second Amendment does not absolutely bar all congressional regulation of firearms. 530 F.2d at 107. Congress's decision flatly to prohibit the private possession of this particular type of weapon is surely reasonable. See id. at 107-108. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER MARK B. STERN Attorneys DECEMBER 1990 /1/ "Firearms" as defined in the NFA include machine guns, sawed-off shotguns and rifles, and "destructive device(s)," such as bombs and grenades. 26 U.S.C. 5845. /2/ After the Dole-Hatch colloquy was placed into the record, Senator Metzenbaum, who had not yet read its text, cautioned that the colloquy would not necessarily represent the views of the entire Senate. Senator Hatch explained however that: the colloquys (sic) that have been put in the Record as of now do reflect the intentions of the sponsors of the bill. There is no question about it. We think that they state basically what the bill is. Moreover many other Senators have asked the questions covered by this colloquy. They endorse these statements and are anxious to have their understanding made part of this Record. 132 Cong. Rec. 9601 (1986). Senator McClure concurred, explaining that "what we are trying to do is provide some legislative history as to our understanding of what the House provision means." Ibid. Senator Kennedy then inserted a colloquy between himself and Senator Metzenbaum on the machine gun prohibition. The Metzenbaum-Kennedy colloquy reflects agreement as to the fact that "the House version, which we are about to vote on here, has a very important improvement from the bill the Senate adopted last July, and that is to ban the transfer, possession of any machine gun not lawfully possessed on the date of enactment." Id. at 9602 (remarks of Sen. Metzenbaum). The only disagreements expressed by this colloquy with the earlier Dole-Hatch colloquy concerned whether the grandfather clause would apply to existing parts of machine guns and whether an amnesty could be declared for individuals unlawfully possessing machine guns. Ibid. Senator Lautenberg then expressed approval of improvements added by the House version of the bill, including the fact that the House version "bars future sales and possession of machine guns by private citizens." Id. at 9605. See also ibid. (remarks of Sen. Durenberger). In sum, the text and legislative history of the statute fully demonstrate that the ATF's interpretation of the Act is reasonable. /3/ To the extent that Bass sheds any light on this matter, it suggests a conclusion contrary to that proposed by petitioner. In Bass, the court of appeals had stressed that a different statutory interpretation would raise serious constitutional questions. This Court specifically observed that it affirmed "for substantially different reasons" than those given by the court of appeals, and expressly noted that it did not reach the constitutional issues. 404 U.S. at 338-339 & n.4. As one leading commentator has observed, "(s)ince the Supreme Court made most of the same points as the Second Circuit with respect to the language of the statute, its structure and its legislative history, it is obvious that what the Court was not accepting from the Second Circuit was the suggestion of substantial constitutional doubt upon which that court also relied." Stern, The Commerce Clause Revisited -- The Federalization of Intrastate Crime," 15 Ariz. L. Rev. 271, 282 (1973).