the morning your honour's may please the court i'm louis yellen from the department of justice here today representing the bureau of alcohol tobacco firearms and explosives in an attempt to improve the gun tracing system a t f sought statutory authority to send the demand letter to j and jeanne in that in concluding that way the district court fundamentally misconstrued section nine twenty three of the gun control act as the four circuit held in the case involving the very same demand letter that said issue here section one twenty three g five a gives a t f express authority to demand any information licensee is required to keep it under the statute the district court rejected that interpretation because it thought that the interpretation would render superfluous other provisions of section nine twenty three that was mistaken under the interpretation we urge and the interpretation that the fourth circuit adopted the provisions the district court identified retaining independent vitality in fact the district courts alternative construction leads to the very problem that the district court sought to avoid the district court held provision the only work that that provision does is to authorize the agency to send a letter and surely congress did not need to enact a provision to give authority to an agency to send a letter to a regulated entity or provide information that the entity already was obliged if i understand correctly this would be apart from any particular request for tracing yes that's exactly right but apart from any actual enforcement proceeding that's going on right that's exactly right your honor this is not part of a while i understand that there is no request and in fact there is a specific statement that the  licensee should not report the name of the person who either sold or bought a second hand gun still a great deal of information is being requested and the care act is being transferred to a federal agency that comes somewhat close to sounding like maintaining a register why isn't it doing that well your honor i believe referring to the limitations on a t f a story that exist in section one twenty six a it's not creating a registry in the sense in which nine twenty six and congress more generally in the appropriations act from one thousand seven hundred to the present have intended we know that for the following reason first of all congress was reacting to originally  hundred seventy nine to a specific proposal by a t f to require registration of all firearms owners and licensees so a database containing information of all owners and licensees in the united states how much information would be too much to create a registry in effect to invoke the concerns of the limitation yes justice o'connor i think that one would have to look not at the quantity of information sought from any particular licensee again in this case we've got less than one percent of all gun dealers but i think the most important criterion would be the number of dealers that were its information was a question you have and your theory that small number the whole pie with regard to this but with particularly interesting guns well your honor i mean it's you're exactly right but the but that's why we think we're right there's not an same legislation that enacted g five a the demand letter provision congress enacted sections g three g for n g c six which are provisions which make specific requirements on licensees to provide information to a t f to be kept so just for example under subsection g four if a licensee a gun dealer goes out of business the licensee as you know is required to keep on its own premises information about it conduct traces of those guns if law enforcement asks for a trace of the gun that was in that infant tory so we know that congress did not intend an absolute prohibition on keeping information now as to  factor i'm not prepared to do anything else there could be other things as well perhaps your honor of for instance to just say less than one percent isn't enough and beyond that you don't go let me ask you this the was issued here that was a departure from the bureau's traditional method of collecting information wasn't i don't believe it was a departure your honor it was not something that the department had done before if again why did it never do this before if that was necessary information needed why wasn't the bureau had never done this before because the bureau hadn't had the factual basis they perform to study commerce and firearms study which is in the joint appendix it's part of the administrative record and that study indicated that a very small number of licensees was responsible for a very large number of those that the first time th with this very small number maybe they could help the situation by sending out this letter precisely your honor it was on the basis of this research and that it was a new approach that had not been followed but it had not been followed before your honor yes but it's not a new rule in the sense that nine twenty six is concerned with because your honor nine twenty six is concerned about rules and regulations and here the agents say that a letter like this would have been valid all along they just had never done that yes your honor it absolutely would have in part because you could have been sent out as part through the under the authority of the agency's regulation that was and acted in one thousand nine hundred sixty eight long before section  are the bureau has the authority to send letters to the licensees seeking all record information required to be kept by this chapter or such lesser record information as the secretary specifies no matter what what is the lesser referred to in that statute lesser than what lesser than all of the in from licensees are required to keep certain information as specified by regulation  under this provision the a t f could demand all of that information to be sent and in the r s sam case which is referred to in the briefs that case involved a different demand letter that did request all of the information and the reason why in that case a t f demanded all of the information is because it was dealing with an even smaller subset of gun dealers who were not responding properly to trace request in the course of a bonafide criminal investigation and since  shown themselves not to be reliable a t f requested all of the information so that if they got a trace request for one of those guns it could turn to those gun dealers records and provide information for law enforcement to carry the earlier case welcome back to justice o'connor's original line of questioning that there is a limit but they didn't feel like they had to reach it so how does one kno by looking at the request whether it's to gone too far or not well your honor i think that it's absolutely clear that there are limits that congress has put on a t f south already for instance we know that it cannot create a national gun registry that's a very clear limit on a t s authority but you know just for a second what you are really saying is that you can maintain a national gun registry for a very small percentage of stores right  i would have it's a registry as it is a registry yes your honor so your argument is you can maintain a national registry but it's ok if it's for a small percentage that's what your argument is the only reason i'm resisting  honour's characterization is because of the adjective national national as we understand it construed refers to a systematic across the board exhaustive sure that you so you saying that you construe national registry to mean a registry of all guns across the united states but certainly it is national a sense that a t f is a federal agency if that's what your honor means exactly and i would have no problem agreeing with that you're right we believe that a demand letter in the words of r s m the first four circuit case as a ruse to create a national gun registry that would plainly be impermissible and of course the agency has to act within its authority can't act arbitrarily or capriciously so that would be another sort of limit in terms of how many licensees is too many licensees that's a difficult question to put this is over the age of eighty ask for the names now your honor i don't believe so at all  again just as the four circuits are a sam case upholding a demand letter exactly like that that did ask for the names that's that's only because here we're only dealing with one percent of gun dealers and it specifically tied to a specific authority that a t f has namely to provide assistance in gun tracing into combat illicit trafficking and guns it's plainly permissible under the statute in our view your  honor your theory that as long as you don't require everyone to register it's ok so under your theory as i understand it you would think it's ok to get ninety percent well you know exactly this is so what's the governing principle if you're not i a determination and i will concede that it's not one hundred if there was ninety nine point eight percent of all rise to fifty percent i'm sorry fifty percent again your honor that would be difficult question this case is so far from that fact pattern that i could not statute for instance the limitation that we know congress was responding to as an attempt to create an a gun registry of every firearm owner in the country if this court can say this is so far away from that we don't need to worry about the borderline i think the we're dealing with less than one percent and it's just not it wouldn't be appropriate for the government to propose a rule when we're not actually faced with the difficult gray area and in our opinion respectfully we don't think that the court needs to articulate any prohibit the transfer or contents of records to a facility on manager controlled by the united states but as the fourth circuit in our view correctly noted this is tied was responding to a t f suggestion that it collect information from every single one of the licensees and gun owners but more importantly your honor even if the statute were somehow close to the ballpark to being a political i'd like to point out that it starts off by saying no such rule or regulation prescribed after the date of an accident of the firearm owners protection act that's in one thousand nine hundred six and this statutory authority excuse me this regulatory authority that the agency is acting on was  subsection g five a section nine twenty three that's the again the statutory provision so that's yet another reason why this limitation wouldn't apply and lastly your honor this letter is not a rule or individuals and has an immediate effect a rule or regulation is broad and in general it doesn't it applies to an indeterminate number of people and has only prospect of effect so again this prohibition against certain rules and regulations doesn't apply to a letter such as this which is not neither a rule nor a regulation last i would suggest your honour's that the other alternative basis upon which  to national registration system in either of those statutes that's something the government is the term the government is applied to it what nine twenty six a refers to any system of registration of firearms firearms owners or farms transactions or dispositions it's incredibly broad congress used to use that terminology to make sure that the government got it that there was to be no system and the system that they have created here what they have created here i that there's this sort of there's some point below i guess one percent is where they take it says that once you get below that and you're a limited amount of records it's not is this sort of registration but we should have some hesitation in creating a circuit split should we not i well i think you should generally but in this case i think you're just clearly wrong the fourth circuit is clearly wrong and ignored the plain language of the statute i don't i don't know if it did or not only depends it depends on whether you think registration i don't think there's any questions like the government acknowledged that this is a system of registration their argument is that well because it below one percent that's ok and what i would respond to is i think there is a but there is a line that the court can come up with and that is this that the congress in nine twenty three g has come up with a certain certain types of information that the government can and can get clearly by statute the government talked about those the multiple stale forms the out of business deal or records and the question is what is the nine twenty five one twenty three g five a language referred to and because there is this clear answer i think remainder of nine twenty three g which is which i believe you have to do under the supreme court case law about when you're trying to determine the meaning of a statute you don't look at words in isolation you look at what congress was trying to achieve and if you take the government's view that nine twenty five that one twenty three g five a is in is is incredibly expansive and the government's view essentially when you get right down to it is that it has no limits at all that if they send out a letter that's enough it does  regardless of what they've done in the past they have been from the government has information that a lot of cons are being sold by a particular dealership something that ends up in the hands of criminals you think that one demand letter such as this one violent the statute i think i to illegal sales no they're well they're within it under the under what congress clearly intended no i'm asking they sent a letter just like this but they they they have they have information simply because they say all the crime time  has a on the aggregate this particular dealership has selling a lot of guns that end up in the hands of criminals i don't have any there's no tracing of all there's no essentially what you're doing is narrowing the universe down to one yes and i think the answer to that is no they don't have that authority intention that it's not in the saturated technology it's an expansion statute clear why should we worry about the regen assassination because you're under the statute isn't clear when you put all the rest of it when you put not g five a in context which which you're required to do you can't read it in isolation it becomes g five a itself becomes ambiguous and that ambiguity allows you to go to try to determine what congress is in and what the net intent was clearly spelled out in the senate debate in the committee reports there's no doubt there's no disagreement the government hasn't even tried to respond to that that that's what congress had in mind that's what congress was purpose was in acting g five a and congress that there is no deference given to the government in that case and in this case but we don't get to the death we don't get to the deference question until we into you do the stand use the traditional rules of statutory construction to try to determine what congress does intend was and one of them that stands look to the language of that particular statute and when you do it appears to authorize a letter it appear it certainly authorizes a letter the question is how far does that authorize it to go and that's what the ambiguity is well it's not ambiguous we don't we don't know exactly but in these circumstances less than one percent that's right but but still that we don't know exactly what the limits are and that's why we have to look at the legislative to be every dealer to has to be included everything ale has to be included before it's a national registry so so by adopting that we're a big test which that which is not in the statute but for ease of discussion some kind of mind using  the second response is that these are dealers your honor who have not sold guns unlawfully the government acknowledges that in the demand letter there's no evidence that these dealers have done anything unlawful it's just that there have been fifteen or more traces that have been conducted to their business and the government wants information about secondhand firearms that they've sold and that second firms that have been used in crimes they just want the information about the guns so there has sold so it is  is not a situation where they have found a dealer who they think unlike unlike the first demand letter which was it issue in the r s m case in the fourth circuit where the dealer wasn't providing the information and this is not that situation this is the next dealer and so i want some information to the system future tracing well you're right your honor that's the that's the logic of it the question though is that what congress has authorized and what's what is some evidence of that and i'd made it s not great are not the best legal argument but is just before this demand letter provision was put out they'd ministration proposed legislation to do exactly that the legislation didn't go anywhere the next thing we see is the demand going legislation state the legislation would have required all the trace all trace information to be turned over to the a t f essentially what the demand letter requires and the legislation didn't go anywhere so so they next to  s by sending out a demand letter i mean that may be just a coincidence but that that's what happened i don't know if the legislation would have required every dealer to provide such gun was used in a crime it just writings that somebody was curious about how the gun was stolen so there's not even there's no rational connection between what is being done and the basis for being for doing it and i'd like to go back if i might so or continue with that in response to justice o'connor's question concerning what other statutory provisions there are which indicate which are part of the structure of the congress is created there is of course the multiple sale form provision which is nine twenty three g three which is a specific statutory direction for submission of records and there is a section nine twenty three g seven which is also a submission require submission of disposition information within twenty four hours when a t f makes the request in the course of a bonafide a criminal investigation so congress congress thought about the they're going to be some other circumstances in which they would want that and said the legislative history is clear as to what that what that deals with if i could i've got a few minutes left and that's your questions on that i want to were in fact firearms that were used in crime we requested that information in the david and unreasonable to draw the entrance and that underlies the quest which  whether the whether the connection with if it's a rational connection between the government's request in the basis for it now is a i think a much clearer question the statute which provides a mention for the be a lot more than that so we don't know that there's a rational connection anymore even if you assume that they were tracing only crime guns yeah there might have been a rational connection between what they decided to do and getting information about secondhand guns but now in light of it that rational connection i think it evaporated i thought the request was not only related to trace requests but they were on consulate pine's to crime that's right less than three years they were all they were all trace their trace request in the end the time to crime refers to the time between the sale of the gun and the time it was recovered but as i said now the government is now admitted that it's not time to crime actually it's time to pick up the time to recover is now is what that is it's not time to crime and that makes it irrational that makes it that makes it a rational because the alleged basis was that these were guns that were going being used being sold by the dealer and being used in crime therefore it's legitimate to determine what other guns he might to trace other guns that might be used in crime but if they're not being used in crime then the rational basis disappear and and it said we had tried to get the information from the government in the district court to determine if in fact these were guns that had been used in crime and and were not able to get at the district court concluded that that was  judgment purposes so didn't we didn't get that issue resolved but i think now at a minimum the case needs to be remanded to on that on that issue too to allow it we might not even have to be here if it turns out that they that there is fourteen guns or less than that that were actually involved in crimes because then the whole basis for the demand letter disappears and that's the court as any other argument that we have not proved that these guns were used in a crime is a red herring the standard that a t f used to determine the class of dealers to receive the latter was whether fifteen or more traces were conducted within a year these particular guns were used in crimes or not the point is these guns were the traces if there were fifteen traces that means that there were fifteen tie and more than fifteen times that guns came to the attention of law enforcement and law enforcement thought it needed to determine whether or not the guns had some criminal connection so this whole line about there not being evidence in the record that the guns were used in crime is completely irrelevant to the criterion that the agency use the only other point that i'd like to make somebody or do you agree with the assessment that even in the report upon which your letters were based and the system was based that time to crime didn't mean time to crime time to crime a recovery from a crime scene it's not known sometimes the only information that the agency had was traced so there are so time to crime encompasses it's a more inclusive concept do you do you disagree with your present counsel's assertion that the majority of traces are unrelated to crime i do disagree that's not something that's in this record but again just as a matter of common sense i would suggest that you know why law enforcement doesn't praise guns just for the heck of tracing guns there is a reason why that guns are regulated in this country and there's a reason why as a regulated entity gun dealers have an obligation to report information concerning traces to law enforcement that's because congress recognized that guns are used in crimes and that tracing is a valuable tool for helping law enforcement solve crimes so the only last point if i may make this is the same congress that enacted nine twenty six is the congress then acte