dissenting:
At stake in this case are the interpretation of an important statute and the liberty interest of defendant James Palmieri. In addition, the issues posed here for adjudication are of keen interest to many gun collectors. Although I recognize the compelling interest in strictly enforcing laws concerning ownership and dealing in firearms, I respectfully dissent, because I disagree with the majority with respect to the interpretation of both the gun collector exception under the Gun Control Act, as amended, 18 U.S.C. §§ 921-928 (1988 & Supp. IV 1992), and the jury charge by the district court. I also believe that even if the majority is correct with respect to statutory construction, due process requires that Count 2 against Palmieri be dismissed.
I.
The central question Palmieri presents is whether the district court erred in refusing to allow him to present evidence of the firearm collector exception to the jury, and in refusing to fully instruct the jury on this theory. Accordingly, the court must determine whether there is a gun collector exception, and whether there was record evidence offered by Palmieri in support of his position. See U.S. v. Paolello, 951 F.2d 537, 539 (3d Cir.1991). If Palmieri put forth a gun collector defense, we must then examine the district court’s instructions as a whole to assess whether they adequately presented to the jury the defense theory. Id. See also United States v. Turley, 891 F.2d 57, 62 (3d Cir.1989).
II.
The escalating use of firearms in violent crimes led Congress to enact the Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-928 (the Act), in order to “strengthen Federal regulation of interstate firearms traffic.” H.R.Rep. No. 90-1577, 90th Cong., 2d Sess. 7 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4412. The Act prohibits a person from acting as a gun dealer without a dealer’s license, 18 U.S.C. § 922(a)(1), and, as amended bans possessing and transferring a machinegun,118 U.S.C. § 922(o). Pal-mieri claims that there is a valid gun collector exception under the Gun Control Act, and that he is such a licensed collector. He argues that he cannot be convicted of violating § 922(a)(1) if the jury accepts his position that he is a bona fide collector and not a dealer in firearms. He also argues that he cannot be convicted of violating § 922(o) if the machinegun at issue is a curio or relic as defined by the Secretary charged with enforcing the Gun Control Act.
A.
The Gun Control Act focuses on the licensing and controlling of firearm dealers. See United States v. Reminga, 493 F.Supp. 1351, 1354 (W.D.Mich.1980). The Act makes it unlawful for any person “except a licensed importer, licensed manufacturer, or licensed dealer to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” 18 U.S.C. § 922(a)(1).
The Act defines “dealer” as “any person engaged in the business of selling firearms or ammunition at wholesale or retail.” 18 U.S.C. § 921(a)(ll). The Act further defines “engaged in the business,” when applied to a dealer in firearms, as meaning
a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.
Id § 921(a)(21)(C).
The phrase “with the principal objective of livelihood and profit” is defined to mean that
*1277the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection: Provided, That proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.
Id. § 921(a)(22).
A fair reading of these provisions leads to the conclusion that to fall within the definition of “dealer,” the seller of firearms must have dealt in firearms in substantial quantity and frequency, in sum, in a manner which can fairly be characterized as a regular course of trade or business.
B.
Palmieri challenges his conviction on Count 1 by claiming that there is a gun collector exception to the ban on gun dealing without a dealer’s license, and claims the benefit of the exception because he is such a collector. Accordingly, we must examine the status of a gun collector under the Gun Control Act.
When enacting the Gun Control Act of 1968, Congress did not intend to ban gun collecting as a hobby. Congress announced that “[g]un collectors could continue their hobby.” H.R.Rep. No. 90-1577, supra, at 9, reprinted in 1968 U.S.C.C.A.N.’at 4415. To make this possible, Congress essentially adopted three measures. The first made it lawful for anyone to possess an antique firearm2 by exempting antique firearms from the coverage of the Gun Control Act, see 18 U.S.C. § 921(a)(3). In effect, anyone can collect, possess and transfer antique firearms, even if such firearms fall within some other definition,. such as that for machine-guns.
Second, Congress established a collector exception under the Act which allows a collector to transact in certain firearms. The Act defines “collector” as “any person who acquires, holds, or disposes of firearms as curios or relics, as the Secretary shall by regulation define.” 18 U.S.C. § 921(a)(13). Nowhere else in the Act did Congress specifically state what collectors (as opposed to licensed collectors who hold a federal collector’s license) may or may not do. However, it is clear that Congress intended to allow collectors to buy and sell curios and relics3 through intrastate transactions, so long as this activity stops at the level of a hobby and does not rise to that of a regular course of trade. The Act explicitly bans interstate transactions with certain exceptions for licensed dealers and licensed collectors, but does not ban intrastate transactions. See 18 U.S.C. § 922.
The legislative history and the statutory scheme support the conclusion that collectors can collect curios and relics within their home state. Congress declared that “[g]un collectors could continue their hobby.” H.R.Rep. No. 90-1577, supra, at 9, reprinted in 1968 U.S.C.C.A.N. at 4415. The Act crim*1278inalizes dealing in firearms as a regular course of trade without a dealer’s license, rather than banning all sales. 18 U.S.C. § 922(a). The Act carves out a hobby exception to the “regular course of trade” definition by stating that occasional sales to enhance or liquidate a personal collection are not such a course of trade. See 18 U.S.C. § 921(a)(21)(C). This is one of several instances in which the Act specifically accommodates gun collectors.
This interpretation is also buttressed by the interpretation of the Bureau of Alcohol, Tobacco and Firearms (ATF), which is charged with administering the Gun Control Act through delegation by the Secretary, see 27 C.F.R. Pt. 178, who in turn receives authority from Congress, see 18 U.S.C. § 926. In an official publication, ATF explicitly states that “[a] person need not be federally licensed to collect curios or relies.” ATF, Firearms Curios and Relics List (1972-1989), ATF P. 5300.11 at 2 (1990 ed.) (hereinafter ATF List), App. at 620.
The third measure that Congress adopted was to establish a licensing system for gun collectors, and to authorize “licensed collectors” to engage in interstate transfers of curios and relies. Congress first defined “licensed collector” as any collector “licensed under the provisions of [the Gun Control Act].” 18 U.S.C. § 921(a)(13). Any person desiring to be a licensed collector may apply to the Secretary for such a license, which license only applies to transactions in curios and relics. 18 U.S.C. § 923(b).
A licensed collector presumably may engage in any activities that a non-licensed collector may conduct. In addition, a licensed collector may engage in interstate transactions in curios and relics under 18 U.S.C. § 922(a)(2) (shipping or transporting firearms into interstate or foreign commerce), § 922(a)(3) (receiving firearms from out-of-state), § 922(a)(4) (transporting destructive devices and machineguns into interstate or foreign commerce), and § 922(a)(5) (transferring firearms to a person from out-of-state). These are prohibited transactions for a collector who does riot have a collector’s license. For intrastate transactions, licensed collectors may also trade with other licensed collectors, licensed dealers, licensed importers, and licensed manufacturers, without certain restrictions set forth in 18 U.S.C. § 922(b). A licensed collector can also sell or deliver curio machineguns ■ to a person through intrastate transactions if the Secretary so authorizes. Id. § 922(b)(4).
The regulation promulgated by the Secretary, who administers the Gun Control Act, succinctly summarizes the privileges of a licensed collector:
[A collector’s] license shall, subject to the provisions of the Act and other applicable provisions of law, entitle the licensee to transport, ship, receive, and acquire curios and relics in interstate or foreign commerce, and to make disposition of curios and relics in interstate or foreign commerce, to any other person licensed under the provisions of this part, for the period stated on the license.
27 C.F.R. § 178.41(c) (1993):
The statutory provisions, regulations and legislative history clearly indicate that the collector and licensed collector exceptions are written into and pervade the Gun Control Act. They apply when curios and relics are the subject of the transaction, so long as the collector’s activities do not rise to a level that requires further licensing under the Act.
C.
The collector exception to the prohibition against acting as a gun dealer without a proper license under 18 U.S.C. § 922(a)(1) is not absolute. If a collector has engaged in a substantial quantity of transactions in curios and relics, he may be deemed a dealer, who must obtain a dealer’s license.
Considered as a whole, the three measures discussed above unquestionably lead to the conclusion that a non-licensed collector may collect curios and relics and conduct transactions in firearms that are listed as curios and relics by the Secretary with a person from the collector’s home state, without running afoul of 18 U.S.C. § 922(a)(1), if such transactions do not amount to a regular course of trade. A licensed collector is permitted to do everything that a non-licensed collector can and, in addition, to engage in interstate *1279transactions in curios and relies, so long as the transactions do not amount to a regular course of trade. If the jury finds that an individual is merely a collector, or a licensed-collector, such a person may not be convicted of acting as a dealer without a license.
Although neither the statutory provisions nor the regulations that specifically address the status of a collector explicitly state the number of transactions a collector or a licensed collector may engage in without crossing the line from gun collector to gun dealer, it would be inappropriate to contend that dealing in curios and relics is completely exempt from the prohibition against gun dealing without a license. The Act does not contain an explicit and complete exemption for curios and relics like the complete exemption for antique firearms. Congress intended to permit gun collecting as a hobby rather than a large growth industry. Indeed, the explicit statutory exception to the regular course of trade definition permits only occasional sales for the enhancement or liquidation of personal collections. See 18 U.S.C. § 921(a)(21)(C). In other words, a collector, if engaging in numerous transactions, can cross the line and become a dealer. The Secretary’s regulation makes this clear:
A collector’s license does not authorize the collector to engage in a business required to be licensed under the Act_ Therefore, if the- acquisitions and dispositions of curios and relics by a collector bring the collector within the definition of a manufacturer, importer, or dealer[,] he shall qualify as such.
27 C.F.R. § 178.41(d) (1993). The change of status from a collector to a dealer is one of quantity and degree. Having a collector’s license does not necessarily preclude one from being deemed a deáler without a dealer’s license.
Accordingly, the theory of a firearm collector or licensed collector exception to 18 U.S.C. § 922(a)(1) is legally sound. This is so even though a collector is not necessarily completely exempt from § 922(a)(1). There may be situations where a jury may properly conclude that a person with a collector’s license is actually a dealer without a dealer’s license.
D.
Palmieri was convicted on Count 2 for possessing and transferring a machinegun. The machinegun in question was listed by ATF in its own official publication as a curio or relic. This conviction cannot stand if the collector or licensed collector exception applies to the prohibition against possessing and transferring machineguns under 18 U.S.C. § 922(o).4 This section states:
*1280(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply -with respect to—
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
18 U.S.C. § 922(o). This provision was added to the Gun Control Act in 1986, see Pub.L. 99-308, § 102(9), 100 Stat. 452-53, in recognition that machineguns had frequently been “used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime,” H.R.Rep. No. 99^495,- 99th Cong., 2d Sess. 4 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1330.
Obviously the prohibition under § 922(o) does not depend upon the number of transactions made; it is a complete ban if it applies. The clear language of § 922(o) states that it is unlawful for any person to possess or transfer a machinegun unless such possession or transfer is made to or by or “under the. authority” of the United States, § 922(o )(2)(A), or the machinegun was lawfully possessed before the effective date of the section, § 922(o)(2)(B).
There is an interface between § 922(o) and §§ 921(a)(13) and 926. Certain machineguns within the meaning of § 922(o) can be listed as curios and relics available for gun collecting by the Secretary under §§ 921(a)(13), 926. Read in the context of the collector or licensed collector exception that pervades the Act, the term “machinegun” in § 922(o) must be considered to have a built-in exception so as to read “such term does not include curios and relics.” This interpretation comports with the general statutory scheme of the Gun Control Act to afford an avenue for gun collectors to continue their hobby of collecting curios and relics. This reading is in accordance with statutory provisions that specifically authorize or permit the Secretary to authorize a licensed collector to transact in machineguns. See 18 U.S.C. § 922(a)(4), (b)(4).
In addition, the interpretation of the Secretary, who is authorized to administer the Act, lends support to this construction. Under such authority, the Secretary has promulgated regulations defining the term “curios and relics”, see 27 C.F.R. § 178.11, and published through ATF a list of firearms that are curios and relics. Subsequent to the addition , of § 922(o) in 1986, the Secretary has continued to classify many machineguns as curios and relics and placed them in Section IV of that list. See ATF List, supra, at 27 et seq.; App. at 626-27. Clearly ATF considers these machineguns, which it has classified as curios or relics, as not being within the general prohibition under § 922(o). Thus these firearms can be pos*1281sessed and transferred by collectors. In the introduction to the curios and relics list, -ATF specifically addresses the transfer requirements for the machineguns contained in Section IV. It states that “[o]nce the registration requirements [under the National Firearms Act] have been met, transfer may be made intrastate or interstate to licensed collectors on AFT Form 4.” Id. at 3; App. at 621.5
Section 922(o) is susceptible of an interpretation more sweeping than the construction set forth above. This broad interpretation would hold that the prohibition is absolute and thus even a collector or licensed collector would be prohibited from possessing or transferring a machinegun although such a firearm is classified as a curio or relic by the Secretary, if the collector cannot claim any specific exceptions contained in § 922(o)(2)(A) or (B). The specific statutory exceptions contained in § 922(o) do not apply to a normal collector or licensed collector. Fairly read, the exception in section 922(o)(2)(A) applies only to the United States or the states and their political subdivisions and agents. The “under the authority” language does not appear to include the licensing system. See United States v. Warner, 5 F.3d 1378, 1381 (10th Cir.1993) (§ 922(o)(2)(A) permits only possession of machineguns by federal or state agents acting in an official capacity), cert. denied, — U.S. -, 114 S.Ct. 1090, 127 L.Ed.2d 405 (1994). Section 922(o)(2)(B) relates only to the time of initial possession.6 Therefore, the argument runs, there is no collector or licensed collector exception expressly written or fairly inferred in § 922(o). This is the interpretation argued by the government and what Judge Nygaard adopts.
So construed, § 922(o) conflicts with the general scheme that Congress enacted to make it possible for collectors to collect curios and relics, including machineguns, if they are classified as curios and relics by the Secretary. Such a broad reading of § 922(o) would require concluding that when adding § 922(o) to the Gun Control Act, Congress impliedly repealed the general gun collection scheme to the extent that the law then in place allowed machineguns to be collected as curios and relies.
In fact, such a broad reading necessitates an implied repeal of not only the general gun collecting scheme, but also two subsections-specifically dealing with machineguns, 18 U.S.C. § 922(a)(4), (b)(4). With the general qualification that they can only conduct transactions in curios and relics, see § 923(b), licensed collectors are specifically authorized to transport machineguns in interstate and foreign' commerce, § 922(a)(4), and to buy and sell machineguns within a state if the Secretary so authorizes, § 922(b)(4). ATF has classified many machineguns as curios and relies which gun collectors may acquire and dispose of in an appropriate transaction. See ATF List, supra, at 29, App. 626.
Judge Nygaard attempts to harmonize his reading of § 922(o) with § 922(a)(4), (b)(4) by stating that “[§ 922(a)(4) ] envisions a licensed collector’s ability to transport a machine gun that he or she lawfully possessed before May 19, 1986 [the effective date of § 922(o) ],” Maj.Op. at 1274-75, and that “we cannot imagine that the Secretary would spe*1282cifically authorize activity that is prohibited in § 922(o),” id. This attempt fails.
With respect to § 922(a)(4), Judge Ny-gaard does not ask whether a private citizen can receive (or possess) a machinegun transported to him by an owner who possessed it before May 19, 1986. Under Judge Ny-gaard’s reading of § 922(o), private possession and transfer of machineguns are categorically banned if the possession did not take place before May 19, 1986. After this day, no private person may buy or receive a machinegun from an owner who possessed it before this day although the latter may sell it. An owner would therefore not be able to transport the machineguns (which he possessed before that day) into interstate commerce for the purpose of transferring it to another private citizen because the latter would not be able to receive it. Perhaps Judge Nygaard envisions that a machinegun placed in the stream of commerce stays in the interstate transportation line forever, without reaching a destination. Accordingly, Judge Nygaard’s reading of the interplay between § 922(o) and § 922(a)(4) reaches a result which is totally unacceptable.
With respect to § 922(b)(4), the Secretary has specifically authorized the machinegun at issue in this ease to be available for possession and transfer by placing it in his official publication, the ATF curios and relics list, and by stating that it can be transferred, so long as the licensed collector complies with the registration requirements, “either intrastate or interstate to licensed collectors on ATF Form 4.” ATF List, supra, at 3; App. at 621. This authorization was not “imagination,” as Judge Nygaard intimates, but was published for the express and specific purpose of giving guidance to private gun collectors. Even though this is not an individualized authorization, it is a specific authorization for a class of citizens — the licensed collectors. Obviously, the Secretary construed the Gun Control Act as authorizing him to do so. Judge Nygaard contends that what the Secretary did was prohibited by § 922(o). However, because the statutory provisions are confusing and ambiguous, the Secretary is entitled to deference. See infra at 1284 (discussing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).
Judge Nygaard’s reading of § 922(o) also conflicts with the last paragraph of § 922(b), which I shall term “trading between federal licensees provision.” Section 922(b) first places certain restrictions on federal licensees when they deal with non-licensees. See § 922(b)(1) (minimum age limit), (b)(2) (compliance with state law), (b)(3) (no local sale to out-of-state persons), (b)(4) (specific authorization of the Secretary required). The last paragraph of § 922(b) states that these restrictions “shall not apply to transactions between licensed importers, licensed manufacturers, licensed dealers, and licensed collectors. Paragraph [ (b)(4) ] shall not apply to a sale or delivery to any research organization designated by the Secretary.” § 922(b). Obviously, this “trading between licensees provision” allows federal licensees to trade curio machineguns between themselves and with designated research organizations.
While it is true that § 922(o)(2)(A) permits an owner to transfer a machinegun to a federal or state instrumentality, § 922(a)(4) cannot be limited to transporting a machine-gun to such an entity. Section 922(a)(4) permits transporting machineguns for the purpose of engaging in commerce. The language states that federal licensees may “transport [a machinegun] in interstate or foreign commerce.” § 922(a)(4). Such language defies any attempt to read it restrictively because even if one might try to equate the term “transport in interstate commerce” with “transport to a federal or state instrumentality,” no one would say that “transport in foreign commerce” also means “transport to a federal or state instrumentality.” “Foreign commerce” means foreign commerce. Neither can § 922(b)(4) be limited to sales to governmental instrumentalities because the Secretary specifically authorized transfers to be made to other “licensed collectors.” ATF List, supra, at 3; App. at 621. Nor can the “trading between federal licensees provision” be so limited. This provision permits trades between all federal licensees, private or otherwise.
The broad interpretation espoused by Judge Nygaard may also conflict with the *1283statutory exemption of antique firearms from the Act. See 18 U.S.C. § 921(a)(3), (a)(16). The Gun Control Act exempts antique firearms from its coverage not by making an explicit separate exemption, but by exempting them from the definition of “firearm” in § 921(a)(3). But antique firearms axe not specifically exempted from the definition of “machinegun.” Thus one may argue that, if an antique is also a machinegun, under the broad, absolutist interpretation of § 922(o), one cannot legally possess that antique ma-chinegun, if he had not legally possessed it before § 922(o) went into effect, because § 922(o) does not contain a specific exemption for such an antique firearm.
Reading § 922(o) as a broad prohibition applicable to collectors and licensed collectors dealing in curio and relic machineguns conflicts significantly with other provisions of the Gun Control Act. Faced with a choice, we should choose a reading of § 922(o) that permits a collector or licensed collector exception. Several factors militate in favor of this interpretation. First, § 922(o) as an amendment to the Gun Control Act must be construed with the Act as a whole rather than in isolation. “Statutory construction is a holistic endeavor ... and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.” United States Nat'l Bank of Oregon v. Independent Ins. Agents of Am., Inc., — U.S. -, -, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402 (1993) (internal quotation marks and citations omitted). Put another way, “ ‘[i]n expounding a statute, we must not be guided by a single sentence or' member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Id. (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1849)). Thus, “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” 2A Norman J. Singer, Sutherland Stat. Const.
§ 46.06, at 119-20 (5th ed. 1992) (citations omitted).
If a holistic consideration of the statutory context does not reveal Congress’ intent to provide an absolute and total ban, we need not accord such a reading to § 922(o). Congress did not indicate, either in statutory language or legislative history, an intent to repeal or modify other provisions of the Gun Control Act when adding § 922(o). Rather, it only aimed to curb the use of machineguns by “racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime.” H.R.Rep. No. 99 — 495, supra, at 4, reprinted in 1986 U.S.C.C.A.N. at 1330.
Second, “[statutes for the same subject, although in apparent conflict, are construed to be in harmony if reasonably possible.” 2B Singer, supra, § 51.02, at 122. One cardinal rule of statutory construction is that “repeals by implication are not favored.” Morton v. Mancari, 417 U.S. 535, 549-50, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974) (internal quotation marks and citations omitted). An implied repeal construction is permitted only when the seemingly conflicting statutes are absolutely irreconcilable. Id. at 550, 94 S.Ct. at 2482. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018,104 S.Ct. 2862, 2880, 81 L.Ed.2d 815 (1984). When confronted with seemingly inconsistent statutory provisions, we have a “duty to construe the statutes in such a way to give effect to both, if possible.” United States v. Bruno, 897 F.2d 691, 695 (3d Cir.1990). When statutory provisions are capable of co-existence, “it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton, 417 U.S. at 551, 94 S.Ct. at 2483.
The gun collector exception and § 922(o) are not irreconcilable because § 922(o) and the seemingly conflicting sections of the Gun Control Act can co-exist if we recognize that Congress intended it to be lawful for collectors to possess and transfer machineguns that are curios and relics.7 The collector *1284exception is an exception to the general prohibition against machinegun possession and transfer. This is analogous to the situation in Morton, where the Supreme Court held that “[a] provision aimed at furthering Indian self-government by according an employment preference within the [Bureau of Indian Affairs] for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race.” 417 U.S. at 550, 94 S.Ct. at 2482.
Nor is there any indication, not to mention any “clearly expressed congressional intention,” id. at 551, 94 S.Ct. at 2483, of a repeal of the gun collection scheme or the specific sections that authorize licensed collectors to conduct transactions in curio machineguns. Congress never stated in the statute amending the Gun Control Act that the existing gun collecting scheme would be repealed, nor does the legislative history reflect any such intent. The pervading theme of the Gun Control Act is that gun aficionados be allowed to collect curios and relics including curio machineguns. When adding § 922(o), Congress did not specifically restrict the ability of licensed collectors to collect curios and relics that, are also machineguns and to transport them into interstate or foreign commerce under § 922(a)(4). Nor did Congress restrict the Secretary’s authority under 18 U.S.C. §§ 921(a)(18), 926 to classify ma-chineguns as curios and relics or under § 922(b)(4) to authorize sales and delivery of machineguns. Indeed, when analyzing section by section the 1986 amendments to the Gun Control Act, Congress specifically summarized § 922(a)(4) and (b)(4) and mentioned machineguns, without noting any effect that § 922(o) would have on § 922(a)(4) and (b)(4). See H.R.Rep. No. 99-495, supra, at 22, reprinted in 1986 U.S.C.C.A.N. at 1348. Accordingly, it is improbable that Congréss impliedly repealed, without indicating its intent to do so, the gun collecting scheme with respect to curio machineguns, when such a repeal would eliminate several sections pertaining to collecting machineguns as curios and relics from the Gun Control Act, which sections have been in existence since 1968.
Third, because of the ambiguities surrounding the meaning of the term “machine-gun” and “curios and relics,” we should defer, under the holding of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the interpretation of ATF, the administrative agency charged with administering the Gun Control Act. Chevron instructs us that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute,” id. at 848, 104 S.Ct. at 2782, and that “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844, 104 S.Ct. at 2782. Congress explicitly authorized the Secretary to define curios or relics so that a collector may acquire or dispose of them. 18 U.S.C. § 921(a)(13). ATF has denominated certain machineguns as curios and relics, and specifically advised that they may be possessed and transferred by a collector under the Act. See ATF List, supra, at 3, 29-30, App. at 621, 626-27. See also supra footnote 2. Such an interpretation no doubt more than meets the deferential reasonableness test under Chevron. We should not substitute our statutory construction for the inherently legal and practical interpretation of ATF.
Finally, construing the term “machinegun” in § 922(o) as excluding curios and relies comports with the tradition of courts to interpret terms shrouded in ambiguities derived from outside the particular statutory provision flexibly in order to give effect to the intent of the authors of a statute. Courts have not rigidly adhered to the literal terms *1285of explicit language when there is an ambiguity external to that language under review and when the, particular context militates for a flexible interpretation. See, e.g., Johnson v. Transportation Agency of Santa Clara County, Cal., 480 U.S. 616, 627, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 616 (1987) (analyzing affirmative action plan under the standard announced in Weber, infra); United Steelworkers of Am. v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979) (interpreting the Civil Rights Act of 1964 “against the background of the legislative history of Title VII and the historical context from which the Act arose”); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978) (rejecting a “mechanical construction” of § 706(k) of Title VII of the Civil Rights Act of 1964); cf. In re House Bill No. 1291, 178 Mass. 605, 60 N.E. 129 (Mass.1901) (interpreting flexibly the “written vote” requirement in the Constitution of Massachusetts as permitting use of voting machines). See also Richard A. Posner, Problems of Jurisprudence 262-69 (1990) (explaining the fallacies of the plain-meaning rule and criticizing rigid statutory interpretation).
For the foregoing reasons, we should regard each of the sections of the Gun Control Act as effective and recognize the gun collector exception to § 922(o). This interpretation gives full effect to the Gun Control Act, accords with legislative history, and respects the interpretation of the administrative agency charged with enforcing the specific law under review.
III.
The second task is to examine the record to determine whether it sufficiently supports Palmieri’s defense that he fell within the collector exception to § 922(a)(1) and § 922(o).8 In so doing, we must consider the record as a whole. See generally U.S. v. Paolello, 951 F.2d 537, 539 (3d Cir.1991).
With respect to Count 1, Palmieri attempted to show that he is merely a collector, making only occasional transactions in curios and relics. It is undisputed that Palmieri has a collector’s license. However, as discussed above, possession of such a collector’s license is not dispositive of the question whether Palmieri fell within the collector exception to § 922(a)(1). He must further prove that the firearms he bought and sold were curios and relics and that the quantity of his transactions did not make him a dealer. The record indicates that the district court precluded Palmieri from fully presenting his collector exception theory at the trial.
Palmieri has a colorable claim that he was only a collector rather than a dealer. Palmi-eri served in the armed forces in the early 1950’s and became interested in firearms. Since then and for about twenty-seven years, he had been collecting firearms “because of the historical value of [the] military items, foreign and domestic.” App. at 368. Palmi-eri received a collector’s license from the *1286appropriate authority to become a “licensed collector,” and maintained this status property-
Nor does the government dispute that the guns that Palmieri sold to Lyman were all curios and relics.9 The circumstances of how he became interested in guns and the relatively few transactions he made — three transactions with a total of five items over a span of eight months between October 1991 and May 1992, to be exact — present a sufficient jury question of whether he was merely a collector or, as the government argues, a de facto dealer engaging in a regular course of trade in gun dealing.
With respect to Count 2, the charge of violating § 922(o), the only issue was whether the machinegun at issue was a curio or relic because § 922(o) does not contain a quantity component. The government did not, and could not, dispute .that the machine-gun at issue is a curio or relic. See ATF List, supra, at 30, App. 627. The record clearly supports Palmieri’s claim of collector exception to Count Two.
In sum, the record indicates that there is sufficient evidence to present a question for the jury to determine whether Palmieri was a dealer in firearms, or merely a collector, in Count 1. On Count 2, the charge cannot be established as a matter of law since the only machinegun at issue is classified by the government itself as transferrable as a curio or relic.
TV.
Having concluded that the gun collector exception is a valid legal theory under the applicable law, and there is evidence in the record which supports the Palmieri’s position that he was a gun collector and not a dealer, I next examine the jury charge as-a whole to see whether it adequately embodied the theory of Palmieri’s defense. See Paolello, 951 F.2d at 543.
The only portion in the jury charge that addressed the collector exception to § 922(a)(1) was its paraphrasing of the statutory definition of “engaged in the business.” There the district court stated:
The term “engaged in the business” means a person who devotes timé, attention and labor to dealing in firearms as a regular course of trade or business with the principle objective of livelihood and profit through the repetitive purchase and resale of firearms, but the term does not include a person who makes occasional sales, exchanges or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or a part of his personal collection of firearms.
App. at 522. Obviously, this part of the instruction tracked the language of the definition in 18 U.S.C. § 921(a)(21)(C). It was not incorrect, but it did not provide sufficient guidance to the jury on the collector exception to § 922(a)(1) since it failed to adequately' address the distinction in terms of the quantity of transactions between a collector and a dealer.
While one might argue that the above instruction gave the jury the alternative to find Palmieri a collector and not a dealer, other portions of the charge eliminated that alternative. This was accomplished by what I believe to be misstatements of the law on the status of a licensed collector. For example, the court instructed the jury:
In this case, you have heard testimony that during the time period covered by the indictment, the defendant, James Palmieri, was a licensed firearms collector. I instruct you as a matter of law, that the collector’s license possessed by the defendant did not authorize him to sell any firearms, even firearms that have been classified as curios or relics. I further instruct you that what the defendant believed his collector’s license authorized him to do is not an issue in this case, it is therefore,[sic] irrelevant to your determination of the charges in this case.
App. at 523. Even by the majority’s admission, this portion of the jury charge is “potentially misleading.” Op. at 1269. I believe *1287it is more than that. As discussed above, a gun collector does not need a collector’s license to buy and sell gun curios and relics within his home state, but only 'a licensed collector can buy and sell curios and relics in interstate transactions. The jury charge misstated the law with respect to interstate transactions because a collector’s license does authorize interstate sales. More importantly, this portion of the charge instructed the jury that a collector cannot lawfully make any sales, with or without a license. This is, again, clearly incorrect, since even without a gun collector’s license a collector is permitted to make certain intrastate transactions. This part of the jury instruction completely precluded the jury from considering whether Palmieri fell within the gun collector exception when he sold the guns at issue in this case.
The response of the district court to the jury’s last question before the verdict was returned was an even more serious misstatement of the law, and a substantial source for confusion. The jury asked: “Do you need a license to sell firearms under all circumstances?” App. at 539. The question indicates that the jury was puzzled by the difference in quantity between the number of transactions that a collector can engage in and the number of transactions which would make one a dealer in firearms. The term “license” in the question from the jury clearly refers to the firearms dealer’s license.
The proper answer to the jury question should have been a resounding “no,” because, without a gun dealer’s license, a collector without a federal collector’s license is permitted to make certain intrastate sales; a collector with a federal collector’s license may, in addition, make certain interstate sales. The district court, however, responded:
[T]he best answer I can give you to this is that that is not your concern as a jury. You do not need to know everything about under what circumstances a person could or could not do this.... I refer you to the instruction that you received ... which is I instructed you as a matter of law that the collector’s license possessed by the defendant did not authorize him to sell any firearms_
App. at 541-42.
Not only' did the district court repeat its incorrect instruction on the status of the licensed gun collector, it also miscomprehended the importance of a correct answer to the jurors who were confused as to whether Palmieri was guilty merely because he sold guns. In its response to the question of the jury, the district court instructed that the jury “need not know everything about under what circumstances a person could or could not do.” Id. The jury was never told that an individual does not need a dealer’s license to sell firearms under all circumstances. If the jury was properly instructed, it would have been equipped to make a judgment on whether Palmieri was a dealer or merely a collector. As a dealer, he would have been required to be licensed as a dealer, while as a collector, he did not need a dealer’s license for intrastate sales. If it had been properly instructed, the jury may well have concluded the limited transactions that Palmieri made were not sufficient to bring him within the definition of a firearm dealer, particularly since the record reflects the activities of an infrequent seller who sold five curio firearms in three transactions over a period of eight months between October 1991 and May 1992, and with only one buyer involved. Because the jury charge did not reflect the gun collector defense to Count 1, we should reverse the conviction on Count 1, and remand for a new trial.
With respect to the charge in Count 2, alleging a violation of § 922(o), the jury instruction never mentioned any gun collector exception to such a charge. See App. at 524r-25. The district court essentially instructed the jury that in order to convict Palmieri it must find beyond a reasonable doubt merely that “the defendant possessed and transferred a machinegun,” id. at 524, and that “the defendant acted knowingly,” id. The charge to the jury was improper since it failed to set forth any directions or instructions on the gun collector exception to § 922(o). Ordinarily, this would require a remand for a new trial. However, because the gun collector exception to § 922(o) does *1288not depend on the number of transactions, and since the record is clear that the only machinegun at issue is, in fact, a curio or relic, the government cannot prove Count 2 as a matter of law. Thus, we should direct the district court to dismiss Count 2 rather than remand for a new trial.
V.
Judge Nygaard interprets § 922(o) as an absolute ban on possession and transfer of any machinegun, even a machinegun that is a curio or relic, with the limited exceptions provided by the explicit language of § 922(o )(2)(A) and (B) which are not relevant in this ease. It therefore becomes necessary to address the serious due process problem posed in this case by the ATF official position that maehineguns which are classified as curios or relies may be possessed and transferred. On the one hand, the Secretary as administrator, and therefore an official expositor of the Gun Control Act, specifically advises collectors they can buy and sell certain maehineguns if they are on the official list of curios and relics. On the other hand, the United States Attorney can, and in this case did, prosecute anyone for possessing any machinegun, even if it' is on the official ATF list of curios and relies. This state of affairs raises serious questions of notice and fairness. Even if we have the power to read § 922(o) broader than Congress intended, as Judge Nygaard does, we must nevertheless reverse- Palmieri’s conviction on Count 2.
Although a mistake of law is generally not an excuse to a criminal charge, the law recognizes the government should not prosecute a citizen who is misled by an official interpreter of the law. In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), the Supreme Court held that the state may not convict a person for refusing to answer questions of a state investigating commission when that person relied upon assurances of the commission that state law afforded him a privilege to refuse to answer (although such privilege did not in fact exist). Id. at 425-26, 79 S.Ct. at 1259-60. To sustain such a conviction, the Court reasoned, “would be to sanction an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him.” Id. at 426, 79 S.Ct. at 1260. Several years later, the Supreme Court again held that defendants may not be convicted for demonstrating near a courthouse when the police chief in the presence of the Sheriff and the Mayor told them it was permissible to do so. Cox v. Louisiana, 379 U.S. 559, 568-72, 85 S.Ct. 476, 482-84, 13 L.Ed.2d 487 (1965).
These cases demonstrate that when a defendant is misled by assurances of an official interpreter of the law that the conduct in dispute is permissible, he cannot be subsequently prosecuted for that same conduct. Otherwise, the law would sanction indefensible entrapment by the government. This rule takes on greater importance when the law at issue is as complex as the Gun Control Act.
Palmieri is clearly within the protection of the Raley rule. ATF has published a list of curios and relics embodying its official interpretation of the interface between “machine-gun” and “curios and relics,” and specifically stated that these machinegun curios can be transferred. See ATF List, supra, at 3, 29; App. at 621, 626. There is no dispute that the machinegun at issue in this case is contained in that list. Palmieri, like all others, was advised by the Secretary’s official publication that he can possess and transfer the machinegun at issue in this case. His conviction on Count’ 2 for possessing and transferring that machinegun must be set aside.
Finally, before Judge Nygaard made known his holding, it was by no means clear that Palmieri’s reading of the statute (permitting him to possess and to transfer a machinegun that is a curio or relic on the ATF list) was a mistaken interpretation of the law. By reason of §§ 921(a)(13), 922(a)(4) and (b)(4), Palmieri could reasonably conclude that the Gun Control Act permitted him to possess and transfer the ma-chinegun at issue. The reasonableness of this conclusion is verified by the very same interpretation by ATF. At most, this reasonable interpretation conflicted with § 922(o). Where a statute authorizing criminal sanctions “gives conflicting commands,” *1289United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 200 (1952), the government cannot enforce the statute by punishing a citizen whose interpretation was reasonable. Id.
In Cardiff the defendant was convicted of violating the then existing § 301(f) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331(f), which prohibited the refusal to permit entry or inspection as authorized by § 374. Section 374 in turn authorized federal officers or employees “after first making request and obtaining permission of the owner” of a plant to enter or inspect the establishment at reasonable times. Id. at 174-75, 73 S.Ct. at 189. The Supreme Court recognized that the statutory provisions could have reasonably been interpreted as “prohibiting] the refusal to permit inspection only if permission has been previously granted.” Id. at 176, 73 S.Ct. at 190. The Court also recognized that the government might have been correct in arguing that the statute should be read as “prohibiting a refusal to permit entry or inspection at any reasonable time.” Id. The Court concluded, the statute “makes inspection dependent on consent and makes refusal to allow inspection a crime.” Id. The Court ruled that such a statute cannot be enforced because enforcement “would be making an act criminal without fair and effective notice.” Id. The provisions of the Gun Control Act with respect to machinegun possession and transfer are similar to those addressed in Cardiff in that both are susceptible of conflicting, yet reasonable, interpretations. Therefore, § 922(o) should not be enforced.
Judge Nygaard attempts to remedy this constitutional problem by asserting that the Secretary did not state that the machinegun at issue is transferrable. The reason Judge Nygaard gives is that ATF indicated that the maehineguns in the list can only be transferred subject to the § 922(o) absolute ban on machinegun possession and transfer save when a machinegun was possessed before May 19, 1986. This is entirely unpersuasive.
Quoting a paragraph from the ATF curios and relies list, Judge Nygaard states that licensed collectors are permitted only to “acquire[,] hold or dispose of them [the weapons listed in Section IV] as curios or relies subject to the provisions of 18 U.S.C. Chapter 44 [which include 18 U.S.C. § 922(o)] and 27 CFR part 178.” Maj.Op. at 1275 (“[which include 18 U.S.C. § 922(o) ]” was added by Judge Nygaard). However, the sentence in the ATF list immediately following the quoted language states that.“[t]hey are still ‘firearms’ as defined in the National Firearms Act and Chapter 44 of Title 18, U.S.C.” ATF List, supra, at 29, App. at 626. Thus the “subject to” language must be read as primarily concerning the “firearm” status of the curios and relics so that the collectors are on notice that if they trade curios as a regular course of business without a dealer’s license, they may be violating the Gun Control Act, see 27 C.F.R. § 178.41(d) (1993) (specifically cautioning collectors to obtain further licenses if their activities amount to a regular course of trade), and that they may need to comply with the registration and taxation requirements under the National Firearms Act.
Reading the “subject to” language as reinstating the § 922(o) absolute machinegun prohibition renders superfluous almost the whole Section IV of the ATF curios and relics list, which is itemized with machinegun curios and relics. We should not lightly assign such a purpose to the ATF, an expert administrative agency charged with administering the Gun Control Act.
Judge Nygaard contends that his reading of § 922(o) leaves Section IV of the ATF curios and relics list some use, asserting that this part of the list is “potentially useful to those who lawfully possessed a machine gun before May 19, 1986.” Maj.Op. at 1275. I have pointed out that Judge Nygaard’s reading of § 922(o) would ban a private citizen from receiving a machinegun after May 19, 1986. See supra at 1281. Thus, under Judge Nygaard’s reading of § 922(o), Section IV of the ATF list could not be of any use at all so far as private transfers are concerned. No legal transaction could take place because even though one side of the transaction — the seller — could transfer a ma-chinegun, the other side — the buyer — could not receive or possess it. But private transfers are exactly what the ATF authorized. See ATF List, supra, at 3; App. at 621.
*1290The only use of Section IV of the curios and relics list, Judge Nygaard indicates, is that it permits a transfer to be made to a governmental instrumentality under § 922(o )(2)(A). See Maj.Op. at 1275 (citing to § 922(o )(2)(A)). Assuming that Judge Nygaard is correct, that part of the list is still useless, because under § 922(o )(2)(A) a machinegun need not be a curio or relic (that is, being listed in Section IV of the list) to be eligible for transfer to a governmental agency. Any machinegun (antique, curio or brand new) may be transferred to the federal or state government under § 922(o )(2)(A). An expert agency such as the ATF probably would not have promulgated a list that does nothing.
By clear and unambiguous pronouncement, ATF has rejected the position espoused by Judge Nygaard. ATF specifically stated that “[o]nce the registration requirements have been met, transfer [of the curios and relics in Section IV] may be made either intrastate or interstate to licensed collectors on ATF Form 4.” ATF List, supra, at 3; App. at 621 (emphasis added). It is well to emphasize that the ATF specifically permits transfers to be made to “licensed collectors” who are private citizens. This language clearly rebuts Judge Nygaard’s contention that the Section IV was meant to permit transfers to governmental instrumentalities and that § 922(o) categorically bans all private possession and transfer of machineguns if an owner did not possess them before May 19, 1986. Section 922(o) as construed by Judge Nygaard would ban these collectors from receiving any machineguns after May 19,1986. Many of the firearms in Section IV are machineguns, such as the machinegun at issue in this case. This statement clearly refutes any assertion that ATF considered the “absolute” ban under § 922(o) applied to machineguns which are curios and relics.
Because of the constitutional complications, we are instructed to construe a statute in such a way, if possible, so as to avoid a difficult constitutional question. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) (“where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly'contrary to the intent of Congress”). Judge Nygaard does not heed this admonition. Instead, he reads § 922(o) as an absolute ban and thus implicitly concludes that the Secretary through ATF has exceeded its authority in listing the machineguns as curios. Judge Nygaard thus states that “to the extent that [Section IV of the ATF curios and relics list] contradicts 18 U.S.C. § 922(o), however, the statute trumps the ATF publication.” Maj. Op. at 1275.
Even if Judge Nygaard is correct, case law as analyzed above mandates that we dismiss Count 2 (the machinegun charge) since Pal-mieri was misled by ATF. Under the holding of Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952), Palmieri must be set free on Count 2 if he was misled by the ATF official interpretation of the Gun Control Act or if the statutory provisions gave conflicting commands. There is no doubt that the provisions of the Gun Control Act are susceptible of conflicting interpretation and that Palmieri was misled by the official interpretation of the Secretary — the administrator of the Act. Palmieri was charged with possessing and transferring a machinegun that ATF has recognized it is permissible to possess and transfer.
A fundamental element of due process is fair notice. “[A] fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931). Born of the concern for fair notice, the venerable rule of lenity “demand[s] resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 1985, 109 L.Ed.2d 408 (1990). See also United States v. Granderson, — U.S. -, -, 114 S.Ct. 1259, 1267-69, 127 L.Ed.2d 611 (U.S.) (“In [those] circumstances — where text, structure, and *1291history fail to establish that the Government’s position is unambiguously correct— we apply the rule of lenity and resolve the ambiguity in Granderson’s favor.”). This rule takes on greater importance when complex statutes such as the Gun Control Act and the National Firearms Act are involved. See United States v. Thompson/Center Arms Co., — U.S. -, - (plurality op.) & -, 112 S.Ct. 2102, 2109-10 (plurality op.) & 2112, 119 L.Ed.2d 308 (Scalia, J., concurring) (1992) (applying the rule of lenity in construing National Firearms Act in a civil case when the government attempted to tax the defendant). This rule requires that Judge Nygaard’s interpretation not be applied to Palmieri, even though it may bind the whole world in a future case. Judge Nygaard today disregards this rule, and does so without discussion.10
With Judge Nygaard’s reading of § 922(o), gun collectors and museums, who currently possess or transfer curio or relic machineguns as a hobby or for historical and educational purposes, are at risk. They most likely will not be in a position to claim the explicit exceptions to the absolute machine-gun ban as provided in § 922(o )(2A)(A) and (B). In order to avoid any further misleading of those who are gun collectors, the court should explicitly nullify the part of Section IV of the ATF curios and relics list which contains machineguns, and thwart the ATF from placing that part of the list in public circulation.
VI.
To support Palmieri’s conviction, the government argues that Palmieri also violated 27 C.F.R. § 178.94 and the registration requirements of the National Firearms Act. What bearing any violation by Palmieri of 27 C.F.R. § 178.94 or the National Firearms Act has on the charges that Palmieri was convicted of is not explained by the government. Nor could any attempted explanation be made since Palmieri was charged solely with violating § 922(a)(1) and (o). He was not charged with violating either 27 C.F.R. § 178.94 or the National Firearms Act. Whether Palmieri violated these other statutes and regulations is not relevant to whether he violated § 922(a)(1) and (o). Palmieri cannot be convicted of violating a statute because, presumably, he violated some other law unrelated to the charge before the court.
The record indicates that Palmieri may not be faultless. He may have violated other sections of the Gun Control Act, certain requirements with respect to registration and taxation under the National Firearms Act, as well as New Jersey gun control law. Perhaps Palmieri should have been charged with these violations. But he was not. The government may have chosen the wrong statute to prosecute a citizen. But we are not im-panelled to correct a charging error by the government. We are required to determine if Palmieri is guilty as charged. Clearly, he is not.
VII.
For the foregoing reasons, I dissent. I would reverse the conviction on both counts and remand the case for a new trial on Count 1 and direct that the district court dismiss Count 2.
. The preferred spelling is "machine gun." Because Congress used "machinegun,” see 18 U.S.C. § 921(a)(23), I will also do so throughout this dissent.
. Antique firearms are defined as those-manufactured in or before 1898. 18 U.S.C. § 921(a)(16).
. The Secretary of Treasury has defined "curios and relics” as:
Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:
(a) Firearms which were manufactured at least 50 years prior to the current date, but not including replicas thereof;
(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and
(c)Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less.
27 C.F.R. § 178.11 (1993). More specifically, the Bureau of Alcohol, Tobacco and Firearms (ATF) publishes a list of curios and relics, naming specific firearms as curios and relics. See ATF, Firearms Curios and Relics List (1972-1989), ATF P. 5300.11 (1990 ed.), App. 618-27.
. Judge Hutchinson declines to join Part VII of Judge Nygaard’s opinion. Part VII of Judge Nygaard's opinion is therefore that of his own alone, not that of the court. Judge Hutchinson, however, concurs in the judgment affirming the district court's decision on the ground that Pal-mieri waived his argument on the invalidity of Count 2. See Maj.Op. at 1274 n. 10. I respectfully disagree with this waiver theory.
First, I believe the issue is fairly, raised by Palmieri. Although he has not done so in the precise wording or analysis that I employ, he contends that his collector’s license authorized him to sell all the guns at issue in this case and that the machinegun was not a machinegun ■within the meaning of § 922(o ) and therefore he had no requisite intent to violate that provision. Brief for Appellant at 26-27. Moreover, at oral argument counsel for Palmieri specifically requested the court direct that the district court dismiss Count 2.
Secondly, the issue is in essence whether it is a crime to sell the machinegun at issue. When the sale is not a crime, a defendant simply cannot be convicted for conduct that is not criminal. This goes to the sufficiency of the indictment. There is no waiver as to such a question. See Menna v. New York, 423 U.S. 61, 62 & n. 2, 96 S.Ct. 241, 242 & n. 2, 46 L.Ed.2d 195 (1975) (per curiam). Menna pleaded guilty to a charge, but he subsequently appealed the conviction on the ground that the indictment was invalid because it was barred by the guarantee against double jeopardy. Id. at 61, 96 S.Ct. at 241. The state contended that Menna waived his objections to the charge by virtue of. his guilty plea. Id. In a per curiam opinion, the Supreme Court rejected this argument flatly.
Where the State is precluded by the United States Constitution from haling a defendant into court' on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.
Id. at 62, 96 S.Ct. at 242. In a footnote, the Court stated that "a plea of guilty to a charge does not waive a claim that — judged on its face— the charge is one which the State may not constitutionally prosecute." Id. at 62 n. 2, 96 S.Ct. 242 n. 2.
*1280This rule equally applies to the federal government. If my analysis is correct, Count 2 is an invalid charge that the government may not constitutionally prosecute. Therefore, Palmieri's alleged silence does not waive his claim that Count 2 was invalid.
Finally, as an appellate court, we have the power to adjudicate an issue even if not raised or briefed. "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936) (emphasis added). The case sub judice is a criminal case and the invalidity of Count 2 is an issue that we should decide.
We have stated that "(ejxceptional circumstances have- been recognized when the public interest requires that the issue be heard or when manifest injustice would result from the failure to consider the new issue.” Altman v. Altman, 653 F.2d 755, 758 (3d Cir.1981). Public interest requires that we decide this issue because the statute touches an important aspect of our life and concerns the liberty interest of many gun collectors. The statute was recently enacted, and thus cries out for clarification. Manifest injustice would result from our failure to consider the issue. If my analysis is correct, Palmieri, for one, will stay in jail for committing no crime. The United States attorneys may use our decision to indict more people similarly situated.
. The ATF pursuant to its authority has removed certain antique firearms from the coverage of both the National Firearms Act and the Gun Control Act, and listed those items in Section IIIA of the ATF list. The fact that the machine-gun at issue in this case does not fall within the category of weapons removed from the National Firearms Act does not affect Palmieri’s claim. First, the National Firearms Act requires primarily that owners register their firearms and pay a tax on them. It is different from the Gun Control Act. Furthermore, those firearms removed from the National Firearms Act constitute Section IIIA, which is only part of the ATF curios and relics list. More specifically, this section contains a list of antiques, which technically are not “curios and relics,” as defined by ATF, see App. at 625. Even though the exemption accorded an antique is broader than that accorded a curio, the fact that the machinegun at issue in this case does not fall within the antique category does not affect its curio status. The machinegun is within another part (Section IV) of the curios and relics list.
. " This exception appears to apply only to those who lawfully possessed a machinegun before the effective date. It does not seem to apply to collectors who did not own any .machineguns as of that day.
. Some courts have considered § 922(d) and 26 U.S.C. § 5861 irreconcilable. See, e.g., United States v. Dalton, 960 F.2d 121, 126 (10 Cir.1992) (§ 922(o) impliedly repealed I.R.C. § 5861(d) and (e), part of the National Firearms Act requiring registration of machineguns because § 922(d) makes it impossible for anyone who purchases a machinegun after 1986 to comply with § 5861), cert. denied, — U.S. -, 114 S.Ct. 253, 126 L.Ed.2d 205 (1993); but see United States v. *1284Staples, 971 F.2d 608, 610-11 (10th Cir.1992) (distinguishing Dalton because the machinegun at issue was purchased before § 922(o) went into effect), cert. granted, - U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993); United States v. Kurt, 988 F.2d 73, 76 (9th Cir.1993) (§ 922(o) does not completely repeal I.R.C. § 5861(d) because if the machineguns were lawfully possessed before 1986, the defendant can meet the registration requirements). These cases concern the validity of the registration requirement after the enactment of § 922(o), and do not address the issue presented in this case.
. In his brief, Palmieri asserts the gun collector exception as a defense to the charge under § 922(a)(1). With respect to the charge under § 922(o), his argument is different. Here, he claims that he could not be convicted of violating § 922(o) because the machinegun at issue is a curio or relic. This argument goes to an element of the offense.
If the claim relates to a defense, the government is not required to prove its existence or absence. Rather, the law may require the defendant to prove the defense by a preponderance of the evidence. Martin v. Ohio, 480 U.S. 228, 235-36, 107 S.Ct. 1098, 1103, 94 L.Ed.2d 267 (1987); Patterson v. New York, 432 U.S. 197, 205-212, 97 S.Ct. 2319, 2324-28, 53 L.Ed.2d 281 (1977). On the other hand, if the issue in dispute goes to the elements of the offense, or if it bears some necessary relationship to an element of the offense, see Mullaney v. Wilbur, 421 U.S. 684, 705-07, 95 S.Ct. 1881, 1893, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring), the government bears the burden of proof to establish its existence or absence, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).
My analysis of the statutory provisions indicates that the gun collector exception goes to an element of the offense in each count. As to § 922(a)(1), the gun collector exception addresses the quantity of transactions and, thus, the “regular course of trade” element. The collector exception as applied to § 922(o) addresses what is a machinegun within the meaning of that section. Therefore, the government should bear the burden of proving that Palmieri is not a collector as to both counts.
However, the distinction between who bears the burden of proof is not critical in this appeal because Palmieri was precluded from presenting his claimed "defense.”
. These firearms at issue were manufactured before or during World War II and thus are within the definition of curios and relics under 27 C.F.R. § 178.11 (firearms must be fifty years old in order to be recognized as curios and relics).
. As I pointed out in supra note 4, Judge Hutchinson does not join in Part VII of Judge Ny-gaard's opinion, but would affirm the judgment of the district court on a waiver theory. Judge Nygaard does not concur in this waiver theory. Accordingly, the court's affirmance of Palmieri’s conviction is the by-product of two different theories of two judges comprising the majority. This fact alone requires that we apply the rule of lenity in favor of Palmieri.