LOCATION: University of Wisconsin-Oshkosh
DOCKET NO.: 70-71
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 404 US 336 (1971)
ARGUED: Oct 18, 1971
DECIDED: Dec 20, 1971
Roger A. Pauley - for petitioner
William E. Hellerstein - for respondent
Facts of the case
Media for United States v. Bass
Audio Transcription for Oral Argument - October 18, 1971 in United States v. Bass
Warren E. Burger:
-- in number 71, United States against Bass.
Mr. Pauley you may proceed whenever you are ready.
Roger A. Pauley:
Thank you Mr. Chief Justice and may it please the Court.
This is a criminal case involving the construction and constitutionality of a federal gun control statute enacted in June of 1968.
The case is here on writ of certiorari to the Court of Appeals for the Second Circuit, which reversed a judgment of conviction under the pertinent statutes which are codified in Title 18, United State Code Appendix, Sections 1201 and 1202.
In view of the issues, I would like to briefly sketch the provisions of the statute before stating the underlying facts.
They appear at pages 2 to 3 of our brief.
In section 1201, the Congress makes various formal findings to the effect that to receive possession for transportation of a firearm by enumerated classes of person, including convicted felons, constitutes a burden on commerce or threat affecting the free flow of commerce, a threat to the safety of the President and Vice-President of the United States, an impediment or threat to the exercise of free speech or religion and a threat to continued and effective operation of the Government of the United States and of states.
Section 1202 (a) then defines certain crimes, including the one of which respondent here was convicted.
It provides and I am quoting the pertinent part; “Any person who has been convicted by a Court of the United States or of a State or any political subdivisions thereof of a felony and who receives, posses, or transports in commerce or affecting commerce after the date of enactment of this Act, any firearm” shall be guilty of a federal crime.
The facts of this case are as follows.
A federal undercover agent went to respondent's apartment in the Bronx in the later part of July 1969, to find narcotics.
Respondent let him in and directed him down stairs where he made a narcotics purchase from an unknown individual.
The next day, the same agent returned with a radio to exchange for narcotics and once again the respondent opened the door, this time respondent was holding an automatic pistol in his hand, which he explained he did as a precaution because of the large number of burglaries in the area.
The two men then consummated a transaction in which the agent purchased seven bags of heroin from the respondent in exchange for radio and the agent left.
He obtained an arrest warrant for respondent and a search warrant for his apartment and went back on the next day.
Shortly after he was admitted on this occasion, other agent who had remained outside entered the premises, arrested respondent and searched the apartment pursuant to the warrant.
They found the automatic pistol hidden under a bathtub and sawed off shotgun laying near respondent's bed.
Respondent was charge as a previously convicted felon under Section 1202 (a) in two counts, with possession of the automatic pistol and of the sawed off shotgun.
He was further charged in a count with carrying a firearm during the commission of a felony.
The jury acquitted respondent of that account which thus is not here now, but found him guilty under the two Section 1202 p(a) counts.
It was stipulated at trial that respondent had been convicted in the Courts of the State of New York of the felony of attempted grand larceny in the second degree.
Respondent interposed no factual defense for the jury to the Section 1202 (a) charges.
Following the verdict, he made a motion for the judgment of acquittal, contending that the Government had failed to either prove or to allege what he contended was an essential element of the offense, namely that his possession of the firearm, shown to have been in or to have affected interstate commerce.
The District Judge denied this motion in an opinion set forth at pages 55 to 59 of the appendix, holding that the statute properly construed did not require proof of any such element and that as so construed it was constitutional, both under the Commerce Clause and as a rational exercise of Congress' power to safeguard the security of the President and Vice-President.
On appeal, the Court of Appeals reversed, centrally adopting respondent’s contention as to how the statute should be construed.
Four Courts of Appeals, the Fourth, Sixth, Eighth, and Ninth Circuits have held to the contrary and in accordance with the views of the District Court in this case that the statute does not require proof of an interstate commerce element with respect to a convicted felon’s possession of the firearm.
Because of that conflict, we sought review by this Court and this Court granted certiorari last term, but there are essentially two problems.
The first is whether the statute should be construed to eliminate the necessity for the Government to prove an individual case that a convicted felon's possession of firearm had been in or affected interstate commerce and secondly, if so construed, is the statute a permissible exercise of Congress' powers.
The problem in construing the statue arises from the inclusion of the words and I once again invite the Court’s attention to pages 2 to 3 of our brief, where the statute is set forth, inclusion of the words in commerce or affecting commerce following the verb transport in Section 1202 (a).