BARRETT v. UNITED STATES
Legal provision: Omnibus Crime Control and Safe Streets, National Firearms, Organized Crime Control, Comprehensive Crime Control, or Gun Control Acts, except for RICO (q.v.) portion
Argument of Thomas A. Schaffer
Chief. Justice Warren E. Burger: We will hear arguments first this morning in 74-5566, Barrett against the United States.
Mr. Schaffer you may proceed.
Mr. Thomas A. Schaffer: Mr. Chief Justice and may it please the Court.
My name is Thomas A. Schaffer.
I am from Cincinnati, Ohio and I am the attorney for petitioner, Mr. Pearl Barrett in his action.
The question that is presented before the Court this morning is a simple one and a single one and it involves whether or not Title XVIII of the United States Code, Section 922 (h) applies to the petitioner, Mr. Barrett who purchased a firearm in a purely intrastate transaction and was not himself personally involved in any manner with the intrastate transportation of that weapon.
The facts are basically undisputed and they are as follows.
On the April 1, 1972, Mr. Barrett purchased a Smith & Wesson 32-caliber pistol from one Larry D. Bates, the owner and operator of the Western Auto Store in Louisville, Kentucky.
Petitioner later that day was stopped for a traffic offense in a Leslie County, Kentucky, the surrounding county.
The police at the time they apprehended Mr. Barrett searched his vehicle and discovered the weapon lying on the floor on a passenger side.
Some time prior to this occurrence, Mr. Barrett had been convicted of a crime of housebreaking in the Commonwealth of Kentucky so he was a convicted felon as described by Section 922 (h) and as that Section prohibits, he was allegedly forbidden to possess that weapon being under the disability of a prior felony.
He was subsequently charged under Section 922 (h) and he was tried in Unites States District Court for the Eastern District of Kentucky at Jackson, was convicted on May 24, 1973.
He then appealed to the United States Court of Appeals for the Sixth Circuit sitting in Cincinnati, Ohio and that Court affirmed the conviction on October 18, 1974.
The government at page 27 of their brief in referring to the differences between the statute that we have here today which is 922 (h) part of Title IV of the Gun Control Act of 1968 and Title VII which was passed subsequent to Title IV state in their brief “That there is no reason to believe that Congress intended to produce this topsy-turvy result when it enacted these related provisions as different titles of the same act.”
Petitioner contends today that indeed Congress did intend to produce different results with Title IV and Title VII.
Title IV or Section 922 (h), that section with which we are concerned today covers in part the receiving of any firearm which has been shipped or transported in intrastate or foreign commerce.
While Title VII which was passed subsequent to Title IV states that it is prohibited to receive, possess, or transport in Commerce or affecting commerce any firearm.
We would ask the Court to note the difference in position of the word “firearm” in those phrases.
We feel that this is an important distinction between the acts and as we go farther into the argument and bring out the legislative history, I would hope that the Court would recognize that Congress in placing that word behind the modifying words is the difference in the statutes and it is this difference that we feel controls the question that is before the Court this morning.
Chief. Justice Warren E. Burger: But you say that Congress has no power to forbid the possession of a firearm shipped at any time in the past in those terms in interstate commerce, the prohibition being limited to certain categories, including convicted felons?
Mr. Thomas A. Schaffer: No sir, that is not our contention at all.
Chief. Justice Warren E. Burger: So you say that the Congress could do it, but they did not do it here?
Mr. Thomas A. Schaffer: Yes Sir that is exactly what we are saying.
Justice William H. Rehnquist: Well, you concede that Congress could make it an offense to buy a pistol that had been in the State of Kentucky for 10 years if 10 years previously that had been shipped in interstate commerce?
Mr. Thomas A. Schaffer: Your Honor, that is not part of my argument, but I contend that that is most likely what Title VII of the Gun Control Act has done.
Justice William H. Rehnquist: You do not think there is any problem as to Congress’ authority to do something like I described?
Mr. Thomas A. Schaffer: I would say that Congress has certain limitations as case history is developed, but in this instance, if a gun can be determined to have affected commerce as the cases have reported in the Title VII situations, I feel that that Congress does have that power.
But we do not have that question here and we are not raising a question as to the power of Congress to govern such activity.
We are merely stating that in this act or this statute under which petitioner has been charged, the government through Congress did not prohibit intrastate sales.
It merely spoke of interstate sales and we feel that because we have a purely intrastate transaction that Congress did not intend that to be covered under Title IV.
Unknown Speaker: Incidentally Mr. Schaffer, is Mr. Barrett still or is he incarcerated still?
Mr. Thomas A. Schaffer: No Sir, he is not.
He is out on parole.
Unknown Speaker: Has he ever been incarcerated on this charge?
Mr. Thomas A. Schaffer: Yes Sir.
He spent, to the best of my knowledge, approximately a year and eight months in the Federal Penitentiary in Texarkana.
Unknown Speaker: But his sentence technically has not been served yet?
Mr. Thomas A. Schaffer: No Sir, the full extent of his sentence has not been served, that is correct.
Chief. Justice Warren E. Burger: Now coming to the language, you have said that Congress has the powers to prohibit a felon from possessing or receiving a firearm that has at anytime in the past been received -- been shipped in interstate commerce.
You conceded they have power to do that.
Mr. Thomas A. Schaffer: Yes sir, I do.
Chief. Justice Warren E. Burger: But you say the statute does not do it?
Mr. Thomas A. Schaffer: Yes Sir that is our contention.
Chief. Justice Warren E. Burger: What words would you -- I think it would have to be in that last paragraph of Section (h) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce with the word which has ever before, would that do it?
Mr. Thomas A. Schaffer: I would think that that would make it a bit more clear, but I feel the Congress has adequately covered the situation with Title VII when they placed the word firearm after the modifying words of receiving, possession, or transporting in commerce or affecting commerce “any firearm”.
I feel that that phraseology does cover any firearm which at anytime in the past has been transported in interstate commerce and I feel the Congress must have determined that there was a deficiency in Title IV, otherwise, they would have not passed Title VII.
The government would have us believe that there would be a redundancy in the statutes, but I do not feel that is the case.
I feel that Congress recognized that there was a loophole in Title IV and sometime after the passage of Title VII, they passed VII to amend that loophole.
As a matter of fact, Senator Long who was one of the sponsors of Title VII proposed an amendment on the floor trying to close the problem that they had had with Title IV and it was his contention that he wanted to tie up Title IV in such a way that no felon at any time might possess a weapon.
In response to a question from Senator Dodd from the floor, that question being “Senator Long is this amendment a substitute for Title IV?” Senator Long answered that indeed it was not a substitute for Title IV, rather it was an addition thereto.
It appears to me that the existing legislation was obviously not strong enough at that time, otherwise Senator Long would not have proposed this amendment to cover any felon possessing any weapon.
There must have been something that Congress saw and indeed we contend that there is something, a loophole here, but there must have been something that Congress saw that would have encourage them to pass Title VII to cover up the problems that they have been having with Title IV.
Indeed in House Report 1577 on Section 922 (h), prior to its passage, the House Report stated that the principle purpose of Title IV of the Gun Control Act was “To strengthen federal controls over interstate and foreign commerce in firearms and the history of that bill provided that what the government was attempting to establish was a more effective licensing system with respect to those people who deal in firearms.
The Act was intended to limit lawful transactions to those between federal licensees, those people whom the government had given permission to sell firearms or, and this is a quote from the congressional record at page 14773, the Act that is Section 922 would limit those lawful transactions to those between federal licensees or to those persons who reside in the same state.
So here it is from the people who were passing the bill, words from their own mouth saying, we are not attempting to legislate intrastate sales between people who live in the same state, rather we are trying to establish government regulation over the firearms dealers, those persons to whom we will grant licenses.
Title IV was passed as a responsive measure to the national concern over the sale and the transportation of firearms across state lines.
The people of this country had spoken to Congress, had told them of the need to curtail this activity where one person could live in the State of Michigan, go into the state of Ohio, purchase a weapon, and then go back into the State of Michigan.
The purpose for this is obviously because the State of Michigan is going to have tougher gun laws than the state of Ohio.
It is easier for a person to go from one state which has tough laws into another state.
In addition, Congress was attempting to cut off the mail order supply of guns which I am sure the Court is aware has become a very grievous problem.
But again, we are talking with dealing in guns and persons buying guns out of state.
Gun trafficking is what Section 922 attempted to curtail, not gun possession.
House Bill 17735 or Section 922 (h) as we have here was passed and was put into effect by Congress to eliminate this interstate or across state line trafficking in guns.
It appears to me that the key in this situation where we do not have an interstate transaction, also quoted from House Report 1577 at page 4415, “The Congressman stated that so long as the last step in the transaction is intrastate, the shipment would not be prohibited by Federal Law.”
We feel this is the crux of the case before the Court this morning. Congress did not intend, House of Representatives did not intend that Section 922 (h) would cover intrastate sales.
Indeed the Senate concurred in that.
Senator Tidings who was one of the major sponsors of the bill felt that the people who were to be affected by 922 (h) were “the juveniles, felons, and fugitives” who today can with total immunity and impunity obtain guns by mail or by crossing into state lines, crossing over state lines into neighboring states which have lax or no gun laws at all, purchase a weapon and then return to their own state.
Here we are talking about what I have been speaking of early what the House was concerned with.
That is the felon who may cross a state line, purchase a weapon and return to his own state.
That is a different situation than what is before the Court this morning.
Any over-the-counter sale, according to Senator Tidings, was to be prohibited except as Senator Tidings said in the buyer’s home state.
It is important I feel to define the word buyer and what Senator Tidings had in my mind.
A reading of the legislative history does not indicate that there is any restriction or qualification as to the definition of buyer.
Now, in other parts of the Act, they have defined the terms, they have spoken of felons and fugitives and juveniles, but as to the word buyer, there has been no distinction or qualification as used in this meaning.
So we contend that if Senator Tidings felt that a citizen could buy a gun in his home state, they qualify under the definition of buyer, that citizen must also have included those persons under disability that being felons, fugitives, and juveniles.
Chief. Justice Warren E. Burger: If the colloquy among senators or representatives explaining or undertaking to explain the bill is in conflict with the plain language of the statute which is to prevail?
Mr. Thomas A. Schaffer: Your Honor, it has been my experience that if there is confusion then we should look behind the plain meanings of the words and into the legislative history.
Chief. Justice Warren E. Burger: Let me try my question again.
If the language of the statute is plain and clear and unambiguous, but some senators and congressmen expressed the different view of what they thought it meant which then controls the language or the views of two or three senators?
Mr. Thomas A. Schaffer: Excuse me for misunderstanding your question.
I would agree with you then that the plain meaning of the statute would control.
Chief. Justice Warren E. Burger: But then this statute has to receive any firearm which has been shipped in interstate commerce.
Now, this is where it is shipped at sometime in interstate commerce and you have indicated at least tentatively, I thought that if the statute had inserted the words which has ever before been shipped or which was previously shipped then you would not be here, that is what I thought you had conceded?
Mr. Thomas A. Schaffer: Yes sir, I did agree you that had those words been even placed in the statute, it would have made it more clear to me.
Chief. Justice Warren E. Burger: More clear?
Mr. Thomas A. Schaffer: More clear and I cannot take upon myself to say that that would be entirely determinative as to the meaning of the statute, but for myself having been involved in the case for over two years now, I would have to say that that would make it more clear to me.
Justice William H. Rehnquist: What do you think the word “receive” in the statute means?
Mr. Thomas A. Schaffer: I believe that receive indicates receiving in interstate commerce transaction.
In other words, --
Justice William H. Rehnquist: It is a broader term than “buy,” is it not?
I mean, I receive something from you if you hand it to me.
Mr. Thomas A. Schaffer: Yes sir, that is true.
I think what Congress was attempting to do was to regulate those persons who will order a substantial amount of guns from a mail order house, say in New York to sell in Ohio.
Now, indeed they are buying the guns, but they are also receiving the guns in a shipment, so that they may sell on themselves and their home state and that as I see it that is gun trafficking and that is what I believe the Act was intended to prohibit or at least regulate to a certain extent.
Unknown Speaker: Why should not Congress be as much concern with these local purchases as it is with mail order purchases?
Mr. Thomas A. Schaffer: I believe that the Congress is concerned with the local purchases and I feel that Congress, once they passed Title IV, realized that they were not effectively prohibiting or controlling local purchases, so they then passed Title VII which does control local purchases.
I would agree with you Honor that Congress should and has stepped into the area purely intrastate sales, but it is our contention they did not do so in this act and I feel that the legislative history, the words of the senators and congressmen as to why they were passing this bill indicates that it was their purpose to control the trafficking first and sometimes subsequent to controlling the trafficking, they then sought to control the possessions of intrastate sales or possessions that occurred from intrastate sales.
Chief. Justice Warren E. Burger: But was not the objectives of Congress to keep the firearms out of the hands of individuals, just a given person who fall within the statute, that has had prior criminal conviction or categories?
Mr. Thomas A. Schaffer: Yes sir, I believe that the ultimate purpose was to do exactly that.
My reading of the history of 922 indicates or Title IV, in its entirety indicates that even though that was the ultimate purpose, that was not the spoken purpose of this Act.
Time after time, the senators and the congressmen spoke concerning this Act with gun trafficking and I do not feel that intrastate sales fits within the definition of gun trafficking.
I think this is the problem that occurred, and again I would say that this is what they realized after they passed the Act that even though their ultimate purpose was to keep guns out of the hands of felons or fugitives or juveniles, they had not accomplished that with Title IV and I would simply state that had they done so or had they felt they had done so, there would have been no reason to pass Title VII.
And even though I would personally agree with everything that they did in Title VII and what their ultimate consideration was in Title IV, I respectfully contend that they did not accomplish what they intended to do with Title IV and they found sooner after that they had to add to Title IV and control purely possessory crimes within state borders.
Chief. Justice Warren E. Burger: Do you have in mind the case of United States against Sullivan involving misbranded drugs?
Mr. Thomas A. Schaffer: Yes sir.
Chief. Justice Warren E. Burger: Justice Black writing that opinion says it really did not make any difference that these drugs had come to rest in the state and have been on the shelf for six months before.
Does that have some implication on this case?
Mr. Thomas A. Schaffer: Sir, I think that it is distinguishable in that the identity of the drugs is what Congress was intending to protect in the Sullivan case and with the legislation passed to cover misbranding of drugs.
In the Sullivan set of facts, we have a package of drugs which passes across state lines and is labeled brand “X,” if you will, if then a pharmacist may take that package and label it brand “Y,” the consumer is purchasing something which he has been misinformed on.
I would agree that Congress certainly has the power to protect the consumer at that point, but I also feel that in gun situation, we do not have quite that same set of facts.
There is no misinformation.
When a person buys a gun, the act of buying the gun itself, he may end up shooting himself with it is not personally harmful to him.
He knows what he is purchasing when he buys it.
The government does not have to protect his intelligence or his awareness at that point.
With misbranding of drugs they do.
They have taken upon themselves to protect the ultimate consumer for misinformation and I do not feel that is what we have in the gun case.
Chief. Justice Warren E. Burger: I think my question at what seemed to be your argument that the interstate relationship was too tenuous here?
Mr. Thomas A. Schaffer: No sir, that is not specifically what my argument is.
I had first thought that that might be what I would attack, but looking into the history of the law, that is not point of contention that we have this morning.
I do not feel that what the government has done is in and off itself a tenuous or an arbitrary decision to regulate the sale of guns.
I just feel that the statute under which Mr. Barrett was charged is not exactly what Congress intended to do.
It is not worded specifically enough.
It does not cover the transaction that is involved today.
I would say that we are here to argue against Title VII.
I might take that position that you have just indicated that the interstate commerce nexus is too tenuous, but that is not point here this morning and I do not really feel that –- quite honestly I feel that Title VII is worded in such a way and according to the case, I feel that it would stand constitutional attack and I am not here to do that.
I am not here to attack the commerce clause's extension into the interstate sale of guns.
So I feel that even though Sullivan talks about that, I would agree with what was said in Sullivan, but I would distinguish it in that we are talking about a different type of product which is being shipped interstate and we are talking about a different reason for regulation by the Federal Government.
There have been, as I am sure the Court is aware, a number of cases which have come from the circuits regarding the interpretation of Title IV and I have cited these in my brief.
I have cited, there appears to be a split as to what the circuits feel and there has not been up until this point a great deal of law from the Supreme Court because the cases have not come before it.
Justice William H. Rehnquist: Mr. Schaffer, if your client had wanted to avoid violating the statute as the government construes it, what steps could he have taken to advice himself as to whether or not the gun he sought to purchase was prohibited?
Mr. Thomas A. Schaffer: I believe that if we accept the government’s position, the only thing that Mr. Barrett could have done would have been to buy a gun, purchased in the State of Kentucky.
Unknown Speaker: How could he know?
Mr. Thomas A. Schaffer: Yes.
(Voice Overlap) I am sorry.
Justice William H. Rehnquist: He did not have to buy a gun manufactured in Kentucky?
Mr. Thomas A. Schaffer: Yes sir.
If we accept the government’s position, I feel that is the only thing that he could have done to protect himself and the question you raise is a good one, how would a purchaser know where a gun is manufactured and is it that raising too much of a burden on a citizen to ask not only may, I purchase the gun, but from where did it come?
I do not feel that --
Justice William J. Brennan: But supposed the gun was stamped “manufacturing company,” (Inaudible)?
Mr. Thomas A. Schaffer: I would say that if we were to accept the government’s position then the person purchasing the weapon would be knows that he is committing or violating a federal law.
Justice William J. Brennan: That it had been manufactured in Connecticut?
Mr. Thomas A. Schaffer: Yes sir, I think that under those circumstances, again if we accept the government’s position that is in essence the crime or the Act which is being prohibited by the statute as they see it.
Justice Harry A. Blackmun: Does this record show whether he filled out a form 44773 when he purchased it?
Mr. Thomas A. Schaffer: Through this -- the record indicates that the seller of the gun never presented that form to him.
He never had the form in front of him.
He never made any statements as to whether he was a convicted felon.
However, he did state on cross-examination and had he been asked that, had he been asked if he were a convicted felon, he would have answered yes, but he was never given the opportunity.
Justice Harry A. Blackmun: But he advised that at Western Auto Store, he received no form?
Mr. Thomas A. Schaffer: Yes sir, I think what happen was that he knew the seller of the gun.
This is was his hometown and he had known this person for sometime and I believe that what happened was he went in and he placed half of the money down for the gun, picked up the gun and said I will be back on Monday to pay the rest of the money.
Now, I think what the seller might have been thinking, although it is not indicated in the record, is it might have occurred to him over the weekend that he failed to give him the form, but when he returned on Monday, he might ask him at that time to fill it out, but we do not have any problem here as we have in some of the cases in the circuit where he made a false statement.
Justice Harry A. Blackmun: What was his explanation for having a loaded gun in the automobile so soon after purchase?
Mr. Thomas A. Schaffer: He did not say.
He did not say.
Justice Harry A. Blackmun: No explanation.
Mr. Thomas A. Schaffer: I did not represent him at the trial court and he did not say.
I might say though that the cases that I have handled from the State of Kentucky, people have come out and said on the stand that everyone owns a gun in Kentucky.
Justice Harry A. Blackmun: (Inaudible)[Laughter]
Mr. Thomas A. Schaffer: Something like that.
This Court has spoken as I am sure the bench is aware in the case of United States versus Bass, the opinion written by Mr. Justice Marshall.
That is to the best of my knowledge, the only case law that has come down and I will admit that that was not form of dicta.
It was not the holding of the case.
That case concerns as I am sure the bench is aware with Title VII, it was concerned with Section 1202 and in that opinion, Mr. Justice Marshall stated that he felt that Section 1202 or Title VII was significantly broader in reach than Title IV and he felt that by reading Section 1202 in such a way as to give it a broader interpretation, he felt that that preserved the significant difference between the receipt offenses of Title IV and Title VII and that is precisely what we contend today that there is a difference between a receipt offenses.
One, it concerns intrastate receipt that is Title VII whereas Title IV concerns itself only with interstate receipt.
Mr. Justice Blackmun in the case Huddleston versus the United States which is cited by respondent stated that he felt that from the outset it was apparent to him anyway that the focus of the federal law that being Section 922 was the Federally Licensed Firearms Dealer, the trafficker, the seller.
That is the person or those are the people to whom Section 922 was to apply.
Mr. Justice Blackmun went on to say that he felt the intent of the Act was to force the dealers in certain circumstances not to sell, to prohibit them from selling to certain individuals, so again, the focus is here on the dealer and not the buyer that is Section 922.
Petitioner, were he charged under Title VII, I contend this quite strongly would not have the argument that we have made today.
I feel that Title VII does cover intrastate sales.
Title IV as I hope we pointed out to the Court this morning, Title IV was enacted to control the business of selling guns.
Title IV went into great detail about licensing provisions, regulations as to license, licensees or sellers of guns.
They went into strict rules as to whom the licensee might sell these guns.
It dealt specifically with intrastate transactions.
It talked about mail order guns.
It talked about going across across state line to purchase a weapon.
Chief. Justice Warren E. Burger: Which Section of 922 are you talking about now?
Mr. Thomas A. Schaffer: I believe 922 (a).
I believe that is the section Your Honor.
That concerns itself with dealers and the Section is subsequent to 2 (a) I believe (b) (c) and (d) deals specifically with the regulations on the licensed seller.
Petitioner, we contend this morning, if there was indeed a loophole in Title IV, that although Congress intended ultimately to control intrastate transactions, it did not do so with Title IV and we would point out that had there not been a loophole, there would not have been a reason for Title VII which is passed some time after Title IV.
We contend then the petitioner's conviction should be reversed on this basis. He purchased the gun in his home state of Kentucky.
He purchased it in his hometown.
He did not live the State of Kentucky.
He was caught within the State of Kentucky with that weapon and other than the fact that the gun itself was manufactured out side of the State of Kentucky, there is no other connection with interstate commerce.
Thank you very much for your attention this morning.
Chief. Justice Warren E. Burger: Mr. Reich.
Argument of Robert B. Reich
Mr. Robert B. Reich: Mr. Chief Justice and may it please the Court.
The sole question before this Court this morning concerns the scope of Section 922 (h) of the Gun Control Act.
Section 922 (h) is set out at page 11(a) of our appendix.
It provides in pertinent parts that it should be unlawful for any person and then there are four categories.
The first category is who is under indictment for or who has been convicted in any court of a crime punishable by imprisonment for term exceeding one year.
That latter category of person whom I shall refer to as a convicted felon, who is a fugitive from justice, who is unlawful user or addicted to marijuana or any depressant or stimulant drug or a narcotic drug, who has been adjudicated as a matter of de facto or who as been committed to any mental institution.
It shall be unlawful for someone falling within any of these categories to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The meaning of that provision we submit is clear.
Once it is established that a firearm is a firearm that has been shipped or transported in interstate commerce then federal jurisdiction is established.
There is no indication from the language that Congress intended to limit its scope to those instances where the interstate shipment or transportation immediately precedes the receipt.
Justice Potter Stewart: Do you not perceive any constitutional difficulties at all with reading the statute that way?
Mr. Robert B. Reich: No, Mr. Justice Brennan we do not.
Justice Potter Stewart: I am not Mr. Justice Brennan.
Mr. Robert B. Reich: Mr. Justice Stewart, I apologize.
We do not perceive any difficulties with it that way.
Indeed in Huddleston against United States, this Court in construing Section 922 (a) (6) held that that provision does apply to an intrastate, wholly intrastate redemption at a pawn broker shop where there had been absolutely no contention that the firearm had ever been shipped in interstate commerce.
Justice Lewis F. Powell: Mr. Reich.
Mr. Robert B. Reich: Yes, Mr. Justice Powell?
Justice Lewis F. Powell: Could the government have prosecuted this defendant under Title VII?
Mr. Robert B. Reich: The government could indeed have prosecuted them under Title VII.
Justice Lewis F. Powell: Is there any explanation why he did not in light of a previous interpretation of that section in Bass?
Mr. Robert B. Reich: None that I know of Your Honor.
In fact, I have absolutely no idea.
The U.S. Attorney, Assistant U.S. Attorney obviously assumed that the prosecution could be brought under either provision.
But had the government --
Justice Potter Stewart: He obviously then had not read the Bass opinion, had he?
Mr. Robert B. Reich: The Bass opinion we would contend Mr. Justice Stewart, did not authoritatively construe Title IV which was to become Section 922 (h) as being limited to direct interstate receipts and if you enable me to get to the Bass opinion in just one moment, I would like to state that had the government intended to limit the scope of Section 922 (h) to direct interstate receipts as petitioner urges, it presumably, in the Gun Control Act, would have use language to that effect, such as Section 922 (j) which you find on page 12(a) of our appendix which states that it shall be unlawful to receive a stolen firearm which is moving as or which is a part of or which constitutes interstate commerce or Section 922 (k) which is also on page 12(a) of our appendix which states that it shall be unlawful to receive in commerce any firearm which has had the importers or manufacturer’s serial number removed.
I think it is very indicative that Congress rather than employ these standard phrases which is a part over which it constitutes or which is moving as or a firearm in commerce chose instead to provide that it shall be unlawful for any convicted felon or other category of potentially irresponsible person to receive a firearm which has been shipped or transported in interstate commerce.
The structure of the Gun Control Act confirms our reading of the plain language.
The Gun Control Act is a comprehensive scheme whose provisions reveal a common design to keep firearms from coming into a state and falling into the hands of convicted felons or other categories of potentially irresponsible persons.
Now, to this end, licensees, all interstate shipments of firearms must be channeled through licensees.
Once a firearm has reached a state, come into a state, the licensee is prohibited in an intrastate transaction from selling or otherwise transferring of firearm to a convicted felon or an indictee, a fugitive, or any other category of potentially irresponsible person, that is an intrastate transaction.
Also, in an intrastate transaction a purchaser must attest truthfully that he is not a convicted felon and that he is not also an indictee, a fugitive, or other category potentially irresponsible person.
Justice Thurgood Marshall: Well, is the man who sold his weapon, is he an indictee?
Mr. Robert B. Reich: I am sorry Your Honor.
Justice Thurgood Marshall: The man who sold this gun did he violate any law by not getting --
Mr. Robert B. Reich: The man who sold this gun should have found out.
Now, Section 22 (d) --
Justice Thurgood Marshall: My question was, was he guilty of any crime in doing that?
Mr. Robert B. Reich: He was not guilty of knowingly selling a firearm to a convicted felon as 922 (d) provides because he did not follow the required procedure and have the purchaser fill out a treasury form 4477.
So he is perhaps guilty.
In fact, he is guilty of violating the treasury regulations requiring a dealer to have a purchaser fill out this form so that the dealer can know whether --
Justice Thurgood Marshall: What has been done to him?
Mr. Robert B. Reich: He was warned.
He was not indicted nor was he prosecuted.
He was warned that if this happened again, however, he would be.
But the dealer also with an intrastate transaction according to the Gun Control Act has to keep careful records of all the people to whom he sells.
Justice Thurgood Marshall: (Inaudible)
Mr. Robert B. Reich: Well, Mr. Justice Marshall as far as I am aware, all these provisions are being enforced.
Now, the one instance in this case where the dealer had violated the regulation in terms of not finding out specifically whether this man was a convicted felon in that intrastate transaction --
Justice Thurgood Marshall: He goes in and says I got a half a price for gun.
You give me the gun now go and get the other half and bring it back on Monday, that is alright?
Mr. Robert B. Reich: Well, I would say that it is not alright.
Were the U.S. Assistant Attorney in charge of this case, I think that there would be a possibility of indictment of this dealer.
Unfortunately, in terms of prosecutorial discretion, the Assistant U.S. Attorney or the U.S. Attorney did not follow through on that, but did give the dealer a warning.
Justice William H. Rehnquist: Is it a criminal offense to violate the treasury regulations?
Mr. Robert B. Reich: I simply am not aware or not sure of that answer Mr. Justice Rehnquist.
Justice William H. Rehnquist: Well, what would he had been prosecuted for, if it is not a criminal offense to violate the treasury?
Mr. Robert B. Reich: Well, if is not a criminal offense to violate this treasury regulations he would not have been prosecuted.
I am assuming from Mr. Justice Marshall’s question for the sake of the question that it would be a criminal offense.
Justice Harry A. Blackmun: What difference does it make?
We are talking about the felon anyway, are we not?
Mr. Robert B. Reich: Yes, Mr. Justice Blackmun.
My point is that all of these provisions, including a provision that requires that a purchaser attest truthfully, certify truthfully in an intrastate transaction that he is not a convicted felon.
All of them have the common purpose of keeping firearms out of the hands of a convicted felon, even in an intrastate transaction and it is the government’s submission that Section 922 (h), our reading of Section 922 (h) makes that an integral part of this comprehensive scheme because it deters directly that which the rest of those provisions I indicated seek to deter indirectly.
Now, petitioner’s construction of Section 922 (h) would create a major gap in this comprehensive regulatory scheme because it would enable a convicted felon to receive a firearm as in the instant case through the inadvertence or negligence on the part of the dealer who simply neglected to find out whether he was a convicted felon or to the simple expedient of getting a friend or a relative or somebody else to get it for him.
Justice Thurgood Marshall: Where in the record is that this is neglect?
There is nothing in the record as to why he did it, am I right?
Mr. Robert B. Reich: Mr. Justice Marshall, the dealer was questioned on the stand.
He indicated that he had known the buyer, petitioner for five years, had absolutely no idea that he was a convicted felon and because it was Saturday night, he was going to have petitioner come back and fill out the forms Monday morning.
He just simply did not feel that it was important.
He thought it was a mere formality because he had known the guy.
But this is an example of how through this kind of carelessness the entire comprehensive regulatory scheme of the Gun Control Act can be undermined.
Justice Thurgood Marshall: If he had filled it out, we would not have this case, would we?
Mr. Robert B. Reich: If he had filled it out and if the dealer had looked at it, we would not have this case, that is absolutely correct.
Chief. Justice Warren E. Burger: We would not have the case if both of them non-violated the Act by selling it notwithstanding the disclosure of the conviction?
Mr. Robert B. Reich: That is conceivable Mr. Justice.
What is also possible, in fact, even more conceivable is that a convicted felon or a fugitive or a narcotics addict who wants to obtain a firearm, but who wants to avoid all these prophylactic rules need only under petitioner’s construction get his friend or relative or somebody on the street to go and get it for him.
Now, it seems to us very unlikely that Congress in enacting the Gun Control Act with all these measures designed to keep firearms out of the hands of convicted felons, even with an intrastate transaction would have created such a major gap in the scheme.
Justice Harry A. Blackmun: Mr. Reich.
Mr. Robert B. Reich: Yes.
I am sorry Mr. Justice Blackmun.
Justice Harry A. Blackmun: Let me suggest to you.
Suppose he went in to see his old friend, the dealer and said, I want a particular model, but the dealer did not have it.
He said, order it for me and so he ordered it from South Carolina, then would he be subject to prosecution, clearly?
Mr. Robert B. Reich: Under Section 922 (g) which I believe is set out at page 10 (a) of our appendix, under 922 (g), a convicted felon or other category of potentially irresponsible person is barred from shipping or transporting a gun in interstate commerce.
Now, read in conjunction with Section 2 (b) of Title XVIII which makes one punishable as a principal, if he causes an act to be committed, Section 922 (g) would indeed bar a convicted felon or other category potentially irresponsible person from ordering or soliciting a gun across a state line.
In fact --
Justice Harry A. Blackmun: You have to bring out as the fact that just the accident of having the gun on the show or not having at all in the shelf, on your opposition’s theory, it would make a difference as to whether the prosecutor is capable of prosecution or not.
Mr. Robert B. Reich: Absolutely right Mr. Justice Blackmun.
The prosecution, if the gun happened to be on the shelf, in fact in the instant case, the firearm just happened to be the last one in the dealer’s stock.
If it happens to be on the shelf under petitioner’s construction, there is no violation of the Act.
If the dealer has to order it for him under 922 (g) as I already indicated, there is indeed a violation of the Act and it is improbable that Congress intended that an offense under the Gun Control Act would turn upon the vagaries of a dealer’s inventory in such a way.
Chief. Justice Warren E. Burger: Well, if he had that in mind that the statute might well have been written with an insert, known to him to have been shipped in interstate commerce or knowingly receiving?
Mr. Robert B. Reich: That is correct.
Chief. Justice Warren E. Burger: The scienter factor was left out of the statute, was it not?
Mr. Robert B. Reich: The scienter is left out of the statute at 922 (h), it is left out of -- scienter enters into one or two other provisions where convicted felons or other individuals are prohibited for instance from knowingly receiving as to one firearm, but you are correct that scienter does not enter into Section 922 (h).
Chief. Justice Warren E. Burger: This puts the burden on the purchaser who wants to be careful I suppose on your theory of the case, to inquire whether it is manufactured in Kentucky or elsewhere?
Mr. Robert B. Reich: That is correct.
Section 922 (h) puts the burden directly upon the convicted felon.
It puts him on notice that if he receives a firearm that has been shipped or transported in interstate commerce, he is liable.
Chief. Justice Warren E. Burger: Does that mean that when you take Justice Brennan’s illustration a while ago that if a man in Hartford, Nevada “pistol” manufactured it in New Heaven, Connecticut, he would not be violating a statute, is that it?
Mr. Robert B. Reich: He could be fairly well sure that he would not be violating the statute, however, there is always the possibility that although manufactured in Connecticut, the firearm had traveled outside the state at some point in its history.
Justice William H. Rehnquist: What if it moved down in interstate train from Hartford to New Heaven?
Mr. Robert B. Reich: I do not believe that that would violate the statute because the plain words of the statute indicate only that it is illegal to receive a firearm which has been shipped or transported in interstate commerce and presumably that means across a state boundary.
I think it would make the Act somewhat unworkable to extend interstate commerce to mean any order of interstate commerce.
Justice William H. Rehnquist: What about on page 13(a) Mr. Reich of your brief where you set out 18 U.S.C. appendix 1201 which I believe is the introductory section of Title VII that Congress passed later and there you have a kind of finding that you have in many recent Acts of Congress that Congress finds and declares that the receipt, possession etcetera is a burden on commerce.
In other words, our finding for the purposes of that legislation in its entirety that these particular intrastate acts do burden interstate commerce and then you have Section 1202 which does clearly regardless of immediate shipment of interstate commerce, make it unlawful for a felon to purchase a gun and then you go back to the Act that this man was prosecuted under.
Now, is there not any sort of generalized finding such as there was on 1201 that Congress uses what it wants to embrace a lot of intrastate transactions?
Mr. Robert B. Reich: Mr. Justice Rehnquist, there was a finding in the senate report.
In fact, at the beginning of the senate report, there were series of findings that did not make their way into the final draft for reason I do not quite understand, often findings in final reports of the senate or Congress simply do not find their way into final drafts, but that Senate finding is I think quite indicative.
It states --
Justice William H. Rehnquist: Well, is that entitled to the same degree of weight as if it had made its way as you put it into the legislation?
Mr. Robert B. Reich: No, but it is indicative, I think it is congressional intent as to whether Congress --
Justice Potter Stewart: It was enacted, is it not?
Mr. Robert B. Reich: As a matter of legislative history --
Justice Potter Stewart: It is the opposite.
It is indicative of what Congress did not intend to do, if they had it before them and did not enact it?
Mr. Robert B. Reich: Well, that may be as a matter of legislative history, however, Mr. Justice Stewart, I think it might be indicative that the Senate did find and declare that the ease with which any person can acquire firearms, including criminals, narcotics addicts, mental defectives, is significant factor in the prevalence of lawlessness.
My point with Mr. Justice Rehnquist was not that there was a specific finding that Congress intended to encompass intrastate transactions.
Perhaps because Congress felt that it was very clear from the structure of the Act and as this Court held in Huddleston, many provisions of the Act already pertain to intrastate transactions.
The finding to which I was referring is merely a general broad finding that Congress was concerned with keeping firearms out of the hands of convicted felons and not limiting itself only to interstate transactions.
Justice William J. Brennan: Mr. Reich, the ruling in Title IV with which we are concerned in this case is precisely the words in (Inaudible) that were entitled for when Tot was decided, is that not so?
Mr. Robert B. Reich: That is correct.
Justice William J. Brennan: And certainly, the Court in Tot apparently with the agreement of the government has said reciting what had happened in lower courts, both courts, it held that the offense created by the Act is confined to receipt of the firearms or ammunitions as a part of interstate transportation does not extend to the receipt which is your argument here in an interstate transaction, of such articles which had some prior time have been transported into the state, what are you going to do with that?
Mr. Robert B. Reich: That is right.
Justice William J. Brennan: What should we do with it?
Mr. Robert B. Reich: Mr. Justice Brennan to be to be sure when Congress enacted the Gun Control Act of 1968 as you point out, it must have been aware to some extent of the Court’s holding in Tot striking down the presumption that was struck down from Section 2 (f) of the Federal Firearms Act which is the predecessor.
Justice William J. Brennan: But the Congress was not aware of or ignored?
Mr. Robert B. Reich: We would contend that given (a) the plain meaning of the phrase to receive any firearm which has been shipped or transported in interstate commerce plus (b) the fact that in 1943 in the Tot case, this Court did not really focus upon the question of the scope of Section 2 (f) but merely --
Justice William J. Brennan: Most apparently, your predecessors in the Solicitor General’s Office did.
It was calling in the Court in that opinion, I was not here then.
It says that the government agrees that this construction is correct?
Mr. Robert B. Reich: Well, I was not alive then[Laughter]
Justice Byron R. White: Yes, but can you say in your present brief that the government at that time argued for several pages?
Mr. Robert B. Reich: It did Mr. Justice White.
Justice William J. Brennan: Can you put your hand here that those words do not to reach what we now heard and furthermore, in both courts, the fact that you have two Courts of Appeals, both courts below held exactly what it said, is that right?
Mr. Robert B. Reich: Indeed.
Justice William J. Brennan: So you are saying that Congress would have been aware of two Courts of Appeals, the language is not plus the opinions of the Chief Law Enforcement Agency of the United States?
Mr. Robert B. Reich: We are saying that Congress given the fact that --
Justice William J. Brennan: We know that Congress is not aware of a lot of things that happen around here, that is quite obvious?
Mr. Robert B. Reich: There is absolutely --
Justice William J. Brennan: And that is usually the way we treat these things?
Mr. Robert B. Reich: Well, there is absolutely not indication in any of the legislation history --
Justice William J. Brennan: We know, but do we not presume that Congress keeps itself familiar with what things that we say around here?
Justice Byron R. White: The marking of justice is usually is not ignored of what is going on in the Court.
Do you know that the Department of Justice participated in any write-up sessions?
Mr. Robert B. Reich: The Department of Justice I assume participated in write-up sessions.
However, Your Honor I would point out that as this Court has held repeatedly, it would require very persuasive circumstances in developing Congressional silence, including a reenactment of a statute to debar the court from re-examining its own doctrines.
Now, the Department of Justice, the government has reassessed --
Justice William J. Brennan: Well, this is an issue of statutory construction, is it not?
Mr. Robert B. Reich: It is.
Justice William J. Brennan: And how frequently do we review which is the statutory construction?
Mr. Robert B. Reich: Well, let me give you an example if I may Your Honor.
Justice William J. Brennan: Well, I (Inaudible) Boys Market, but --
Justice Byron R. White: That is a famous case, if you have not heard of it?[Laughter]
Mr. Robert B. Reich: Yes, I have Mr. Justice White.
I would like to point out --
Justice William J. Brennan: How often outside the situations like Boys Market have we ever done it?
Mr. Robert B. Reich: Well, let me give you an example of Girouard against the United States in which this Court has construed the Naturalization Act.
Justice William J. Brennan: What is the name of that?
Mr. Robert B. Reich: Girouard against the United States.
It is at 328 U.S. 61 in which this Court re-construed the Naturalization Act which had been recently reenacted by Congress and that is after the Court had construed the same language three times before, nevertheless that Court held that Congress when it reacted the naturalization oath provision in the Naturalization Act simply could not have paid much attention to the Court’s three prior holdings and we do not have the situation here where the Court merely assumed or relied upon two Lower Courts or relied upon the government’s representation.
In Girouard we have --
Justice Byron R. White: You can suggest to Justice Brennan (Inaudible) [Laughter]
Mr. Robert B. Reich: I do not think I would want to do that.
I think I would stick with Girouard, Zuber against Allen and other instances in which it is clear that this Court has looked upon past pronouncements, a pass construction as being simply implausible and because of its implausibility, particularly here, because Congress may never have focused upon a relatively implausible construction, granted, one that the government is in part responsible for, I may add that the government has of course reassessed its position with regard to the scope of the language in Section 2 (f) and it decided that it was simply wrong that Congress would not have used the broad statement, the broad language to receive any firearm which has been shipped or transported, even in 1938, had it not meant to encompass any transaction in a firearm?
Chief. Justice Warren E. Burger: Congress has not legislated in this area or I will put it as a question.
Could they have legislated in this area if they did not have the interstate aspect in the statute?
If the they have simply said that it was unlawful for a felon to receive any firearm or ammunition.
Would there be a --
Mr. Robert B. Reich: After Perez, after this Court’s opinion on Perez that is I think an open question.
I would say that as this Court noted in Huddleston Mr. Justice, there are many parts of the act, the Gun Control Act where the gun itself has never necessarily been involved in interstate commerce where the Act was held to be completely constitutional, as that provision I pointed out before the 922 (a) (6) governing a redemption from a pawnshop.
That question is not before the Court right now because we do have a statute in which Congress has clearly stated that what is unlawful is to receipt of any firearm which has been shipped or transported in interstate commerce.
Justice Lewis F. Powell: Mr. Reich.
Mr. Robert B. Reich: Yes, Mr. Justice Powell?
Justice Lewis F. Powell: You said that there would be gap, a serious gap in the legislation regulating gun control if we accepted the interpretation of 922 as suggested by the defendant.
The statutes do cover different situations to some extent, fugitives from justice and drug addicts are covered by 922 and not by Title VII, but I understood you to say there were some other gaps, would you mind clarifying that or repeat it?
Mr. Robert B. Reich: Yes, the gap to which I referred was the ease with which a convicted felon or any other category could simply receive a gun through either the inadvertence of a dealer or by the simple experience of getting a third party, a friend or relative to get for them.
Now, Mr. Justice Powell, you point out --
Justice Lewis F. Powell: Is that unique to 922 or would that not also apply under --
Mr. Robert B. Reich: Ninth -- under 1202 (a) for categories that are not included within 922, where there is not an overlap between those two provisions, all those individuals according to the construction that a plurality of this Court gave to Section 9 1202 (a) in Bass, there would be no gap because they would be prohibited from receiving a firearm which has been shipped or transported.
Justice Lewis F. Powell: Or possessing?
Mr. Robert B. Reich: Or possessing, that is right, but as to fugitives or indictees or --
Justice Lewis F. Powell: Addicts.
Mr. Robert B. Reich: -- addicts or even as to ammunition, I think it is important area where the statutes do not overlap has to do with ammunition.
Ammunition is covered in Title IV which became the Gun Control Act 922 (h), but is not included within 1202 (a), so therefore, even under petitioner’s construction any adjudicated narcotics addict, to a fugitive or an indictee can with impunity get somebody to get a gun for him, get ammunition for him, even a convicted felon can with impunity get someone to get ammunition for him.
We think Congress simply did not intend to create this gap, especially when used such plain language.
I might also say that whatever Congress intended, in 1938, with regard to that language, given the structure of the Gun Control Act in 1968, given all the prophylactic measures which I have mentioned that are geared toward keeping firearms out of the hands of convicted felons or other categories of potentially irresponsible persons and also given that Congress must have been aware in 1968 of its authority under the Commerce Clause to enact legislation that govern interstate transactions.
It is not at all unlikely that Congress used this language and gave it, its common sense meaning that is that it covers the receipt of any firearm which has been shipped or transported in interstate commerce.
One more thing, petitioner's construction 922 (h) would also relegate Section 922 (h) to a near redundancy with that provision I mentioned before, Section 922 (g) which already prohibits a convicted felon or other category of potentially irresponsible person from shipping, transporting, or causing to be shipped or transported in an interstate transaction of firearm, so that under petitioner’s construction 922 (h) would have an independent force and effect only in those very unique circumstances where the interstate shipment has not been solicited in any way by the convicted felon.
Justice Potter Stewart: I am reading what I think is 922 (g) on page 10(a) and 11(a) of the appendix to your brief, to the government’s brief and it just says to ship or transport any firearm?
Mr. Robert B. Reich: Yes sir, I mentioned before Mr. Justice Stewart that read in conjunction with Section 2 (b) of Title XVIII which makes one punishable as a principle who causes it to be doing that, 922 (g) would have a scope that would --
Justice Potter Stewart: Well, I just read in conjunction with the ordinary, with the General Accomplice Act whatever that is 18 U.S.C. Section 2 or whatever?
Mr. Robert B. Reich: 2 (b).
So therefore, Section 922 (h) under petition’s construction as I said would be limited to the very rare circumstance where the interstate shipment had not been solicited.
We think a very implausible that Congress intended to assign Section 922 (a) with such an absurdly insignificant role in this comprehensive scheme.
Chief. Justice Warren E. Burger: In one of the Congressional Reports, perhaps it was not on this statute, maybe you can enlighten me, Committee of Congress made a finding that the possession of hand guns had increased in the last 25 or 30 years, seven or eight times the rate of increase of population, is that any of those reports cited in this?
Mr. Robert B. Reich: Yes, the legislative history as we –-
Chief. Justice Warren E. Burger: Do you recall it?
I am speaking to the speaking point.
It was enormous increase in the proliferation of --
Mr. Robert B. Reich: I remember Your Honor that one of the Senate Reports did cite those studies indicating the increase in hand guns, but I just do not remember which report it was.
Chief. Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.