The opinion of the court was delivered by: Richard Mills, District Judge.
"Keep thy shop, and thy shop will keep thee."
Ben Johnson, et al., Eastward Ho I (1606).
In addition to being a convicted felon, Joseph Fleischli is the
president of Springfield Armament Services, Inc., a licensed
manufacturer of firearms. On August 11, 1998, a grand jury
indicted Fleischli for possession of machine guns, possession of
a firearm by a felon, illegal manufacture of a machine gun, and
possession of unregistered explosive devices. Fleischli moved to
dismiss the indictment on September 1, 2000. Before any action
could be taken on Fleischli's motion, the grand jury returned a
Superseding Indictment. In addition to the four crimes charged in
the original indictment, the Superseding Indictment charged
Fleischli with an additional possession of machine guns offense
and another possession of a firearm by a felon offense.
any weapon which shoots, is designed to shoot, or can
be readily restored to shoot, automatically more than
one shot, without manual reloading, by a single
function of the trigger.
Id. Fleischli argues that one of the four guns he is charged
with possessing, an Aircraft Machine Gun 7.62mm, does not fall
within this definition of a machine gun.*fn2 Fleischli bases his
argument on the Internal Revenue Service's Revenue Ruling 55-528.
Under this Revenue Ruling:
Any crank-operated gear-driven Gatling gun (produced
under 1862 to 1893 patents) employing a cam action to
perform the functions of repeatedly cocking and
firing the weapon, as well as any such gun actuated
by an electric motor in lieu of a hand-operated crank
(produced under 1893 and later patents), while being
a forerunner of fully automatic machine guns, is not
designed to shoot automatically or semiautomatically
more than one shot with a single function of the
trigger. Such weapons are held not to be firearms
within the purview of the National Firearms Act
(Chapter 53 of the Internal Revenue Code of 1954).
The Aircraft Machine Gun at issue here employs a cam action to
fire the weapon. See Dept. of Army Technical Manual TM
9-1005-298-12 at 1-1 (Aug. 1969). Thus, Fleischli argues it is
not a machine gun under revenue ruling 55-528. Revenue rulings,
however, do not have the force of law; they represent only the
IRS' opinion of the law. See Flanagan v. United States,
810 F.2d 930, 934 (10th Cir. 1987). This Circuit affords revenue
rulings only "the lowest degree of deference." Bankers Life and
Casualty Company v. United States, 142 F.3d 973, 978 (7th Cir.
1998). Moreover, the Government contests the revenue ruling's
classification of the Aircraft Machine Gun. The Government avers
that it will present testimony and other evidence to establish
that the gun is in fact a machine gun under § 922(o). Since the
gun's classification is an element of a § 922(o) offense, it is
obviously a jury question. As such, Fleischli is incorrect to
assert that revenue ruling 55-528 mandates dismissal.
Fleischli next argues that the indictment should be dismissed
because he possessed the firearms in the presence of a licensed
firearm manufacturer and the firearms were under the licensed
manufacturer's control. Section 922(o) makes it unlawful to
possess a firearm; it does not matter where or in whose presence
a person possesses it. Furthermore, since possession is an
element of the offense it is a factual issue for a jury to
decide. See United States v. Lloyd, 71 F.3d 1256 (7th Cir.
In a more sweeping effort to have Count I dismissed, Fleischli
argues that § 922(o) should be stricken as an unconstitutional
exercise of the Commerce Clause. The Seventh Circuit rejected
this argument in United States v. Kenney, 91 F.3d 884 (7th Cir.
1996). In Kenney, the Seventh Circuit found Congress had a
rational basis to regulate the local conduct of machine gun
possession "to effectuate § 922(o)'s purpose of freezing the
number of legally possessed machine guns . . . an effect that is
closely entwined with regulating interstate commerce." Kenney,
91 F.3d at 890. The Court stated that "both the nature of the
statute and ...