Caron v. United States

RESPONDENT:United States
LOCATION:The White House

DOCKET NO.: 97-6270
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 524 US 308 (1998)
ARGUED: Apr 21, 1998
DECIDED: Jun 22, 1998

Jonathan E. Nuechterlein – Department of Justice, argued the cause for the respondent
Owen S. Walker – Argued the cause for the petitioner

Facts of the case

18 USC section 922(g)(1) forbids a person convicted of a serious offense to possess any firearm. Section 924(e) requires that a three-time violent felon who violates section 922(g)(1) receive an enhanced sentence. Section 921(a)(20) provides that a previous conviction is not a predicate for the substantive offense or the enhanced sentence if the offender’s civil rights have been restored, “unless such… restoration… expressly provides that the person may not… possess… firearms.” In 1993, Gerald Caron was convicted of possessing six rifles and shotguns in violation of section 922(g). The District Court enhanced Caron’s sentence based, in part, on three Massachusetts convictions. In vacating his sentence, the Court of Appeals concluded that a Massachusetts law that permitted Caron to possess rifles, but not handguns, had restored his civil rights. On remand, the District Court found that, because Massachusetts law allowed Caron to possess rifles, section 921(a)(20)’s “unless clause” was not activated. The Court of Appeals reversed.


Does 18 USC section 922(g)(1), which forbids felons from possessing firearms and enhances their sentences for a violation, apply to a felon who is allowed under state law to possess rifles and shotguns but not handguns?

William H. Rehnquist:

We’ll hear argument next in Number 97-6270, Gerald Caron v. The United States.

Spectators are admonished do not talk until you get out of the courtroom.

The Court remains in session.

We will wait just a minute, Mr. Walker.

Owen S. Walker:

Thank you.

William H. Rehnquist:

Mr. Walker.

Owen S. Walker:

Mr. Chief Justice and may it please the Court:

If a person is pardoned or has civil rights restored, the statute at issue says his conviction is considered a predicate conviction under Federal firearms law only if the pardon or restoration of rights expressly provides that he may not ship, transport, possess, or receive firearms.

My client’s… when my client’s rights were restored, Massachusetts law told him that he could possess rifles and shotguns and, indeed, possess a handgun in his home.

He’s now serving an additional 12 years on his sentence for possessing the very firearms that Massachusetts law told him that he could possess.

We say it’s self-evident that the statute… that it cannot be said that Massachusetts expressly provides that he could not ship, transport, possess, or receive firearms.

Antonin Scalia:

Of course, if we accept your interpretation of the law it wouldn’t matter that the firearms he had were the kind that Massachusetts allows him to have.

Even if he had the kind that Massachusetts didn’t allow him to have he would not be subject to this provision of the statute.

Owen S. Walker:

That is the… what the statute literally says, and it is the… we contend the only literal reading of the statute.

If the Court chooses to follow that literal reading, that is fine as far as my client is concerned.

Sandra Day O’Connor:

What is the literal reading?

Would you go through that again?

Owen S. Walker:

The literal reading is that if the… a conviction… if a pardon says… only if a pardon says you can have no firearms, only if a pardon says no firearms can the conviction be considered a conviction.

This is… he was not told no firearms.

He was told a lot of firearms, indeed, most firearms, and–

Stephen G. Breyer:

He wasn’t pardoned, was he?

Owen S. Walker:

–I beg your pardon?

Stephen G. Breyer:

Was he pardoned?

Owen S. Walker:


His situation is a restoration of civil rights, Your Honor, but the analysis is the same.

The so-called–

Stephen G. Breyer:

That’s where I’m having trouble, because I read this statute… I’d always thought that a felon in possession of a gun was committing a Federal crime.

Then when I read this statute, the words civil rights restored, I discovered that 24 States restore civil rights virtually automatically, so in half the country it isn’t a crime, unless, of course, in those States, and they are a random set thereof, that have some other gun law of their own for their own felons.

And so we have about… I found about, like 11 or 12 of them anyway that seem to say, your rights are restored automatically, they’re never taken away, as soon as you get out of prison, and by the way, you can have guns, so there, I guess, there is no such law.

And then another set, about 11 say you can have some guns and not other guns, and I guess that’s what we have here, right?

Owen S. Walker:

–That’s correct.

Stephen G. Breyer:

So how do we deal with this?

I honestly do not know.

I’m very interested in your–

Owen S. Walker:

Well, I would suggest that the Court should follow the words of the statute.

The statute does not say that a conviction remains a Federal predicate if there are firearms that the pardon, or restoration of civil rights, expressly provides the person can’t have.

It doesn’t say that the conviction remains a predicate if the pardon or restoration of rights restricts firearms privileges, and it would have been very easy for Congress to say those things.

Antonin Scalia:

–I don’t think it has to be read that way.

I mean, you’re taking the literal meaning.

Suppose it just prohibits his not possessing handguns.

Aren’t handguns firearms?

Owen S. Walker:

Well, that’s–

Antonin Scalia:

So in prohibiting handguns it’s prohibiting his possession of firearms.

Owen S. Walker:

–There is a false syllogism in the circuit court’s reading of the statute, and it goes like this.

Let’s say you like lawyers.

You like almost all lawyers, but A, B, and C are particular lawyers that you don’t like, so the syllogism that is false goes like this.

I do not like A, B, and C. A, B, and C are lawyers.

Therefore, I do not like lawyers.

It comes out completely the opposite of the truth, almost completely the opposite.

The fact is, you like lawyers, but if you follow that logic, you end up with almost a contrary meaning.

The statute says no firearms.

It says the State law–

Anthony M. Kennedy:

It does not say that.

I… unless I have the wrong statute.

Owen S. Walker:

–Well… you’re correct, Your Honor.

Anthony M. Kennedy:

It does not say no firearms.

That’s the whole point.

It says, shall not be considered a conviction for purposes of this chapter unless such pardon or restoration expressly provides that the person may not ship, possess, or receive firearms, and it doesn’t say any firearms, it says firearms.

Owen S. Walker:

That’s correct, Your Honor.

For example–

Anthony M. Kennedy:

So you have to be very, very careful.

So you misstated the statute.

Owen S. Walker:

–Well, I beg to differ, Your Honor.

If the Governor told her staffer, draw up the pardon for Smith, and I want it to expressly provide that Smith cannot ship, transport, possess or receive firearms.

The staffer goes and writes those words and also adds… staffer, let’s say, likes hunting and says, but the person can have rifles and shotguns to go hunting.

So the Governor is looking the next day through her papers, is about to sign the pardon, and she looks down and says, what’s this about rifles and shotguns.

I told you to draw up a pardon that expressly provided that Smith couldn’t ship, transport, possess or receive firearms.

It’s perfectly clear what that means.

Antonin Scalia:

Let me take your lawyers example.

It isn’t perfectly clear.

It could mean all or it could mean some, in all of these examples.

Suppose, with lawyers, someone says, I have been cheated by lawyers.

Does that mean I have been cheated by all lawyers?

Owen S. Walker:

That… that–

Antonin Scalia:

I have been cheated by A, B, and C, and wouldn’t I make the statement, I’ve been cheated by lawyers?

Owen S. Walker:

–Well, that is a different… there’s no prohibition in that.

There are no words of prohibition.

For example, if you tell your children, you can’t have candy, and later in the day you find out that they have had some candy, and they said, their answer is, well, you didn’t say that we couldn’t have some candy.

You just said we can’t have candy, and that’s true.

M&M’s, we didn’t eat them, but they are candy, and the parent says, I said you can’t have candy, and the statute says–

Antonin Scalia:

It doesn’t work.

It doesn’t work even for a prohibition.

Suppose you prohibited your child from eating gumdrops, and someone asks you, have you ever prohibited your children from eating candy?

Wouldn’t you reply, yeah, on one occasion I prohibited them from eating gumdrops.

Gumdrops are candy.

I have prohibited them from eating candy.

Owen S. Walker:

–You would say there’s certain candy that I prohibited my child from eating, but if the question is, have you ever expressly told your children not to eat candy, the answer would be no, if you’ve only limited it to M&M’s.

Antonin Scalia:

I wouldn’t say no.

I’d say, on one occasion I told them they couldn’t eat gumdrops.

Owen S. Walker:

Right, I couldn’t eat… but you wouldn’t say, on one occasion I told them they couldn’t eat candy.

Owen S. Walker:

The other person may be asking about their teeth, for example.

Ruth Bader Ginsburg:

Mr. Walker, can we get away from grammar for a moment and say, why isn’t… since you can read this at least three ways, say why isn’t the question, is this person, this ex-felon, now like everybody else with respect to guns, so if he can have guns like someone who never committed a crime, fine.

Then we know that he doesn’t fit in this category, but if he’s not like everyone else, then he does.

Why isn’t that the most sensible reading of it?

Owen S. Walker:

I think that is the most sensible reading.

Ruth Bader Ginsburg:

But your client is not like everyone else because he can’t have handguns on the street.

Owen S. Walker:

Other people can’t have handguns on the street unless they get a special license.

Ruth Bader Ginsburg:

Yes, but as I understand it, under Massachusetts law ex-felons can never be equated to people who never committed a crime because there’s always a prohibition.

Owen S. Walker:

That’s correct, Your Honor.

That’s correct.

But the… well, there’s certainly… I have to address the question of congressional intent, which clearly weighs heavily on our side, deference to State lawmakers, and Justice Breyer has pointed out that 12 or so States make this distinction, the some but not all guns distinction.

The statute is this… the changes were based… in the statute were based on deference to the States.

The name of the statute, Firearms Owners Protection Act, and there’s all kinds of history about how the ATF was bothering innocent-minded people–

David H. Souter:

Yes, but deference I don’t think really… assuming that was the intent, I don’t think that gets you where you want to go, because they could defer in either of two ways.

They could say, if the State legalizes it, it’s okay with us, or they could say, this is a very dangerous situation, and unless the State wants to legalize it across the board and equate the convicted felon with the person who has never been convicted, we’re not taking any chances and we’re going to treat the felon as a felon.

In either case, the Congress would be deferring ultimately to a State determination, but in one case you win, in one case you lose, so deference isn’t going to win the case for you.

Owen S. Walker:

–I disagree, Your Honor.

I think first of all they aren’t… certainly aren’t deferring to the 12 or… 11 or 12 States that make the distinction.

What they’re saying is, we’ll defer to you… if you want to ban all guns, Federal law… for ex-felons, Federal law will coincide.

If you want them to have all firearms, Federal law will coincide.

But if you try to split the difference, if you try to make reasonable compromises about what kinds of guns ex-felons can have, that’s out.

David H. Souter:

There’s no room for the Rule of Lenity here, then.

Owen S. Walker:

Well, there’s… I do not think–

David H. Souter:

Rule of Lenity, I assume, is a compromise rule.

It says, if there is ambiguity, then, in fact, we will apply the Rule of Lenity.

You’re saying you shouldn’t read this as… I think you’re saying that you shouldn’t read this as raising the possibility of ambiguity.

It’s got to be read 100 percent in my favor.

Owen S. Walker:

–I am just saying… I am saying, Your Honor, that there was only one reading that is grammatically correct that the ordinary person who had a pardon that says on it, pardon, you can have all the hunting guns you–

Ruth Bader Ginsburg:

I thought we’re not talking about a pardon.

We’re talking about a statutory–

Owen S. Walker:

–Well, there… if Your Honor please, the issue of some but not all is exactly the same for the pardon as it is for restoration of civil rights.

Indeed, I suggest that the reason the lower courts, or some lower courts read this wrong is, they got into this whole question of restoration of civil rights, which has confounded all kinds of courts on all kinds of issues.

The simplest example is the some but not all pardon, the person that holds the pardon that says that he can have rifles and shotguns but not handguns.

He looks at it, says I can have rifles and shotguns, he looks at the statute and he says, does this statute expressly provide that I can’t have firearms?


It says I can have most firearms.

Antonin Scalia:

–That’s why I couldn’t understand why you were running away from the Rule of Lenity that Justice Souter brought up.

The Rule of Lenity cuts in your favor, doesn’t it?

Owen S. Walker:

Well, I think it does ultimately.

It’s certainly in my brief, and I–

Antonin Scalia:

It says only if you’re totally prohibited will this criminal law apply to you.

If you’re only partially prohibited it won’t.

That’s the more lenient interpretation.

Owen S. Walker:

–I agree, Your Honor, completely, but I do think the Government’s attempt to come up with a different interpretation of the literal interpretation is very strange, this question about there’s four verbs in the statute rather than only one; that suddenly changes the whole meaning of the statute; that’s why the First Circuit was right; they didn’t realize it, but it was because there were four verbs there.

I don’t think that cuts the mustard, and therefore I don’t think the Rule of Lenity is necessary, but reasonable people may disagree.

John Paul Stevens:

May I interrupt just a minute, because the question is, is it not… the question is whether Massachusetts law, which has restored the civil rights, expressly provides that a felon may not ship, transport, possess, or receive firearms, and does… is it not clear the Massachusetts law does provide that a felon may not possess, transport or ship certain firearms that other people can–

Owen S. Walker:

There are firearms which Massachusetts law–

John Paul Stevens:

–Well then, why isn’t the plain language against you?

That’s what I don’t quite understand.

Owen S. Walker:

–There is a difference between, there are certain items that are–

John Paul Stevens:

The question is whether what he cannot ship, transport, or possess is a firearm, and there are certain firearms that he may not ship, transport, possess or receive.

Owen S. Walker:

–Exactly, Your Honor, and if Congress had–

John Paul Stevens:

And other citizens may.

Owen S. Walker:

–If Congress had said that–

John Paul Stevens:

But that’s what it did say.

Owen S. Walker:

–No, it said… it doesn’t say, if there are firearms–

John Paul Stevens:

No, it says, unless such pardon, restoration… expressly provides that the person may not ship, transport, possess or receive firearms.

Owen S. Walker:


John Paul Stevens:

And it does.

Owen S. Walker:


John Paul Stevens:

His restoration of civil rights is not total.

It is limited by the fact that he may not possess, transport or receive certain firearms.

Owen S. Walker:

I dis… I completely agree that there are firearms that Massachusetts prohibits the ex-felon from having, but I disagree that Massachusetts expressly provides that a felon may not have firearms.

An express provision–

John Paul Stevens:

Well, he may not have those firearms, the ones that he’s prohibited from having.

Owen S. Walker:

–That’s correct, but when you say candy is prohibited to a child… I expressly provide you can’t have candy, you’re saying to the child, no candy, no M&M’s or whatever.

Anthony M. Kennedy:

Mr. Walker, I think I agree with your analysis generally that when a prohibition is expressed without qualification… no candy, no firearms… that means absolutely none, and that’s not what we have here in Massachusetts.

I’ll grant you that.

The trouble with that analysis, and the trouble with saying therefore plain meaning governs in your favor, is that it leads to a crazy result which I find it very difficult to believe Congress could have intended, because it… I mean, it leads to the result of saying that the fact that Massachusetts draws a line, and we are referring to Massachusetts law at least for some purpose here, the line is nonetheless irrelevant.

And it seems to me that it is the strangeness of that result which it is very difficult for me to believe that Congress could possibly have intended.

E.g., Massachusetts says, rifles are okay but no machine guns, the fellow possesses a machine gun and Congress would have meant to say, machine guns are therefore fine.

That’s hard to accept.

Isn’t that the problem with your case, and isn’t that why we should not look at this as a plain meaning case?

Owen S. Walker:

If Your Honor please, the only literal… my position is, the only literal reading produces that result, but as the Court recently said, a literal reading that dramatically separates a statute from its purpose should not be followed that far, and that’s in the Lewis case on any enactment in the Assimilated Crimes Act.

And I would suggest the ordinary person that is holding the pardon that says, you can have rifles, if somebody says, the statute doesn’t expressly provide I can’t have firearms, some clever person comes along and says, this is great, you don’t have a conviction now, therefore you can go out and get concealed weapons and you can go up to the ATF and thumb your nose at them, that’s really great, and the ordinary person isn’t going to say, oh, great.

The ordinary person is going to say, that’s not what my pardon… my pardon doesn’t extend that far.

That’s a nice technical reading.

That’s a nice sort of philosophical cuteness, but it obviously isn’t what Congress probably meant to say.

It’s what Congress said, but it does go beyond the purpose of the statute.

Anthony M. Kennedy:

Take the… take that case, because I’d like to go back to Justice Ginsburg’s question, which I’m not certain I see the answer to.

Say, does Virginia’s law prohibit felons from having firearms?

I don’t know.

And if it has some firearms and not others, I’m not sure how to answer the question, so I think it’s ambiguous.

But if it is ambiguous, then what she said applied to pardons or to expungements or to restoration of civil rights, that the basic objective of the statute is to ask whether or not the State is treating this felon as if he’s now like everybody else or whether he isn’t, so if you pardon him, you assume he’s back in the group of people that are like everybody else.

We wiped it out, and the same, en masse, with the civil rights restoration.

But it isn’t wiped out… it isn’t wiped out, and he’s not like everybody else, if that wiping out had a condition attached, which condition was, we’re not treating you like everybody else in respect to firearms.

And now, if that’s the purpose, what’s the point, either in the pardon case, the expungement case or the civil rights case, of insisting that the States say, oh, we’re really not treating you like everybody else in that you can’t even have cannons, atomic bombs, all this stuff.

We have to put it all in there, and why isn’t it enough to say that, well, most of the firearms are in there so they’re not like somebody else, or even a significant amount?

Owen S. Walker:

Because in fact–

Stephen G. Breyer:

That’s the policy question.

Owen S. Walker:

–Because in fact, Your Honor, restoration of civil rights does not treat… result in treating somebody as if they’d basically never been convicted.

It’s very narrow.

It’s right to jury, hold public office, et cetera… serve on a jury, hold public office.

And the… in fact, you can be on parole in several States… and Massachusetts is one.

You can be on parole for a long, long time, 20 years.

After 7 years your civil rights are restored, you’re allowed to have some firearms and not other firearms, but the State hasn’t declared you like all other citizens.

Stephen G. Breyer:

The Federal statute is saying when these three happen in respect to firearms, any of these three things, the felon is, in effect, put back in the big pool of everybody, but he’s not put back in the big pool of everybody if that event, which to a degree at least made him like everybody, is conditioned in a firearmsrelated way.

Now, if that’s what we’re doing, why wouldn’t the common sense of it be, is there a significant firearms condition, not is there a perfect complete firearms condition, but just is there a significant firearms condition?

Owen S. Walker:

Well, if Your Honor please, I’m not making myself clear.

A person can have his rights, civil rights restored and every week have to report to a parole officer, every week, or he has to register as a sex offender, let’s say.

He can’t testify in a trial without being impeached.

He’s not trust… he’s considered rather untrustworthy by the State, yet his civil rights have been restored and he’s like everybody else with respect to firearms.

This trustworthiness rationale that the Sixth Circuit came up with and the First Circuit followed does not work.

The person is not treated as being free of stigma, having a clean record.

That is not necessary to be reinstated to one’s firearms rights under Massachusetts law and several other States, so there’s no policy here that… the reason that you… that you can’t have rifles if you can’t have handguns is that basically that means that we don’t really trust you.

In fact, you can have rifles even though we think you should report to a parole officer, should register, or whatever, so there is no policy rationale that supports the Government’s position.

But the question of deference and the Federal deference to State authorities is a very significant one, and it’s… the words of the congressional history about honoring the intent of the States, giving the States flexibility, all cut our way, and it is very odd… it would be, I would say, very odd for Congress to say look, if you want to be able to let your civil-rights-restored felon go hunting, then you’ve got to give him Saturday night specials, concealed weapons, and everything else.

It doesn’t make any sense to suggest–

Anthony M. Kennedy:

Well, I think you can make sense out of the policy that this statute has to be enforced Nationwide.

I mean, this man might well have been arrested in California, and we would have had to look back at the Massachusetts law, and the Federal Government might say if there are any… they didn’t put it in precisely these terms, but their policy might be, if your civil rights have been restored but there is a condition, and you do not have full restoration as to any firearms at all, that’s enough for us.

You cannot carry… you will be deemed a felon in possession for the Federal statute.

That’s a perfectly sensible policy so far as I’m concerned.

Owen S. Walker:

–Well, there… if Congress had said that, if the Congress had said, if there are firearms you can’t possess, and we’re just not going to make these interstate distinctions in that kind of thing, that would be a sensible policy.

But I would… I have to say to the Court that Congress rejected this simplicity rationale in the previous sentence on what defines a conviction, and basically… I don’t know how to say this tactfully, but it basically said that this Court in the Dickerson case, that said you have to interpret the word conviction federally one way, it said… it overruled this Court.

It says, you’ve got to look each time a felon possession case comes up to determine whether the person–

Anthony M. Kennedy:

It didn’t overrule us.

It just changed one of its statutes, which was broken.

Owen S. Walker:

–Well, thank you, Your Honor.


But at any rate, it paid… the parade of… or the problems that this Court pointed out with the other interpretation Congress ignored.

Owen S. Walker:

It said, you’ve got to do a lot of work, judges, here, to figure out what the law is, even though you’re an Idaho case with a Massachusetts prior conviction.

If the Court has no other questions I would ask to reserve.

William H. Rehnquist:

Very well, Mr. Walker.

Mr. Nuechterlein, we’ll hear from you.

Jonathan E. Nuechterlein:

Mr. Chief Justice, and may it please the Court:

In our view the unless clause of section 921(a)(20) means that a past felony conviction counts for purposes of Federal firearms law if the convicting jurisdiction gives continuing effect to the conviction in a manner that relates to firearms.

That is the majority view among the courts of appeals that have addressed this issue.

Under the minority view, which is what the petitioner has supported here, a past State conviction counts for Federal purposes only if the convicting State prohibits its felons from possessing the kind of gun that the felon is caught with in the present–

Sandra Day O’Connor:

Well, the fact that there are these differences of opinion may point in the direction of suggesting that the language is ambiguous, and therefore we have to apply the Rule of Lenity.

Jonathan E. Nuechterlein:

–Well, in our brief we’ve noted that there are two possible grammatical ways to read this language, but one of them is not what petitioner proposes here.

A conviction either counts as a conviction for purposes of Federal law or it doesn’t.

The inquiry under section 921(a)(20) turns on whether a State has restored a felon’s civil rights and, if so, whether it has continued to impose restrictions on his firearms possession.

If that is the case, then the conviction remains a conviction with respect to any firearms that the felon may possess in the present.

It triggers the prohibition under the felon-in-possession statute, section 922(g), that a felon may not possess any firearms.

William H. Rehnquist:

Well, there’s a certain incongruity in saying that you’re following State law and yet… this person was apparently allowed to possess long guns under State law, and yet he’s being prosecuted as a felon in possession.

Jonathan E. Nuechterlein:

Well, Federal law requires a court to look to the law of the convicting jurisdiction for its purpose, and everyone acknowledges that, but the purpose is to determine whether or not that convicting jurisdiction has continued to give the conviction effect with respect to firearms, and that is the only respect in which Federal law defers to State law in this context.

William H. Rehnquist:

So you say it’s not deference across the board.

It’s just deference in one particular.

Jonathan E. Nuechterlein:

That is correct, and it’s important to remember that even under petitioner’s position there are a variety of contexts in which Federal law would criminalize the possession of a firearm by a felon where a State law would not.

For example, in this case petitioner has prior convictions in California and also under Federal law, so no matter what Massachusetts does to restore his civil rights for his Massachusetts convictions, and no matter what Massachusetts says with respect to his firearms privileges, he still remains a felon in possession for purposes of Federal law.

Sandra Day O’Connor:

Yes, but not for sentencing under the three-strikes-you’re-out proposal, because if the Massachusetts convictions don’t qualify then he’d be sentenced differently.

Jonathan E. Nuechterlein:

Well, I think that the fact that this case arises as a 924(e) case dealing with the recidivism sentencing provision, merely serves to emphasize why this reading has to be correct.

It’s implausible to believe that Congress would want the recidivism inquiry, which is… looks to how dangerous this particular person is based on his past convictions–

Sandra Day O’Connor:

Well, I think the reading you espoused may be the one that most closely tracks what Congress must have intended, but I’m not certain that the language requires it, and in that posture I ask you again whether we don’t have to be concerned about the Rule of Lenity.

Jonathan E. Nuechterlein:

–Well, I think again the Rule of Lenity can only be used to advocate a position that is consistent with the statutory text, and this statutory text cannot be read to turn on what kind of firearm a felon happens to possess in the present.

Returning back to the fact that this is a section 924(e) proceeding, it’s very unlikely, we believe, that Congress would want the recidivism inquiry to turn on whether petitioner brought a rifle or a handgun to the scene of his July 1993 assault.

What matters is that with respect to none of these violent felony convictions had the State wiped his slate clean.

Antonin Scalia:

Well, Mr. Nuechterlein–

–Your example assumes not just application of the Rule of Lenity, but also rewriting of the statute pursuant to the Rule of Lenity, because even if you applied the Rule of Lenity, that doesn’t… that gets you to the point where it wouldn’t matter whether he brought a shotgun or a short gun, it would… he would simply be able to have all firearms or be able to have no firearms.

That is to say, even if he had a firearm that was forbidden by the State, if you take the reading given by petitioner, even if he brought a handgun, which the State prohibits, he wouldn’t be sentenced as a recidivist under this provision.

Jonathan E. Nuechterlein:

That is correct, and as this Court has repeatedly stated the Rule of Lenity cannot be used to support a reading of a statute that gives rise to implausible results and that would be one of them.

Ruth Bader Ginsburg:

But I think the–

–That’s what the–

–I was going to yield to Justice Souter the remainder of my time.


There are three possible readings, and I think that the petitioner will take two out of those three, so it doesn’t have to be all or nothing, or–

–Only if you don’t want to make up language that the statute doesn’t contain.

Jonathan E. Nuechterlein:

The Rule of Lenity would not… could not be used to support a reading of the statute that is either implausible or is grammatically incompatible with the language of the statute.

The reading that the First Circuit shows here is the only reading that is both grammatical and plausible.

David H. Souter:

Well, I question the plaus… here’s the problem that I have with the plausibility.

The plausibility problem on the other side I think is clear.

You know, you allow the person under State law to buy a single-shot.22 and he says, that means I can buy a machine gun.

Congress couldn’t have meant that.

The implausibility on your side, though, it seems to me, is this, that on your reading State law becomes a trap.

I find it implausible to believe that Congress wrote that statute having State law in mind as relevant for some purpose, nonetheless assuming that even though State law says you can have the single-shot.22, you follow State law, you do what is lawful under State law, and you still get caught under the Federal statute.

That turns State law into a trap, and that seems to me the source of the implausibility for your all-or-nothing reading.

Jonathan E. Nuechterlein:

I disagree for two reasons.

One is that there are many circumstances in which both State and Federal law address the same subject matter under criminal law, and a person is assumed to both know about and to comply with both, but more importantly, under any interpretation of the statute, and that includes petitioner’s, there will be a broad range of circumstances in which Federal law would criminalize what State law expressly permits, and this is an example of such a case.

If you disregard the three previous Massachusetts convictions it would still remain the case that in 1970 petitioner was convicted of attempted murder in California.

No matter what Massachusetts, the jurisdiction of his long-time residence, says to him about his right to possess firearms, he would still be barred under Federal law from possessing them.

David H. Souter:

Okay, but he would not be barred, in effect, through the use of the Massachusetts scheme as a pitfall, or as a trap for him.

Federal law would straightforwardly say, no.

But this is not a case where State… I mean, the argument here is not a case where Federal law is straightforwardly saying no.

Federal law is making a reference to State law.

State law says it’s okay, and then Federal law in effect says, well, on one all-or-nothing grammatical reading, that isn’t good enough.

That’s a strange scheme when you’re dealing with convicted felons.

Jonathan E. Nuechterlein:

Well, Federal law in our view does, in fact, expressly prohibit possession of a firearm by a felon if the convicting jurisdiction has not… or has continued to give effect to his conviction in a manner that relates to firearms.

David H. Souter:

In any way.

Jonathan E. Nuechterlein:

But even in Massachusetts, even if you look only at Massachusetts, then there are two additional circumstances under which the Federal law prohibition will be broader than the State law prohibition under anybody’s construction of the statute.

For example, he committed a Federal felony in Massachusetts.

Jonathan E. Nuechterlein:

Notwithstanding anything that Massachusetts tells him about his firearms privileges, he is still a felon in possession under the Federal criminal prohibition, and there’s also–

Antonin Scalia:

But he has to commit a felony, and he would say, well, you know… and in the circumstances of this case I don’t feel too sorry for him, because it’s just a question of how much of a penalty he gets for a later felony that he committed, but the statute also covers a case where he hasn’t committed any later felony, and he’s just following the State law which says, you may now possess long guns, and suddenly he’s guilty, nonetheless, of a Federal firearms offense.

Jonathan E. Nuechterlein:

–Justice Scalia, if Congress had wanted simply to track in every respect the State law prohibition it would have been very easy for it to have done that, and it didn’t.

But the more important point is that even if he only had one felony conviction and that felony conviction was in Massachusetts, there is a 2-year window after which Massachusetts restores some of its firearms privileges but does not restore his civil rights.

There are jurisdictions that restore firearms privileges before civil rights, and even with respect to those jurisdictions the Federal prohibition still obtains.

There’s still… because we have a two-step inquiry it’s inconceivable that Congress meant to defer to State law in every respect.

Stephen G. Breyer:

Why wouldn’t… I mean, I don’t understand what Congress was driving at.

That’s what I… and the reason is, as Justice Souter was saying, is it’s plausible Congress could have meant, once the State decides to let these previously convicted felons carry some guns, Federal law jumps out of the business and we leave it up to State law, and he’ll be punished if he’s carrying the kinds of guns he shouldn’t and he won’t be punished if he’s carrying the kinds of guns he should.

I mean, that’s a possible reading of the statute, in which case the anomaly of him being able to carry anything, even if the State lets him carry some things, is no longer anomalous.

Jonathan E. Nuechterlein:


It’s important, though–

Stephen G. Breyer:

So that’s a possible reading.

What I can’t get at is, what was Congress up to?

I mean, as I said before, it seems to me that with this word civil rights they’ve sort of taken this statute away from half the country, and then when you start looking to how these 24 States get back into it there’s a whole nightmare of different rules and regulations as to when some guns can be carried and you can’t carry others, et cetera.

So what was Congress doing, in other words, if it didn’t mean to take the Federal Government out of the business entirely in respect to prior felons if the State was willing to let those prior felons carry some guns?

What other purpose could Congress have had?

Jonathan E. Nuechterlein:

–It’s important to remember the historical backdrop against which Congress legislated.

Up till 1986 it was always a felony for a felon to possess firearms if he had a State conviction for a felony, notwithstanding anything the State had done to restore his rights, either monolithically or partially.

Congress then began in this legislation with the presumption that felons are too dangerous to have firearms, but it made an exception in cases where a State has decided not to give continuing effect to the conviction for purposes of civil rights for firearms privileges, and that is the bright-line rule that Congress imposed here, and it is a rule of national application.

Ruth Bader Ginsburg:

Am I right in understanding that there was a lot of labor lost, if your interpretation is correct, with all the time that the First Circuit spent figuring out if civil rights had been restored?

That was academic.

They should have gone right to the gun prohibition.

They should have seen that X felon for life is barred from carrying at least some guns, and that’s the end of it.

Jonathan E. Nuechterlein:

Well, the district court had never reached the firearms restriction question, because under binding First Circuit precedent–

Ruth Bader Ginsburg:

But shouldn’t the district court have gone right to that question?

Jonathan E. Nuechterlein:

–It was–

Ruth Bader Ginsburg:

Why get into this whole hassle about whether civil rights had been restored if the Federal legislation means so long as the State bars you from carrying any gun you don’t come out from this category?

Jonathan E. Nuechterlein:

–It was because at the time the district court ruled, the First Circuit law was crystal clear.

If you hadn’t received an individualized pardon or restoration of civil rights, then that was the end of the inquiry, so that was the simplest basis on which the district court could have resolved the case, and it was on that basis that the First Circuit then revisited its earlier precedent.

Stephen G. Breyer:

What do… if my… the question I just asked you… you remember that one?

Jonathan E. Nuechterlein:


Stephen G. Breyer:

All right.

That wasn’t necessarily my view, but suppose the view that underlay that question was right, then I guess when you went back to the history of this statute, they would have not just… they would have been gutting the prior law, so you would have thought that there would have been huge arguments about it, whether this basic statute, you know, that forbids felons to possess guns was really going to be… half of it chopped away.

There would have been an enormous argument.

On the other hand, on your reading of it, it makes a kind of odd, bizarre, but narrow exception that has weird, jagged edges.

Very well, maybe there wasn’t a lot of debate about that.

Maybe it went unnoticed.

Well, when you look into this, what was it?

What was the debate like?

I mean, what was the discussion like when they passed this statute?

Jonathan E. Nuechterlein:

There wasn’t–

Stephen G. Breyer:

Was this meant to be a major change in the statute that really would have eradicated half the statute, or was it meant to be some minor thing?

Jonathan E. Nuechterlein:


In fact, the statute does not reflect a belief by Congress that it was overhauling the Federal felon-in-possession prohibition.

Congress was responding to this Court’s decision in Dickerson that held that whether something should be counted as a conviction to begin with under… for purposes of the statute, this Court had held that that question should be held purely as a matter of Federal law.

What was at issue there was a State procedure of deferred adjudication, and this Court held that even though the State didn’t characterize deferred adjudication as a conviction, that it would be deemed a conviction for purposes of Federal law, so that was… that, along with situations where someone is given a blanket pardon and his conviction is treated as a nullity, were the two situations that Congress was focused on.

Ruth Bader Ginsburg:

How many States are there that allow ex-felons free access to guns just like everyone else?

Jonathan E. Nuechterlein:

States have 50 different approaches to this problem, and I’ve… I couldn’t give you an exact figure, but I do know that most States do not restore firearms privileges immediately upon release from confinement.

That occurs gradually over time.

About half the States–

Antonin Scalia:

You mean, even for embezzlers and bigamists?

Jonathan E. Nuechterlein:

–I think most State statutes are phrased in terms of whether or not you’ve committed a felony.

Antonin Scalia:

No matter what felony, whether it’s a violent crime or not.

Jonathan E. Nuechterlein:

Some States I think also have fine-tuned this to focus–

William H. Rehnquist:

Maybe embezzlers have their check-writing privileges restored gradually.


I’m trying to find out whether this statute… whether there’s any ex-felon that benefits from this provision.

I’ve had all my civil rights restored, but… so if there are States that say, ex-felon, after a certain amount of time you can buy guns, and you’re subject to the prohibitions that everyone else is, but no more.

If there aren’t States that do that, then I would resist interpreting a statute to do nothing.

Jonathan E. Nuechterlein:

–Justice Ginsburg, there are States that do that.

Jonathan E. Nuechterlein:

The question is how long it takes for firearms privileges to be restored.

About half of the States in the Federal system are all-or-nothing States, such that they either prohibit possession of all firearms, or they permit possession of all firearms after a certain point.

Some States, like Vermont, restore firearms privileges immediately upon release from prison.

Others take 10 years, 15 years, but there are a substantial number of cases… there are a substantial number of States in which firearms privileges are either completely withheld or completely restored.

Ruth Bader Ginsburg:

And in Massachusetts your view is that no ex-felon… the Massachusetts conviction will always stick because there’s always a bar on at least some gun possession.

Jonathan E. Nuechterlein:

Unless the felon were to have that removed under State law processes.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Nuechterlein.

Mr. Walker, you have 6 minutes remaining.

Owen S. Walker:

May it please the Court, unless the Court has further questions, I have no further argument.

Ruth Bader Ginsburg:

Just the difference… the difference… the consequence of this, am I right that it was 120 months versus 262 months?

Is that what we’re–

Owen S. Walker:

The maximum would have been 10 years, that’s correct, Your Honor, so the add-on because of the fact that he did what… well, because of the court’s… circuit’s interpretation of this statute was 12 additional years.

Well, 11 years and 10 months additionally.

William H. Rehnquist:

Thank you, Mr. Walker.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.