522
Scalia, J., concurring in judgment
machinegun) even though the word "make" and its derivatives do not appear in § 5844. This demonstrates, I say, the error of the plurality's interpretation, because it makes no sense to have the firearms regulated by the NFA bear one identity (which includes components of rifles and shotguns) when they are the object of the verb "make," and a different identity (excluding such components) when they are not. Section 5842(a), for example, requires anyone "making" a firearm to identify it with a serial number that may not be readily removed; § 5842(b) requires any person who "possesses" a firearm lacking the requisite serial number to identify it with one assigned by the Secretary of the Treasury. Under the plurality's interpretation, all the firearms covered by (a) are not covered by (b), since a person who "possesses" the components for a rifle or shotgun does not possess a firearm, even though a person who "makes" the components for a rifle or shotgun makes a firearm. For similar reasons, the tax imposed on "the making of a firearm" by § 5821 would apply to the making of components for rifles and shotguns, but the tax imposed on "firearms transferred" by § 5811 would not apply to the transfer of such components. This cannot possibly be right.*
Finally, even if it were the case that unassembled parts could constitute a rifle, I do not think it was established in
*The plurality, as I read its opinion, relies on the derivative of "make" that appears in § 5821, not that appearing (in a quite different context) in the definition of "rifle." See 26 U. S. C. § 5845(c) ("The term 'rifle' means a weapon designed or redesigned, made or remade . . ."). I think it would not be possible to rely upon the use of "made" in § 5845(c), where the context is obviously suggestive of assembled rather than unassembled rifles. But even if the plurality means to apply its interpretation of "make" to § 5845(c), it still does not entirely avoid the problem I have identified. The definition of "any other weapon," another in § 5845's arsenal of defined firearms, does not contain relevant uses of the verb "make" or any derivative thereof. See 26 U. S. C. § 5845(e). It necessarily follows that "any other weapon" will mean one thing when a making tax is at hand but something else when a transfer tax is.
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