United States v. Bass

PETITIONER:United States
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


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).

Roger A. Pauley:

The Court below looking —

William J. Brennan, Jr.:

Is this an issue that whatever Congress has constitutional matters that (Inaudible), if statute requires as an element of the advancements a proof of company in commerce or affecting commerce and your argument is although this requires (Inaudible), is that it?

Roger A. Pauley:

Yes, Your Honor essentially we think that the–

William J. Brennan, Jr.:

What I am trying to get at is, is there any constitutional question here?

Roger A. Pauley:

There is a constitutional question assuming that you were to hold that the Court of Appeals was wrong, as we content it was in applying the in commerce or affecting commerce language to the receipt and possession branches of the statute, you would then have to reach, as four Courts of Appeals have done, the constitutional question of whether a statute, which eliminates the necessity for proof, in the individual case of any such effect is within Congress’ powers under the constitution.

William J. Brennan, Jr.:

Well, I thought that is (Inaudible)

Roger A. Pauley:

That is correct, Your Honor and the decision below came before this Court’s Perez decision and it was written by the judge who had dissented in the Court of Appeals from the affirmance of the conviction in Perez case, but I would first like to address myself to the threshold issue of what the proper construction of the statute should be.

Potter Stewart:

Further, in pursuant to my brother Brennan’s question, it’s your submission I suppose that after the Perez case of last term, there is no serious constitutional question?

Roger A. Pauley:

That is correct, Your Honor.

Potter Stewart:

Certainly, in the Court of Appeals from the Second Circuit, their construction of the statute was reflected constitutional doubt test to the — a doubt that some constitutionality on the different construction, did not it? (Inaudible)

Roger A. Pauley:

Yes, it did Your Honor.

This was — they did not hold that the statute would be unconstitutional within the manner we urge, but they did say that it would raise a serious constitutional question —

Potter Stewart:

And no doubt, we are part of the motivation for them to construe the statute as they did as I understand they are supposed to (Voice Overlap)

Roger A. Pauley:

That is correct.

We will argue at the appropriate time that not even serious constitutional doubt in our view were raised by this statute because as the Perez opinion indicated —

Potter Stewart:

You know that one dissent is enough to raise actual constitutional doubt?

Roger A. Pauley:

I realize you dissented in that case Your Honor, but as the opinion indicated the Court could purported at least, the Eighth to be following a long line of cases emanating from United States against Darby, 312 United States, and with respect to the statute constructed in similar fashion to this one, where Congress makes findings and then eliminates on the basis of them.

The necessity for proof in an individual case that a particular transaction has affected commerce and so we think that on the basis of the prior precedence, the Second Circuit erred in this case even in holding that a serious constitutional doubt.

William J. Brennan, Jr.:

But what I am pointing out is that when in (Inaudible) early.

You are right then that there are not constitutional doubts that in commerce who affecting commerce does not modify receipts (Inaudible)

Roger A. Pauley:

That is correct.

We are arguing that the statute (Voice Overlap) is constitutional.

William J. Brennan, Jr.:

That is right and that Second Circuit was wrong in suggesting that the — without that modification it would be constitutional?

Roger A. Pauley:

That is correct and in addition I should say, we think that are limits to the doctrine that statutes should construed to avoid constitutional doubts and that the legislative of history and other features of this statute make application of that doctrine by the Court of Appeals inappropriate here even were there constitutional doubts.

The Second Circuit reasoned, looking at the text of Section 1202 (a) alone, that since the words in commerce or affecting commerce should be given some substantive content and since it was seem to be clear that they applied to the transportation benefits, that logic compelled their application also, to the receive and possession branches of the statute, since it would have made no sense for Congress to distinguish, in terms of elements of the crime between receipt and possession of the firearm by a convicted felon on the one hand and transportation of a firearm on the other, particularly since transportation which seem of necessity to encompass a convicted felon’s possession of a firearm.

Now, this argument has a certain plausibility, although it does not accord with the grammar of the Section, when only the words of 1202 (a) are with that.

But we submit that by confining its attention to the words of Section 1202 (a) alone, the Court below neglected to consider several other indicia of congressional intent which far out weighed the force of this argument.

In the first place, the Court below neglected to take into account the implication to be drawn from Congress’ inclusion of the formal findings in Section 1201.

There, the Congress found that the receive, possession or transportation of a firearm by felons constituted a burden on interstate and foreign commerce.

It would have been an irrational Act were Congress so to find were its intent merely to follow such a finding by the enactment of the statute, which included as an element in the individual prosecution.

William J. Brennan, Jr.:

So, why raise the question and why they put in the modifier at all?

Roger A. Pauley:

In 1202 (a) you mean, Your Honor?

William J. Brennan, Jr.:


Why do the interstate commerce or affecting commerce, if they meant the findings in 1201?

Roger A. Pauley:

I do not think there is any sound answer to that Your Honor other than that the legislative history of the statute, which I was going to come to in a moment, indicates that it may have been put in there as inadvertence —

William J. Brennan, Jr.:

In any event, you think it is (Inaudible)?

Roger A. Pauley:

In any event, we think it should confined, not withstanding the possible logic of this position solely to the transportation branch of the statute.

The explanation may in part rest on the fact that this statute received no scrutiny by any committees in either House of the Congress.

It was introduced in May of 1968, by Senator Long on the floor of the Senate, as an Amendment to what is an enacted in the following month as the Omnibus Crime Control and Safe Streets Act of 1968.

Senator Long on two occasions explained the purpose of this Amendment in such a manner as to make it totally clear that what was intended was a blanket prohibition on the possession or receipt of firearms by convicted felons.

Indeed on one occasion in a colloquy with Senator McClellan which is set forth at pages of 12 to 13 of our brief, Senator Long was asked by Senator McClellan; under your Bill could a convicted felon have a firearm in his own home, the very case which on these facts is now before the Court.

Senator Long’s response was “No he could not.”

In addition, the Court of Appeals below, they ought to take into account that since 1961, it has been a federal crime for a convicted felon to receive or transport a firearm in interstate or foreign commerce.

Those Sections which formerly were codified in Title 15 of the United States code would carry forward as Title 4 of the very same Omnibus Crime control and Safe Streets Act to which Senator Long’s Bill was an Amendment.

And, they — Title 4 was sponsored by Senator Dodd, who pertinently inquired of Senator Long on the 4 whether his bill was intended to replace Title 4 and Senator Long responded, “No,” rather that it was intended to add to with the complement that Title.

Now, it is true that even if Section 1202 (a) were to be construed in the fashion that the Court below did, so as to require proof of an interstate commerce element, as to a possession charge.

If and Title 4 would not cover exactly the same grounds since they apply to certain different categories of persons, but the principle provision, both in Section 1202 (a) and in Title 4 is its prohibition on the class of persons who are convicted felons from possessing firearms.

And so, we submit that Senator Long’s answer to Senator Dodd taken in conjunction with the rest of the legislative history and the inclusion of the formal findings in 1201 and the grammar of Section 1202 (a) make it abundantly clear that at least as to the crime of possession of a firearm, Congress intended not to require proof of an affect on interstate commerce in the individual prosecution, but rather to rely on the formal findings.

Turning then to the constitutional questions, there are no —

Harry A. Blackmun:

Mr. Pauley, let me ask one question about the construction aspect. The Senator (Inaudible) spoke in terms of felons, how is felon defined that the —

Roger A. Pauley:

Felon is defined, the provision is Section 1202 (c) and is set forth at page 3 for our brief.

Harry A. Blackmun:

Yes, in other words, this takes us to the several variant definitions of state statutes as well as to the definition of the federal law?

Roger A. Pauley:

That is correct Your Honor, Justice —

Harry A. Blackmun:

What maybe a felony in Missouri might well not be in California?

Roger A. Pauley:

That is certainly true, Your Honor —

Harry A. Blackmun:

Does this disturb you at all?

Roger A. Pauley:

I do not think — this is a point which respondent has raised in his answering brief and which both sides agree was not reached by the Court below and thus need not to be considered here, but were to be considered.

We do not think it raises a significant constitutional question, since Congress’ power to incorporate state definitions of felonies has been exercised many times.

For example, in a Assimilative Crimes Act and — which seemed to be a rational need where Congress to legislate.

William O. Douglas:

You do not seem to cite the (Inaudible) case, decided I think around 319, US 320, Justice Robert’s opinion for the Court, where there was a presumption that a person who possess the firearm and has acquired it (Voice Overlap), this would seem to be another way of creating a conclusive presumption, is it not?

Roger A. Pauley:

No, I do not think so, Your Honor.

The power which Congress sought to exercise in — in top was — was limited to — to cases in which it could could be shown that a firearm had — had been in commerce and it — it then sought to reach that result or at least to — to authorize a jury to find that fact by means of a presumption flowing from the fact of possession itself and what this Court held was that the presumption was invalid because there was no rationale nexus between mere possession and a finding of that a firearm had moved in interstate commerce in an individual case.

What Congress has done here on the contrary is to find that a class of activity is mainly in possession of firearms by convicted appellant in the aggregate affects interstate commerce, and therefore, it is not necessary for the Government in an individual case to — to prove the existence of a significant impact on commerce from felon’s possession.

Turning to the constitutional question then, we do rely on this Court’s decision in Perez last term which involved a statute making it an offense to engage in extortion credit activities where the Congress first made formal bindings to the affect that this class of transactions as a whole had a detrimental impact on the commerce and then enacted crime defining sections which eliminated the necessity for proof in the individual case.

Harry A. Blackmun:

And there Mr. Pauley, however, was specific congressional findings tying it in with organized crime as such, were they not?

Roger A. Pauley:

That is correct, Your Honor, but–

Harry A. Blackmun:

Had there been such finding here with your posture be a little stronger in the light of Perez?

Roger A. Pauley:

It would — it would be closer to the facts of Perez were that true, but the essential feature of Perez on which we rely is the test was assessing the constitutionality of statute of these species which the Court in Perez reaffirmed, and in that test is simply whether the findings made by Congress have a rationale basis.

We have set forth in our brief, certain of facts before Congress at the time of enactment of this statute on which we submit that Congress could reasonably conclude that possession of firearms by convicted felons did have a detrimental impact on commerce.

In essence, they are that the National cost in terms of monies taken alone from certain crimes such as burglary, robbery and larceny, was in 1967, much the better part of 1 billion dollars and now exceeds that figure.

That further statistics show that a high percentage of such crimes was committed with firearms and that other statistics showed that a similarly high percentage was committed by recidivists, by persons with previous criminal records and based on the aggregate national cost the impact to our economy from the commission of the crimes by this class of persons, we think Congress could rationally conclude that to put firearms in the hands of convicted felons or not to attempt to punish that would not result in a serious detrimental affect upon interstate commerce.

And we rely not only on the amounts taken as a result of such criminal conduct, but on the further back as Senator Long noted to his colleagues in the Senate that the possession of firearms by convicted felons would be deter large numbers of people from doing business which in turn would seriously affect commerce.

In addition to the Commerce Clause basis of the statute, we also think the statute maybe sustained as the District Judge did on the basis of Congress’ undoubted powers to safeguard the life of the President of the United States.

The Court of Appeals below did not discuss this alternative finding by the District Court which has been adopted by the Court of Appeals for the ninth Circuit.

This Court only recently in the Waltz (ph) case had occasion to note that the safety of the President is of course no matter of overwhelming national concern in view of the overriding nature of that interest and in view of the unfortunate history in this Country of assaults and assassinations by firearms upon former Presidents and other high public officials, we submit that it was not unreasonable for Congress to conclude that even though an indirect means, it would significantly for the safety of the President and Vice President to make it a crime for a convicted felon to possess a firearm.

For these reasons, we submit that the judgment of the Court below should be reversed and of course remand it with directions to restate the judgment and sentence of the District Court.

Harry A. Blackmun:

Is Second Circuit the only one that’s held as they did?

Roger A. Pauley:

Yes, it is Your Honor.

Harry A. Blackmun:

And you have four at least the other way?

Roger A. Pauley:

Yes, and for the Court’s convenience I would point out that the Six Circuit’s opinion which is one of the more extensive is now reported, it was not at the time of writing these briefs and it is in 440 F. 2nd one (Voice Overlap) 440 F. 2nd, 144.

Harry A. Blackmun:

In the exert of one reported (Inaudible)?

Roger A. Pauley:

Yes it is — yes it is, Your Honor.

It is set forth at 438 F. 2nd, 764.

William O. Douglas:

Mr. Hellerstein.

William E. Hellerstein:

Justice Douglas and may it please the Court.

It is our position that the Court of Appeals’ interpretation is sound for many, many reasons, but let me first fire one bell in my — one arrow in my bow that the Court of Appeals did not find necessary to even discuss but which this Court in similar situation has discussed, namely, this is a criminal statute.

It’s ambiguity is that conceded.

In fact, it is so evident by the differences of opinion among the District Courts and a Circuit Courts and the government concedes only as ambiguous you must — if we, we the Government are right read out an entire Section of the provision.

That where there is an ambiguity of this degree, this being a penal statute, it should be narrowly construed in favor of a criminal defendant.

But turning now to the reason, the facts in support of Court of Appeals’ decision is; one the Court of Appeals was dealing with the statue as again the Government concedes was drafted passed with the greatest of haste, with an absence of legislative concentration and absence of finding and no hearing.

William E. Hellerstein:

The Government on oral argument has just made a further confession which is not in it’s brief and in fact which my brief is not a virtue, is namely the government no longer as I understand their argument, views the redundancy argument which should make the page 16 and 17 of its brief as flowing as it does in its brief.

Namely the argument against the Second Circuit’s opinion was that, if its interpretation is adapted then Senator Long statute, in essence the entire Section of 1202, on page 17 of the Government brief they say it’s better to cut out just the commerce transport Section.

Now, it is to make the entire Section too (Inaudible).

As I understand the Government, they now say it won’t be (Inaudible) and that is a very good reason.

And I apologize to Court for not really getting into with my brief because the answer is so obvious and it is prior to an error in the Government’s brief at page 16 at footnote 4, footnote 10, excuse me.

Footnote 10 of the Government brief says that Title IV extended the class firstly; who may not possess weapon — who may not ship or transport weapons in the interstate commerce.

That is not so.

That expansion takes place in Title 1 of the Gun Control Act of 1968 which was passed four months after the Long Amendment.

What you had at time the Long passed was old 18, 19, 22 (f) and (e) then transformed into (g) and (h) of Title IV by Title I of the 1968 Act.

At the time of Senator Long’s Amendment, all you had was a prohibition against the shipment or receipt In Interstate Commerce by felons.

What Senator Long’s Amendment does is vastly increase the numbers of persons who may not have weapons, namely persons discharged from the armed forces on the dishonorable condition, mentally competent, persons who have renounced citizenship and unlawful aliens.

Also Title IV had a exclusion for white color felony.

Title VII, Senator Long’s Amendment was not.

Also Senator Long’s Amendment added the offense of possession as Title IV deals only with the receipt and shipment.

And I say that Title VII, Senator Long’s Amendment does include the terms “transport in commerce or affecting commerce.”

So in essence what the Court of Appeals was done is on the legislative record before it, taken the statute which has terms apart that a key constitutional terms, namely “affecting commerce” and has interpreted the statute without further guidance in Congress that (a) avoids the reaching of a constitutional determination as to Congress’ power to legislate against the mere receipt and possession without proof of a commerce nexus.

It is to that question that the government’s position was before this Court.

Now as I have understood the doctrine concerning constitutional adjudication, it was applicable not whether or not the constitutional question was decided favorably for one party or the other, but whether or not it need be decided at all.

Now, certainly this case does not present the weather ball for this Court, I think, to approach that question.

I think the — there two decisions of this Court which are so similar in my mind that it forms, sort of, a litigation model for how I as respondent’s counsel suggest revolution in this case and I in out brief call Your Honors’ attention to first the case of United States versus Denmark which really should be captioned United States versus Five Gambling Devices, an opinion by Justice Jackson and then the case last term of Rewis against United States.

In both of those cases all the elements that we seek this Court to appreciate give our side were present.

You had two statute dealing with Congress’ power to affect intrastate determination.

In Denmark it was whether mere registration of gambling devices that had no connection with interstate transaction was to be required.

The statute as the Court wrote, could have been interpreted either way, but the legislative history in Denmark was silent, offered the Court no guidance as to what the intend of Congress was.

And the Court said (a) this is a penal statute, (b) we do not have enough from Congress to make this determination and (c) there were other elements, namely that when we are dealing with intrastate matters, you also are dealing with the sensitivity of Federal and State relations and also indeed with the consequences to federal police enforcement powers, material for expended congressional involvement, federal involvement in the ordinary concepts of the criminal law normally associated with state police power.

And in Rewis, again an opinion Mr. Justice Marshall, without help from Congress, clearly designating what its intent was although the statute was susceptible to two constructions, the Court given the nature of a case as a criminal case took the narrow construction.

We think that the constitutional issue indicates that it is not as simple as the Government would have it.

I believe in the prior argument, Mr. Solicitor General used the phrase that principles have a tendency to expand the limit to their logic.

I would like to borrow that phrase because it does describe what I tried to communicate to the Court in point two of our brief.

As I understand to those powers commerce of Congress under the Commerce Clause as this Court has decreed it in recent years.

William E. Hellerstein:

It is very vast, but it is not unlimited.

It is a question of degree.

The Polish National Alliance versus NLRB case talks which cite in our brief talks in those term.

Now, a question of the degree means that you have to look on a spectrum of conduct and activity as I see it, to say when is that question of degree beyond Congress’ power and here we think, regulation based on the haste to the Amendment absence of binding all like recognized that Court does not require findings on the question of constitutional power of the Congress.

It requires as to look at what conduct that the Government’s interpretation is right that Congress is really thinking off.

A mere receipt or possession of a weapon in a man’s own home without more.

No requirement that the weapon transported in interstate commerce or came in to interstate commerce which leads me back again to another interesting question, the Casey Amendment which was debated in Congress at length after this statute was enacted, thought — the subject of that Amendment was to make it a crime to commit a crime of any kind with a weapon that had traveled in interstate commerce.

So, after you had Congress talking, as a Government would have it about not requiring a commerce nexus, yet to achieve the very results which the Government says this statute achieves there is still lengthy debate on Amendment that was preceded.

But returning to the spectrum of criminal conduct, what you have essentially is a passive Act, and the word Act is even possibly a misnomer, a passive state of affairs, a weapon in a man’s home, lying dormant and not affecting anything.

William O. Douglas:

We will recess at this time.

The Chief Justice intends to sit in the cases argued this afternoon, although he is necessarily absent. Mr. Hallerstein.

William E. Hellerstein:

Mr. Justice Douglas and may it please the Court.

To pick up I would like to go back to the redundancy question, the redundancy of Title VII and Title IV and just add a thought about why I think that even if there is a slight redundancy in language with respect to dealing in Title VII interpretation of the Circuit print on it that essentially it is giving what Congress really would like to have in Title VII.

I think if you read the legislate history of Title VII and the provision in addition to 1202 (a) (1) dealing with aliens, with mental incompetence, with dishonorably discharged persons, you will see that the conceptual natural of Title VII and I think what Senator Long wanted to have enacted and what Congress I think believed it was enacting albeit hastily was essentially an assassin bill that up to that time the Congress had concerned itself merely with felons and weapons, but given the assassination of President Kennedy, the Assassination Dr. Martin Luther King, you can tell from the legislative record, brief as it is that this was what was at issue when this bill was passed.

That there was a feeling by Senator Long on getting to the question of assassins and people who were irresponsible and proscribing them from having weapons.

With that in mind, I think Court, I must have for the constitutional issue to convince Your Honors that it is serious enough to at least forestall decision upon it until the case presents the necessity for it.

This is not that case.

As I stated earlier, the question is one of the degree, the Congress’ power and I think that the degree must, of course, be very far removed for me to convince you that Congress does not have the power.

But I think as I said on the spectrum of criminal conduct, the mere suggestion of a weapon goes to the utmost of that degree wherein Congress may not reach because it is essentially a passive Act regulated by most of the laws of the states, even when committed by a man with a prior felony.

Perez of course is a tough case, but I do not believe it is indistinguishable.

I believe if anything it points a way to resolution in our favor of the issue here if that issue must be decided.

As Mr. Justice Blackmun pointed out, the spectrum of Mr. Pauley’s argument, I think the thrust of his question was that, doesn’t Perez have within it a replete, replete with interstate commerce nexus.

The statute, the consumer Title II of the Consumer Credit Protection Act found that organized crime itself was interstate and international character and that a substantial part of the income of organized crime was generated by extortion of credit transactions.

Subdivision 3 of that Section found that extortion of credit transactions are carried on to a substantial extent in the state and foreign commerce and to remove instrumentally of such commerce and then it fostered out the ancillary group of intrastate no trafficking activities.

I read Perez as a traditional Commerce Clause case in the sense that Congress had opted to regulate, invoke conduct that was commercial, but in essence was intrastate in character.

It was no different then Wickard versus Filburn where simply because there was a local wheat raising, the entire scheme of regulation, that was interstate in nature, it could not be — could not include the affected of that intrastate wheat raising, the same as I read Perez.

The thrust of the entire Title IV of the Consumer Credit Protection Act was to regulate organize crime, was to regulate interstate transactions and to bring into that regulation those intrastate activities that were ancillary and of course would affect the efficiency and effectiveness of the total essence of regulation.

There is no such class of activity here in terms of gun possession, mere gun possession or receipt by a felon that is the same will have any colliery to the Consumer Credit Protection Act because there is only class of activity and I think that is key phrase in Commerce Clause motivation.

Here is the class of activities is simply the unit of the local possession and receipt.

There is no larger units of interstate regulation in the terms of effect on commerce.

William E. Hellerstein:

So, that Congress, if the Government is correct, has opted to regulate something that is not part of an interstate regulation scheme, but starts out as intrastate and ends being intrastate and I think that the language, Justice Hugo employed in dissent in Perez, although not shared by the other members of the Court, is the kind that the language that commends itself to resolution here because if this statute would be sustained as a proper exercise the commerce power, mainly mere possession on the theory that your possession would then prompt an Act and the Act itself would affect commerce, namely the robbery or the larceny, that Congress can rightfully regulate the possession.

With that as your common denominator, mere possession, what you have is the ability of the Congress to regulate any type of crime, nearly any type of crimes so long as the logical extension is that somewhere beyond the crime commerce will be affected.

Now, once again talking about the expended logic will open that case.

I could not on a some logistic basis deny that some men with a gun might then opt to use that gun to commit a crime which then might bring itself within new realm of statistical materials that the Government offers to you as a rationale basis.

But that I think really extends the commerce power quite a bit too far and it’s interesting that the Congress has not yet attempted to regulate the act of crime which would directly affect interstate commerce or even indirectly affect interstate commerce.

A robbery, a larceny and yet it has — if the government is correct opted to jump over those acts and go right to the mere possession which may or may not have any affect that all on interstate commerce.

I think in that context the Perez decision does not point a way for an easy resolution of the constitutional issue in this case.

Unless is to say a especially in a case where there are no findings, there are no hearings that Congress may simply designate passive criminal conduct and again I use the word conduct cautiously, they simply designate that, posit that since crimes are committed with weapons, albeit local crimes that then, therefore, there was federal power to regulate and I would suggest that before Congress goes that far it ought to at least take intermediate step and have the question presented whether the regulation of a mere act of robbery could be properly within the federal scope.

In this case, it does not.

The Government’s position in short I submit is really conjectural one that absent findings or hearings or finding as there are, but absent hearings, the statistics which the government posits really are of no help to the Court as I see it because they in a way prove too much and I should say that in the sense that they don’t prove anything at all, to say that commerce is affected by large amount of robberies and larcenies does not get you to the point where you can simply resolve a constitutional question of the possession of the weapon as being not connected to commerce.

Absent, any kind of explication by Congress of the relevancy of mere weapon’s possession by a very narrow, limited group of personnel for a selling and its connection to commerce, I see very little basis on the record before this Court, both in this case and the legislative record for taking that serious step of expansion under the Commerce Clause.

Again, I say that I do not think I have to convince you that the step for not be taking of that — and I do believe that it is unconstitutional for Congress to that this far, but I always seek to convince that there is a serious issue, which the construction given in the statute by the Court of Appeals can help you avoid deciding that question on this particular record and in this particular case.

Now the Government in its oral argument, but not in it’s brief choose for the first time to rely on the power of Congress to protect the Vice President and the President as a means for sustaining the statute.

This was a position taken by judge Franco, although rather personally and the Government does not — did not take in its brief, but simply referred the Court to this prong of the findings as merely indicative of Congress’ intent, but not of its power.

I submit that reading of the congressional history whatever there is — I think the Court below was collect still in viewing as really enacted under the commerce power.

But even if that were not the case, there were two other powers, namely the power to protect the Republican form of Government, the power to protect rights under the First Amendment and third being that of protecting life of the President and Vice President.

I think those three really are in the same category, namely that they are far removed from what Congress’ power really is in the premises, namely the Watch (oh) case which dealt with the statute enacted to prohibit threats against the life of the President was a considered act of Congress on a very narrow issue to take direct action to say that the mere possession of a weapon, in one’s home is a threat to the President and Vice President, once again I think on a syllogistic scheme of abstract logic might be defensible, but in term of constitutional power, again I think it falls short.

Mr. Justice Blackmun touched on the third point in our brief which was raised in the Courts below, but not decided by the Circuit in light of their resolution of the issue, that is that Section 1202 (c) in defining felony for the predicate conviction in this case violates the equal protection clause.

That is because in defining felony to be a crime other than misdemeanor, punishable by less than 2 years imprisonment, Mr. Justice Blackmun, is entirely correct in referring to vagaries and the differentials between the statute of the various states on crime.

For instance, Mr. Bass convicted of attempted grand larceny in the Second degree in New York would have only been guilty of misdemeanor in California and in other state and yet in California that person committing the same act in this case as Mr. Bass could not have been punished or prosecuted under the statute.

The issue is not raised, I raise it before this Court because it’s my understanding the Unites State versus Specter that this Court can if it wants to decide the equal protection issue, if it feels there is no necessity for sending it back to the Court of Appeals, if it affirms on all other issues, if it reverses I should say on the other issues in the case.

I would submit that in the interest of my client if this Court were to reverse, I will then ask for remand back to the Circuit for getting its wisdom on the equal protection issue, since it did not rule on that issue.

However, just to recapitulate what I think this case involved is a statute callously drawn, quickly drawn whatever motivation for its withdrawing there may be, I think it is not very frequent that the Congress acts with such haste in drafting a statute or enacting a statue which affects matters never before affected under the any federal statute.

Given that, in that is a criminal case where you normally apply rule of narrow construction and an ambiguous statute with avoids the constitutional issues, I think that the approach taken by the second circuit is far superior to that taken by the other circuits because the other circuits put the cart before the horse.

The Eighth and Sixth Circuits said, we don’t have any problem with the constitutional question at all, therefore, we will decide it and then decide the statute along those lines.

The Eighth Circuit accepted the government’s argument of redundancy.

I think the government no longer tendered it you in the same form it made in the Eighth Circuit or in its brief.

I think what the Second Circuit does, is it takes the view that all the elements and even one that I did not — that I mentioned but which the circuit didn’t rely on the narrow construction of the rule, give what is before us in this case on this legislative record that the hanging of a criminal conviction which involves determination of constitutionality on this particular defendant makes little sense and the commerce clause issue which I would point out was decided — was decidedly avoided by the circuit in this case was the same court albeit different members of the penal that decide the Perez case affirmatively and was affirmed by this Court.

So the Second Circuit felt that Perez is a valid exercise of constitutional power, but seems to have great doubt with respect to this case.

For these reasons I would respectfully submit that the judgment of the court below should be affirmed.

Harry A. Blackmun:

Mr. Hellerstein could I ask one question?

As I recall the First Circuit had a case called White concerning depressive drugs and if my memory serves me the Eighth Circuit also had a case called White, involving the same statute?

Do you have any comment about those decisions which as I recall again was both to the same affect and each upheld the statute?

William E. Hellerstein:

Yes, in the White case which was cited in the Second Circuit’s opinion because the government heavily relied on it below, at page 15 of my brief Mr. Justice Blackmun, I cite through I — and I view the White case as a Second Circuit did that, the circuit harmonized White with this case by noting that in sustaining Congress’ power to regulate possession of depressant and stimulant drugs itself recognized the distinct problems inherent in the field of drug regulation.

The First Circuit wrote that unlike many other objects of federal regulation, the presence of stimulating drugs are not passive subjects which often used talking to the realm of consumption.

They exert influence on consumer.

I think of the Circuit there with respect to drugs was concerned with, that drugs affect who get on highways who take all kinds of action which directly keeps the interest of regulation going, even though it’s intrastate matter.

Harry A. Blackmun:

You would draw a distinction then with firearms from drugs, they get on highways too once in while, are they not?

William E. Hellerstein:

Yes but they are not, they are not injected by the petitioner or the defendants.

They are in a sense, were been active in even drugs essentially they are wholly inactive until something else activates them and I think the White is the tough case.

I think that the Your Honor’s question is, well, could I think that the line of distinction is primarily I would only know also that the this Court has not except we denied a certain White made any ruling on that issue but I think again the question in White with drugs is the complete flexibility and movement of drugs.

I would submit even more flexible and more effective regulation and the movement to represent which this stature already does provide for, namely the receipt and shipment in interstate commerce of firearms.

I don’t think that the drug regulation carries that.

Also that drugs statute is part of a general scheme of regulation that has interstate policies to begin with.

I would suggest that again it is more along the model of Perez in the Consumer Credit Protection Act than it is with respect to this Section.

Harry A. Blackmun:

Well, the cases as group come together and somewhere there is a lot of sharing, is not there?

William E. Hellerstein:

Yes, I think in this case, Your Honor, it is all things being equal, the litigation posture this case, the record before the Court, the Circuit Court of Appeals was certainly I think I had a better of it than avoiding entanglement of those constitutional questions.

William O. Douglas:

Mr. Pauley, you have I think 3 minutes left.

Roger A. Pauley:

I have nothing further, Your Honor, unless there are questions?

William O. Douglas:

The case could be submitted.

Mr. Hellerstein, we named to the Court, designate you attorney with respondent and we want to thank you for the fine public service you have rendered.

William E. Hellerstein:

Thank you, Your Honor.