Whether the National Firearms Act's language regarding 'destructive device' defines an essential element of the crime or an affirmative defense

QUESTION PRESENTED The National Firearms Act criminalizes the unregistered possession of a narrow subset of inherently dangerous “firearms,” including a “destructive device.” 26 U.S.C. § 5861(d). Under the Act, “destructive device” is defined by reference to two categories of military-style ordinance and artillery—like bombs, grenades, mines, and large-projectile launchers—plus combinations of parts designed or intended to be converted into such weapons. Id. § 5845(f)(1)-(3). The same definitional provision clarifies, however, that “[t]he term ‘destructive device’ shall not include any device which is neither designed nor redesigned for use as a weapon.” Id. § 5845(f). The circuits openly disagree over the meaning and significance of this limiting language in the context of a § 5861(d) prosecution. On one view, applied by the Fifth Circuit below, the language creates an affirmative defense to liability. The opposing view, in contrast, holds that the language identifies design (or redesign) for use as a weapon as an essential characteristic of a covered destructive device, and thus an element of the crime. The question presented is: Whether the Act’s instruction that the term destructive device “shall not include any device which is neither designed nor redesigned for use as a weapon” describes an essential feature that the government must prove in order to obtain a conviction under 26 U.S.C. § 5861(d), or instead sets forth an affirmative defense. @) ii RULE 14.1(b)Gii) STATEMENT This case arises from the following proceedings in the District Court for the Southern District of Texas and the Court of Appeals for the Fifth Circuit: United States of America v. Brannan, No. 2:22-cr00184 (S.D. Tex.); United States of America v. Brannan, No. 23-40098 (5th Cir.). No other proceedings in state or federal trial or appellate courts, or in this Court, directly relate to this case.