McKEOWN, Circuit Judge:
We consider whether the district court’s judgment of acquittal under Federal Rule of Criminal Procedure 29(a) was related to factual guilt or innocence and thus constitutes a “genuine acquittal,” the government’s appeal of which is barred by the Double Jeopardy Clause. John Gilbert Ogles was charged under 18 U.S.C. §§ 922(b)(3) and 924(a)(1)(D) with willfully selling and transferring physical possession of a firearm to a non-resident of the state in which he was licensed to deal firearms (Count One) and willfully engaging in the business of dealing firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (Count Two). At the conclusion of the government’s case, the district court granted Ogles’ Rule 29(a) motion for a judgment of acquittal as to Count Two, concluding that Ogles was a “licensed dealer under the statute” and thus not in violation of selling firearms without a license. The jury convicted Ogles on Count One. Ogles appeals his conviction as to Count One; the government appeals the judgment of acquittal as to Count Two.
Although we took the entire case en banc, the primary issue that concerns us is our jurisdiction to address the government’s appeal. We adopt section 11(A) of the panel opinion, which affirms Ogles’ conviction on Count One. United States v. Ogles, 406 F.3d 586 (9th Cir.), reh’g en banc granted, 430 F.3d 1221 (9th Cir.2005). As to Count Two, we hold that the judgment of acquittal represented a ruling that the evidence was “ ‘legally insufficient to sustain a conviction.’” Smith v. Massachusetts, 543 U.S. 462, 125 S.Ct. 1129, 1135, 160 L.Ed.2d 914 (2005) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)). Consequently, the government’s appeal is barred by the Double Jeopardy Clause.
BACKGROUND
Ogles, a California resident, held a federal firearms license that listed his place of business, “Belleau Wood Gunsmithing & Firearms,” as located in California. In June 2002, at a gun show in Arizona, Ogles sold a firearm to Michael Buda, an Arizona resident. Ogles was indicted on two counts. Count One of the indictment charged Ogles with “willfully ... sellpng] and delivering] to Michael Buda a firearm ... knowing and having reasonable cause to believe that Michael Buda at the time of the sale and delivery did not reside in the State in which the licensee’s place of business was located,” in violation of §§ 922(b)(3) and 924(a)(1)(D). Section 922(b)(3) provides that “[i]t shall be unlawful for any ... licensed dealer ... to sell [1098]*1098or deliver ... any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee’s place of business is located.”
Count Two of the indictment charged Ogles with “willfully engaging] in the business of dealing firearms without a license, that is outside the State in which the licensee’s place of business was located,” in violation of §§ 922(a)(1)(A) and 924(a)(1)(D) (emphasis added). Curiously, the indictment included a locality requirement, which the text of the statute does not. Section 922(a)(1)(A) provides only that “[i]t shall be unlawful — for any person — except a ... licensed dealer [ ] to engage in the business of ... dealing in firearms.” (Emphasis added). Section 924(a)(1)(D) provides that whoever “willfully violates” these provisions shall be fined, imprisoned up to five years, or both.
At trial, the government introduced evidence regarding Ogles’ conduct at the gun show, including testimony from Buda that he did not fill out any paperwork for his purchase and that Ogles handed over the firearm at the gun show after seeing Buda’s Arizona driver’s license. Two witnesses, both licensed to sell firearms in Arizona, testified that they informed Ogles that he could not physically transfer firearms to purchasers at the Arizona gun show.
At the close of the government’s case, Ogles moved for a judgment of acquittal pursuant to Rule 29(a). With respect to Count Two, Ogles argued that § 922(a)(1)(A) applies only to an unlicensed dealer and that he was a licensed dealer. The government opposed the motion, taking the position that a federal firearms license is location specific and that a licensee like Ogles who sells firearms outside of his designated area acts in an unlicensed capacity within the meaning of § 922(a)(1)(A). The district court adopted the reasoning of United States v. Caldwell, 49 F.3d 251, 252 (6th Cir.1995), which held that § 922(a)(l)(A)’s prohibition against dealing in firearms without a license is not violated when the defendant has a federal firearms license, even if he sold firearms away from the licensed premises. The district court granted the motion on Count Two and reserved decision on Count One, stating:
The Court finds that the defendant is a licensed dealer under the statute, and therefore — and the issue still remains as to Count 1 as to whether or not he engaged in his improper transaction. But in any event, he was a licensed dealer under the statute at the time the transaction took place. Therefore, the judgment of acquittal is appropriate as to Count 2 of the indictment.
The jury convicted Ogles on Count One, after which the district court denied the Rule 29(a) motion as to that count as well as Ogles’ motion for a new trial. Ogles was sentenced to twenty-four months of supervised probation, three months of home confinement, and a $100 special assessment.
ANALYSIS
I. CONVICTION ON COUNT ONE
Our primary concern is the government’s appeal of the judgment of acquittal as to Count Two. We diverge, however, from our main inquiry to address certain representations made by the government for the first time during oral argument before the en banc panel. Solely on the basis of those statements the dissent concludes that Ogles’ conviction on Count One “is plainly and simply a ‘wrongful conviction.’ ” Dissent at p. 2504 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). We disagree:
During oral argument, the government suggested for the first time that a defen[1099]*1099dant cannot be convicted under both § 922(b)(3) and § 922(a)(1)(A)-i.e., as a licensed and unlicensed dealer-with regard to the same conduct. The government stated that when the case was charged and indicted, it believed Ogles was appropriately charged with both counts. Although the government claimed that it re-evaluated its position in light of the three-judge panel opinion, it continued to press its original position as late as the filing of its response to the petition for rehearing en banc.
The government's current position is unclear. On the one hand, the government advised that Ogles' conduct is best understood as "unlicensed" and thus falls under § 922(a)(1)(A) (Count Two), on which he was acquitted, rather than under § 922(b)(3) (Count One), on which he was convicted. At the same time, the government represented that it would concede the invalidity of the § 922(b)(3) conviction only if we conclude that double jeopardy does not bar the government's appeal, and if we agree with the government's legal theory as to the merits of § 922(a)(1)(A) and remand the acquitted Count Two for a new trial. Although the dissent interprets these representations as a "concession"which we must accept-that the § 922(b)(3) conviction is invalid, Dissent at p. 1108, to take that position is to fall into one of two traps.
One trap is to read a non-concession as a concession. When a party says that it would concede a point but only if we already agreed with that party's position, the party has made no concession at all. This logic may be more distasteful when applied to government counsel, but the logic still remains.
The other trap is, in effect, to allow ourselves to be "bound by the government's statement of the law." Dissent at p. 1107. We are not bound by a party's concession as to the meaning of the law, even if that party is the government and even in the context of a criminal case. See United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987) ("Even if a concession is made by the government, we are not bound by the government's erroneous view of the law." (internal quotation marks omitted)).
The district court properly understood the statute. See Caldwell, 49 F.3d at 252 (holding that a gun dealer's license under 18 U.S.C. § 922(a)(1)(A) is not location-specific). In this respect, we agree with Judge Rymer's dissent in the three-judge panel opinion concerning the meaning of 18 U.S.C. § 922. Ogles, 406 F.3d at 598-600 (Rymer, J., dissenting). If the government believes that additional conduct should be penalized, then its remedy lies with Congress, not with the courts.
For these reasons, we decline to entertain the government's newly minted argument and the convoluted conditions attached to it, which were raised for the first time during en bane proceedings. We also note that Ogles did not appeal his conviction on Count One on the basis of a statutory mismatch. We adopt section 11(A) of the panel opinion, Ogles, 406 F.3d at 589-93, and affirm Ogles' conviction on Count One.
IL ACQUITTAL ON COUNT TWO
The question we address as to Count Two is whether the government may appeal the district court's judgment of acquittal under Rule 29(a).1 The answer to this question lies at the intersection of the [1100]*1100federal statute governing appeals by the United States, 18 U.S.C. § 3731, and the Double Jeopardy Clause. Section 3731 provides that the United States may appeal a “judgment ... of a district court dismissing an indictment ... except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST. Amend. V.
In interpreting the clause, the Supreme Court explained that “[pjerhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy.’ ” Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349 (quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)). Thus, the category of directed acquittals not covered by the Double Jeopardy Clause is quite limited:
Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.
Smith, 125 S.Ct. at 1134; see also id. at 1133 (“[W]e have long held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury ver-diet. This is so whether the judge’s ruling of acquittal comes in a bench trial or, as here, in a trial by jury.” (citations omitted)).
The district court’s judgment of acquittal which was entered at the close of the prosecution’s case falls squarely within the Supreme Court’s directive that a court-directed acquittal “could not be reviewed, on error or otherwise,” without violating the Double Jeopardy Clause. Despite the clarity of the Court’s language, the government argues that the acquittal here is not a “genuine acquittal” because it was based on the district court’s construction of § 922(a)(1)(A), a legal conclusion unrelated to Ogles’ factual guilt or innocence. Additionally, the government suggests the district court’s failure to recite the applicable legal standard for an acquittal is further evidence that it is not a true acquittal.
To understand why the government’s arguments cannot be squared with the Supreme Court’s teachings, it is useful to survey a handful of key cases, beginning with Martin Linen in 1977, that establish the contours of the government’s right to appeal a court-directed judgment of acquittal. These cases underscore that the decisive question has been, and continues to be, whether the district court found the evidence legally insufficient to sustain a conviction.
In Martin Linen, after a “hopelessly deadlocked” jury was discharged, the district court entered judgments of acquittal under Rule 29(c).2 The Court noted that, even if the “acquittal was based upon an egregiously erroneous foundation, ... Nevertheless, ‘[t]he verdict of acquittal was final, and could not be reviewed ...
[1101]*1101without putting [the defendants] twice in jeopardy, and thereby violating the Constitution.’ ” Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349 (emphasis added) (quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962) (per curiam)). In addition, the Court explained that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action. Rather, [it] must [be] determine^] whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. (citations and footnote omitted) (emphasis added). The judgments of acquittal under Rule 29(c) were, according to the Court, “ ‘acquittals’ in substance as well as form ... [because] the District Court ... evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.” Id. at 571-72, 97 S.Ct. 1349.
The government in Martin Linen urged that entry of acquittal after the jury was discharged was somehow distinct from an acquittal under Rule 29(a) or (b), which is entered before discharge of the jury. The Court rejected this temporal distinction:
[I]f the judge orders entry of judgment of acquittal on his own or on defendant’s motion prior to submission of the case to the jury, as he may under Rule 29(a), or after submission but prior to the jury’s return of a verdict, as authorized by Rule 29(b) — and the jury thereafter is discharged — the Government’s argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial.
Id. at 574, 97 S.Ct. 1349. Indeed, far from “weakening the trial court’s binding authority for purposes of double jeopardy,” the timing distinctions in Rule 29 were designed to “accord[] the federal trial judge greater flexibility in timing his judgment of acquittal.” Id. at 573, 97 S.Ct. 1349. Emphasizing the sanctity and finality of acquittals under Rule 29, the Court concluded “that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29(c) after a jury mistrial no less than under Rule 29(a) or (b).” Id. at 575, 97 S.Ct. 1349.
One year after Martin Linen, the Supreme Court weighed in again on the double jeopardy issue in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), a case that figures prominently in the 2495 government’s brief. Scott concerned a defendant who successfully obtained dismissal of the indictment “based upon a claim of prein-dictment delay and not on the court’s conclusion that the Government had not produced sufficient evidence to establish the guilt of the defendant.” Id. at 95, 98 S.Ct. 2187. Scott moved for dismissal before trial and twice during trial on the ground that his defense had been prejudiced by the delay. The Court determined that the government’s appeal was not barred because the defendant “deliberately cho[se] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense.” Id. at 98-99, 98 S.Ct. 2187.
In making the government’s right to appeal contingent on the “character” of the midtrial termination, Scott overruled United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). Jenkins had established that “regardless of the character of the midtrial termination” — i.e., whether it was an “acquittal” or a dismissal on other grounds — a government appeal would be barred if reversal would require “ ‘further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.’ ” Scott, 437 U.S. at 94, 98 S.Ct. 2187 (quot[1102]*1102ing Jenkins, 420 U.S. at 370, 95 S.Ct. 1006). Overruling Jenkins, the Court explained that the double jeopardy concern of oppressive tactics by an “all-powerful state,” which figured prominently in its broad holding in Jenkins, was a “far cry” from the situation in Scott, where “ ‘the defendant elected to seek termination of the trial on grounds unrelated to guilt or innocence.’ ” Scott, 437 U.S. at 96, 98 S.Ct. 2187 (emphasis added). Throughout Scott, the Court contrasts the situation of a midtrial dismissal “on grounds unrelated to guilt or innocence,” id., with an “acquittal” resolving guilt or innocence:
A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.
Id. at 91, 98 S.Ct. 2187. Leaving no doubt of its position, the Court emphasized that “the law attaches particular significance to an acquittal ... however mistaken the acquittal may have been.” Id.
To clarify the distinction between acquittals and other midtrial dismissals, Scott invoked the definition of acquittal established in Martin Linen: “ ‘the ruling ... actually represents a resolution ... of some or all of the factual elements of the offense charged.’ ” Scott, 437 U.S. at 97, 98 S.Ct. 2187 (quoting Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349). Thus, “[wjhere the court, before the jury returns a verdict, enters a judgment of acquittal pursuant to Fed. Rule Crim. Proc. 29, appeal will be barred only when ‘it is plain that the District Court ... evaluated the Government’s evidence and determined that it was legally insufficient to sustain a conviction.’ ” Scott, 437 U.S. at 97, 98 S.Ct. 2187 (quoting Martin Linen, 430 U.S. at 572, 97 S.Ct. 1349).3 Although the government mistakenly cites this passage to support a more restrictive definition of “acquittal,” the Court’s subsequent decision in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), reinforces the limited application of Scott — -i.e., to situations where a defendant seeks dismissal for reasons unrelated to factual guilt or innocence. Thus, Scott should be read as creating a narrow exception to the most fundamental rule in double jeopardy jurisprudence.
In Smalis, the defendants filed a demurrer pursuant to Pennsylvania Rule of Criminal Procedure 1124(a)(1), which, like Rule 29(a), permits a defendant to “challenge the sufficiency of the evidence to sustain a conviction ... at the close of the [prosecution’s] case-in-chief.” Id. at 141, 106 S.Ct. 1745 n. 2. Relying “heavily” on the same language in Scott that the government invokes here, id. at 142, 106 S.Ct. 1745, the Supreme Court of Pennsylvania held that double jeopardy did not bar the prosecution’s appeal of the trial court’s decision to sustain the demurrer:
“In deciding whether to grant a demurrer, the court does not determine whether or not the defendant is guilty on such evidence, but determines whether the evidence, if credited by the jury, is legal[1103]*1103ly sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt.... [T]he question before the trial judge in ruling on a demurrer remains purely one of law.’’
Smalis, 476 U.S. at 143, 106 S.Ct. 1745 (emphasis added) (quoting Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394, 401 (1985)).
The Pennsylvania Supreme Court’s conclusion, namely that the trial court was making a legal determination rather than a determination of guilt or innocence, has a familiar ring as it echoes the government’s position here. But the Supreme Court rejected that rationale and position because “[w]hat the demurring defendant seeks is a ruling that as a matter of law the State’s evidence is insufficient to establish his factual guilt.” Id. at 144, 106 S.Ct. 1745. Noting that its past decisions firmly established that such a ruling is an acquittal for double jeopardy purposes, the Court clarified that “Scott does not overturn these precedents; indeed, it plainly indicates that the category of acquittals includes ‘judgment[s] ... by the court that the evidence is insufficient to convict.’ ” Id. (alteration in original) (quoting Scott, 437 U.S. at 91, 98 S.Ct. 2187). Just last term, in Smith v. Massachusetts, the Supreme Court revisited the question of what constitutes an acquittal for double jeopardy purposes. The defendant successfully moved for an order entering “a finding of not guilty” at the conclusion of the prosecution’s case under Massachusetts Rule of Criminal Procedure 25(a), which is analogous to a Rule 29 motion. Smith, 125 S.Ct. at 1135 (noting that “Massachusetts patterned its Rule 25 on Federal Rule 29”). Although the Commonwealth characterized the grant of such a motion as “a purely legal determination,” id. at 1134, the Court once again rejected this argument, concluding that “what matters is that, as the Massachusetts rules authorize, the judge ‘evaluated the [Commonwealth’s] evidence and determined that it was legally insufficient to sustain a conviction,’ ” id. at 1135 (alteration in original) (quoting Martin Linen, 430 U.S. at 572, 97 S.Ct. 1349).
Here, the government similarly contends that the district court’s ruling is a purely legal determination unrelated to factual guilt or innocence and is not, therefore, a genuine acquittal. Specifically, the government argues that the district court’s decision rested solely on its resolution of a statutory construction issue — that the term “licensed dealer” in § 922(a)(1)(A) is not location-specific.
As the Supreme Court’s unbroken line of decisions makes abundantly clear, the determinative question is whether the district court found the evidence legally insufficient to sustain a conviction. Without a doubt, the district court did so. In deciding the Rule 29(a) motion, the district court adopted the Sixth Circuit’s interpretation of § 922(a)(1)(A) in Caldwell and concluded that the term “licensed dealer” does not have a geographic component. After adopting this interpretation, the district court determined that a factual element of the offense — namely, that Ogles was dealing firearms without a license at the time of the challenged conduct — had not been proven. Notably, the district court stated: “The Court finds ... that the defendant was a licensed dealer under the statute at the time the transaction took place. Therefore, the judgment of acquittal is appropriate as to Count [Two] of the indictment.” The judgment here was an acquittal in substance as well as form — a determination that the evidence was insufficient to convict. Whether this determination was ultimately correct or “egregiously erroneous” is not relevant in evaluating double jeopardy. Martin Linen, 430 U.S. at 571, 97 S.Ct. 1349.
[1104]*1104The government suggests that because Ogles did not contest his licensed status, the district court’s ruling did not meet the Supreme Court’s definition of acquittal— that “whatever its label, [it] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. The Court’s double jeopardy decisions do not, however, condition an acquittal under Rule 29(a) on the district court’s examination of contested facts. Here, the district court determined that a factual element of the offense had not been proved by the government. "What is this if not a “resolution”?
Nor do we credit the government’s argument that the acquittal is somehow flawed by the absence of recitation of the legal standard. That the district court did not recite the text of Rule 29(a) or employ a specific phrase, such as “evidentiary insufficiency,” is not determinative. As Smith makes clear, “what matters is that, as [Rule 29] authorized], the judge evaluated the [government’s] evidence and determined that is was legally insufficient to sustain a conviction.” 125 S.Ct. at 1135 (internal quotations omitted). We conclude the district court did exactly that and, therefore, the Double Jeopardy Clause bars the government’s appeal.
AFFIRMED as to Count One. APPEAL DISMISSED as to Count Two.