Scarborough v. United States – Oral Argument – March 02, 1977

Media for Scarborough v. United States

Audio Transcription for Opinion Announcement – June 06, 1977 in Scarborough v. United States


Warren E. Burger:

We will hear arguments next in 75-1344, Scarborough against the United States.

Mr. Hirschkop, you may proceed whenever you are ready, I think.

Philip J. Hirschkop:

Mr. Chief Justice, may it please the court.

The issue before the court is a rather narrow one here, with very little history or caseload to really draw upon.

The court had the issue before it somewhat in the Bass Case, United States v. Bass, but not precisely, the question raised here which is an extension of Bass.

In Bass, however, the court reviewed the legislative history, as much as there is of it, and concluded the legislative history is of no great force and effect in this case.

I think we have to start again at that touchdown, accepting Bass what it stands for, although it was four members of the court who went as far as I would ask the court to go on this case, and five who went as far as the interpretation that you have to have an interstate commerce nexus for possession whether it be current or not was not reached by the fifth member.

In the legislative history, we only have really the comments of the senator who proposed this amendment, Senator Long.

In fact, three other senators spoke on legislative debate: Senator Domenici, Senator Dodd, and Senator McClellan, each of those three expressed reservations as the amendment itself.

Senator Domenici said “perhaps it has gone too far, we can try and work it out in conference.”

Senator Dodd, who drafted Title IV in the Section 922 corresponding statute, said he was uneasy about it but that they would study it Senator McClellan said it requires further thought.

He said he would try to understand it, but he agreed with Senator Domenici that it may go too far.

It is hard to say what they were talking about.

Looking at Senator Long, it is very clear what he had in mind.

He wanted to stop felons, and I will deal only with the felon section of the statute since that is what this case covered.

He wanted to stop felons from having guns where they can engage in further crime having previously demonstrated that propensity.

Justice Blackmun, in a dissent in Bass, goes to that language in very plain language.

But the majority in the Bass Case points out that all through there is interstate commerce.

In 922, they are requiring interstate commerce in both the receiving and transporting sections, g and h.

In 1202, they site clearly interstate commerce.

The court pursuing that held in Bass that there had to be an interstate commerce nexus.

It is interesting though in Senator Long’s comments in the legislative history.

He says you could own but not possess a weapon.

Then in discussing the possession of a weapon, he goes on further and says very clearly “you should not possess it.

He does not want criminals to have guns.

But, he uses interchangeably a number of times the words “acquire” with “possess” and “taking” with “possess.”

He says this amendment does not seek to do anything about who owns a firearm.

He was concerned with the complaints about Title IV, the Dodd Bill, at that time.

In Bass, the court quotes the statements of Congressman Pollack has very, very small debate in the House of Representatives on it.

Congressman Pollack says one who takes, possess, or receives a firearm across state lines and then has a number of other statements sited in a brief for the respondent.

Philip J. Hirschkop:

What we are left with is a statute with literally no legislative history.

Only the comments of Senator Long which are contradictory in places, although his intent is clear, but it is only his intent.

He never, however, expresses clearly the intent whether it must in fact be that interstate nexus required in the Bass Case.

So the court, then, has to look where to go with the matter.

I would suggest to the court, the place we have to go to the Barrett decision of this court in 1976 which is very interesting in its scope.

In Barrett, it is a 922 case and it does go to a case concerning receiving a firearm that has traveled in interstate commerce.

Justice Blackmun in the majority opinion in Barrett points out that you must look to the specific language of the statute.

Now Barrett is a case on 922 whether is a good deal of legislative history where there were reports from the Congress, there were extensive debates from the Congress.

There was much that could be looked at.

But, Barrett was quoting Justice Blackmun as couched in the present-perfect tense.

It sited a gun that has traveled in interstate commerce or has been shipped or transported in interstate or foreign commerce, it’s the exact language.

Justice Blackmun, looking at it there, writing for the majority, said “you must look at exactly what they meant by the tense itself.”

Now there was discussion between the majority and dissenting views in Bass as to where comments were placed.

I suggest the court that given the legislative history of the lack of it in the Bass case, you can draw no inferences for any comments or lack of them.

But in Barrett, very precisely, the court says, we must look at the tense used, we must look at what legislature ended up saying.

That is particularly pertinent in 1202 with no legislative history to draw upon.

You must look at what they said and deal with what they said or take upon yourselves the tour of legislating.

They pointed out in the Barrett Case, Section 922(k), Justice Blackmun points it out.

He uses the words “in commerce” and that is the same language that’s used in Section 1202, the section before the court now.

Justice Blackmun points out there is no lenity required in examining Section 922, because there are no ambiguities as there were in Section 1202 as pointed out in Bass.

He further points out there was, of course, a great deal of legislative history, but points out interestingly enough that the legislative history pointed in Section 922 similar to that small amount of history on Section 1202 that they want to prevent possession by criminals of handguns.

The scope of who has them is different between the two statutes.

The people under indictment are included in 922 and 1202 has to be people convicted of a felony aside from other classes of people.

But what is clear between the two is congress, in both, had an interstate commerce requirement.

It is in both statutes and it is a question of how the court will apply that.

The sole question, as I see in this case, is what is the degree of nexus?

Can it be current or must it be current?

Can it be past or must it be any nexus?

You approached this in the Rewis case.

Now, Rewis was not a gun case, it was an interstate gambling case under the Travel Act.

Philip J. Hirschkop:

But there, you approached the problem of what is the degree of nexus required?

How much interstate commerce must there be or what degree of interstate commerce must it be for it to be a violation of law?

When you look at the two acts, the 1202 Act is very precisely in current and present tense.

“One who receives, possesses, or transports in commerce, or affecting commerce.”

It’s nothing past in it as opposed to 922, as I read a moment ago.

“Receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

The 922 does not have a proscription against possession, but the language on interstate commerce between the two is very instructive.

I suggest to the court, the only place you can look for an interpretation of 1202 is the language itself and, as you pointed out in Barrett, you must look clearly at the tense used and take that for what Congress meant in the absence of anything else.

In the Bass Case, the Court pointed out that Title VII was not carefully molded to complement Title IV.

In fact, Title VII may be one of the worst examples of legislation in terms of careful consideration on the Congress’s behalf.

It was brought to the floor and read, a week later, it was brought to the floor and read again.

During the first week only comments were made by Senator Long.

During the second week, Senator Long made comments again.

He had a couple of questions from the three other senators and then, it was supposed to go to conference but, for some reason, not clear in the Congressional record, it was immediately voted off and passed.

In Bass, the majority opinion by four justices goes farther than just saying there must be a nexus.

It suggests there is a difference between possession and receipt offenses.

This goes on to state very clearly that more is required for possession offense and this has been treated by the government in their brief as pure dictum.

I do not know if there is such a thing as pure dictum in the opinion of the United States, Supreme Court.

In the Second Circuit, the Bell decision, as in the United States versus Bell, which came down late 1975, they treated that.

They followed the particular position we ask the court to follow in this case.

They took the totally opposite view of the Fourth Circuit.

But there, they sited the difference between what they call obiter dictum and judicial dictum.

They pointed out that the language in Bass was not just judges speculating about something but a specific problem.

It was a problem that was present in Bass while not directly considered by the court in the opinion, not expressly considered.

The court had to inherently consider because the court dismisses Bass, dismisses the indictment eventually saying there is no interstate nexus demonstrate in the record.

The court recognizes, inherently in there, they would have to be an interstate nexus shown to reach a conviction.

The question of whether it needs to be current or past nexus would be inherent in that.

In Bell, the court that is the Court of Appeals of the Second Circuit expressed the view that the possession had to be by a person who contemporaneously was himself traveling in interstate commerce?

Philip J. Hirschkop:

It did not go that far, Your Honor, saying, he had to be in interstate commerce but they went as far as this court went in Bass or that the majority went in Bass that it had to be a current nexus of the interstate commerce.

What do you understand that to be, what do are you contending in this case that possession in commerce means within the meaning of this statute, 1202(a)?

Philip J. Hirschkop:

That the person himself is in commerce where the person himself is engaged.

If the person himself is in commerce and possesses a firearm, then the word “transport” is redundant, isn’t it?

Philip J. Hirschkop:

It may not be, Your Honor and if the person is in an interstate facility, not actually going interstate but somehow affecting commerce.

If he were in an airport or at a railroad station?

Philip J. Hirschkop:

If he is there, Your Honor, and conducting an act, say, a robbery of an interstate facility, the possession there would pertain with transporting or it might not.

What else do you contend, is that all?

Did you think this person can be convicted of possession under this statute only under those circumstances as you just described where the possessor is then in interstate commerce?

Philip J. Hirschkop:

No Sir, if the gun itself is in interstate commerce, there is a clear showing perhaps the gun was passing through his possession, it was a temporary possession of a gun that had not come to rest out of interstate commerce, then that also would pertain.

What sort if a case would that be?

That would be a receipt case, would it not?

Philip J. Hirschkop:

Well, the receipt could well be prior to the time of his conviction, as we have in this case, the Scarborough case, but there could be a contract to sell the gun or a pledge or some kind of adequate legal showing to move the gun again in interstate commerce.

That is the possession for the purpose of sending it in interstate commerce?

Philip J. Hirschkop:


They are constructive ways?

Philip J. Hirschkop:

Yes, Sir.

I think that would cover, I think there will probably be a whole slew of things, our position…

I understand your position in this case, is that, read as extremely as the government suggests the language should be read that the moment he was convicted of another felony, the moment any person is convicted of a felony, if he has at home a firearm, he is automatically then and there guilty of the offense of possession, post-conviction.

Philip J. Hirschkop:

If the government’s construction is true.

Yes, if the firearm was ever moved in interstate commerce.

Philip J. Hirschkop:

Ever previously, yes, sir.

That is basically what the government says, although the government says, as a matter of grace, we would give a little leeway for him to get rid of the gun.

But how about, if after his conviction, he possesses a gun that he did not possess before or at the time of his conviction, if after his conviction, he comes into possession of a gun that has moved in interstate commerce, you would not conceive that the statute covers that situation?

Philip J. Hirschkop:

I am not sure of that, Your Honor.

The problem there is the same thing, I have a difference here between receipt and possession.

Any receipt, even interstate, shows a further movement of the weapon.

Any receipt will show that.

Any coming into possession, after the conviction of felony would show a further movement of the weapon, there has to be an inherent receipt there.

So, interstate commerce will all be to transfer to interstate will not have come to rest.

But once that gun comes to rest in the possession of somebody, in this case it was under a man’s bed for some period of time.

The purpose of my question is to find out what you think the statute does mean.

You have told us what you think it does not mean.

It does not apply to this case in your submission.

Philip J. Hirschkop:

I strongly feel that.

But what does it mean?

It certainly covers a person in possession who is himself, then, traveling in interstate commerce.

Philip J. Hirschkop:

Yes, sir.

But that is also covered by the word “transports.”

If possession has some kind of independent meaning, what does it mean in your submission?

Philip J. Hirschkop:

Well, I believe among things it could mean, Your Honor, is that if the person receives the gun in the instance that you gave after being convicted of a felony and the government cannot make a case on receipt because they cannot show where receipt was for instance.

Where and when.

Philip J. Hirschkop:

They could charge the possession.

Of a gun that has ever traveled in interstate commerce?

Philip J. Hirschkop:

No, that has traveled and come into his possession after the time of his felony conviction.

That would be one of the reasons possession would be to cover that particular loophole.

Do you think the statute would cover that?

Philip J. Hirschkop:

Yes, sir.

Possession acquired after the conviction.

Philip J. Hirschkop:

Yes, sir.

I do not understand, why would that not be receipt?

Philip J. Hirschkop:

It would be receipt, Your Honor, but the government may have difficulty in making a case based on venue problems.

Because they could not prove where and when it was received?

Philip J. Hirschkop:


I see, every possession is presumably preceded by receipt.

Philip J. Hirschkop:

Preceded by — yes sir, but not necessarily the same thing — one circuit, at least the Sixth Circuit, held it was identical with which we take exception of.

Receipt, inevitably, precedes possession, does it not?

Philip J. Hirschkop:

Yes sir, I assume no one was born with a gun, the only way I could see it happening.

Thurgood Marshall:

What if the felon goes out to the airport and picks up from Air Express six guns rapped up in baggage?

Philip J. Hirschkop:

At that moment, he is guilty of the offense of possession within interstate commerce nexus, yes, sir.

Thurgood Marshall:

Well, suppose it was delivered to him outside of the gate of the airport?

Philip J. Hirschkop:

My position would be, Your Honor, as long as he receives that gun after he is convicted of a felony and the gun has previously traveled in interstate commerce, he would be violating the statute.

Thurgood Marshall:

The possession?

Philip J. Hirschkop:

Yes, sir.

Thurgood Marshall:

As Long as when?

Philip J. Hirschkop:

As long as it is after the conviction of the felony, yes sir.

Thurgood Marshall:

But the man is convicted of a felony in March 2nd and he gets a gun which traveled in interstate commerce 13 years ago.

Is he guilty?

Philip J. Hirschkop:

I think that would end up being a factual determination that I cannot approach at this time.

Thurgood Marshall:

These facts in my hypothetical are agreed upon and in affidavit form.

Philip J. Hirschkop:

If the gun came to him through any contact with interstate, he would be guilty.

If the gun came to him through a commercial means, I assume interstate would not have ended and he would be guilty of possession offense.

In other words, in answer to my brother Marshall’s question, you do not contend that the statute means that the interstate commerce has to occur after the conviction in order to support a conviction for possession.

Philip J. Hirschkop:

That is correct, I do not take that position, Your Honor.

Because the possession has to occur for the first time after the conviction.

Philip J. Hirschkop:

Yes, sir.

In your submission?

Philip J. Hirschkop:

Yes, sir.

The gun that has ever moved in interstate commerce?

Philip J. Hirschkop:

As long as it still moves in commerce, whether intrastate or interstate, having previously moved in interstate, the view I have taken is that the intrastate is a continuation or extension of the interstate movement regardless of time, I guess.

May I just pause again, I want to be sure, I get this right.

Your point is that first possession after the conviction for the felony, if you could prove that, that proves the possession offense if you get the previously having been in another state?

Philip J. Hirschkop:

I believe it would Your Honor, yes sir.

But then why is that any easier to prove than the receipt offense?

Because if then you prove when it was first received, could you not presumably prove where it was first received?

Philip J. Hirschkop:

Not necessarily, Your Honor.

I see, it is just that the difference between proving both when and where, and proving when.

Philip J. Hirschkop:

Yes sir, it is pointed out in the Footnote that the respondents recognized that difficulty.

Thurgood Marshall:

In Smith and West, revolver purchased in Virginia has been in interstate commerce.

Philip J. Hirschkop:

Yes Sir, it has.

Thurgood Marshall:

Are you not proving along that?

Philip J. Hirschkop:

Well, for possession, you would have to prove, as we take the position in this case, that he received it subsequent to the time of his conviction of a felony.

Philip J. Hirschkop:

The possession offense would then occur the moment that he received it or continuously there after.

Thurgood Marshall:

How in the world could you prove that?

Philip J. Hirschkop:

The government is very hard pressed to make that kind of proof, no question, Your Honor.

There may be people with him at the time.

Thurgood Marshall:

You do not stand out in the corner and sell the man, a gun.

Philip J. Hirschkop:

No, it is true of many criminal statutes, Your Honor, is that difficulty of proof.

But on the other token, there is this question of lenity and a strict construction of criminal statutes.

I do not think the court can make any great inferences given the legislative history of this particular statute.

I think the court was eminently correct in the Part 3 of the Bass case and that, that is the position the Court has to follow and it is exactly what the Court did in the Barrett Case.

Thurgood Marshall:

In the Barrett case, that was dicta.

Philip J. Hirschkop:

Well, Barrett treated as dicta, but even dicta —

Thurgood Marshall:

That was a later case, was it not?

Philip J. Hirschkop:

Barrett was a ’76 case, yes.

Under a different statute?

Philip J. Hirschkop:

Yes, sir, 922.

It does site Bass for some propositions.

The only thing, I bring to the court’s attention is the fact that the Courts of Appeals, in variously considering the Bass Case, have some of them taken independent views and support of the Bass Case.

The Bell Case in the Second Circuit is such a case.

Walker in the Seventh Circuit gives some support to it also — In fact, in the Walker Case, in a footnote there, the court points out that a federal prosecution of the state offenses historically must be expressly authorized.

That is one of the underlying major problems in the case.

It is an offense that many, many states specifically deal with.

To disregard an interstate commerce nexus would intrude much on the province on the states.

As the Courts point out, several of the Courts of Appeals, the Walker Court, the Bell Court, as this court has pointed out in Bass and Barrett, before such an intrusion is made by the federal judiciary and the federal legislature, there should be a very specific intent expressed by the federal legislature to make such an intrusion.

Thank you.

Warren E. Burger:

Very well, Mr. Hershkoff.

Mr. Allen.

Richard A. Allen:

Mr. Chief Justice, and may it please the court.

I must confess that for Mr. Hershkoff’s comments I am a little confused myself as to exactly what his position is with respect to the elements necessary for the possession offense.

I assume that his position remains from what appears on his brief.

Certainly it is clear that his position is that the statute does not apply to this case.

Richard A. Allen:

That is clear, Your Honor.

The issue in this case is whether Section 1202(a) of the appendix of Title 18 prohibits a convicted felon from possessing a firearm that has previously traveled in interstate commerce, as we contend, or whether it only prohibits a convicted felon from possessing a firearm when that firearm is moving in or is a part of interstate commerce, as I understand the petitioner to contend.

That issue is extremely important to federal law enforcement and the enforcement of the comprehensive gun control legislation that Congress enacted in 1968 for the following reasons.

This is important if the statute did not cover cases like this?

Richard A. Allen:

It would — that is the issue here, Your Honor, it would be extremely important, it would create, in our view.

I know but what you stated is a much broader exclusion than your colleague here seems to.

Richard A. Allen:

As I understand his position, Your Honor, the petitioner’s construction in this case would, in our view, create a substantial gap in the Federal Gun Control Legislation that was enacted in 1968.

Namely those who have possession prior to his conviction for the felony.

Richard A. Allen:

Those among others, Your Honor.

Well he would not exclude any others, would he?

Richard A. Allen:

Well, I believe his construction would tend at least as a practical effect to exclude a large category of other individuals that congress intended to cover.

You mean the one he stated here earlier?

Richard A. Allen:

The petitioner’s construction at least as I understand it from his brief, I am not entirely clear.

Okay, well, go ahead.

Richard A. Allen:

As this court recognized in United States versus Bass, the principal purpose of the entire gun control statute that was enacted in 1968 was to keep firearms out of the hands of convicted felons and other persons of Congress classified as potentially dangerous or irresponsible.

These firearms were in the hands of the petitioner when he was not a convicted felon.

Richard A. Allen:

At least according to his testimony, Your Honor.

That is a proof in this case, is it not?

Richard A. Allen:

That is true.

Do you accept that in this case?

Richard A. Allen:

That is a fact, Your Honor.

He possessed these firearms before he had been convicted of anything.

Richard A. Allen:

He also possessed them after he was convicted of a felony, Your Honor.

That is continuous possession.

Richard A. Allen:

That is right, but, as this court recognized in Barrett, the principal purpose was to keep firearms out of the hands of convicted felons that is out of the hands of felons who had been previously convicted, as petitioner was in this case.

Petitioner’s construction —

Maybe we are engaging in or could engage if we continue the colloquy and double talk, but your view is that once there is a conviction then automatically, he is guilty of this federal offense, if he has, in his house, a firearm.

Richard A. Allen:

Well, I think, Your Honor, a rule of reason would permit a construction of the statute which gave him reasonable time to relinquish possession without being automatically in violation of the statute.

I think that would be a —

Thurgood Marshall:

You have get rule of reason in criminal cases, do you?

Now, when you are talking about statutory language, it either covers or does not.

Ordinarily, after a verdict comes in, there is some laps of time before an accused is sentenced and he certainly has at least that grace period to dispose off the weapons, does he not?

Thurgood Marshall:

Well, I am not sure, Your Honor, if you took a literal construction of the statute.

He would become — it seems to me, a convicted felon at the moment.

And report was final.

Richard A. Allen:

And before he was sentenced.

It does seem to me that the statute would be subject, certainly, prosecutorial discretion, I am sure that the government would never prosecute a person who was attempting to exercise possession so that he could relinquish his possession.

But any offense…

We do not ordinarily apply that kind of an approach to the construction of criminal statutes, do we?

Richard A. Allen:

What kind of approach is that, Your Honor?

The approach that the governments will not enforce literally the terms of the statute, given the governments position on what the statute literally means.

In some situations, there had not been holdings that, until a criminal conviction is final, their impact does not fall for certain statutory purposes.

Richard A. Allen:

Well, in some circumstances, I am sure that is true, Your Honor.

I am afraid I cannot think of that.

I suppose you would not want to conceive this until the man spends two or three years litigating his appeals that he would not be in violation of the statute if he had some firearms.

Richard A. Allen:

We would not want to conceive that, we would contend that if he were in violation — all I am addressing is the technical point of whether at the instant, he became a convicted felon, he would be in violation of the possession offense.

I suppose it is a technical matter that maybe true.

I am not sure that that would militate in favor of the construction the petitioner contends for, particularly in view of the considerations that militate against it.

It does seem to me that petitioner’s construction in this case would exclude very large categories of the very persons that Congress wanted to dispossess or keep firearms away from to have those very firearms.

The reason for that is that Section 922, which is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 which says, as court construed in Barrett, only prohibits a convicted felon from receiving a firearm that has previously traveled in interstate commerce, and only then if he receives it after his felony conviction or after the effective date of the statute.

Mr. Allen, just so I have it clear, under your construction of the statute, the words “receipt” and “transport” are totally redundant, are they not?

Richard A. Allen:

I would have to concede, Your Honor, that they would be encompassed with our construction of the word “possesses.”

My second question is, why do you suppose that Congress wanted federal courts to try all these cases instead of state courts, because these are all offenses that are matters of state law, are they not?

Richard A. Allen:

Not all, as I understand, Your Honor.

Is the possession by a felon of a firearm as most state says?

Richard A. Allen:

I am advised that most states have such statutes.

Do you think the purpose of this statue is to take care of those few states that do not have such or that they were not doing their job?

Why should federal courts do all this work?

Richard A. Allen:

I believe that Congress, as the legislative history indicates, was extremely concerned of the impact of convicted felons and other dangerous people possessing firearms on a number of federal interests including interstate commerce.

I think that is revealed in every page of the legislative history.

In other words, do you think the connection of interstate commerce is what concerns the most?

Richard A. Allen:

Frankly, I doubt if the connection to the interstate commerce concerns the most.

I suspect that what concerns the most was the assassination of major political figures including federal officials.

Should there be some requirement of a substantial connection of the interstate commerce if that is the point then?

Richard A. Allen:

That is a judgment for congress, Your Honor, and I do not believe that they …

What I am trying to decide, is what judgment they really made that the Federal Court should take over all these possession trials or did they just wanted the Federal Courts to takeover possession trials where there was some substantial interstate connection.

Richard A. Allen:

I believe, Your Honor, that they wanted to give the federal prosecutors and the Federal Courts power to take over such prosecutions of possessions by convicted felons, as in their discretion, as they thought appropriate.

What percentage of Federal Law Enforcement in terms of number of cases is devoted to this?

Do you have any idea, there are an awful lot of them with that impression.

Richard A. Allen:

There are an awful lot, Your Honor.

I inquired of that just yesterday and I was unable to get any precise statistics, but I do know that there are a good number.

There are hundreds and hundreds of these cases.

Richard A. Allen:

That is true.

As I was saying, the petitioner’s construction of the statute would necessarily permit…

Thurgood Marshall:

Do you not think the interstate commerce which is incidental, because if you want to get rid of guns, why not just say guns?

The only reason that Interstate Commerce Commission was put in there was to get federal jurisdiction, is that not correct?

Richard A. Allen:

That is correct, Your Honor.

We contended that in the Bass Case that that was precisely Congress’ intention and that a proof of interstate commerce nexus in each individual case was unnecessary.

Because of those very interests, that construction was rejected not unreasonably by this court in view of the expressed statutory language making reference to interstate commerce.

Thurgood Marshall:

If they had not made it, we would not have jurisdiction.

Richard A. Allen:

Well, I am not sure that this court in Bass would have held that.

Thurgood Marshall:

Can the Federal Government make a crime of the possession of a gun?

Richard A. Allen:

If Congress makes findings that the possession of firearms has a substantial effect in interstate commerce then I believe, under decisions of this court, that Congress could constitutionally within its power under the Commerce Clause to punish the possession of a gun.

Thurgood Marshall:

And not using interstate commerce in the statute.

Richard A. Allen:

Not using the interstate commerce in the statute?

I know that in the extortion at Long case.

That is right, in Perez and it held in Wickert v. Philburn, and I believe there was an unbroken line of cases to that effect.

Power of commerce under the Commerce Book Clause is extremely broad.

There is no power challenge in this case.

Richard A. Allen:

There is not — the petitioner does not contend that our construction would lead to an unconstitutional result.

Strictly of statutory…

Richard A. Allen:

Strictly a question of statutory construction and an important one, because not only would petitioner’s construction permit felons who had received their firearms before their felony convictions or before the effect of the date of the statute to retain possession of those firearms, it would also, in a number of cases, permit felons as a practical matter to possess firearms, to receive firearms after their felony convictions and escape prosecution.

Let me give you the following example which occurs not infrequently in prosecution cases.

For instance, suppose a fellow committed a felony and was convicted for a felony in 1970.

In 1975, he was found in possession of a firearm.

Suppose, further, that the government was able to prove quite conclusively that that firearm was manufactured in say, Connecticut and let us say that he was found in possession in Virginia.

That it was manufactured in Connecticut, was shipped to Maryland in 1973, and was sold to some other individual who subsequently lost it or it was stolen from him.

Although those facts would demonstrate conclusively that the individual had received the firearm after his felony conviction and after the statute and therefore was clearly in violation of Section 922 of Title IV, the government may often not be able to prove where he received that weapon.

Since venue is a fact to be proved, the individual could not be prosecuted for that case.

In other words, petitioner’s construction would, as a practical matter, permit felons to retain possession of firearms whenever they manage to acquire the firearms in a way that the place or time of acquiring them escaped detection.

Thurgood Marshall:

Well, of course, I suppose the Federal Government could tell the state authorities about the man they had found.

Richard A. Allen:

They could, Your Honor.

If the state authorities had a statute that prohibited that conduct and if the state authorities, for some reason or other, wanted to prosecute him, they could do so.

But, I think that congress in this case perceived that this statute was extremely important.

Thurgood Marshall:

Do you think the government has a greater interest in the problem of possession of guns within the cities and the like than state government does?

I mean, just in terms of general allocation of how we normally answer problems, I can see that there’s normally the kind of questions that states address before the federal government does?

Richard A. Allen:

Normally, it is, Your Honor and I suppose the states have at least as great an interest in this kind of problem as the federal government does.

Thurgood Marshall:

That was equally true, the loan sharking case that we —

Richard A. Allen:

That is true and in many federal statutes, drug control statutes.

Thurgood Marshall:

If a criminal is running across state lines, then that is where it all goes back to.

The federal government had to find some way to pick him up, otherwise, they would run from state to state and back in the 20s and 30s, would they not?

Richard A. Allen:

That is right, that is one of the interests that, certainly underlies the statute.

Thurgood Marshall:

I believe, it is in some case.

Richard A. Allen:

But, I believe that Congress did not want to have to demonstrate in each case that a dangerous person who was in possession of a firearm was actually moving across the state line, that, it seems to me, as a wholly unnecessary matter of proof and certainly one that is not required by the constitution.

Our construction of the scope of Section 1202 is based primarily on three considerations.

First of all, the language of the statute.

Second of all, the relationship of Section 1202 with the entire scheme of Federal Gun Control Legislation.

Third, the legislative history of Section 1202 which, not withstanding Mr. Hershkoff’s contention, we submit unmistakably demonstrates that Congress intended the broadest possible scope to this section.

Section 1202, by its terms, prohibits any convicted felon and other class of certain categories of dangerous individuals from “punishes anyone who receives, possesses, or transports in commerce or affecting commerce any firearm.”

The phrase “in commerce or affecting commerce” is admittedly not as clear as the statutory language in Section 922, which this court construed in United States versus Barrett, which makes it unlawful for convicted felons or certain other persons ”to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Richard A. Allen:

Nevertheless, to the extent that the statutory language in Section 1202(a) is a guide, we submit that it points clearly to our construction.

First, the phrase “affecting commerce,” which Mr. Hershkoff had largely ignored but which is also in Section 1202, is essentially a statutory term of art.

As we pointed out in our brief, this court has recognized the distinction between legislation limited to activities in commerce and an assertion of Congress’s full commerce power so as to cover all activity substantially affecting interstate commerce.

Congress has used the phrase “affect commerce or affecting commerce” in a number of statutes which have been interpreted to reach transactions involving products after they have come to rest with interstate.

The Civil Rights Act is one example that is particularly instructive to this case.

In 42 USC Section 2000(a)(c), the Civil Rights Act defines “operations affecting commerce.”

To include establishments, a substantial portion of whose product “has moved in commerce.”

A particular significance of that statute for this case lies in the fact that Senator Long, the sponsor of Section 1202, made specific reference in the legislative history of Section 1202 to the Civil Rights Act and this court’s decisions upholding the power of Congress, in Senator Long’s words, “to regulate matters affecting commerce, not just to regulate interstate commerce itself.”

Furthermore, if Congress had wanted to limit the offenses set forth in Section 1202 to conduct contemporaneous with the movement in interstate commerce, it clearly could have and would have used language employed elsewhere in both the Gun Control Statute and other federal statutes which indicate such a limitation.

For example, Section 922(j) of Title IV of the Gun Control Act makes it unlawful knowingly to receive, conceal, or sell a stolen firearm “which is moving as, which is a part of, or which constitutes interstate or foreign commerce.”

The language in Section 1202, we submit is quite more broad.

It relates not only to firearms that are in commerce, but those that are affecting commerce as well.

In fact, the construe of Section 1202(a), as petitioner would construe it, would be to read the term “affecting commerce” out of the statute all together.

Apart from the statutory language, the relationship of Section 1202 to the entire scheme of Federal Gun Control Legislation indicates that the possession offense includes possession of firearms that have previously traveled in interstate commerce and is not limited to possession of firearms contemporaneous with interstate commerce movement.

As I mentioned at the outset, this court in Barrett recognized that the entire structure of the Gun Control Act demonstrates that congress sought broadly to keep firearms away from the persons.

Congress classified as potentially dangerous and irresponsible.

Section 922(h) of Title IV prohibits convicted felon of receiving a firearm after his felony conviction or and an after the date of the statute.

As this Court indicated in United States v. Bass, the receipt offense in Section 1202 has the same scope.

The only effect of adapting petitioner’s construction to this statute would be the convicted felons would continue to be prohibited under Section 922 from acquiring new firearms after their felony conviction but would permit convicted felons to keep old firearms that they had acquired before their felony conviction.

Furthermore, as I have mentioned, even convicted felons who received firearms after their felony convictions could not be prosecuted under petitioner’s construction, if there was no way of proving when or where they had acquired those firearms.

Not only would that create an enormous loophole in the scheme of the Federal Gun Control Statute, but there is no conceivable reason why Congress would have intended such a result.

The act of receiving a firearm has no inherently greater connection to interstate commerce than the act of possessing a firearm.

A convicted felon may receive a firearm long after that firearm has come to rest in the state where he receives it and he would still be guilty under petitioner’s construction of violating both Section 922 and Section 1202(a).

The act of receiving the weapon has no closer nexus to interstate commerce than the act of possessing the weapon which necessarily follows immediately after the receipt.

Furthermore, receipt is a term that encompasses conduct that goes far beyond any commercial transaction.

You can receive a weapon by gift or by stealing, it has nothing to do with commerce.

Thurgood Marshall:

Or by just temporary possession.

Richard A. Allen:

Or just by temporary possession, that is true.

In short, there is no basis for concluding that Congress would have intended to make a distinction between the proof required to show a nexus between the firearm and interstate commerce for purposes of the receipt offense and the proof that was necessary for the possession offense.

Certainly, that there is no basis in the language of the statute for such a distinction, since the phrase “in commerce or affecting commerce” modifies both the offense of receiving and possession in the statute.

Richard A. Allen:

Perhaps the most important consideration in terms of the statutory scheme is that petitioner’s construction would, in effect, read the term possession completely out of the statute.

Thurgood Marshall:

Your interpretations would read the terms of receipt and transportation completely out of the statute.

Richard A. Allen:

That is correct, Your Honor, either interpretation requires some redundancy.

Thurgood Marshall:


Richard A. Allen:

The function of the court, it seems to me, is to strive to give effect as fully as possible to all of the terms of the statute in light of the statute’s primary purpose.

Thurgood Marshall:

The petitioner says two and yours says only one.

Richard A. Allen:

Well, as a matter of that arithmetic, Your Honor, that is correct.

But, in terms of the primary purpose of the statute which is to keep firearms out of the hands of dangerous people, it is completely inappropriate, it seems to me, to construe the more inclusive term “possession” largely to nullify it in order to preserve some independent force to the less inclusive term “receives.”

It seems to me that that approach is completely inappropriate in view of the legislative history of the statute.

Mr. Allen.

Richard A. Allen:


I believe the record shows that this petitioner did order some parts for one of the weapons subsequent to his conviction.

Do you attach any significance to that?

Richard A. Allen:

Your Honor, there is a possible significance to that fact.

It is our primary contention that the term “in commerce or affecting commerce” encompasses a possession of any firearm that has had some previous movement in interstate commerce.

Were that contention rejected and were the interpretation adapted that there must be some contemporaneous nexus with interstate commerce.

It would not be entirely unreasonable, I suppose, to conclude that his purchase, in the course of his possession of replacement parts for his gun in interstate commerce would be a contemporaneous effect on interstate commerce.

That, of course, is somewhat inconsistent with our primary position which is broader.

That might even satisfy the test of the Bell Case you suggested.

Richard A. Allen:

It might, Your Honor, it might well.

I do not think that there is — but I would emphasize, that in our view there is just simply no rational basis for concluding that the offense of possession in this statute does not include possession of firearms that had previously moved in interstate commerce.

The legislative history of this statute, it seems to me, more than anything perhaps demonstrates that congress was intending to prohibit the possession of firearms by felons as broadly as possible.

This court in Bass concluded not unreasonably that that history was not so clear as to demonstrate that there was no necessity for any showing in each case of any nexus whatsoever between a firearm and interstate commerce, particularly in view of this fact that the statute had language that specifically made reference to interstate commerce.

But beyond that, since these firearms here have been proven to have had a nexus with interstate commerce, it seems to me that the legislative history is quite clear that Congress wanted to prohibit possession as broadly as possible.

Indeed, every word of the legislative history or every sentence reflects a concern with possession, not simply as Mr. Hershkoff had suggested ownership or acquisition.

Possession was obviously what Congress was after.

In summary, Your Honor, petitioner’s construction is completely at odds with the language of Section 1202.

The purpose of Section 1202 is reflected in the entire statutory scheme, and the legislative history of Section 1202.

Its construction would create an enormous loophole in the statute and a loophole which would frustrate Congress’ primary purpose in enacting this entire Gun Control Legislation.

Thank you very much, Your Honors and no further questions.

Warren E. Burger:

Very well, Mr. Allen.

Mr. Hirschkop, do you want to have it any further?

Philip J. Hirschkop:

Very briefly, Your Honor.

Your Honor, on the question of petitioner’s construction with regard to a weapon that has not yet come to rest, I suggest the court, it is only the way you can harmonize the Bass and Barrett decisions with any present position.

It was raised in and the reason I took the by the position taken by then, Judge Stevens, in the Walker Case, we express surprise on the scope of receipt.

If you limit the interstate commerce nexus to a present nexus on possession, he says there, receipt may be too broad.

What is inherent, I think, in Justice Marshall’s opinion in Bass is that if a gun is still moving, once having started interstate commerce, interstate commerce will flow until the gun comes to rest.

So, receipt goes farther than possession does, it is the only way I think you could differentiate the two, and I believe we did that.

I have to point out in this case, my client was convicted of four weapons, one of which had an 1880 date of interstate commerce.

There must be a break, it was a de minimis interstate commerce contact after some 90 years.

Warren E. Burger:

But the more recent ones have solved that problem at least on that issue for this case, do they not?

The more recent weapons.

Philip J. Hirschkop:

They would if we knew the jury convicted for the more recent.

No one knows what the jury did, they had four weapons before, but that is the problem with the stock that Justice Powell raised.

The fact that the evidence in the case was that that weapon had been given to his father to sell prior to the time of this conviction, and he had gotten that part just for his father.

But, you get a de minimis connection because if someone buys bullets, does that make the weapon an interstate commerce or a scope or a side or cleaning oil or what have you.

I can only suggest in closing that in Bass, Justice Marshall quotes Justice Homes in a case, in which he cites the Footnote 15, that when people go out to buy guns, there’s difference of people going out to commit murder, they look for guidance very often in statute.

The evidence in this case was that this petitioner looked for guidance.

He spoke to the police and he spoke to council about the ability to keep those guns at his house.

He was advised he could do so.

It is precisely what Justice Homes suggested that people will look for guidance.

The guidance was there in the Bass Case.

It is not petitioner’s construction which government takes issue, it is the construction of four justices of this court.

Warren E. Burger:

Well, Mr. Hirschkop, perhaps the moral to be drawn from this dilemma that is posed is that when a man is indicted for a felony, he perhaps better divest himself of firearms that come under the statute.

Philip J. Hirschkop:

That might be a harsh moral, Your Honor, because conviction of a felony carries within a number of proscriptions, of rights of citizenship, and if we give full credence to your innocence and proven guilty, you have a right to maintain your rights of citizenship until such time as the court says you are guilty.

Thank you, Your Honor.

Warren E. Burger:

Thank you Gentlemen.

The case is submitted.