b'Applicability of Ten-Year Minimum Sentence\nto Semiautomatic Assault Weapons\nSemiautomatic assault weapons are no longer among the firearms to which the ten-year\nminimum sentence in 18 U.S.C. \xc2\xa7 924(c)(1)(B)(i) applies.\nNovember 24, 2009\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL\nCRIMINAL DIVISION\nYou have asked whether possession of a semiautomatic assault weapon\nin furtherance of a crime of violence or drug trafficking crime is conduct\nthat remains subject to a mandatory ten-year minimum sentence. Having\ncarefully considered the views of the Criminal Division and the Bureau\nof Alcohol, Tobacco, and Firearms (\xe2\x80\x9cATF\xe2\x80\x9d), we conclude that semiautomatic assault weapons are no longer among the firearms to which the\nten-year minimum sentence in section 924(c)(1)(B)(i) of title 18 applies.\nThe 1994 amendment that increased the penalties for use of such firearms\nin section 924(c)(1) is subject to a sunset provision, and thus was repealed\nas of 2004. Accordingly, the possession of a semiautomatic assault weapon in furtherance of, or the use during and in relation to, a crime of violence or drug trafficking crime is subject to the general five-year mandatory minimum sentence provided for in section 924(c)(1)(A), with increased penalties for the brandishment or discharge of such weapon. 1\nI.\nSection 924(c)(1) of title 18 makes it a federal offense to use or carry a\nfirearm during and in relation to certain other offenses or to possess a\nfirearm in furtherance of those other offenses. The question you have\nasked us to consider depends upon the relationship between two amendments that Congress made to section 924(c)(1), the first in 1994 and the\nsecond in 1998.\n1 As explained herein, section 924(c)(1)(B)(i) of the current United States Code continues to refer to semiautomatic assault weapons. We conclude, however, because of the\nrepeal, that reference should no longer appear in the Code.\n\n349\n\n\x0c33 Op. O.L.C. 349 (2009)\n\nPrior to 1994, section 924(c)(1) provided as follows:\nWhoever, during and in relation to any crime of violence or drug\ntrafficking crime . . . uses or carries a firearm, shall, in addition to\nthe punishment provided for such crime . . . , be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle\n[or a] short-barreled shotgun to imprisonment for ten years, and if\nthe firearm is a machinegun, or a destructive device, or is equipped\nwith a firearm silencer or firearm muffler, to imprisonment for thirty\nyears.\n18 U.S.C. \xc2\xa7 924(c)(1) (Supp. II 1990) (emphasis added).\nIn 1994, Congress enacted the Public Safety and Recreational Firearms\nUse Protection Act (\xe2\x80\x9cPSRFUPA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d) as subtitle A of title XI of\nan omnibus crime bill. See Pub. L. No. 103-322, \xc2\xa7\xc2\xa7 110101\xe2\x80\x93110106, 108\nStat. 1796, 1996 (1994). The centerpiece of the Act was the so-called\n\xe2\x80\x9cAssault Weapons Ban,\xe2\x80\x9d which did not affect the existing section\n924(c)(1), but instead established a new offense, making it \xe2\x80\x9cunlawful for\na person to manufacture, transfer, or possess a semiautomatic assault\nweapon,\xe2\x80\x9d except in compliance with certain specified exceptions. Id.\n\xc2\xa7 110102(a). The PSRFUPA further provided a detailed description of\nthe weapons to which the Act applied, see id. \xc2\xa7 110102(b) (identifying\nboth nineteen specific models of firearms and listing certain defining\ncharacteristics of \xe2\x80\x9csemiautomatic assault weapons\xe2\x80\x9d), and imposed certain\nlabeling requirements for such weapons, see id. \xc2\xa7 110102(d) (\xe2\x80\x9c[t]he serial\nnumber of any semiautomatic assault weapon manufactured after the date\nof the enactment of this statute shall clearly show the date on which the\nweapon was manufactured\xe2\x80\x9d), to facilitate enforcement of the Act\xe2\x80\x99s prohibitions.\nFor present purposes, however, it is a distinct provision of the\nPSRFUPA that is our focus. Section 110102(c)(2) of the PSRFUPA\namended the existing 18 U.S.C. \xc2\xa7 924(c)(1) to add semiautomatic assault\nweapons to the list of firearms subject to a ten-year penalty for use during and in relation to any crime of violence or drug trafficking crime. It\nprovided that \xe2\x80\x9c[s]ection 924(c)(1) . . . is amended in the first sentence by\ninserting \xe2\x80\x98, or semiautomatic assault weapon,\xe2\x80\x99 after \xe2\x80\x98short-barreled shotgun.\xe2\x80\x99\xe2\x80\x9d As amended, section 924(c)(1) read, in pertinent part:\n350\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nWhoever, during and in relation to any crime of violence or drug\ntrafficking crime . . . , uses or carries a firearm, shall, in addition to\nthe punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the\nfirearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the\nfirearm is a machinegun, or a destructive device, or is equipped with\na firearm silencer or firearm muffler, to imprisonment for thirty\nyears.\n18 U.S.C. \xc2\xa7 924(c)(1) (1994) (emphasis added).\nSignificantly, however, Congress included in the PSRFUPA a sunset\nprovision that limited the temporal effect of the Act. The sunset provision,\nsection 110105(2), stated that \xe2\x80\x9c[t]his subtitle and the amendments made\nby this subtitle . . . are repealed effective as of the date that is 10 years\nafter [PSRFUPA\xe2\x80\x99s effective] date.\xe2\x80\x9d Thus, because section 110102(c)(2)\nclearly was an \xe2\x80\x9camendment made by this subtitle\xe2\x80\x9d\xe2\x80\x94namely, an amendment to 18 U.S.C. \xc2\xa7 924(c)(1)\xe2\x80\x94it would have been \xe2\x80\x9crepealed\xe2\x80\x9d and ceased\nto have legal force and effect as of 2004 unless Congress enacted intervening legislation that insulated section 110102(c)(2) from the operation\nof the sunset provision.\nIn 1998, Congress did enact intervening legislation that amended section 924(c)(1). Congress enacted the legislation in response to Bailey v.\nUnited States, 516 U.S. 137 (1995), a Supreme Court decision that interpreted section 924(c)(1) and was issued one year after PSRFUPA\xe2\x80\x99s enactment. In Bailey, the Supreme Court considered what it meant to \xe2\x80\x9cuse\xe2\x80\x9d a\nfirearm for purposes of section 924(c)(1). It held that the government had\nto prove that a defendant \xe2\x80\x9cactively employed the firearm during and in\nrelation to the predicate crime\xe2\x80\x9d in order to \xe2\x80\x9csustain a conviction under the\n\xe2\x80\x98use\xe2\x80\x99 prong\xe2\x80\x9d of the statute. Id. at 150.\nIn response to Bailey, multiple bills were introduced in both houses of\nCongress to make clear that the \xe2\x80\x9cuse\xe2\x80\x9d of a firearm for purposes of section\n924(c)(1) would not require the active employment of the firearm in the\ncommission of a predicate crime. Significantly, many of these bills proposed further amendments to section 924(c)(1) that went beyond merely\nresponding to the Court\xe2\x80\x99s interpretation of the term \xe2\x80\x9cuse.\xe2\x80\x9d This legislative\nactivity ultimately resulted in the passage of a 1998 amendment to section\n351\n\n\x0c33 Op. O.L.C. 349 (2009)\n\n924(c)(1) titled \xe2\x80\x9cAn Act to Throttle Criminal Use of Guns.\xe2\x80\x9d The 1998\namendment provided that \xe2\x80\x9c[s]ection 924(c) of title 18, United States\nCode, is amended . . . by striking \xe2\x80\x98(c)\xe2\x80\x99 and all that follows through the end\nof paragraph (1) and inserting the following:\n\xe2\x80\x9c\xe2\x80\x98(c)(1)(A) Except to the extent that a greater minimum sentence\nis otherwise provided by this subsection or by any other provision\nof law, any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who,\nin furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug\ntrafficking crime\xe2\x80\x94\n\xe2\x80\x9c\xe2\x80\x98(i) be sentenced to a term of imprisonment of not less\nthan 5 years;\n\xe2\x80\x9c\xe2\x80\x98(ii) if the firearm is brandished, be sentenced to a term\nof imprisonment of not less than 7 years; and\n\xe2\x80\x9c\xe2\x80\x98(iii) if the firearm is discharged, be sentenced to a term\nof imprisonment of not less than 10 years.\n\xe2\x80\x9c\xe2\x80\x98(B) If the firearm possessed by a person convicted of a violation of this subsection\xe2\x80\x94\n\xe2\x80\x9c\xe2\x80\x98(i) is a short-barreled rifle, short-barreled shotgun, or\nsemiautomatic assault weapon, the person shall be sentenced\nto a term of imprisonment of not less than 10 years; or\n\xe2\x80\x9c\xe2\x80\x98(ii) is a machinegun or a destructive device, or is\nequipped with a firearm silencer or firearm muffler, the\nperson shall be sentenced to a term of imprisonment of not\nless than 30 years.\xe2\x80\x99\xe2\x80\x9d\nPub. L. No. 105-386, \xc2\xa7 1(a)(1), 112 Stat. 3469, 3469 (1998).\nThe 1998 amendment therefore split section 924(c)(1) into two new\nsubsections\xe2\x80\x9418 U.S.C. \xc2\xa7 924(c)(1)(A) and 924(c)(1)(B)\xe2\x80\x94and made three\nmajor changes to the section\xe2\x80\x99s operation. First, new section 924(c)(1)(A)\nmade clear that the offense created by section 924(c)(1) applies not only\nto any individual who \xe2\x80\x9cuses or carries a firearm,\xe2\x80\x9d but also to one who, \xe2\x80\x9cin\nfurtherance of any such crime, possesses a firearm.\xe2\x80\x9d Second, the remaining portion of subsection (c)(1)(A) imposed new minimum terms of\nimprisonment for specified types of firearms use. In lieu of the pre-1998\n352\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nfixed five-year sentence, the amendment made the new baseline sentence\nfor any use a minimum of five years, and it created new sentences of a\nminimum of seven and ten years, respectively, for the \xe2\x80\x9cbrandishment\xe2\x80\x9d and\n\xe2\x80\x9cdischarge\xe2\x80\x9d of a firearm during and in relation to a predicate crime.\nThe third change was set forth in the new subsection (c)(1)(B) and addressed the sentences imposed for possession of certain types of firearms.\nThe list enumerating these firearms did not change from the pre-1998\nversion of section 924(c)(1), as already amended by the PSRFUPA. As\nwas the case before 1998, that list included short-barreled rifles, shortbarreled shotguns, semiautomatic assault weapons, machineguns, destructive devices, and firearms equipped with a silencer or muffler. And, as\nwas the case before 1998, semiautomatic assault weapons were treated\nidentically to short-barreled rifles and short-barreled shotguns, just as the\n1994 PSRFUPA had prescribed. The only change was that, whereas\noffenses involving semiautomatic weapons, short-barreled rifles, and\nshort-barreled shotguns were subject to a fixed ten-year term before 1998,\nand offenses involving machine guns, destructive devices, and firearms\nwith silencers or mufflers were subject to a fixed thirty-year term before\n1998, the 1998 amendment made such offenses subject to mandatory\nminimum terms of ten and thirty years, respectively. In making this\nchange, however, the 1998 amendment retained the term \xe2\x80\x9csemiautomatic\nassault weapon\xe2\x80\x9d in precisely the same relation to the other terms in this\nsection as had been prescribed in 1994 by the PSRFUPA amendment to\nsection 924(c)(1).\nII.\nWhether the sunset provision of the 1994 PSRFUPA repealed the\nPSRFUPA amendment that added \xe2\x80\x9cor semiautomatic assault weapon\xe2\x80\x9d to\nsection 924(c)(1) turns on the following question: Did the subsequent\n1998 amendment to that section preserve the 1994 PSRFUPA amendment\nadding semiautomatic assault weapons, or did it instead abrogate that\nearlier PSRFUPA amendment and enact a new provision to replace it?\nIf the 1998 amendment did not abrogate the 1994 amendment, then in\n2004 the sunset provision of PSRFUPA repealed the 1994 amendment\nthat added \xe2\x80\x9cor semiautomatic assault weapon\xe2\x80\x9d to section 924(c)(1). If, on\nthe other hand, the 1998 amendment did abrogate and replace the relevant\n353\n\n\x0c33 Op. O.L.C. 349 (2009)\n\npart of the then-existing version of section 924(c)(1), then the sunset\nprovision of PSRFUPA would not apply to the language enumerating\n\xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d; the language in question would no\nlonger appear in the section by virtue of an \xe2\x80\x9camendment\xe2\x80\x9d \xe2\x80\x9cmade by\xe2\x80\x9d the\n1994 PSRFUPA and thus would be insulated from the operation of the\nPSRFUPA sunset provision.\nIn resolving the question, we are mindful that the effect of the 1998\namendment on the operation of the 1994 sunset provision has been the\nsource of some uncertainty. 2 Even the Code publishers have taken varying\nviews. The official U.S. Code retained the term \xe2\x80\x9csemiautomatic assault\nweapon\xe2\x80\x9d in section 924(c)(1)(B)(i) after 2004. 18 U.S.C. \xc2\xa7 924(c)(1)(B)(i)\n(2006). West Publishing, however, removed the term from the U.S. Code\nAnnotated from 2004 through 2008, before reinstating the term in its\n2009 edition. Compare 18 U.S.C.A. \xc2\xa7 924(c)(1)(B)(i) (2008), with 18\nU.S.C.A. \xc2\xa7 924(c)(1)(B)(i) (2009).\nWe are also aware that the issue has generated disagreement within the\nDepartment of Justice. In 2004, before the sunset provision repealed\nPSRFUPA, the Criminal Division took the position that the provision in\nsection 924(c)(1)(B) concerning semiautomatic assault weapons would\nexpire that year. It stated in the USABook, a Justice Department resource\nmanual, that \xe2\x80\x9cthere is nothing in the legislative history [of the 1998 law]\nto indicate that in rewriting \xc2\xa7 924(c)(1), Congress intended to effectively repeal the sunset provision for semiautomatic assault weapons in\n\xc2\xa7 924(c).\xe2\x80\x9d Q & As on the Effect of the Expiration of the Assault Weapons Ban (AWB), USABook Online, http://10.173.2.12/usao/eousa/ole/\nusabook/fire/appxd.htm (last visited Nov. 7, 2009). However, the Criminal Division now takes a different view, maintaining that the sunset\nprovision did not affect section 924(c)(1)(B)(i) because Congress struck\nNo court has squarely addressed this question of statutory construction. Although\ntwo courts of appeals have suggested that semiautomatic assault weapons should no\nlonger be subject to the mandatory ten-year sentence, it does not appear that the issue\nwas squarely presented in those cases because the defendants committed their offenses\nbefore 2004, making the ten-year mandatory minimum sentence applicable regardless of\nwhether the sunset provision caused the semiautomatic assault weapon language in\nsection 924(c)(1)(B)(i) to be \xe2\x80\x9crepealed\xe2\x80\x9d in 2004. See United States v. Klump, 536 F.3d\n113, 120\xe2\x80\x9321 (2d Cir.), cert. denied, 129 S. Ct. 664 (2008); United States v. Cassell, 530\nF.3d 1009, 1012 n.1 (D.C. Cir. 2008), cert. denied 129 S. Ct. 1038 (2009).\n2\n\n354\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nsection 924(c)(1) in 1998 and replaced it with a new sentencing scheme\nthat differed, in several respects, from the 1994 version of the law\xe2\x80\x94\nthereby leaving in place no 1994 amendment to section 924(c)(1) that\ncould be repealed. See Memorandum for David Barron, Acting Assistant\nAttorney General, Office of Legal Counsel, from Lanny A. Breuer, Assistant Attorney General, Criminal Division, Re: 18 U.S.C. \xc2\xa7 924(c)(1)(B)(i)\nand Semiautomatic Assault Weapons at 1 (July 30, 2009) (stating that \xe2\x80\x9cthe\nsunset provision does not apply to the 1998 revision of Section 924(c)(1)\xe2\x80\x9d\nand referring to an attached July 14, 2009 memorandum from Patty Stemler, Chief of the Criminal Appellate Section, in support). By contrast,\nATF is of the view that the sunset provision did repeal the semiautomatic\nassault weapon language in section 924(c)(1)(B)(i) as of 2004. It argues\nthat to accept the Criminal Division\xe2\x80\x99s position would be to conclude that\nCongress implicitly repealed the sunset provision (at least as it would\nhave applied to section 924(c)(1)) in 1998, but that there is no basis for\nconcluding that such an implicit repeal occurred. See Memorandum for\nOffice of Legal Counsel, from Stephen R. Rubenstein, Chief Counsel,\nATF, Re: Section 924(c) and the \xe2\x80\x9cSemiautomatic Assault Weapon\xe2\x80\x9d Sentence Enhancement (Sept. 11, 2009).\nA.\nAs both the Criminal Division and ATF acknowledge, neither the plain\ntext of the PSRFUPA, nor the plain text of the 1998 amendment to section\n924(c)(1), resolves the issue. The PSRFUPA obviously does not speak to\nwhether Congress, in subsequently passing the 1998 amendment, intended\nto affect the application of the PSRFUPA sunset provision to the 1994\nPSRFUPA amendment that added \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d to\nsection 924(c)(1). And for its part, the 1998 amendment makes no reference, one way or the other, to the PSRFUPA sunset provision.\nBecause of this textual silence, we must look elsewhere for interpretive\nguidance. In particular, we rely on an established canon of statutory\nconstruction, endorsed in treatises and both federal and state case law, for\nresolving ambiguities of the sort we confront here. That canon provides\nthat \xe2\x80\x9c[p]rovisions of [an] original act or section which are repeated in the\nbody of the amendment, either in the same or equivalent words, are considered a continuation of the original law.\xe2\x80\x9d 1A Norman Singer, Suther355\n\n\x0c33 Op. O.L.C. 349 (2009)\n\nland on Statutory Construction \xc2\xa7 22.33, at 392 (6th ed. 2000); see also\nPosadas v. Nat\xe2\x80\x99l City Bank, 296 U.S. 497, 505 (1936) (\xe2\x80\x9ca later act repeating provisions of an earlier one is a continuation, rather than an abrogation and reenactment, of the earlier act\xe2\x80\x9d; \xe2\x80\x9cprovisions of a prior statute, so\nfar as they are reproduced in a later one, are to be construed as a continuation of such provisions and not as a new enactment\xe2\x80\x9d); id. (noting common-law origins of this interpretive principle). 3\n\nSee also, e.g., Kirchner v. Kan. Turnpike Auth., 336 F.2d 222, 230 (10th Cir. 1964)\n(\xe2\x80\x9cProvisions of the original Act which are repeated in the body of the amendment, either\nin the same or equivalent words, are considered a continuation of the original law\xe2\x80\x9d);\nTyson v. United States, 285 F.2d 19, 22 (10th Cir. 1960) (\xe2\x80\x9cA general rule of construction\nis that provisions of an original act or section re-enacted or substantially repeated in an\namendment are construed as a continuation of the original law.\xe2\x80\x9d); Sutton v. State, 101\nN.E.2d 636, 638 (Ind. 1951) (\xe2\x80\x9cThe unchanged portions of the statute are not to be considered as repealed and reenacted. They are continued in force, with the same meaning and\neffect after the amendment that they had before.\xe2\x80\x9d); In re Prime\xe2\x80\x99s Estate, 32 N.E. 1091,\n1093 (N.Y. 1893) (\xe2\x80\x9cWhere the amended act re-enacts provisions in the former law, either\nipsissimis verbis or by the use of equivalent, though different words, the law will be\nregarded as having been continuous[.]\xe2\x80\x9d); cf. Am. Casualty Co. v. Nordic Leasing, Inc., 42\nF.3d 725, 732 n.7 (2d Cir. 1994) (\xe2\x80\x9cWhere sections of a statute have been amended but\ncertain provisions have been left unchanged, we must generally assume that the legislature intended to leave the untouched provisions\xe2\x80\x99 original meaning intact.\xe2\x80\x9d); Sierra Club v.\nSec\xe2\x80\x99y of the Army, 820 F.2d 513, 522 (1st Cir. 1987) (\xe2\x80\x9cAbsent some evidence of an\nattempt to change that construction, a substantial reenactment of the law incorporating its\npreexisting phraseology is usually the functional equivalent of codifying the earlier\nconstruction into the statute.\xe2\x80\x9d).\nAs a corollary to this interpretive principle, state courts have held that provisions of an\noriginal act that are reenacted in an amendatory act are repealed when the original act is\nrepealed. See, e.g., Sutton, 101 N.E. 2d at 638 (\xe2\x80\x9cSince the provisions of the original act\nwhich were \xe2\x80\x98re-enacted\xe2\x80\x99 in the amendatory act are but a continuation of the original act,\nthe repeal of the original act by the Act of 1939 repeals those provisions of the original\nact which were \xe2\x80\x98re-enacted\xe2\x80\x99 in the amendatory act[.]\xe2\x80\x9d); In re Yakima Amusement Co., 73\nP.2d 519, 521 (Wash. 1937) (\xe2\x80\x9cIn the event of the subsequent repeal of the prior or original\nstatute, the provisions of the first statute continued in force in the second statute are\nrepealed and fall with the abrogation of the original statute.\xe2\x80\x9d); Duke v. Am. Casualty Co.,\n226 P. 501, 504 (Wash. 1924) (\xe2\x80\x9c[T]he rule respecting construction of amendments is that,\nwhere a section of an original act has been amended, the amendment superseding the\noriginal action, a subsequent statute amending the original section by number, but not\namending the section as amended, supersedes and repeals the amendatory law\xe2\x80\x9d (internal\nquotation marks omitted)); see also 1A Norman Singer, Sutherland on Statutory Construction \xc2\xa7 22.39, at 430 (6th ed. 2000).\n3\n\n356\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nThis canon is grounded in a longstanding legislative practice of reenacting in full an entire amended provision, even where only limited,\ndiscrete changes are made, as a convenient means of making clear how\nthe new law should read. As the Supreme Court has explained, amending\na statute by \xe2\x80\x9crepeating the language of the original section with the [new]\nadditions\xe2\x80\x9d is generally done to \xe2\x80\x9cserve the causes of convenience and\ncertainty. That is to say, by carrying the full text forward, the task of\nsearching out and bringing together the various fragments which go to\nmake up the completed whole, after specific eliminations or additions by\namendment, is rendered unnecessary; and possible doubt as to the precise\nterms of the law as amended is avoided.\xe2\x80\x9d Posadas, 296 U.S. at 505\xe2\x80\x9306. 4\n4 Consistent with this rationale, many state constitutions still require that an amended\nprovision be set out in full so as to \xe2\x80\x9cavoid the confusion caused by the distribution of\ndifferent parts of the same section in different enactments.\xe2\x80\x9d Ex parte Allen, 110 N.E. 535,\n536\xe2\x80\x9337 (Ohio 1915) (internal quotation marks omitted). See also, e.g., Ala. Const. art. IV,\n\xc2\xa7 45 (\xe2\x80\x9c[N]o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended,\nor conferred, shall be re-enacted and published at length.\xe2\x80\x9d); Ariz. Const. art. IV, pt. 2,\n\xc2\xa7 14 (\xe2\x80\x9cNo Act or section thereof shall be revised or amended by mere reference to the title\nof such Act, but the Act or section as amended shall be set forth and published at full\nlength.\xe2\x80\x9d); Fla. Const. art. III, \xc2\xa7 6 (\xe2\x80\x9cLaws to revise or amend shall set out in full the\nrevised or amended act, section, subsection or paragraph of a subsection.\xe2\x80\x9d); Idaho Const.\nart. III, \xc2\xa7 18 (\xe2\x80\x9cNo act shall be revised or amended by mere reference to its title, but the\nsection as amended shall be set forth and published at full length.\xe2\x80\x9d); Ky Const. \xc2\xa7 51\n(\xe2\x80\x9c[N]o law shall be revised, amended, or the provisions thereof extended or conferred by\nreference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length.\xe2\x80\x9d); Md. Const. art. III, \xc2\xa7 29 (\xe2\x80\x9c[I]t shall\nbe the duty of the General Assembly, in amending any article, or section of the Code of\nLaws of this State, to enact the same, as the said article, or section would read when\namended.\xe2\x80\x9d); Mich. Const. art. IV, \xc2\xa7 25 (\xe2\x80\x9c[I]t shall be the duty of the General Assembly, in\namending any article, or section of the Code of Laws of this State, to enact the same, as\nthe said article, or section would read when amended.\xe2\x80\x9d); Miss. Const. art IV, \xc2\xa7 61 (\xe2\x80\x9cNo\nlaw shall be revived or amended by reference to its title only, but the section or sections,\nas amended or revived, shall be inserted at length.\xe2\x80\x9d); Mo. Const. art. III, \xc2\xa7 28 (\xe2\x80\x9cNo act\nshall be amended by providing that words be stricken out or inserted, but the words to be\nstricken out, or the words to be inserted, or the words to be stricken out and those inserted\nin lieu thereof, together with the act or section amended, shall be set forth in full as\namended.\xe2\x80\x9d); Neb. Const. art. III, \xc2\xa7 14 (\xe2\x80\x9cNo law shall be amended unless the new act\ncontains the section or sections as amended and the section or sections so amended shall\nbe repealed.\xe2\x80\x9d); N.M. Const. art. IV, \xc2\xa7 18 (\xe2\x80\x9cNo law shall be revised or amended, or the\nprovisions thereof extended by reference to its title only; but each section thereof as\nrevised, amended or extended shall be set out in full.\xe2\x80\x9d); Or. Const. art. IV, \xc2\xa7 22 (\xe2\x80\x9cNo act\n\n357\n\n\x0c33 Op. O.L.C. 349 (2009)\n\nGiven this long-standing practice, the \xe2\x80\x9ccontinuation\xe2\x80\x9d canon described\nabove ensures that the legislature\xe2\x80\x99s amendment of a statute by \xe2\x80\x9crepeating\nthe language of the original section with the [new] additions\xe2\x80\x9d will not\nmistakenly be construed as an implied repeal, or \xe2\x80\x9cabrogation and reenactment,\xe2\x80\x9d Posadas, 296 U.S. at 505, of the entire statutory provision. This\ncanon thus works in tandem with, and reinforces, the well-established\ncanon disfavoring implied repeals, 5 and it further functions to avoid\nanomalies that could arise if re-enacted statutory provisions were construed as repeals of prior identical (or functionally identical) language.\nFor these reasons, we see no basis for concluding that the canon should\nnot apply in the circumstances presented here, 6 given that Congress has\nshall ever be revised, or amended by mere reference to its title, but the act revised, or\nsection amended shall be set forth, and published at full length.\xe2\x80\x9d); Wash. Const. art. II,\n\xc2\xa7 37 (\xe2\x80\x9cNo act shall ever be revised or amended by mere reference to its title, but the act\nrevised or the section amended shall be set forth at full length.\xe2\x80\x9d). These constitutional\nrequirements are not intended to \xe2\x80\x9cchange the operation of the original section as to\nprovisions which are not changed.\xe2\x80\x9d Allen, 110 N.E. at 537.\n5 See, e.g., Am. Standard Life Ins. Co. v. State, 147 So. 168, 168 (Ala. 1933) (\xe2\x80\x9cThe\nrepeal and simultaneous re-enactment of substantially the same statutory provisions is to\nbe construed not as an implied repeal of the original statute, but as [an affirmance and] a\ncontinuation thereof.\xe2\x80\x9d (internal quotation marks omitted)); Robinson v. Ferguson, 93\nN.W. 350, 352 (Iowa 1903) (\xe2\x80\x9cThe repeal and simultaneous reenactment of substantially\nthe same provisions is not to be considered as an implied repeal of the original statute, but\nas a continuation thereof, so that all interests under the original statute shall remain\nunimpaired. The same rule applies to general revisions of existing laws which are substantially reenacted.\xe2\x80\x9d (internal quotation marks omitted)); see also, e.g., Carcieri v.\nSalazar, 129 S. Ct. 1058, 1068 (2009) (\xe2\x80\x9c\xe2\x80\x98We have repeatedly stated . . . that absent \xe2\x80\x9ca\nclearly expressed congressional intention,\xe2\x80\x9d . . . [a]n implied repeal will only be found\nwhere provisions in two statutes are in \xe2\x80\x9cirreconcilable conflict,\xe2\x80\x9d or where the latter Act\ncovers the whole subject of the earlier one and \xe2\x80\x9cis clearly intended as a substitute.\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d)\n(quoting Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality opinion) (internal citations\nomitted))).\n6 There is precedent, albeit limited, to support the canon\xe2\x80\x99s application in circumstances\ndirectly analogous to the unusual one presented here, where the amendment to the preexisting statute carried forward the prohibition of certain conduct, but both expanded its\napplication and changed the terms of punishment. In Ex parte Allen, 110 N.E. 535 (Ohio\n1915), for example, a habeas petitioner challenged his sentence for the sale of cocaine\nunder an amended Ohio provision that prescribed imprisonment instead of a fine for the\nsubsequent violation of the same statutory prohibition. The petitioner had previously been\nconvicted under a law that punished the sale of cocaine with a monetary fine. Petitioner\nwas then convicted again under the amended version of the law that, in addition to\n\n358\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\ncarried forward identical language from a prior enactment without expressly stating its intention regarding the continuing effect of an earlierenacted repealer. Indeed, there is a sound basis for applying the \xe2\x80\x9ccontinuation\xe2\x80\x9d canon, in the absence of contrary congressional intent, to amendments carrying forward language from laws subject to a sunset provision.\nWhen, at the time of amendment, the original enactment is subject to a\nsunset provision, the legislature is well-positioned to make clear its intention to insulate the amendment from the automatic repeal that would\notherwise occur. Its failure to do so fairly gives rise to the presumption\nagainst abrogation and reenactment that the \xe2\x80\x9ccontinuation\xe2\x80\x9d canon reflects.\nIn accord with the canon, and absent evidence of contrary congressional intent, the 1998 inclusion of the phrase \xe2\x80\x9cor semiautomatic assault\nweapon\xe2\x80\x9d in section 924(c)(1)(B)(i) should be construed as a continuation\n\xe2\x80\x9cto serve the causes of convenience and certainty,\xe2\x80\x9d Posadas, 296 U.S. at\n505\xe2\x80\x9306, of the original 1994 amendment that added the phrase to section\n924(c)(1), rather than as an \xe2\x80\x9cabrogation and reenactment\xe2\x80\x9d of that language. And if the 1998 amendment is so read, then the 1994 amendment\n\ncocaine, prohibited the sale of other drugs and punished a second violation of the statute\nwith incarceration. Petitioner challenged his sentence on the grounds that he should have\nbeen punished with only a fine as a first-time offender under the amended statute, \xe2\x80\x9cnotwithstanding his prior conviction under the statute before its amendment.\xe2\x80\x9d 110 N.E. at\n537. The court noted that if the amendment had abrogated and repealed the original law\n\xe2\x80\x9cas to those parts which have not been altered in the amending act,\xe2\x80\x9d then the petitioner\xe2\x80\x99s\ncontention was \xe2\x80\x9cwell founded,\xe2\x80\x9d \xe2\x80\x9cbut not so if the amendment [wa]s simply a continuance\nthereof in so far as the language of both [were] identical or substantially so.\xe2\x80\x9d The court\napplied the \xe2\x80\x9ccontinuation canon\xe2\x80\x9d and concluded that the provision of the statute making it\nan offense to sell cocaine continued in force and was undisturbed by the amendment. The\naddition of other covered drugs and the changed terms of punishment for subsequent\nviolations of the statutory offense were not sufficient to disrupt the original law. Id.; cf.\nOldham v. Rooks, 361 So. 2d 140 (Fla. 1978) (after determining that the Florida legislature had implicitly repealed an 1891 law as of 1970, the Florida Supreme Court held that\nthat 1970 repeal thereby rendered inoperative a 1971 amendment to the original law\nwhere the only change in 1971 was to the penalty; that later amendment to the penalty, the\ncourt held, was insufficient to revive the underlying offense that the legislature had\nimpliedly repealed the year before); State v. Cline, 339 P.2d 657, 661 (Mont. 1959)\n(\xe2\x80\x9c[t]here is substantial authority . . . holding that where the effect of the amendment of a\nstatute is only to increase the prescribed punishment, the unchanged portion of the\namended statute remains in effect\xe2\x80\x9d). We are not aware of any precedent, moreover, that\nwould indicate the canon should not apply in cases of this kind.\n\n359\n\n\x0c33 Op. O.L.C. 349 (2009)\n\noriginally adding \xe2\x80\x9cor semiautomatic assault weapon\xe2\x80\x9d remained in place\nand subject to the PSRFUPA sunset provision as of 2004.\nThe canon establishes only a presumption, however, and we must therefore examine whether there is a basis for concluding that Congress intended a different result when it enacted the 1998 amendment to section\n924(c)(1). We begin by considering the fact that the 1998 enactment\npurported to \xe2\x80\x9cstrike\xe2\x80\x9d section 924(c)(1) in its entirety and \xe2\x80\x9cinsert\xe2\x80\x9d in its\nplace a newly crafted revision. See Pub. L. No. 105-386, \xc2\xa7 1(a)(1), 112\nStat. at 3469 (\xe2\x80\x9cSection 924(c) of title 18, United States Code, is amended\n. . . by striking . . . all that follows through the end of paragraph (1) and\ninserting the following\xe2\x80\x9d).\nIn our view, such a \xe2\x80\x9cstrike-and-insert\xe2\x80\x9d method of amendment does not\nin this context indicate a congressional intent to repeal, or abrogate-andreenact, the preexisting provision in question. As discussed above, there is\nhistoric legislative practice, when amending statutes, to reenact the entire\ntext of the statute as amended, rather than simply to note, in the amendatory public law, the particular changes that have been made to the text.\nConsistent with this practice, a 2003 Congressional Research Service\nreport discussing \xe2\x80\x9csome common forms in which bills may express their\nintended relation to existing statutes\xe2\x80\x9d notes that when the express purpose\nof a bill is to modify or alter provisions of existing law, it may do so\nthrough various means of legislative drafting. The bill \xe2\x80\x9cmay identify each\nseparate point in existing statutes at which text is to be stricken out and,\nfor each, set forth text to be inserted. Alternately, it may propose to strike\nout an entire provision, then set forth, to be inserted in lieu, a new text,\nincorporating all the changes in language desired at every point in the\nprovision. Finally, a bill may simply provide that a specified provision \xe2\x80\x98be\namended so as to read\xe2\x80\x99 in the way specified by text that follows.\xe2\x80\x9d Richard\nS. Beth, How Bills Amend Statutes (Aug. 4, 2003), http://fas.org/sgp/crs/\nmisc/RS20617.pdf. The report does not distinguish between these forms\nof legislative drafting in terms of the substantive effect of an amendment.\nIn line with the practices the report describes, courts have construed\nlanguage striking and replacing existing provisions\xe2\x80\x94even language that\nexpressly uses the word \xe2\x80\x9crepeal\xe2\x80\x9d\xe2\x80\x94as not constituting a repeal or abrogation of provisions carried forward into the amended statute. See, e.g.,\nKirchner, 336 F.2d at 230 (\xe2\x80\x9cProvisions of the original Act which are\nrepeated in the body of the amendment, either in the same or equivalent\n360\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nwords, are considered a continuation of the original law. This rule of\ninterpretation is applicable even though the original Act or section is\nexpressly declared to be repealed.\xe2\x80\x9d (citations omitted)).\nWe think such an interpretation of the significance of the strike-andinsert language is especially appropriate with respect to the 1998 enactment amending section 924(c)(1). The changes\xe2\x80\x94in particular, the new\ngraduated sentencing scheme distinguishing between the use and the\nbrandishing or discharge of a firearm in the commission of a crime\xe2\x80\x94\nmade it significantly more complicated to parse the various penalties\nprescribed in the statute. Congress may be understood to have decided, as\nthe canon anticipates, to \xe2\x80\x9cserve the causes of convenience and certainty\xe2\x80\x9d\nby setting forth the entire amended statute within the public law itself,\nrather than by specifying the various amendatory provisions that the code\npublishers would have to fashion into a coherent whole. For these reasons,\nwe do not believe that Congress\xe2\x80\x99s choice to \xe2\x80\x9cstrike\xe2\x80\x9d section 924(c)(1),\nand insert a newly organized replacement, evinces an intent to abrogateand-reenact the entirety of the earlier version of the statute sufficient to\novercome the presumption established by the \xe2\x80\x9ccontinuation\xe2\x80\x9d canon.\nWe turn next to the three substantive changes that the 1998 amendment\ndid make to the statute, which we described above, in order to determine\nwhether they demonstrate that Congress intended to insulate the \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d language from operation of PSRFUPA\xe2\x80\x99s sunset\nprovision. In our view, they do not. In so concluding, we find it significant that, although those changes were clearly important, they did not\naffect the types of firearms to which a ten-year sentence attached. Nor did\nthey alter the basic judgment, embodied in the text that PSRFUPA originally added to section 924(c)(1), that the use of semiautomatic assault\nweapons should receive the same sentencing treatment as the use of shortbarreled rifles and short-barreled shotguns.\nFirst, the 1998 enactment specified, in the new subsection (c)(1)(A),\nthat\xe2\x80\x94contrary to the Supreme Court\xe2\x80\x99s decision in Bailey\xe2\x80\x94the federal\noffense would henceforth cover cases involving not just the more active\n\xe2\x80\x9cuse\xe2\x80\x9d of firearms, but also possession in furtherance of any crime of\nviolence or drug trafficking crime. But that change did not alter or affect\nthe 1994 amendment\xe2\x80\x99s specific reference to semiautomatic assault weapons. To be sure, after 1998, possession of such weapons in furtherance of\n361\n\n\x0c33 Op. O.L.C. 349 (2009)\n\na predicate crime\xe2\x80\x94in addition to more active uses\xe2\x80\x94became a separate\nfederal offense. But in this respect, the 1998 amendment merely treated\nsemiautomatic assault weapons the same as it treated all other firearms, a\ngeneral state of equivalence that the statute established even before the\n1994 amendment. Nothing in the 1994 PSRFUPA affected this basic\nstatutory equivalence, or altered the fact that semiautomatic assault weapons were already \xe2\x80\x9cfirearms\xe2\x80\x9d covered by the description of the conduct\nprohibited by section 924(c)(1) prior to PSRFUPA\xe2\x80\x99s amendment of the\nsection in 1994. And the same is true for the 1998 amendment. The new\nsubsection (c)(1)(A) sets forth the basic prohibition on the use, carry, or\npossession of a \xe2\x80\x9cfirearm,\xe2\x80\x9d but, as in the predecessor section (c)(1), it does\nnot refer separately to semiautomatic assault weapons.\nSecond, the 1998 amendment, also in subsection (c)(1)(A), imposed a\nnew graduated sentencing scheme based upon the manner in which the\n\xe2\x80\x9cfirearm\xe2\x80\x9d is used during and in relation to any crime of violence or drug\ntrafficking crime. Whereas all such uses were subject to a fixed five-year\nsentence before 1998, the 1998 amendment established a new baseline\nsentence of a minimum of five years. The amendment also provided that\nthe \xe2\x80\x9cbrandishment\xe2\x80\x9d and \xe2\x80\x9cdischarge\xe2\x80\x9d of a firearm in relation to such crimes\nare to be punished by minimum sentences of seven and ten years, respectively. But this change, too, did not in any way affect the PSRFUPA\xe2\x80\x99s\n1994 amendment of section 924(c)(1). That earlier amendment did not\naddress the appropriate terms of imprisonment for different uses of a\n\xe2\x80\x9cfirearm\xe2\x80\x9d in the commission of an underlying offense. And the new usespecific sentencing structure that the 1998 amendment added to subsection (c)(1)(A) applies to all \xe2\x80\x9cfirearms\xe2\x80\x9d and does not treat semiautomatic\nassault weapons separately, or even mention them.\nIn sum, these first two changes Congress made to section 924(c)(1) in\n1998 did not affect, let alone abrogate, the only substantive change made\nby the 1994 amendment. The sole effect of that 1994 amendment was\xe2\x80\x94\nsubject to the ten-year sunset provision\xe2\x80\x94to treat semiautomatic assault\nweapons as equivalent to short-barreled rifles and short-barreled shotguns\nfor purposes of setting the sentence for their use during and in relation to\nany crime of violence or drug trafficking crime. Nothing in the establishment of the new section 924(c)(1)(A), however, reflects a congressional\nintention to revisit that earlier change, let alone to repeal the temporal\nlimitation that the sunset provision imposed upon it.\n362\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nThe third substantive change made by the 1998 amendment, unlike the\nother two, did have an impact on the portion of section 924(c)(1) that the\n1994 PSRFUPA had amended\xe2\x80\x94namely, the portion of that section that\nestablished a ten-year sentence in cases where the firearm in question is a\nsemiautomatic assault weapon. Prior to the 1998 law, if the firearm at\nissue was \xe2\x80\x9ca short-barreled rifle, short-barreled shotgun, or semiautomatic\nassault weapon,\xe2\x80\x9d the punishment was a fixed ten-year sentence. After\nenactment of the 1998 law, however, if the firearm was \xe2\x80\x9ca short-barreled\nrifle, short-barreled shotgun, or semiautomatic assault weapon,\xe2\x80\x9d the new\nsection 924(c)(1)(B)(i) provided that the punishment was to be not less\nthan a ten-year sentence. It might be argued, therefore, that this change\nconstituted a tailored and considered means by which Congress abrogated\nand replaced the earlier 1994 PSRFUPA amendment, which had established a ten-year fixed sentence for certain offenses involving semiautomatic assault weapons. On this view, Congress chose to replace a prior\nprovision that had established a certain sentence, subject to a sunset, with\na new provision establishing a more stringent sentence. In doing so, the\nargument would go, Congress chose not to expressly set forth a sunset for\nthe provision, thereby supporting the inference that Congress intended to\nabrogate-and-reenact, rather than continue, the language that it had repeated from the prior version of section 924(c)(1), as it had been amended\nby the 1994 PSRFUPA.\nWe do not think, however, that the 1998 change from a ten-year fixed\nsentence to a ten-year minimum, without more, affects our conclusion that\nthe 1998 amendment did not abrogate the 1994 amendment to section\n924(c) or repeal the sunset provision as applied to that 1994 amendment.\nThe 1998 amendment changed the sentences in section 924(c)(1) for the\nuse of covered firearms generally\xe2\x80\x94not only for the use of semiautomatic\nassault weapons\xe2\x80\x94from fixed sentences to mandatory minimums. In other\nwords, the terms of imprisonment with respect to all of the provisions in\nsection 924(c)(1) remained the same, but Congress inserted the phrase\n\xe2\x80\x9cnot less than\xe2\x80\x9d before the number of specified years in each instance. The\ncategorical approach Congress took, substituting mandatory minimums\nfor fixed sentences, without otherwise altering the terms of imprisonment,\ndoes not suffice to show that Congress intended that the possession of a\nsemiautomatic weapon in furtherance of a predicate crime should carry a\nmandatory minimum ten-year sentence even after the sunset provision\n363\n\n\x0c33 Op. O.L.C. 349 (2009)\n\nrepealed all of the other PSRFUPA amendments relating specifically to\nsuch weapons. That approach may easily be understood to have preserved\nthe 1994 judgment that those weapons should be treated equivalent to the\nothers in the grouping, unless and until the sunset provision took effect.\nIndeed, this latter interpretation draws support from the fact that a construction of section 924(c)(1)(B)(i) that would insulate its \xe2\x80\x9csemiautomatic\nassault weapon\xe2\x80\x9d language from the 2004 repeal of the rest of the 1994\nPSRFUPA provisions would introduce an anomaly into the law. As noted\nabove, in addition to inserting \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d in section\n924(c)(1), PSRFUPA provided a definition of \xe2\x80\x9csemiautomatic assault\nweapon,\xe2\x80\x9d which was added to 18 U.S.C. \xc2\xa7 921. The 1994-enacted definition of \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d carefully defined the term to\ninclude both nine specifically identified firearms (by make and model), as\nwell as \xe2\x80\x9cany . . . copies or duplicates of the [nine specified] firearms in\nany caliber\xe2\x80\x9d; \xe2\x80\x9ca semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of\xe2\x80\x9d five defined characteristics (e.g., a\nfolding or telescoping stock, a bayonet mount, a grenade launcher); a\n\xe2\x80\x9csemiautomatic pistol that has an ability to accept a detachable magazine\nand has at least 2 of\xe2\x80\x9d five defined characteristics; and \xe2\x80\x9ca semiautomatic\nshotgun that has at least 2 of\xe2\x80\x9d four defined characteristics. Pub. L. No.\n103-322, \xc2\xa7 110102(b), 108 Stat. at 1997; see also H.R. Rep. No. 103-489,\nat 22\xe2\x80\x9323 (1994). There is no doubt, however, that when the PSRFUPA\nsunset provision took effect in 2004, that definition was repealed. 7 Thus,\nif the 1998 Congress had intended to preserve a ten-year minimum sentence for \xe2\x80\x9csemiautomatic assault weapons\xe2\x80\x9d in section 924(c)(1)(B)(i) even\nbeyond the preexisting sunset date, it would have done so with respect to\nan ambiguously labeled set of firearms, the statutory definition of which\nwould sunset as of 2004. 8 We are reluctant to attribute such an intention\n7 ATF regulations, promulgated in 1995, tracked the PSRFUPA\xe2\x80\x99s definition of semiautomatic assault weapons and its prohibition on their manufacture, transfer, or possession.\nSee 27 C.F.R. \xc2\xa7\xc2\xa7 478.11, 478.40 (2009). ATF acknowledges that with the sunset of the\nPSRFUPA in 2004, these regulations are no longer in effect and should no longer appear\nin the Code of Federal Regulations.\n8 It is significant in this regard that some definitions of similar terms in state and local\nlaw differ from the definition of \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d that was set forth in\nPSFUPA. See, e.g., Arnold v. Cleveland, No. 59260, 1991 Ohio App. LEXIS 5246, at *4\n(Ohio Ct. App. Oct. 31, 1991) (quoting Cleveland Codified Ordinances section 628.02,\n\n364\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nto Congress, particularly given that each of the other enumerated weapons\nsubject to increased penalties in section 924(c)(1)(B)\xe2\x80\x94including \xe2\x80\x9cshortbarreled shotgun,\xe2\x80\x9d \xe2\x80\x9cshort-barreled rifle,\xe2\x80\x9d \xe2\x80\x9cmachine gun,\xe2\x80\x9d \xe2\x80\x9cdestructive\ndevice,\xe2\x80\x9d \xe2\x80\x9cfirearm silencer,\xe2\x80\x9d and \xe2\x80\x9cfirearm muffler\xe2\x80\x9d\xe2\x80\x94is expressly defined\nin section 921(a), the very section of the Code that once contained, but in\nconsequence of the sunset provision of PSRFUPA no longer contains, a\ndefinition of \xe2\x80\x9csemiautomatic assault weapon.\xe2\x80\x9d See 18 U.S.C. \xc2\xa7 921(a)(4),\n(6), (8), (23), (24).\nAnother aspect of the relevant statutory context reinforces this same\nconclusion. When Congress passed the PSRFUPA in 1994, it included an\namendment to 18 U.S.C. \xc2\xa7 922 that made it unlawful to \xe2\x80\x9cmanufacture,\ntransfer, or possess a semiautomatic assault weapon.\xe2\x80\x9d Pub. L. No. 103322, \xc2\xa7 110102(a). In doing so, it subjected semiautomatic assault weapons, for the ten-year period of the legislation, to stringent regulation, akin\nto that to which the other weapons triggering heightened sentences in\nsection 924(c)(1) were already subject. 9 If the 1998 Congress were understood to have preserved the enhanced sentence for semiautomatic\nassault weapons in section 924(c)(1)(B)(i) even after the repeal of the rest\nof the PSRFUPA, however, semiautomatic assault weapons would, in that\ndefining \xe2\x80\x9cassault weapon\xe2\x80\x9d primarily based on the firearm\xe2\x80\x99s acceptance of a detachable\nmagazine capable of taking a certain number of rounds); Cal. Penal Code \xc2\xa7 12276 (West\n2009) (designating roughly 30 semiautomatic firearms as \xe2\x80\x9cassault weapons\xe2\x80\x9d).\n9 For example, 18 U.S.C. \xc2\xa7 922(a)(4) makes it unlawful \xe2\x80\x9cfor any person, other than a\nlicensed importer, licensed manufacturer, licensed dealer, or licensed collector, to\ntransport in interstate or foreign commerce any destructive device, machine gun . . . shortbarreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney\nGeneral consistent with public safety and necessity,\xe2\x80\x9d and 18 U.S.C. \xc2\xa7 922(b)(4) makes it\nunlawful \xe2\x80\x9cfor any licensed importer, licensed manufacturer, licensed dealer, or licensed\ncollector to sell or deliver . . . to any person any destructive device, machine gun . . .\nshort-barreled shotgun, or short-barreled rifle, except as specifically authorized by the\nAttorney General consistent with public safety and necessity.\xe2\x80\x9d See 18 U.S.C. \xc2\xa7 922(a)(4),\n(b)(4) (2006). Further, 18 U.S.C. \xc2\xa7 922(o) makes it unlawful for any person to transfer or\npossess a machinegun. See id. \xc2\xa7 922(o). The Tax Code also severely regulates, through\nregistration and limits on importation, possession, and transfer, the same types of firearms\nthat are subject to special restriction under the criminal code. See 26 U.S.C. \xc2\xa7\xc2\xa7 5841,\n5844 (2006); see also id. \xc2\xa7 5861 (defining \xe2\x80\x9cfirearm\xe2\x80\x9d subject to Tax Code regulations to\ninclude, among other things, \xe2\x80\x9ca shotgun having a barrel or barrels of less than 18 inches in\nlength\xe2\x80\x9d; \xe2\x80\x9ca rifle having a barrel or barrels of less than 16 inches in length\xe2\x80\x9d; \xe2\x80\x9ca machinegun\xe2\x80\x9d; \xe2\x80\x9cany silencer\xe2\x80\x9d; and \xe2\x80\x9ca destructive device\xe2\x80\x9d).\n\n365\n\n\x0c33 Op. O.L.C. 349 (2009)\n\ncase, be the only type of weapon subject to a heightened sentence in\nsection 924(c)(1)(B) that was not otherwise more heavily regulated than\nfirearms generally.\nB.\nThe legislative history of the 1998 enactment is consistent with the\nconclusion that the 1998 amendment did not insulate the insertion of \xe2\x80\x9cor\nsemiautomatic assault weapon\xe2\x80\x9d in section 924(c)(1) from the operation of\nthe PSRFUPA sunset provision in 2004. The history shows that the Supreme Court\xe2\x80\x99s Bailey decision was the clear impetus for the first two of\nthe three major changes to section 924(c)(1). And while the legislative\nrecord shows that the third change to section 924(c)(1)\xe2\x80\x94the shift from\nfixed to mandatory minimum sentences\xe2\x80\x94was the subject of considerable\ndebate in the House, it does not indicate that the debate was of relevance\nto the question before us. Instead, the focus of that debate was on whether\nmandatory minimum sentences served their intended purpose as an effective deterrent against crime. 10 Indeed, we have not uncovered any evidence that members of Congress considered the appropriate mandatory\nminimum sentence for offenses involving semiautomatic assault weapons\nin particular, let alone whether such sentences should be established\npermanently for those firearms. 11\n10 See, e.g., 144 Cong. Rec. 1715, 1717 (statement of Rep. Waters) (\xe2\x80\x9cI abhor crime, but\nthis is not about sensible ways to deal with crime. This is about mandatory minimum\nsentencing, taking away the discretion of judges to make decisions about the varied\nsituations that they may be confronted with. . . . I think this increase in mandatory minimums for crimes that could end up not being violent crimes at all with the simple possession is harmful to our system and should not be done.\xe2\x80\x9d); id. (statement of Rep. Solomon)\n(\xe2\x80\x9c[T]he sooner we enact this legislation, the sooner we can toughen mandatory minimum\npenalties on those who commit crimes involving guns. In the long run this is a bill to save\nlives by getting criminals with guns off the street.\xe2\x80\x9d); id. at 1719 (statement of Rep. Scott)\n(\xe2\x80\x9cThe bottom line . . . is that mandatory minimums have been studied and are the least,\none of the least effective ways to reduce crime. If we are serious about reducing crime, if\nwe are serious about it, we should not pass the mandatory minimums.\xe2\x80\x9d).\n11 A Department of Justice representative testified on two occasions with respect to the\npending legislation. See Violent and Drug Trafficking Crimes: The Bailey Decision\xe2\x80\x99s\nEffect on Prosecutions Under 924(c): Hearing Before the S. Comm. on the Judiciary,\n104th Cong. (1996) (statement of Kevin Di Gregory, Deputy Assistant Attorney General,\nCriminal Division) (\xe2\x80\x9cDi Gregory 1996 Testimony\xe2\x80\x9d); Criminal Use of Guns: Hearing\n\n366\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nCongress is presumed to have known that the \xe2\x80\x9cor semiautomatic assault\nweapon\xe2\x80\x9d language in section 924(c)(1) had been inserted by amendment\nand was subject to the accompanying sunset provision in the PSRFUPA.\nSee, e.g., Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (noting\ncanon that \xe2\x80\x9cwhenever Congress passes a new statute, it acts aware of\nall previous statutes on the same subject\xe2\x80\x9d). We find it significant, therefore, that although there was general debate in 1998 about whether the\nsentences tied to identified types of firearms should be maintained, there\nwas no discussion of whether the semiautomatic assault weapons amendment should be made permanent in the contemplated revisions to section\n\nBefore the S. Comm. on the Judiciary, 105th Cong. (1997) (statement of Kevin Di Gregory, Deputy Assistant Attorney General, Criminal Division). With respect to mandatory\nminimum sentences, the testimony simply stated (erroneously, in the sense that section\n924(c) did not then provide for mandatory minimum sentences) that \xe2\x80\x9c[t]itle 18 U.S.C.\n924(c) makes subject to a mandatory minimum punishment beyond that imposed for the\npredicate crime whoever \xe2\x80\x98uses or carries a firearm\xe2\x80\x99 during and in relation to a crime of\nviolence or a drug trafficking crime.\xe2\x80\x9d There was no mention of semiautomatic assault\nweapons other than to point out that \xe2\x80\x9cto maintain consistency with the present sentencing\nscheme,\xe2\x80\x9d a Senate version of the bill, S. 1612, \xe2\x80\x9cwould need to include an intermediate\ncategory for purpose of sentence incrementation when the firearm employed is a short\nbarreled rifle, short barreled shotgun or a semiautomatic assault weapon.\xe2\x80\x9d Di Gregory\n1996 Testimony at 8 (discussing S. 1612, 104th Cong. (passed Oct. 3, 1996)). The Department of Justice did not address the PSRFUPA sunset provision, let alone the potential\neffect of the proposed legislation upon its operation.\nLikewise, the sunset provision was not addressed in a report that Congress required the\nAttorney General to provide under section 110104 of the PSRFUPA. That provision\ndirected the Attorney General to \xe2\x80\x9cinvestigate and study the effect of this subtitle and the\namendments made by this subtitle, and in particular [to] determine their impact, if any, on\nviolent and drug trafficking crime,\xe2\x80\x9d and to \xe2\x80\x9cprepare and submit to the Congress a report\xe2\x80\x9d\non the study\xe2\x80\x99s findings no later than thirty months after enactment of the law. To satisfy\nthis requirement, the Justice Department awarded a grant to The Urban Institute, which\nissued the required report in March 1997. See Jeffrey A. Roth et al., The Urban Institute,\nImpact Evaluation of the Public Safety and Recreational Firearms Use Protection Act of\n1994: Final Report (Mar. 13, 1997). The report focused exclusively on the effect of the\nban on possession, manufacture, or transfer of semiautomatic assault weapons; it did not\naddress the penalty provisions of the PSRFUPA or what, if any, impact the inclusion of\nsemiautomatic assault weapons among the group of firearms subject to the ten-year\nsentence in section 924(c)(1) had on any reduction in violent or drug-trafficking crimes. It\nthus provided nothing to inform Congress whether that provision should be extended past\nthe sunset date, and presumably had no effect on legislative consideration of section\n924(c)\xe2\x80\x99s amendment.\n\n367\n\n\x0c33 Op. O.L.C. 349 (2009)\n\n924(c)(1). 12 In the absence of any such evidence, there is no basis to\nconclude that Congress intended to depart from the practice reflected in\nthe \xe2\x80\x9ccontinuation\xe2\x80\x9d canon and render that particular provision permanent\nwhen it amended other aspects of section 924(c)(1). See, e.g., Sierra Club,\n820 F.2d at 522 (\xe2\x80\x9ccongressional silence is strong evidence of a legislative\npolicy that, after reenactment, the [statute] continued to operate exactly as\nbefore\xe2\x80\x9d). 13\nIII.\nAccordingly, we conclude that when the sunset provision of PSRFUPA\nwent into effect in 2004, repealing not only the Assault Weapons Ban but\nalso all \xe2\x80\x9camendments made by [PSRFUPA]\xe2\x80\x9d to existing law, it repealed\nthe PSRFUPA amendment adding the term \xe2\x80\x9csemiautomatic assault weapon\xe2\x80\x9d to the enhanced sentencing provision of section 924(c)(1). We therefore conclude that the phrase \xe2\x80\x9cor semiautomatic assault weapon\xe2\x80\x9d was\nrepealed in 2004; that the ten-year mandatory minimum sentence in\n\nSo far as we are aware, the only time the PSRFUPA was even acknowledged in the\n1998 deliberations was in the following context: The House bill proposed to eliminate\nthe differential punishments applied to specifically identified types of firearms, including\nsemiautomatic assault weapons, in the pre-1998 version of section 924(c)(1). See H.R.\n424, 105th Cong. (as introduced in the House); H.R. Rep. No. 105-344, at 3 (1997)\n(\xe2\x80\x9c[I]ncreased penalties [set forth in the bill] replace the bifurcated penalties in current law\ndescribed above for short-barreled rifles, short-barreled shotguns or semiautomatic assault\nweapons and most other firearms.\xe2\x80\x9d); see also id. at 6 (\xe2\x80\x9c[T]he Committee does not intend[]\nto discriminate between various types of firearms, as current law does, to determine the\nappropriate number of additional years of imprisonment.\xe2\x80\x9d). This proposal generated\nconsiderable opposition, with some members asserting that the proposal sought to negate\nthe effect of the PSRFUPA generally: \xe2\x80\x9cEver since the ban on semiautomatic assault\nweapons was passed into law as part of the 1994 Omnibus Crime Bill, the majority has\nactively sought ways to diminish the significance and the impact of the [assault weapons]\nban. The new penalty structure imposed by this legislation [i.e., the proposed, but notenacted House bill] is simply another way that the majority is attempting to subvert the\nassault weapons ban without actually voting to repeal the ban.\xe2\x80\x9d Id. at 20 (internal footnote\nomitted).\n13 If Congress had amended section 924(c)(1) not in 1998, but closer in time to the\neffective date of PSRFUPA\xe2\x80\x99s sunset provision, the conclusions to be drawn from silence\nin the legislative history with respect to the operation of the sunset provision might be\ndifferent from the conclusions we draw here from congressional silence in 1998, six years\nfrom when the sunset would take effect.\n12\n\n368\n\n\x0cApplicability of Ten-Year Minimum Sentence to Semiautomatic Assault Weapons\n\nsection 924(c)(1)(B)(i) accordingly no longer applies to offenses involving semiautomatic assault weapons; and that such offenses are, instead,\nsubject to the general penalty provisions prescribed by section\n924(c)(1)(A).\nJEANNIE S. RHEE\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n369\n\n\x0c'


b'February 28, 1978\n\n78-13\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL,\nOFFICE FOR IMPROVEMENTS IN THE\nADMINISTRATION OF JUSTICE\nUnited States Attorneys\xe2\x80\x94 Suggested\nAppointment Power of the Attorney\nGeneral\xe2\x80\x94 Constitutional Law (Article II,\n\xc2\xa7 2, cl. 2)\n\nThis responds to your request for our opinion on whether U.S. Attorneys are\ninferior officers within the meaning o f Art. II, \xc2\xa7 2, cl. 2, o f the Constitution, so\nthat Congress could by law provide for their appointment by the Attorney\nGeneral.\nThis question has arisen in connection with a proposal to provide for the\nappointment and removal of U.S. Attorneys by the Attorney General alone, in\ncontrast to the present law pursuant to which U.S. Attorneys are appointed by\nthe President by and with the consent of the Senate and removed solely by\nPresidential authority.\nArt. II, \xc2\xa7 2, cl. 2, provides generally that the President shall have power to\nappoint the officers o f the United States\n. . . but the Congress may by Law vest the Appointment of such\ninferior Officers, as they think proper, in the President alone, in the\nCourts o f Law, or in the Heads of Departments.\nThe question therefore is whether the U .S. Attorney is an inferior officer within\nthe meaning of that constitutional provision.\nThe Constitution does not define the term \xe2\x80\x9c inferior officer.\xe2\x80\x9d Earlier\ncommentators point to the vagueness and the absence of exact lines drawn in\nthis aspect o f the Constitution. Rawle, Constitution o f the United States, p.\n164; Story, Commentaries on the Constitution o f the United States, \xc2\xa7 1536. In\nCollins v. United States, 14 Ct. Cl. 568, 574 (1878), the court defined the\nterm \xe2\x80\x9c inferior\xe2\x80\x9d not in the \xe2\x80\x9c sense o f petty or unim portant\xe2\x80\x9d but in the sense of\nsubordinate or inferior to the officer in whom the power of appointment is\nvested. This definition appears to have been generally accepted. Constitution o f\n58\n\n\x0cthe United States o f America, Analysis and Interpretation (1973 ed.) S. Doc.\n92-82, pp. 526-527.\nIn light of this interpretation the U .S. Attorneys can be considered to be\ninferior officers, since 28 U .S.C . \xc2\xa7 519 authorizes the Attorney General to\ndirect all U.S. Attorneys in the discharge of their duties. In this context the\nSupreme Court suggested nearly 100 years ago in Ex Parte Siebold, 100 U.S.\n371, 397 (1879), that Congress could vest the authority to appoint U.S.\nMarshals in the Attorney General. The status of the U .S. Marshals is quite\nclosely related to that o f the U.S. Attorneys. See 28 U.S.C. \xc2\xa7 569(c).\nSince the beginning of the Republic, Congress has not exercised its\ndiscretionary power to vest the appointment of U .S. Attorneys in the Attorney\nGeneral. This failure to exercise that discretionary power, however, does not\ncreate customary constitutional law precluding Congress from exercising that\nauthority. As Justice Story stated (id ., \xc2\xa7 1535):\nIn one age the appointment might be most proper in the President;\nand in another age, in a department.\nLeon\n\nulm an\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n59\n\n\x0c'