Broughman v. Carver

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ALLAN BROUGHMAN, 
Plaintiff-Appellant,
v.
LARRY S. CARVER, Industry  No. 09-2095
Operations Investigator, Bureau of
Alcohol, Tobacco, Firearms and
Explosives,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(7:08-cv-00548-sgw-mfu)

Argued: September 23, 2010

Decided: November 15, 2010

Before GREGORY and AGEE, Circuit Judges, and
Richard L. VOORHEES, United States District Judge
for the Western District of North Carolina,
sitting by designation.

Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Gregory and Judge Voorhees joined.
2 BROUGHMAN v. CARVER
COUNSEL

ARGUED: Richard E. Gardiner, Fairfax, Virginia, for Appel-
lant. Thomas Linn Eckert, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON
BRIEF: Timothy J. Heaphy, United States Attorney, Roa-
noke, Virginia, for Appellee.

OPINION

AGEE, Circuit Judge:

Allan Broughman operated a gun shop pursuant to a deal-
er’s license issued by the Bureau of Alcohol, Tobacco, Fire-
arms and Explosives ("ATF"). After performing a routine
inspection of Broughman’s shop in 2006, ATF investigator
Larry Carver issued a report of violations concluding, among
other things, that in order to lawfully conduct his business
Broughman needed to obtain a manufacturer’s license from
ATF. Although Broughman administratively challenged Car-
ver’s finding, it was upheld by Carver’s supervisor.

Broughman subsequently filed suit in the United States
District Court for the Western District of Virginia, seeking a
declaratory ruling that he is a "dealer," not a "manufacturer,"
within the meaning of the Gun Control Act of 1968 ("GCA"
or "the Act"). Concluding that Broughman met the GCA’s
definition of a firearms "manufacturer," the district court
granted summary judgment in favor of ATF. For the reasons
set forth below, we affirm the judgment of the district court.

I.

We begin with a brief summary of the facts and procedural
history of this case. Broughman operates a gun shop out of the
basement of his home in Covington, Virginia. Rather than
 BROUGHMAN v. CARVER 3
maintain an inventory of firearms, Broughman’s business is
typically comprised of both repairing firearms and marketing
and selling custom order firearms that he constructs. As the
district court noted, "[e]ven by his own words, Broughman
‘build[s] custom bolt action rifles’ by assembling the compo-
nent parts of a firearm." Broughman v. Carver, No. 7:08-CV-
0548, 2009 WL 2511949, at *2 (W.D. Va. Aug. 14, 2009).

The parties agree that in constructing such firearms
"Broughman purchases complete firearms actions (frames or
receivers with internal parts) from other licensees, and pur-
chases rifled barrels from other sources. He threads and cham-
bers the barrels to fit the actions, blues the actions, and makes
wooden stocks which he fits to the actions and barrels." Joint
Appendix ("J.A.") at 6.

During his inspection of Broughman’s shop, Carver
observed Broughman assemble a barrel, receiver, and stock
for a customer. Carver’s subsequent conversation with
Broughman confirmed that he "assembled . . . firearms and
sold them for several thousand dollars" a piece. Id. at 43. Sub-
sequently, Carver issued a report of violations that charged
Broughman with "manufacturing" firearms without a manu-
facturer’s license. Broughman’s counsel sent a letter to ATF
requesting the violation be removed on the grounds that
Broughman did "not manufacture firearms," id. at 45, but Car-
ver’s supervisor declined this request because it was "ATF’s
long standing position that the business activities" in which
Broughman engaged were "considered to be manufacturing
activities, necessitating a manufacturer’s license." Id. at 47.

In order to continue operating his business, Broughman
obtained a manufacturer’s license from ATF.1 He then filed
1
As the district court explained,
there are differences between the obligations that accompany a
manufacturer’s license and a dealer’s license. For example, the
4 BROUGHMAN v. CARVER
suit in federal district court seeking declaratory relief and
judicial review under the Administrative Procedure Act. See
28 U.S.C. § 2201(a) & 5 U.S.C. § 702. Broughman’s com-
plaint requested the district court (1) declare that he is a
"dealer," not a "manufacturer" under the GCA, (2) set aside
ATF’s determination that his business activities required a
manufacturer’s license, and (3) award such other relief,
including costs and attorney’s fees, as the court deemed
appropriate.

The parties subsequently filed competing motions for sum-
mary judgment. After considering the parties’ submissions,
the district court rejected the proposition that Broughman
could not "be both a manufacturer of firearms and a dealer of
firearms" under the GCA, turned to the "ordinary meaning" of
the word "manufacturing," and concluded that "assembling
the component parts of a firearm" came within the ordinary
meaning of that term. Broughman, 2009 WL 2511949, at *2.
The district court accordingly held that Broughman’s activi-
ties constitute firearms "manufacturing" and entered summary
judgment in favor of ATF.

licensing fees are slightly more expensive in the long-term for
manufacturers, compare 18 U.S.C. § 923(a)(1)(B) (manufacturers
of firearms other than destructive devices must pay a licensing
fee of fifty dollars per year) and 27 C.F.R. § 478.42(a)(2) (same)
with 18 U.S.C. § 923(a)(3)(B) (dealers in firearms other than
destructive devices must pay a two hundred dollar licensing fee
for the first three years, with a ninety dollar renewal fee every
three years thereafter) and 27 C.F.R. § 478.42(c)(2) (same); man-
ufacturers have additional record keeping obligations, compare
27 C.F.R. § 478.123 (record keeping obligations specific to man-
ufacturers) with 27 C.F.R. § 478.124 (firearms transaction record
required for all licensed importers, manufacturers, and dealers)
and 27 C.F.R. §§ 478.124a, .125(e) (firearms receipt and disposi-
tion records for dealers); and manufacturers must engrave each
manufactured firearm with a serial number, see 18 U.S.C.
§ 923(i); 27 C.F.R. § 478.92, although ATF regulations permit
manufacturers to apply for a variance, 27 C.F.R. § 748.92(a)(4).
Broughman, 2009 WL 2511949, at *1 n.3.
 BROUGHMAN v. CARVER 5
Broughman noted a timely appeal over which we have
jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, Broughman contends that he meets the GCA’s
definition of a firearms "dealer" contained in 18 U.S.C.
§ 921(a)(11)(B), i.e., that he is a person "engaged in the busi-
ness of . . . making or fitting special barrels, stocks, or trigger
mechanisms to firearms." This specific definition of a
"dealer," in Broughman’s view, renders the GCA’s firearms
"manufacturer" provision inapplicable because the GCA does
not define a firearms "manufacturer." See 18 U.S.C.
§ 921(a)(10) (referring merely to those "engaged in the busi-
ness of manufacturing firearms or ammunition for purposes of
sale or distribution").

Because the GCA’s terms regarding a firearms "dealer" are
more precise, Broughman maintains the canon of statutory
construction stating "the specific governs the general" should
apply. Under this rule of construction, "[s]pecific terms pre-
vail over the general in the same or another statute which
otherwise might be controlling." Opening Brief at 6-7 (quot-
ing Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222,
228-29 (1957)). Broughman suggests that, in light of this rule,
"however inclusive may be the definition of ‘manufacturer’
[under § 921(a)(1], that definition cannot be held to apply to
a person whose activities meet [§ 921(a)(11)(B)’s] definition
of ‘dealer.’" Id. at 7.

ATF responds that "Broughman’s argument is premised on
the false assumption th[at] he [cannot] be both a firearms
‘manufacturer’ under § 921(a)(10) and a firearms ‘dealer’
under § 921(a)(11)." Response Brief at 7. "[T]he GCA and the
regulatory framework promulgated by ATF for implementa-
tion of the GCA," in ATF’s view, "compel the conclusion that
Congress recognized that a person could be both a firearms
‘dealer’ and a ‘manufacturer.’" Id. As such, ATF would have
6 BROUGHMAN v. CARVER
us apply the ordinary meaning of the term "manufacturing"
and conclude, based on "Broughman’s admissions to Carver,
Carver’s observations of what Broughman was doing in his
gun shop[,] and Broughman’s own description of his acts in
his amended complaint," that Broughman is engaged in the
business of "manufacturing" firearms and must obtain a man-
ufacturer’s license. Id. at 8.

III.

Whether Broughman is a firearms "manufacturer" within
the meaning of the GCA is "a question of statutory interpreta-
tion, a quintessential question of law, which we review de
novo." United States v. Joshua, 607 F.3d 379, 382 (4th Cir.
2010) (quotation omitted). Our objective in all cases of statu-
tory interpretation is "to ascertain and implement the intent of
Congress." Scott v. United States, 328 F.3d 132, 138 (4th Cir.
2003). Because Congress’ intent "can most easily be seen in
the text of the Acts it promulgates," we begin with an exami-
nation of the statute’s "plain text." United States v. Wills, 234
F.3d 174, 178 (4th Cir. 2000).

The GCA’s licensing requirement states: "No person shall
engage in the business of importing, manufacturing, or deal-
ing in firearms, or importing or manufacturing ammunition,
until he has filed an application with and received a license
to do so from the Attorney General." 18 U.S.C. § 923(a); see
also 27 C.F.R. § 478.41. In this case, the parties do not dis-
pute that Broughman’s bolt-action rifles meet the GCA’s defi-
nition of a "firearm," or that Broughman satisfies the statute’s
"engaged in the business" requirement. See 18 U.S.C.
§§ 921(a)(3) & 921(a)(21)(A). Their disagreement solely con-
cerns the GCA’s distinction between "manufacturing" and
"dealing" firearms.

Under the GCA, a firearms "manufacturer" is defined as
"any person engaged in the business of manufacturing fire-
arms or ammunition for purposes of sale or distribution." Id.
 BROUGHMAN v. CARVER 7
§ 921(a)(10). The statute does not further define the term
"manufacturing firearms." In contrast, the GCA defines a fire-
arms "dealer" in three distinct ways.2 See id. § 921(a)(11).
The pertinent part of the statutory definition at issue here
states that a "dealer" is "any person engaged in the business
of repairing firearms or of making or fitting special barrels,
stocks, or trigger mechanisms to firearms." Id.
§ 921(a)(11)(B).

"Absent explicit legislative intent to the contrary," we give
the words of a statute their "plain and ordinary meaning."
Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th Cir.
1996). The plain and ordinary meaning of the word "manufac-
ture" is "to make into a product suitable for use." Merriam-
Webster Online Dictionary (2010); see also id. (listing as
related words "assemble, build, construct . . . refashion, [and]
remake"). We therefore conclude that manufacturing firearms
under § 923(a) entails assembling a firearm’s individual com-
ponents so as to render the firearm "suitable for use."3 The
2
18 U.S.C. § 921(a)(11) provides as follows:
The term "dealer" means (A) any person engaged in the business
of selling firearms at wholesale or retail, (B) any person engaged
in the business of repairing firearms or of making or fitting spe-
cial barrels, stocks, or trigger mechanisms to firearms, or (C) any
person who is a pawnbroker. The term "licensed dealer" means
any dealer who is licensed under the provisions of this chapter.
While subsections A and C may also apply to some of Broughman’s busi-
ness activities, subsection B is the only provision relevant to the issue in
this case.
3
We reject Broughman’s contention that "manufacture," in context of
the GCA, should be defined as the "creat[ion] [of] items ‘from raw or pre-
pared materials by giving to these materials new forms, qualities, proper-
ties, or combinations.’" Reply Brief at 5 n.2 (quoting Am. Fruit Growers,
Inc. v. Brogdex Co., 283 U.S. 1, 11 (1931)). American Fruit Growers con-
sidered whether a certain process for rendering fruit resistant to decay con-
stituted a "manufactured article" within the meaning of 35 U.S.C. § 31.
283 U.S. at 11. Given the patent-law context in which that case was
decided, it is unsurprising the Supreme Court chose to utilize a definition
8 BROUGHMAN v. CARVER
manner in which Broughman conducts his gun business; i.e.,
"build[ing] custom bolt action rifles" by threading and cham-
bering barrels to fit firearms actions, bluing the actions, and
making and fitting stocks to the actions and barrels; undoubt-
edly places him within the statutory category of a firearms
"manufacturer."

To circumvent the conclusion that he is "engaged in the
business of manufacturing firearms" within the meaning of
the GCA, Broughman points us to the well known canon of
construction that "the specific governs the general." Varity
Corp v. Howe, 516 U.S. 489, 511 (1996). "Canons of con-
struction, however, are simply rules of thumb which will
sometimes help courts determine the meaning of legislation."
Id. (quotations omitted). We have characterized the canon in
question as merely "a warning against applying a general pro-
vision when doing so would undermine limitations created by
a more specific provision." Id. Section 921(a)(11)(B)’s defini-
tion of a firearms "dealer" does not, however, impose any
clear limitations that would be undermined by adhering to the
plain text of § 921(a)(10). Moreover, Congress knows how to
carve out firearms "dealers" from firearms "manufacturers"
when it wishes to prevent any overlap of the two categories.
Congress did so in the National Firearms Act of 1934 when
it enacted mutually exclusive definitions of a firearms "manu-
facturer" and a firearms "dealer." See 26 U.S.C. § 5845(k)
(stating that a "dealer" within the meaning of the National

of "manufacture" that focused on the originality of the resulting product.
See Ambrosia Chocolate Co. v. Ambrosia Cake Bakery, 165 F.2d 693, 697
(4th Cir. 1948) ("Only upon a clear showing of novelty and originality . . .
is a patent granted . . . ."). Here, we are not concerned with whether
Broughman’s rifles were sufficiently original to warrant patent protection,
but with whether they were "manufactured" within the meaning of the
GCA. A more general definition of "manufacture," which is more suited
to this context, therefore applies. See FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000) (recognizing that "we must be
guided to a degree by common sense").
 BROUGHMAN v. CARVER 9
Firearms Act of 1934 is "any person, not a manufacturer or
importer, engaged in the business of selling, renting, leasing,
or loaning firearms") (emphasis added). Congress has not
similarly worded the GCA.

Broughman argues "the district court’s holding makes the
definition of ‘dealer’ at issue here a complete nullity, with no
effect whatever because any person who meets that definition
would nonetheless be considered a manufacturer." Opening
Brief at 8. We disagree. Circumstances certainly exist in
which an individual would meet § 921(a)(11)(B)’s definition
of a firearms "dealer" without qualifying as a firearms "manu-
facturer" under § 921(a)(10). Firearms "dealers" under
§ 921(a)(11)(A) and (C) are not firearms "manufacturers" and
the same is true of many "dealers" under subsection (B). Cer-
tainly if Broughman only repaired firearms, fitted new stocks
on rifles, or interchanged choke barrels, he would fit the defi-
nition of § 921(a)(11)(B) "dealer" but not that of a
§ 921(a)(10) "manufacturer."

Section 921(a)(11)(B) is thus not rendered superfluous by
construing a "manufacturer" under § 921(a)(10), as both we
and the district court have done, in accordance with its plain
text. That the totality of Broughman’s custom rifle building
may fall under the "dealer" definition does not exclude him
from being a "manufacturer" within the meaning of the Act
because he meets that classification as well. Broughman’s
business consists of combining the essential parts of a firearm
in order to make that firearm "ready for use," in the first
instance, and that clearly qualifies him as a "manufacturer"
under the GCA.4
4
We recognize that the GCA defines a "firearm" not only as "any
weapon . . . which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive," but also as "the frame or
receiver of any such weapon." 18 U.S.C. § 921(a)(3). But this fact does
not support Broughman’s argument that he cannot be a firearms "manu-
facturer" because he does not create "the frame or receiver" used to fash-
ion the bolt-action rifles in question. That Broughman manufactures
"firearms" within the meaning of one statutory definition rather than
another does not render him any less a manufacturer of "firearms" within
the meaning of the Act.
10 BROUGHMAN v. CARVER
In upholding the vitality of both the GCA’s "dealing" and
"manufacturing" provisions, we remain true to "our duty to
give effect, if possible, to every clause and word of a statute."
United States v. Menasche, 348 U.S. 528, 538-39 (1955)
(quotation omitted). Adopting Broughman’s position, in con-
trast, would go a long way towards reading the GCA’s "man-
ufacturing" provisions out of the Act. See id. at 539 (refusing
to adopt an interpretation of a statute that would "emasculate
an entire section" of the act). This result cannot be squared
with Congress’ intent in implementing the GCA.

We must "construe the details of [every statute] in confor-
mity with its dominating general purpose . . . and . . . interpret
the text so far as the meaning of the words fairly permits so
as to carry out in particular cases [Congress’] generally
expressed legislative policy." SEC v. C.M. Joiner Leasing
Corp., 320 U.S. 344, 350-51 (1943). In this case, the "regula-
tory goals" of the GCA are clear: "the Act ensure[s] that
weapons [are] distributed through regular channels and in a
traceable manner," thus making "possible the prevention of
sales to undesirable customers and the detection of the origin
of particular firearms." New York v. Burger, 482 U.S. 691,
713 (1987) (quotation omitted). Severely limiting the applica-
tion of the GCA’s "manufacturing" provisions would be
inconsistent with these goals and would serve to "undermine
the congressional policies" underlying the Act.5 Custer v.
5
We note that requiring Broughman to engrave his identifying informa-
tion on the bolt-action rifles he creates is consistent with the existing regu-
latory scheme, which requires a "firearm frame or receiver that is not a
component part of a complete weapon at the time it is sold [to be] identi-
fied as required by" 27 C.F.R. § 478.92(a)(1)(ii). 27 C.F.R. § 478.92(a)(2);
see also id. § 478.92(a)(1)(ii) (instituting an engraving requirement
encompassing a firearm’s model and caliber, as well as the manufacturer’s
name and the city and state of the manufacturer’s business). As the district
court correctly noted, firearms manufacturers may apply to ATF for a vari-
ance allowing them to use "other means of identification," provided "such
other identification is reasonable and will not hinder the effective adminis-
tration" of the regulatory scheme. 27 C.F.R. § 478.92(a)(4)(i).
 BROUGHMAN v. CARVER 11
Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996); see also RSM,
Inc. v. Buckles, 254 F.3d 61, 63 (4th Cir. 2001) (explaining
that, pursuant to the GCA, ATF "operates a firearms tracing
system" that allows it to "track[ ] the movement of [a] weapon
through the chain of distribution to the federal firearms
licensee . . . who ultimately sold the firearm to the retail pur-
chaser").

We therefore conclude based on the GCA’s plain language,
"the specific context in which that language is used, and the
broader context of the statute as a whole," Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997), that Broughman is a "man-
ufacturer" of firearms within the meaning of the Act. Section
923(a) thus requires Broughman to maintain a manufacturer’s
license.6 Accordingly, we affirm the district court’s grant of
summary judgment in favor of ATF.

AFFIRMED

6
Under the existing regulatory scheme, Broughman’s manufacturer’s
license entitles him to sell the bolt-action rifles he creates without sepa-
rately obtaining a dealer’s license. See 27 C.F.R. § 478.41(b) ("[I]t shall
not be necessary for . . . a licensed manufacturer to also obtain a dealer’s
license in order to engage in business on the licensed premises as a dealer
in the same type of firearms authorized by the license to be . . . manufac-
tured.")