STAPLES v. UNITED STATES

Transcript: 

Argument of Jennifer L. De Angelis

Chief Justice Rehnquist: We'll hear argument next in No. 92-1441, Harold E. Staples v. the United States.

Ms. De Angelis.

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

My client, Harold E. Staples, was convicted of knowing possession of a machinegun not registered to him, in violation of 26 U.S.C. section 5861(d).

My client is asking this Court to reverse this conviction and remand this case for a new trial, a fair trial.

The defendant respectfully contends that the first trial was not fair.

It was not fair because the jury was prohibited by the jury instructions presented to consider whether or not Mr. Staples knew the sport rifle he possessed was, in fact, a machinegun.

As stated by Justice Ebel in his concurring opinion, printed at page 24A of the Petition for Cert in this case, whether the appellant in this case is an innocent victim is an open question because the jury was precluded from considering his knowledge of the gun's capabilities.

Principles of justice and fair play suggest that we let the jury decide whether the defendant possessed an automatic weapon.

Prior to this criminal prosecution, the citizen before this Court had no prior criminal record, was engaged in no unlawful activity, certainly engaged in no unlawful activity in connection with this gun.

And by all accounts--

Unknown Speaker: You say certainly he did not?

Mr. De Angelis: --Certainly, he did not.

Unknown Speaker: Well, the jury thought otherwise.

Mr. De Angelis: Prior to this criminal prosecution.

Unknown Speaker: Oh, I'm sorry.

I misunder... I misunderstood you.

Mr. De Angelis: Mr. Staples believed what he possessed... possessed what he believed to be... and the undisputed evidence, testimony of three other witnesses at trial, was that this legal semiautomatic weapon, operated only in semiautomatic mode prior to government seizure and test fire in January of 1990--

Unknown Speaker: Well, now, counsel, I am somewhat concerned about--

Mr. De Angelis: --Excuse me.

Unknown Speaker: --the argument in your brief, and apparently one you're going to make here, that we have before us this issue of whether the defendant actually knew it was automatic.

I thought the jury found that it was a machinegun, and the court of appeals did not overturn that finding.

Mr. De Angelis: Justice O'Connor, I would disagree to the extent that the jury was precluded from considering whether or not the weapon was a machinegun.

Because of the nature of the instruction, all the jury had to find was that the defendant possessed a device that was dangerous, and that dangerous device was likely to be subject to regulation.

That's not the same as--

Unknown Speaker: Well, I thought the jury had to find that it was a machinegun.

They didn't have to find that your client knew of its capability.

Mr. De Angelis: --They had to find it was a firearm, and technically--

Unknown Speaker: And the firearm was defined in this instance, under this statute, as something that fires automatically with a single pull of the trigger.

Mr. De Angelis: --That's correct, Justice O'Connor.

There are--

Unknown Speaker: And that was the finding and the court of appeals did not upset that.

So we... we take that as a given, don't we?

Mr. De Angelis: --When the trigger was pulled on this gun, the weapon fired multiple shots with a single trigger pull.

If what you're saying, Justice O'Connor, is that constitutes a machinegun, then I would have to agree with your analysis of the Tenth Circuit opinion.

However, how--

Unknown Speaker: And if it were shown that this defendant knew of... of that capability, of that operational feature, then there wouldn't be really a case here.

Mr. De Angelis: --That's correct.

Unknown Speaker: All right.

Mr. De Angelis: There are approximately 70 million law abiding gun owners in this country who Congress has consistently sought to protect.

The protection of hunters and sportsmen is codified in section 101 of the Gun Control Act, cited in our brief at page 39.

Of the 70 million law abiding gun owners, a large percentage of them own semiautomatic guns purchased lawfully, just like Mr. Staples, at a public gun show authorized by 18 U.S.C. 923, subsection (j).

In the record, and throughout the case law, there are cited numerous instances where truly innocent possessors of semiautomatic rifles may be convicted of knowing possession of a machinegun.

For example, at trial of this case, Judge Cook expressly, repeatedly showed concern about people who may be out duck hunting and their sport rifle may double by accident, without any prior indication that it had such capability, and that doubling would result in conviction under the strict liability interpretation of 26 U.S.C. section 5861 (d).

Under these circumstances, Judge Cook said, it violates our system of fair play, but he assumed that people wouldn't be prosecuted.

Perhaps the best example is cited by Judge Ebel in the concurring opinion printed at page 24A... excuse me, 23A of the Petition for Cert. Consider, for example, a situation in which a person who knows nothing about guns inherits a rifle from a relative.

Unbeknownst to the recipient, the gun is defective, occasionally discharges two rounds of ammunition, and after a single pull of the trigger, or perhaps it's been converted by a prior owner to an automatic weapon.

Because he has no use for the rifle, the recipient stores it with other unnecessary possessions in the basement or attic, without ever having used it or examined it.

Under the strict liability theory, he would be prosecuted and sentenced.

The penalties which accompany conviction for violation of 6 U.S.C. 2561(d) are harsh: 10 years imprisonment, $10,000 fine, or both.

For--

Unknown Speaker: When you talk about fair play, counsel, you're not suggesting that if this statute, in fact, said all you have to know is that you have a gun and the gun, in fact, has to be of a certain type... that that's what this statute said, that's fair play?

Mr. De Angelis: --Justice Ginsburg, I'm not sure I'm understanding your question.

Unknown Speaker: I was thinking what you said... you're interpreting a statute and you say... said that the statute requires that the defendant know he possessed a machinegun.

Suppose... so... and you're... as you read the statute, that's what it says.

Mr. De Angelis: That's correct.

Unknown Speaker: If the statute, in fact, said defendant must know he has a gun, the gun must be a machinegun, period, that that would be fair play, that you wouldn't... you're not raising a constitutional point.

Mr. De Angelis: No.

And also I would direct... Justice Ginsburg, as you well know, in the U.S. v. Harris decision decided by the D.C. Circuit which you authored, there is no constitutional requirement--

Unknown Speaker: I don't believe I authored that decision.

Mr. De Angelis: --Oh, I'm sorry.

Unknown Speaker: I think it was Judge Silberman, was it not?

Mr. De Angelis: Right, you're correct.

I stand corrected.

Unknown Speaker: And I believe that Justice Thomas concurred in that.

Mr. De Angelis: That's correct.

As well, that there is no constitutional requirement to apply a scienter element into the criminal offenses.

However, what the courts have done in recent history is they have used tools of statutory construction, and the rule of lenity, to find that--

Unknown Speaker: If there's an ambiguity.

Mr. De Angelis: --If there... that's correct.

If there is an ambiguous statute, then principles of fundamental criminal law mandate that the Government prove mens rea.

Support for the application of rule of lenity stated that... in this case particularly, and the Harris decision, that if Congress, against the background of widespread lawful gun ownership, wished to criminalize the mere possession of an unregistered possess... machine... excuse me, firearm, often indistinguishable from other nonprohibitive types, it would have clearly stated to that effect.

Unknown Speaker: Well, do they say that in our drug laws?

I mean, you know, possession of heroin and so forth?

Do they say knowing that it... knowing that it is heroin?

Do those statutes say that?

Mr. De Angelis: No.

Those are, for the most part... and I must tell you I'm not familiar with every single one of the controlled substances statutes, but they would... most of them do require strict liability.

However, the difference between a controlled narcotic or sulfuric acid or other substances of that nature, is it doesn't have the support of the Constitution.

There is a Second... Second Amendment right to bear arms, and for that reason Congress has chosen time and time again to protect that right and distinguish what firearms need to be registered intact and what firearms may be legally owned and possessed.

Unknown Speaker: But doesn't Congress say what drugs are unlawful?

Mr. De Angelis: Yes, certainly they do.

They... they're regulated.

Unknown Speaker: So why isn't this case more like the drug case, particularly the Balint case, than it is like the Food Stamps case.

Because a gun is a dangerous instrument.

Nothing dangerous about a Food Stamp.

Mr. De Angelis: I would agree with you, Justice Ginsburg.

There's nothing dangerous, necessarily about a gin... about a Food Stamp.

However, what you have before you is a... is a weapon that is legal, that has legal uses and legal possession.

Food Stamps also have legal uses and legal possession, and you stand the risk of criminalizing innocent behavior, innocent possessors, by not implying knowledge requirements--

Unknown Speaker: And don't... don't some drugs have lawful uses too?

Mr. De Angelis: --Certainly, prescription drugs, or... if that's what the Justice is referring to.

However--

Unknown Speaker: Well, one could even lawfully possess marijuana in connection with treatment of certain forms of cancer, is that not so?

Mr. De Angelis: --That is... that is correct.

However, the distinction here... again, those exceptions have been noted.

For example, we know that this Court's rendered decisions... I haven't reviewed them recently... dealing with spiritual uses for marijuana, or other narcotics, to allow that freedom to exist, just as there is a freedom here to bear arms, and a right to bear arms, and legal uses for a sport rifle.

Unknown Speaker: I don't quite understand what the Second Amendment has to do with the case.

Would you explain that again?

Mr. De Angelis: Only in that it allowed Congress... it supports a constitutional basis to allow Congress... which Congress has relied on, let me rephrase that.

It provides a constitutional basis which Congress has relied on to protect legitimate, law abiding uses for sport rifles and target practice, or hunting or duck hunting, or whatever the use may be.

There is a right to bear arms.

It's not something that's--

Unknown Speaker: The militia is.

Mr. De Angelis: --Exactly, that's correct.

Unknown Speaker: It is.

But is this part of somebody's militia, this machinegun?

Mr. De Angelis: No.

What we have before this Court is just a citizen.

Unknown Speaker: Well, we mentioned earlier about the lawful uses of articles of this kind.

What is the primary lawful use of a machinegun?

Mr. De Angelis: There are approximately, my understanding would be, about 140,000 registered machineguns.

I understand they are used in competitions--

Unknown Speaker: I know.

But I'm just asking you.

I just don't happen to know.

What is the primary lawful use?

Why would one not think, getting a machinegun, that there might be a reason to check as to whether there's any reason to have it registered and so forth?

Why is it... is it so commonly used, like an automobile or something like that?

Isn't that the kind of article that would put you on notice that if you want to use it in... that you ought to check and be sure the use is lawful?

Mr. De Angelis: --Well, Your Honor, I don't stand before this Court to be a firearms expert, but I do believe that there are competitions involving machineguns, and there are other... are other uses for them.

Those of which were lawfully registered prior to the ban of 1986, I don't know what--

Unknown Speaker: Is your point machineguns or is your point semiautomatic rifles?

Mr. De Angelis: --This case--

Unknown Speaker: Which, due to some defect, may turn into machineguns, which is what you... what you say is the situation here.

Mr. De Angelis: --That's correct, Justice Scalia.

Unknown Speaker: And there are many more than 140,000 semiautomatic rifles.

Mr. De Angelis: That's right, there--

Unknown Speaker: Many hunters use semiautomatics all the time.

It just means you don't have to reload each time you fire one round.

Mr. De Angelis: --That's right.

And that is exactly what this case is about.

The semiautomatic weapon in this case is a sport rifle.

There are--

Unknown Speaker: I suppose that a pistol... would a pistol that had that defect become... would an automatic pistol that had that defect become a machinegun?

Mr. De Angelis: --You mean a semiautomatic pistol?

Unknown Speaker: A semiautomatic pistol?

Mr. De Angelis: It's my understanding that any semiautomatic pistol, sport rifle, shotgun, has the capability--

Unknown Speaker: If it fires more than one round with a pull, it doesn't matter how long the barrel is, it becomes a machinegun.

Mr. De Angelis: --If it fires more than one shot with a single pull of the trigger, it becomes a machinegun under the strict liability theory.

That was the... that's the concern in most of the courts that have implied a knowledge requirement in the 26 5861(d).

And this case is... involves a semiautomatic sport rifle, as any semiautomatic gun can be converted into an automatic or can, by malfunction, as did this gun, perform with... produce multiple shots with a single pull.

Unknown Speaker: Well, that's not quite accurate.

This didn't... this wasn't really a semiautomatic weapon.

It was an automatic weapon that had been rendered semiautomatic, and that because of a defect became automatic again.

Mr. De Angelis: I--

Unknown Speaker: Wasn't this weapon an automatic weapon as originally designed, and it had been modified to prevent the automatic feature of it from operating?

Mr. De Angelis: --If you're referring to the stop on the switch--

Unknown Speaker: Exactly.

Mr. De Angelis: --The... when this... the testimony at trial has been consistently, from the seller all the way through, of this AR-15 sport rifle, as of when my client purchased it at the gun show, it was manufactured with M-16 internal parts.

The selector switch on the outside had a three position lever that allows it to go from safe to semi to auto, and there was a stop on that to prevent it from semi to auto.

The Court should know... and it is printed in the transcript and in the briefs... that there are AR-15 sport rifles out there, and other semiautomatic guns out there, that have no stop at all, nothing to prevent the user from turning the lever from the semi to the auto.

However, the turning of that lever--

Unknown Speaker: In which case you wouldn't be making this argument, if your client had bought one of those.

Mr. De Angelis: --Well, with one exception.

And that is even if you turn the lever, that in and of itself, in this gun, will not allow the gun to produce multiple shots.

You have to have the malfunction--

Unknown Speaker: No I realize that.

But if your client had bought one of the guns in which there was a third position and all the client had to do was to put the device in the third position, you wouldn't be making the same argument that you're making here.

Mr. De Angelis: --You are correct, primarily because at trial--

Unknown Speaker: Well, I suppose I didn't understand your answer to Justice Scalia's question.

In the form that this came from the manufacturer, and if it was operating properly, without any defect, would... it would be semiautomatic only, is that correct?

Mr. De Angelis: --That's correct.

Unknown Speaker: So it was not manufactured as a machinegun within the meaning of the act.

Mr. De Angelis: That's correct.

It was not designed--

Unknown Speaker: Only if there's a defect does it become... does it acquire that characteristic.

Mr. De Angelis: --That's correct.

It's not designed to shoot multiple shots with a single pull of the trigger.

And interestingly enough, the testimony at trial from the expert, Mr. Fagg, in this case, was that this is not a weapon, for example, that you would want to sell to the military and represent was an M-16.

It's not a weapon, by the Government's expert's own concession, that would reliably fire multiple shots with a single pull of the trigger.

Interestingly enough, on page 16 of the Government's brief they make the following statement:

"In cases in which the offense involves regulation of an item that would not ordinarily be considered a hazard to the community, a rigorously knowledge element may be implied. "

The rationale that all parties agree for the implication of a knowledge requirement is that any other result would risk criminalizing a broad range of innocent conduct, just as we were discussing earlier in the Liparota decision.

Certainly, I would not represent to this Court that guns are always safe.

But Congress has repeatedly and deliberately chosen only to register and tax those guns which are considered to be highly dangerous and offensive firearms.

The Government says that Congress wants to prevent the conversion of semiautomatic weapons to automatic weapons.

The petitioner does not disagree necessarily with that statement.

However, that assumes some knowledge or purposeful act on the part of a person, just as in the Mittleider decision rendered by the Tenth Circuit.

Defendant Mittleider sold his semiautomatic with a conversion kit to a undercover officer.

The conversion kit for this AR-15 is called an auto-sear.

It's a very small part whose only function is to allow the gun to fire automatically more than one shot with a single pull of the trigger.

Conversion of the gun cannot be accomplished reliably or purposefully without the auto-sear.

Because the criminal offenses requiring no mens rea have a generally disfavored status, petitioner respectfully requests this Court to apply the rule of lenity in this case.

Throughout their brief, the Government alludes to gangsters and criminals in connection with gun possession.

The petitioner is not a criminal, other than this conviction, and has no prior criminal record, nor does he advocate widespread use of machineguns.

Petitioner does advocate fairness, however, in prosecution, and strongly believes that this honorable Court and the Congress and the Constitution promote justice and fair play by providing citizens with notice of what conduct is unlawful and to prove that the defendant had knowledge of his unlawful conduct.

To allow 26 section 5861(d) to be a strict liability crime invites random prosecution.

The only support for this prosecution is an ambiguous statute that omits a critical element of fundamental and criminal jurisprudence, and that is the defendant's mens rea.

I would like to reserve the rest of my time for rebuttal.

Thank you very much.

Unknown Speaker: You may proceed, Mr. Feldman.

Argument of James A. Feldman

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

It's our position that the jury was properly instructed in this case, and that petitioner's conviction, accordingly, should be affirmed.

The jury was instructed that in order to convict petitioner, it had to find that he possessed a machinegun and that he knew he possessed a dangerous device of a type as would alert one to the likelihood of regulation.

It's our position that that is sufficient for a conviction under section 5861(d) and that the court properly rejected petitioner's proposed instruction that would have required the jury to find that he knew that the weapon he possessed had all of the characteristics, including the ability to fire automatically, that subject it to regulation under the National Firearms Act.

Unknown Speaker: Mr. Feldman, now, just to clarify for us, you agree that this weapon was manufactured as a semiautomatic?

Mr. Feldman: Yes.

There's a military--

Unknown Speaker: And as manufactured, it would not fall within the definition of a machinegun?

Mr. Feldman: --At least... yes, yes.

There's a military weapon which is an M-16.

It's a selective fire weapon that has a switch that you can turn to automatic, semiautomatic, or, I think, safety.

This--

Unknown Speaker: Now, if... if the modifications of a weapon were... were strictly internal so there was nothing on the exterior that would alert a possessor about the change, and if you had a defendant who simply didn't know that the weapon had been modified internally when it was purchased, that person would be liable under your theory, I guess.

Mr. Feldman: --That's correct.

That's correct.

Of course, that... that... there have been courts which have distinguished between cases where the modification was entirely external... was entirely internal, and where there was some external modification.

Unknown Speaker: Yes, I just want to--

Mr. Feldman: But in our view--

Unknown Speaker: --I want to understand how far your theory goes, and it would go so far as to hold someone who was absolutely unaware of the modification liable.

Mr. Feldman: --Yes, that's correct.

Just as... that's correct.

The Congress' intent when it enacted the National Firearms Act... well, when Congress enacted the National Firearms Act in 1934, it made it a crime to possess a machinegun that's not registered in the national registration records.

It modeled the statute... it specifically stated that it modeled the statute on the Harrison Narcotics Act of 1914.

This Court had... which imposed a similar registration/recordkeeping requirement on opiates and cocaine.

In the United States against Bailant in 1922, this Court held that that statute does not require the Government to prove that the defendant has the kind of knowledge that petitioner argues must be proven in this case.

That in... that under... under Bailant, under the national... under the Harrison Narcotics Act, it's not necessary to show that the defendant knows that the drugs he possessed had the characteristics of opium or opiates or cocaine.

Unknown Speaker: Mr. Feldman, I don't understand your argument.

This statute says that it's to be interpreted like the Narcotic Act?

Mr. Feldman: No, it doesn't say that.

If you look at the provision... if you set it... if you set the original 1934 statute alongside the Narcotics Act, the similarities are striking.

The penalty provision is identical.

A lot of the language is the same.

But I think equally important, the Attorney General Cummings who drafted... who had a role in drafting the statute, stated that he modeled it on the Harrison Narcotics Act, and the committee reports stated we have modeled this on the Harrison Narcotics Act.

Unknown Speaker: But narcotics are different from... from a semiautomatic rifle, which are very common.

Mr. Feldman: That's true.

Narcotics are different, but--

Unknown Speaker: Narcotics may not be different from a machinegun that looks like a machinegun.

Mr. Feldman: --Well--

Unknown Speaker: It's something when, you know, you're presented with it, you say, gee, this is a machinegun, what's this doing around here.

Or if you're presented with narcotics, the same thing, you ought to notice right away.

But when you... when you're... when you say a semiautomatic rifle, hunters use them throughout the country.

It's no big deal.

Mr. Feldman: --That's true, and... but I think the same thing would have been true of drugs at the time they enacted the Harrison Narcotics Act.

In other words, the Court didn't say that what... the burden of the Court's decision in Bailant was that if you possess drugs and you didn't know that those drugs were opium or... opiates or cocaine, you could still be prosecuted under the act.

And the reason that the Court reached that conclusion, and the reason that Congress intended that, and the reason that they didn't put a mens rea provision in the statute here, is that those... that drugs, as a general category of items, like firearms, can pose a very severe threat to the community.

That was the premise on which the Firearms Act and the Narcotics Act were enacted--

And if you are in possession of those... that sort of item that can pose such a threat to the community, it's up... Congress wanted it to be up to you to investigate what the nature of the item is that you had, and what the legal requirements that you had to comply with in order to possess it.

That conclusion is particularly apt because this was a registration and recordkeeping provision.

Unknown Speaker: Well, it was, except that in the narcotics example, I suppose it's true to say that Congress did not draw a line between... sort of down the middle in the class of dangerous narcotics and say, well, we'll... we'll prohibit or regulate some and leave others free.

But that, in effect, is what has happened in the gun situation.

I mean, after all, the Brady bill didn't pass until last week.

I mean, there's just been a long history of refusal to regulate the major class of guns in this country, so that when you are faced with something that, so far as externals are concerned, looks perfectly well like a gun which is unregulated and which has been the subject of repeated decisions not to regulate, you're not in the same situation that you're in with the narcotics.

Mr. Feldman: I guess I'd respectfully disagree with that.

In 1934 when Congress... what Congress did want to regulate was machineguns.

It wanted to know how many machineguns there were, who had them, who had control of them, where they were located, in order to enforce that.

Just as with the Narcotics Act where there were many other drugs that were not regulated aside from opiates and cocaine, by the act, in both cases I think the situation was exactly parallel.

There were many things which Congress didn't want to directly regulate, but these are items that are dangerous, that pose... can pose threats, serious threats to the general welfare, and they didn't want, in the case of machineguns, machineguns to be kicking around in somebody's attic where they can surface at some later date and wreak havoc on the community.

Unknown Speaker: Well, I'm still... I guess maybe I'm going to move aside a little bit from the... from attacking the historical analogy, and just go to the merits of applying the interpretive rule here.

Given the fact that the... that the overwhelming number of guns in this country, all of which are dangerous to some degree, are not regulated, I have difficulty in seeing the ease of applying this rule that one simply is on notice that there may be regulation by virtue of the fact that one has a weapon which, by definition, is dangerous.

Mr. Feldman: Well--

Unknown Speaker: So just on the analytical point, I think you've got a hurdle to jump here.

Mr. Feldman: --I think... well, I guess I do think the historical point is important.

But I think, analytically, the vast majority of those guns that are unregulated are not machineguns, couldn't fire automatically, and wouldn't be supposed to be machineguns by anybody.

It's not a serious burden that's put on people.

But I think that if you do... the Court's decisions in Bailant, in Dotterweich, in the more recent Freed, and in International Minerals, I think that they do set a line that when you're dealing... although... that when you're dealing with extraordinarily hazardous items and especially where there's a registration/recordkeeping scheme where Congress wanted to know the locations of those items and who had them, that the people who have those extraordinarily dangerous items, it's up to them to find out what it is precisely that they own.

It's--

Unknown Speaker: Well, does the... does the argument, then, in this case, come down to the fact that if you're dealing with a machinegun, that's fair to say, something which is manufactured as a machinegun, sold as a machinegun, anyone sort of buying it could reasonably be assumed... or possessing it, could reasonably be assumed to know that it was a machinegun, but that the argument doesn't wash in the case of a gun which, at least to external appearances, is not a machinegun.

Mr. Feldman: --Well, there have... as I said, there have been courts that have taken that view.

And that view, I suppose, would be an intermediate view, where there had no external indicia that could alert one to the fact that it was a machinegun.

But frankly I don't--

Unknown Speaker: To this act, that it falls within this very dangerous category of regulated weapons.

Mr. Feldman: --I--

Unknown Speaker: In other words, we've got a category of dangerous weapons which are not regulated.

Presumably, there's nothing about the possession of a singleshot 22 that ought to put the owner on... to an obligation of calling the Government to see whether they regulate singleshot 22's.

When the person possesses or buys a machinegun pure and simple, yes, you get a pretty strong argument that it's fair to put that obligation on him.

Then we have the middle category of guns which maybe can be converted, and which in most cases are not.

And is it... is it appropriate to put the obligation on the possessor or the buyer of those weapons to see whether something, in fact, has... has been modified about them that puts them into the especially dangerous regulable category?

And that's the issue we've got.

Mr. Feldman: --Right.

And I think it is appropriate.

I think it's appropriate both because Congress... I think, primarily, for the reasons I've already said, but because when Congress enacted the statute, they didn't include a mens rea component here.

They did model it on the Harrison Narcotics Act.

And in other areas where you're dealing with--

Unknown Speaker: Well, they may have... they may have done that on the assumption that we were going to apply this rule, which we're having difficulty applying, or at least I'm having difficulty applying.

Congress many have said, well... you know, in fact Congress frequently does this... you know, the courts will work it out, they'll figure out what to do here.

So I'm not sure that you can infer much from Congress' failure to act positively here.

Mr. Feldman: --I guess, well... I think, actually, the way I would put it would be that the burden is on... would... the burden would be on petitioners to show that even though Congress didn't include... it's not their failure to act positively.

They did act positively.

They enacted a criminal statute that provides that it is unlawful to possess a machinegun that's not registered in the national firearms registration records.

Unknown Speaker: Well, while keeping... while keeping their silence on mens rea.

Mr. Feldman: Right.

Well... well, without... without indicating a mens rea.

And in doing that... as I said, it followed exactly the Harrison Narcotics Act.

And in the line... it's... the decisions that have applied the principle that we're talking about aren't limited to the Bailant case.

In the Dotterweich case you were talking about misbranded or adulterated drugs.

Now, there's a wide variety of unmisbranded or nonadulterated drugs that are around.

Unknown Speaker: But I... I think... I guess what's... I guess what's bothering me is that I don't see in the drug situation an analogy to this fact about the gun situation: In the gun situation, there has been a continuing political contest for further back than I can tell, about the appropriateness of regulating guns.

And Congress, by and large, has taken a very narrow view of what should be regulated.

And it seems to me that that is a fact which makes it difficult to apply, sort of, your tough version of the rule.

And I don't see any analogy there in the drug situation.

Mr. Feldman: Well, I mean, I guess I'd make two points in response to that.

First, Congress has, though, decided it wanted to regulate machineguns.

And I'm not suggesting that Congress wanted to regulate other types of guns.

All it wanted was to know that if you had a machinegun and if you knew... that if people who had machineguns had to have them registered and it wanted to know where they were, that doesn't suggest that it's trying to regulate other types of guns, it's just suggesting that they wanted to make the regulation of machineguns an effective regulation that would ensure that they got registered.

The second point I'd make is that throughout the years since the Gun Control Act of 1968, when Congress has extensively... in 1968 they recodified the National Firearms Act.

In 1986 they amended it, as well as the Gun Control Act, which are the title 18 provisions.

Throughout those years, and up until very recently, the courts were unanimous or almost unanimous that our position in this case was right, and that all you had to know was to know that it was a weapon in the general sense, in the general sense.

There was no need for Congress for act--

Unknown Speaker: Is there any circuit other than... any circuit other than the D.C. Circuit that has gone for the defendant in?

Mr. Feldman: --The D.... as we read the cases, the only... the D.C. Circuit is the only... is the one that created the conflict in the circuits on the issue in this case.

There are three circuits, the Ninth Circuit, the Sixth Circuit, and the Fifth... I think the Fifth Circuit, that have held... have appeared to us, at least, to distinguish between guns that... where the modification is entirely internal and entire... and guns where there's some external modification, as there was in this case.

Unknown Speaker: Couldn't one rank this gun, based on the defendant's expert testimony, that this was a defect, and so bracket the defective gun with the internal modification, rather than the external modification?

Mr. Feldman: Well, I suppose... one could accept that.

I think the jury squarely rejected petitioner's evidence that the gun was defective.

There was nothing defective about the gun.

Perhaps if it had an additional part, it could have operated more reliably.

But there was extensive evidence that the gun had been taken out... evidence... ammunition of various... several different types had been put in the gun, and it had fired automatically with a single pull of the trigger.

Unknown Speaker: Well, of course--

--Mr. Feldman--

--Under your position, even if it's defective, there's liability?

Mr. Feldman: I don't... no, I don't think so.

I think if the gun, in fact... if the gun was... I suppose it might... might matter what you mean by defective.

If the gun occasion... once or twice fired multiple rounds and... but was... I think a jury reasonably could find and a defendant reasonably could argue to a jury that this just wasn't a machinegun, it was an occasional defect.

Unknown Speaker: Well, isn't it a question of law as to what is a machinegun and what isn't?

Mr. Feldman: Right.

And it's--

Unknown Speaker: Well, is it your position that a defective firearm that fires multiple rounds is or is not a machinegun?

Mr. Feldman: --If it... if it fire... if it fires multiple rounds.

I mean, I... let me refer to the language of the definition.

A machinegun is defined as any weapon--

Unknown Speaker: Can you tell me where you're reading from, please?

Mr. Feldman: --Actually, it's excerpted on page 4 of our brief.

Unknown Speaker: Thank you.

Mr. Feldman: Any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading.

I think when it says would shoot... which shoots, or is designed to shoot, or can be readily restored to shoot, I think you could take the term "shoot" there not to mean that it did it once by virtue of some defect--

Unknown Speaker: So the Government's position is that unless--

Mr. Feldman: --That type of... this is a capability that this weapon has.

Unknown Speaker: --So the Government's position is that there's a machinegun involved if it shoots most of the time or some of the time as fully automatic?

Mr. Feldman: I hesitate to depart too far, because I think it has to have the general capability of shooting more than once with a single pull of the trigger.

I suppose that--

Unknown Speaker: If the statute is ambiguous, isn't that an argument for requiring specific knowledge of its characteristics, as opposed to strict liability?

Mr. Feldman: --I don't... in the... in the... I guess I don't see the ambiguity.

I mean, I think there are going to be... there are going to be close cases--

Unknown Speaker: Well, it seems to me we've just stumbled onto one.

Mr. Feldman: --I don't... actually, I don't think it's an ambiguity.

I think it's a question of the application of a lot of fact.

The question is does this gun have the capability of shooting automatically.

That question could arise even if you took petitioner's view of the case.

Under any view of the case, you could have a question of whether the gun itself was or was not an automatic weapon.

The question is whether it has the general capability of shooting automatically.

That's a question that can be argued to the jury, but that's a question--

Unknown Speaker: And the Government has the burden of proof on that, I take it.

Mr. Feldman: --That's right.

Unknown Speaker: And the jury must be instructed as to that.

Mr. Feldman: That's right.

And that's a question on which there was conflicting evidence in this case, but there was extensive evidence that this gun would fire, as a matter of course, if you put in... if you held the trigger down and put in ordinarily commercially available ammunition, it would fire automatically.

And the jury credited that evidence and it didn't credit the defendant's evidence.

Unknown Speaker: Well, was the jury instructed on the... on a defensive defect here?

I didn't think it was.

Mr. Feldman: I don't recall... I actually don't recall the specific--

Unknown Speaker: Well, you said a moment ago that the jury rejected the theory that, in fact, this was a merely defective gun, and I didn't... I didn't understand that that issue was put to the jury.

Mr. Feldman: --The--

Unknown Speaker: In fact, I don't... as I understood the instructions, the jury wouldn't have had any occasion even to take that issue up.

Mr. Feldman: --The jury was instructed that... was instructed, I think, in terms of the definition of machinegun that I read to you, as I recall.

Unknown Speaker: Yes.

Mr. Feldman: So it was instructed on what a machinegun is.

Unknown Speaker: And under that definition, as I understand the instructions, if the jury found that on one occasion one pull of the trigger shot more than one round, that that... that would qualify as a machinegun.

Mr. Feldman: Well, I don't think--

Unknown Speaker: And the jury was not instructed, as I understand it, that in... in the generality of cases this particular gun had to function in that way.

And as I understand it, it was not instructed that if it did so as a result of a defect, that it was not a machinegun.

Am I wrong about the instructions?

Mr. Feldman: --Again, I don't recall.

I don't... it wasn't... the latter instruction I don't think was given.

I don't recall specifically.

Unknown Speaker: Well, then we can't... we can't say that the jury rejected the theory of defect in this case.

Mr. Feldman: I think what you can say is that the jury concluded that the gun was an automatic gun, as defined by... an automatic gun as defined by the statute.

And also I really have to say--

Unknown Speaker: Well, I agree with you, but that's not... that's not the point.

The point is did it reject a theory of defective weapon such that if it had found it was merely defective, that would have been defensive.

And the jury didn't reject that theory.

Mr. Feldman: --Well, I have to say the court of appeals didn't rule, as I recall, on any theory... on the theory of defective weapon.

And the Petition for Cert doesn't--

Unknown Speaker: No, I'm not addressing the court of appeals, I'm just addressing your argument, and you were making the argument a moment ago that the jury had rejected the theory of defect, and I don't see how it did... you can make that argument based on the instructions.

Mr. Feldman: --Well, let me go... as far as the theory of defect goes, I don't understand exactly what the theory of defect is.

If the theory of defect is that it was able... it shot once, because something was wrong with it, multiple times with a pull of the trigger, but couldn't... that couldn't be repeated.

Unknown Speaker: Well, regardless--

Mr. Feldman: And that... that--

Unknown Speaker: --Regardless of what the theory of defect is, the jury did not reject a theory of defect.

Isn't that fair to say, under the jury instructions as given?

Mr. Feldman: --I guess... I don't mean to fight the premises here, but I think--

Unknown Speaker: You're doing... you're doing a good job.

[Laughter]

Mr. Feldman: --Perhaps.

The jury was instructed that it had to find that this was a machinegun.

The jury in... if petitioner's defense was, well, this only fired automatically because it was a defect, and I didn't mean it to fire automatically, no the jury wasn't asked to rule on any question like that.

The fact was that this gun was fitted with automatic parts.

It had a piece... a pin which ordinarily sits on the receiver and would keep... even if all the automatic parts, all the semiautomatic parts had been replaced by automatic parts, that pin would keep the lever from shifting over to the automatic position.

That pin had been visibly ground down.

Now, if... petitioner's view of defect, as far as I understand it, was simply that the gun could have had another part which would have made it fire... which would have made it fire automatically more reliably, and that since it didn't have that part, it only fired automatically as a result of a defect.

In our view, I don't think that was any real distinction, and there was no reason to instruct the jury.

But in any sense in which it's relevant, I think the jury did reject the theory of defect.

Unknown Speaker: Mr. Feldman, can I ask what the Government's theory of mens rea requirement is?

You're certainly not asserting that we should read every Federal statute which does not explicitly have a knowledge requirement as dispensing with it.

Mr. Feldman: That's correct.

Unknown Speaker: Ordinarily, we will read in a requirement that you have to know you're violating the law.

Mr. Feldman: That's correct.

Unknown Speaker: Now, what... what makes this different?

Mr. Feldman: I would say there's about three factors.

There's... one is the correlation between... the Congress' attempt to model this act on the Harrison Narcotics Act.

There's two, that this involves highly dangerous items that are a serious threat to the community.

And three, that it's a registration and recordkeeping requirement.

It's a... it's in... the criminal prohibition here is in aid of seeing to it that these weapons get registered and that the Government know where they are and who has them.

Unknown Speaker: All registration and recordkeeping requirements do not have a scienter.

Mr. Feldman: I think where Congress... we would be comfortable with the rule that where Congress doesn't specify otherwise, and where it's dealing with highly hazardous threats to the community and imposes a registration and recordkeeping requirement, that in those circumstances a very weak scienter requirement of the sort that was given to the jury here is appropriate.

Unknown Speaker: Well, Mr. Feldman, does the Government want to concede that you ordinarily read in a requirement that you must know you're violating the law in every criminal statute where Congress is silent?

Isn't the presumption ordinarily that ignorance of the law is no defense?

Mr. Feldman: Yes, that's correct.

Unknown Speaker: Well, then--

Mr. Feldman: And I didn't mean to concede that.

Unknown Speaker: --Well, but it's... then, it seems to me, you're giving a different answer to me than you gave to Justice Scalia a moment ago.

Mr. Feldman: I'm sorry.

What I was really... what I mean to say was where there's no specific... there's no specification of a knowledge requirement, I think it ordinarily is appropriate to require that the defendant at least know the facts, or the primary facts, or the crucial facts that make his conduct illegal.

I do think it's a question of reading each particular--

Unknown Speaker: Well, but that's a different... it's one thing to say the defendant must know the facts that make his conduct illegal.

It's another thing to say that he must know the law that makes them illegal.

Mr. Feldman: --Right.

I don't think that there is... there's all... there's virtually never a requirement, unless it's otherwise specified, of knowledge of the law.

Unknown Speaker: I meant... I meant the former.

The Chief Justice is quite correct to make that modification.

But in this case, that would lead to the normal requirement that he had to know the fact that it was a machinegun.

Mr. Feldman: That's right.

And if... if we were--

Unknown Speaker: But you say that's not the case here because--

Mr. Feldman: --Because--

Unknown Speaker: --Machineguns are dangerous and this act looks like another act that we've held doesn't have a recordkeeping requirement, and this is a... doesn't have such a requirement.

And lastly, this... this act is a recordkeeping act.

Mr. Feldman: --I mean I guess... I guess what I would add to that is that the primary determinant should be what Congress' intent was.

And the point about this looking like another act is... I think that's a very strong index of what Congress' intent was--

Unknown Speaker: Do most recordkeeping acts have prison sanctions for up to 10 years, which is what this is?

Mr. Feldman: --That is a stiff sentence, I'll agree.

But this act, when it was enacted, for instance... and there's no reason to think that the intent requirement would be any different today... had a prison requirement of 5 years and $2,000, which, word for word, was the same as the penalty provision in the Harrison Narcotics Act that the Court... that the Court interpreted--

Unknown Speaker: Well, it seems to me that implicit in the argument that it's a registration, a regulatory act, is also the assumption that the penalty is... is not too severe.

This is a very severe penalty.

Mr. Feldman: --It's true that it is a severe penalty.

But as I said, that... that penalty was not... it's not that different from the penalty that was in effect when the act was first passed.

And there's certainly no reason to think that over the years... I think Congress upped the penalty from 5 years to 10 years in 1968, but that either then or in 1986 when additional amendments, some amendments were made here and some to the Gun Control Act... that at any of those times Congress wanted to change the Act.

In fact, to the contrary, at all relevant times both the line of decisions that I've cited, Dotterweich and Bailant, the decisions of this Court, it's recognized in Morissette as well and International Minerals... at all relevant times those decisions uniformly supported our position, as did the decisions of the lower courts.

Unknown Speaker: Mr. Feldman, remind me of your answer to Justice Souter's question about the difference between drugs, where one would say drugs are dangerous, and guns where, for the most part, Congress hasn't regulated, so it's only a special category that's registered?

You don't have the same kind of congressional determination of dangerousness.

Mr. Feldman: I think there's... there's really distinctions on both sides of that.

First, when in 19... when Congress enacted the Harrison Narcotics Act... and generally in the early part of the century drugs were much less regulated than they are today.

And the Harrison Narcotics Act only purported to regulate cocaine and opiates, not any other drugs.

But secondly, from the other point of view, I think guns are extensively regulated in our society.

They are items that are very dangerous and are known to be dangerous by people, and Congress legislated under that background assumption.

And guns are sufficiently highly... are sufficiently regulated and sufficiently dangerous that if you have one, it's up to you to determine whether... whether it fires automatically.

Another example, for instance, would be a short-barreled rifle.

The short-barreled rifles or short... or sawed-off shotguns are also firearms under the National Firearms Act.

It's... I don't think someone could reasonably... could reasonably... under petitioner's view, the Government has to prove, I suppose, that somebody took out a ruler and measured the length of a barrel on one of those weapons and saw that it was less than the specified 16 or 18 inches in the statute.

I don't think that that's what Congress intended.

Congress intended that if you own a shotgun or a rifle, it's up to you to determine how long the barrel is.

And so long as you know you own the rifle or the shotgun, if the barrel is shorter than the 16 or 18 inches, it's a firearm under the act.

Unknown Speaker: Mr.--

--What if... what if you don't even know that it's a shotgun, you don't even know you have a shotgun?

You buy a house, wight, and sealed up in an abandoned room in the basement there is a sawed-off shotgun; would you be liable?

You don't have to know anything at all?

You don't even have to know you possess it?

Mr. Feldman: No, that's not our position.

Our position is you have to know--

Unknown Speaker: Oh.

Mr. Feldman: --is you do have to know it's a gun.

The possession... the--

Unknown Speaker: Why is that?

Mr. Feldman: --The position we have--

Unknown Speaker: Why is that?

Mr. Feldman: --Because I think in draws the line that the Court has drawn between items xx apparent xx re entirely innocent, such as... such as Food Stamps xx type of conduct at issue in United States Gypsum--

Unknown Speaker: Is that the way the drug law is interpreted too, that you appeal to?

If I sell something that I think is face powder and it turns out to heroin, that what they said in the Supreme Court?

Mr. Feldman: --In Bailant, that's not what they said.

Unknown Speaker: I didn't think it was.

Mr. Feldman: In Bailant they didn't address what you... what the... what the Court held in Bailant was that you... it rejected petitioner's position in this case, which is you don't have to know that what you possessed was opiates or cocaine.

Unknown Speaker: Right.

Mr. Feldman: They... The Court didn't go into what you do have to know.

Unknown Speaker: No, but if--

Mr. Feldman: And to some extent--

Unknown Speaker: --I think if you're going to appeal to Bailant and the drug cases, you have to say it really doesn't even matter whether he knows it's... it's a... he owns a gun.

Mr. Feldman: --I think that it's reasonable that... I think the question of what you do have to know is... well, it's one that they didn't address in Bailant.

And generally... I mean, generally, you could interpret this to be a strict liability offense.

However, in light of the Court's distinctions in... between, for instance, cases such as Liparota and United States Gypsum, and cases like Bailant or Dotterweich or Freed, I think it's reasonable to draw the line and infer a very mild scienter requirement.

Unknown Speaker: Well, isn't it true that all the courts of appeals have done that.

At least... at least they have to know that he possessed the item.

Mr. Feldman: Yes, as far as I'm aware.

Unknown Speaker: Do you happen to know, as a matter of history, what precipitated the enactment of the '34 act?

Mr. Feldman: I... it was--

Unknown Speaker: You didn't live in--

Mr. Feldman: --There was testimony about Dillinger I believe.

Unknown Speaker: --You didn't live in Chicago then, I guess.

Mr. Feldman: Yes.

[Laughter]

Yes.

Unknown Speaker: Is it fair to say... we could argue about the facts of application, but is it fair to say that your interpret... the Government's interpretative rule for finding what Congress probably intended, or imputing an intent to Congress, does require, for your position to prevail, that we conclude that the... that the... that the defendant understand that what he was possessing was... was an object within a class of highly dangerous objects which it is reasonable to suppose the Government would regulate?

Mr. Feldman: I--

Unknown Speaker: Is that the general premise?

Mr. Feldman: --That would be one formulation, yes.

Unknown Speaker: Okay.

Mr. Feldman: If there's no further questions, I've completed.

Unknown Speaker: Thank you, Mr. Feldman.

Ms. De Angelis, you have 10 minutes remaining.

Rebuttal of Jennifer L. De Angelis

Mr. De Angelis: Thank you, Mr. Chief Justice.

It's important for this Court to remember that not all guns are taxed and regulated.

And as with regard to the congressional intent, I'd like to leave the Court with this thought from the Anderson decision in the Fifth Circuit:

"It is unthinkable to us that the Congress intended to subject such law-abiding, well-intentioned citizens to a possible 10-year term of imprisonment if, unknown to them, without reasonable cause on their part to think otherwise, what they genuinely and reasonably believed was a conventional semiautomatic pistol turns out to have been worn down or secretly modified to be fully automatic. "

Unknown Speaker: That's a court that makes the distinction between internal and external.

Mr. De Angelis: That's right.

Unknown Speaker: And which we don't have here, because whatever you call it, it was external.

Mr. De Angelis: In part, Justice Ginsburg.

I think that the Government has stated, even in pretrial proceedings, that the modifications in this case were twofold.

One, it contained M-16 parts.

The Government says the parts were substituted.

That was not the evidence at trial.

The evidence was it was purchased by Mr. Staples with M-16 parts; it was manufactured in that fashion.

And one of those parts was the selector stop on the lever... and the switch, the stop being modified or filed or worn down in some fashion by someone at some time.

Unknown Speaker: But you're not saying that this case fits within the,

"You can't see it; it's all on the inside. "

Mr. De Angelis: That's correct.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Ms. De Angelis.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Transcript: 

Argument of Justice Thomas

Mr. Thomas: The first case I have to announce is No. 92-1441, Staples versus United States.

This case is before us on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

Section 5861(d) of the National Firearms Act makes it a crime to possess a machinegun that has not been registered with the Federal Government.

A machinegun is defined as a weapon that shoots more than one shot with a single pull of the trigger.

Petitioner was charged with violating Section 5861(d) after it was discovered that a semi automatic rifle in his possession that is a rifle that will fire only one shot with each pull of the trigger have been converted to fire fully automatically.

At trial, petitioner testified that he believed that the rifle would fire only one shot with each pull of the trigger and he asked the District Court to instruct the jury that to establish the elements of the offense under Section 5861(d), the government was required to prove that he knew the weapon would fire fully automatically.

The District Court declined to give that instruction.

Petitioner was convicted and the Tenth Circuit affirmed the conviction.

In an opinion filed with the Clerk today, we reverse.

To obtain a conviction under Section 5861(d), the government should have been required to prove beyond a reasonable doubt that petitioner knew that the rifle had the characteristics that brought it within the statutory definition of a machinegun.

While Section 5861(d) itself was silent concerning the mens rea element required for a conviction.

We must construe the statute in light of the background assumption of the common law that mens rea is required for every crime, and traditionally at common law, the mens rea necessary for a criminal conviction required that an accused at least know the facts the made his conduct illegal, here that would require the petitioner to have known that his rifle could fire fully automatically.

It is true that in some cases concerning so-called "public welfare" offenses we have understood some criminal statutes to dispense with the requirement that the defendant know the facts that bring his conduct within the scope of statute.

The statutes we have interpreted in that fashion, however, typically deal with the regulation of harmful or injurious items or as we described them in one case dangerous or deleterious devices or products or obnoxious waste materials.

When dealing with such statute, we have reasoned that as long as a defendant knows generally that he is dealing with a dangerous item that places him in responsible relation to public danger he should be alerted to the probability of strict regulation.

We have concluded that the defendant need not know that he has a precise item regulated by the statute in order to be convicted for violating the statutes commands.

In this case, Section 5861(d) does not define such a public welfare offense.

Guns are not obnoxious or deleterious items as we have understood those terms in the past.

There is a longstanding tradition of widespread lawful gun ownership in this country and we cannot say that a person who merely possesses the gun knows what he stands in responsible relation to a public danger such that he should be subjected to criminal sanctions because the items in his possession turns out to be subject to regulations under the National Firearms Act.

If Congress had intended to subject the gun owners to criminal penalties when they only knew that they possess lawful items, we think Congress should have spoken more clearly to that effect.

Justice Ginsburg has filed an opinion concurring in the judgment in which Justice O'Connor has joined; Justice Stevens has filed a dissenting opinion in which Justice Blackmun has joined.