BEECHAM v. UNITED STATES

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IN THE SUPREME COURT OF THE UNITED STATES

LENARD RAY BEECHAM, Petitioner v. UNITED STATES

No. 93-445

March 21, 1994

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES:

NATHAN LEWIN, ESQ., Washington, D.C.; on behalf of the Petitioner.

EDWARD C. DuMONT, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 93-445, Leonard Ray Beecham v. The United States.

Mr. Lewin.

ORAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

MR. LEWIN: Mr. Chief Justice and may it please the Court:

These two criminal cases, joined here on certiorari to the Fourth Circuit, present a single issue of statutory construction. Does the language used by Congress, in enacting the Firearm Owners' Protection Act of 1986, bar individuals who have been convicted of felonies in Federal courts from possessing firearms even though State law permits them once again to vote, to sit on a jury, or to hold public office?

The Government acknowledges that if a State conviction were involved -- indeed, in the Jones case there are two State convictions as well as a Federal conviction -- the restoration of the felon's rights entitles him to own a gun under Federal law.

The contested issue is only whether the restoration of rights can affect a Federal conviction, and of course, we begin, as the Court does in so many of these cases, including the entire sequence of Gun Control Act cases which ended with the Dickerson case that led to the Firearm Owners' Protection Act, with the language of the statute, and if the Court will permit me, I would like to address the Court's attention to the very specific words of this statute, and they appear at the bottom of page 2 and the top of page 3 of our brief.

Section 921(a)(20) of title 18 defines what is a crime punishable by imprisonment for a term exceeding 1 year, and the first point is that it's interesting that that statute, in subsection (A) and subsection (B), makes specific reference to Federal or State offenses in subsection (A), and to any State offense in subsection (B), and from that I believe it is clear that Congress, when it was trying to distinguish or state anything with regard to this area of the law that could in some way distinguish between Federal and State offenses, knew that those words could be inserted in the statute, and it did so.

But then the statute goes on with the language which Congress added in 1986 following this Court's decision in Dickerson, and quite frankly to overrule this Court's decision in Dickerson, and the first sentence states that the conviction of a crime is to be determined in accordance with the law of the jurisdiction in which the proceedings were held.

In other words, how one defines what is a conviction is to be determined not as a matter of Federal law, which this Court said was the rule in Dickerson -- and that was, by the way, the Court unanimously. Even the Chief Justice in his dissenting opinion agreed that it was a matter of Federal law -- and Congress said no, you're to look to State law to determine whether it is or is not a conviction.

But beyond that, Congress went on with very specific language. They said, any conviction -- again, not any State conviction, but any conviction -- which has been expunged or set aside, or for which a person has been pardoned or has had civil rights restored, and it's interesting, if one looks at that language, that what Congress has done, it has really divided these four classes of postconviction actions into really two groups.

One is a conviction which has been expunged or set aside. In other words, where the court itself, or the sovereign itself has expunged the conviction, or by appeal or some other manner the conviction has been set aside, and then Congress went on to say, for which a person has been pardoned or has had civil rights restored. Congress did not say, any conviction that has been nullified by pardon or by a restoration of rights.

The second half of this provision, it spoke to the person, and it said, one looks to see whether the person has been pardoned, and whether he has had his civil rights restored, and that, to us, is plain language that demonstrates that if you look at the defendants, like Messrs. Jones and Beecham in this case, and you're to consider whether they, as they stand at the time that they are found with a weapon in their possession have had their civil rights restored.

QUESTION: It is true, Mr. Lewin, that all of the other three means of making the conviction not count are means that can only be employed by the same jurisdiction that entered the conviction, only that jurisdiction can expunge, only that jurisdiction can set aside, and only that jurisdiction can pardon. Some other State could not, or some other jurisdiction.

Doesn't that lead you to think that when it says, or has had civil rights restored, it again is referring to the same jurisdiction?

MR. LEWIN: I think not, Justice Scalia, and the reason why not is because the matters that the first three relate to are all things which are done by the sovereign which causes the conviction in the first place. The conviction expunged, the conviction set aside, or essentially the pardon by that sovereign.

Taking away civil rights -- and I think this is the Government's basic error, when they speak about the status of a conviction. Taking away one's civil rights is not done by the sovereign or the statute which a felony offender has violated. It is following his conviction that another law, a State law.

QUESTION: Mr. Lewin, which one? Suppose the defendant is a resident of State X, but the convictions are in State Y, and State Y would not provide for restoration of civil rights, but State X, where the defendant has always lived, and lives after imprisonment, would. Which one?

MR. LEWIN: We think that a literal reading of the statute means that State X can be applied, the law of State X, and if he then has his rights restored, then he qualifies under this statute.

Now, the Government points out, and it's true --

QUESTION: If he is in State X. That's --

MR. LEWIN: If he lives in State X. Yes, I'm sorry. That's what I understood.

QUESTION: Do you have --

QUESTION: The statute doesn't say he has to live in State X.

MR. LEWIN: Pardon?

QUESTION: The statute doesn't say he has to live in State X.

MR. LEWIN: No.

QUESTION: I don't know why Nevada couldn't pass a law that says, we think all convicted criminals who have served their debt to society should be treated like any other free citizen, and that's the law of Nevada. It applies to everybody. Wouldn't anybody just go to Nevada and get the benefit of this statute?

MR. LEWIN: Yes, Justice Stevens, if he lived in Nevada. But he doesn't get his rights restored --

QUESTION: Why does he have to live in Nevada?

MR. LEWIN: Well, because the only way you get practically your rights restored is if you go to vote, and you're permitted to vote, you go to be a juror, and you're permitted to be on a jury --

QUESTION: Apply for a driver's license.

MR. LEWIN: Well, driver's licenses -- felons are not deprived of driver's licenses.

But the point is, Justice Stevens, that restoration means -- is the kind of thing which your local law, where you live, takes it away from you, and then it restores it to you. It doesn't take it away from you if you --

QUESTION: If the statute says you're deprived of these rights while you're in prison, but after you serve the sentence, they're automatically restored and you're treated like a free citizen --

MR. LEWIN: Well -- yes.

QUESTION: -- that would do it, under your reading.

MR. LEWIN: Well, to that extent, Justice Stevens, our position really is that if, to the extent that the State of conviction would restore his rights, and he's been in prison during that period of time, there would also be a restoration of rights.

In answer to Justice Ginsburg's question --

QUESTION: Oh, but our -- both Justice Ginsburg and I are concerned about the case in which the conviction is in New York and the gentleman is now in Nevada.

MR. LEWIN: Yes.

QUESTION: And Nevada has a very generous policy about former convicts. Why can't Nevada give carte blanche to anybody in the country under your reading?

MR. LEWIN: To those who live in Nevada, yes, Justice Stevens.

QUESTION: Why do they have to live -- oh, they have to live in Nevada because otherwise they would have no rights there.

MR. LEWIN: Otherwise they haven't had -- I haven't had my rights restored in the State of Wyoming because I've never been in the State of Wyoming.

QUESTION: If you had -- you were living in Wyoming, say, after you got out of prison, then you could move to any other State and it wouldn't matter what those laws were. Can you give me any other example, Mr. Lewin, where the effect of a judgment, either of a Federal judgment or a judgment of State B, is determined by the law of State X?

That is, you're taking a Federal judgment -- the Federal conviction in Beecham, Federal judgment in Jones -- and you're saying, the effect of that judgment is determined by the law of another State.

Full faith and credit is usually -- the accoutrements of a judgment are determined by the place in which the judgment is rendered, right?

MR. LEWIN: Yes.

QUESTION: That's the ordinary rule. So this would be an extraordinary rule, and I was trying to think of an analogy, and I couldn't.

MR. LEWIN: Well, Justice Ginsburg, first of all it's not the effect of the judgment. What has to be understood, it's the effect of State law on somebody who has had a Federal judgment.

Your rights are not deprived by the Federal conviction. There's nothing in the Federal statute, whether it's a fraud statute or a tax statute, that says you may not vote after you've been convicted of that offense. It's only because you live in the State of Nevada, if the State of Nevada says, now you may not vote because you've been convicted of a tax offense. So it's not the Federal offense itself that takes anything away from you.

But in answer to your direct question, I think we found -- we hadn't cited it in the brief because we found it over the weekend, really, but there is a provision in Federal 28 U.S.C. which provides that Federal jurors are eligible -- it certainly lists as to when they're ineligible, if they can't read or write English and so on, but then it says, if they have a charge pending against them for the commission in a State or Federal court of record of a crime punishable by imprisonment for more than 1 year, and his civil rights have not been restored.

QUESTION: What section is that?

MR. LEWIN: That's section 1865 of 28 U.S.C. -- and I submit, Justice Ginsburg, that if you were to consider somebody being called for Federal jury service in the State of Nevada who 20 years ago had a felony conviction in the State of New York, and then he lives in the State of Nevada, and the question is, does he qualify for Federal jury service, and I submit that under this statute, if the State of Nevada said, your rights have been restored for Federal felonies no matter where they've been committed, that person will be permitted to serve on a Federal jury in the State of Nevada, and if that's true --

QUESTION: Well, you're submitting that, but no court has held that.

MR. LEWIN: No, I agree, there's been no decision along that line, Justice Stevens.

QUESTION: It's really the same issue we have in this case.

MR. LEWIN: I should have prefaced my response to Justice Ginsburg by saying that I don't think that question has to be reached in this case, by the way, because this is not a case involving somebody who has moved from State A to State B.

Even if it were true -- even if it were true that one has to look to the State of conviction -- and let me say, the Government cites cases where courts have sort of in passing -- the question has not really been decided, has not been litigated in the courts of appeals, but we acknowledge that in passing and just looking at the statute, many courts of appeals have said well, we look to the State of conviction to see whether they restore rights.

There's something maybe instinctive, maybe along the lines of what you said, Justice Ginsburg, on the part of courts to say well, let's look at the State of conviction.

QUESTION: Or look at the Federal system, because in Beecham's case you have only the Federal conviction, isn't that right?

MR. LEWIN: Well, Mr. Beecham had earlier State convictions, Your Honor. They're not in the record.

QUESTION: Then take a case where there is only --

MR. LEWIN: Yes.

QUESTION: Only a Federal conviction. You would still say, if that person lives in a State that restores civil rights immediately on release from prison, that the effect of that Federal judgment will be determined by the State, by the State's law on restoration, so the Federal judgment is in some respect diminished. It doesn't have as dire a consequence for the defendant as it would if you didn't have the State law.

MR. LEWIN: Except in theory, Justice Ginsburg, there could be a State -- we know of no State, but there could be a State that says, we don't care whether you've had a felony conviction, we will impose no disability on anybody who's had a Federal conviction. If there's true, there's no disability that is ever imposed by the Federal statute.

The only reason any disability is imposed that ends up being subsequently restored is because there is a State law, so it's not -- it doesn't make sense to speak of the disability imposed by the Federal conviction. The civil rights --

QUESTION: But your answer is that it's the same -- I'm trying to get away from the State of conviction. If we had simply a Federal conviction --

MR. LEWIN: Yes.

QUESTION: Your theory works just the same way.

MR. LEWIN: Yes, and indeed, in the Beecham case, the interesting thing is that in this case, in the Beecham case, in fact, the Court looked to the State of conviction to see what Tennessee law was. That's what the Court thought was significant.

At the same time, the Fourth Circuit in the Jones case, interestingly enough, did not look to this law of the State where the Federal court sat. Mr. Jones had been convicted in the district court in Ohio, and yet the Federal court in passing said, well, he's gotten a very nice certificate from the State of West Virginia which restores all his rights, therefore we're assuming that his rights have been restored, but it's still a Federal conviction, but they did not look to the law of Ohio, so it's clear to us this is an open question.

We think really it's an issue that this Court doesn't have to decide in this case as to whether the law of residence -- the law of the State of residence or the law of the State of conviction controls.

QUESTION: Mr. Lewin, you assume that there has to be some way in which this provision "or has had civil rights restored" applies to a Federal conviction, but why do I have to assume that that particular one applies to a Federal conviction?

Surely I can envision a State that does not accord its Governor any pardon power, and I would say, well, in that State, any conviction would not have the benefit of this provision or set-aside, or for which a person has been pardoned, right, and I'd say, well, some States don't have that. That's okay.

Why can't I say, with respect to the Federal Government, that provision applies to many States, maybe most States, it just doesn't apply to the Federal Government? Isn't that a conceivable disposition of it?

MR. LEWIN: I think if so, if Congress had intended that in any way, I think Congress would have said in the language of that statute that it refers only to State convictions, or in the case of State convictions has had civil rights restored, but otherwise, if Congress is saying, a person has had civil rights restored, these are two individuals who have had their civil rights restored.

QUESTION: But it was -- Justice Scalia's reading would make the second sentence compatible with the first sentence, which the thrust of that seems to me that the conviction, the judgment of conviction, is determined by the law of the jurisdiction in which it was held.

MR. LEWIN: I think the problem, Justice Ginsburg, is that that reading and the Government's reading makes the second sentence entirely superfluous.

If we are looking only to whether the conviction still has the status of a conviction, it would have been sufficient for Congress simply to have said the first sentence: what constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Therefore, if a conviction no longer has the status of a conviction, whether it's by expungement or anything else, it would be --

QUESTION: -- Mr. Lewin, because the prohibition is on a person who's been convicted, so if he ever had a conviction, he would be disentitled. You need the second sentence to -- the very beginning in (g), "It shall be unlawful for any person who's been convicted."

QUESTION: You haven't heard some of the Federal prosecutors argue that we have, Mr. Lewin. I assure you, they would argue -- but you say that they wouldn't argue.

MR. LEWIN: But it does appear to me that if the crime has been expunged, the conviction has been expunged or set aside, or pardoned, or by the jurisdiction in which it was entered is no long effective so its status is no affected, then the law of the jurisdiction in which the proceedings were held no longer considers it a conviction.

QUESTION: No, but it's still true that he had been convicted.

MR. LEWIN: Yes, Justice Stevens, it's true that he had been convicted, but --

QUESTION: That's what makes him ineligible, the fact that he had been convicted.

MR. LEWIN: But still, we submit that the second -- what the second --

QUESTION: And the other thing that I don't think you've quite responded to in our multi-State example, if there is an expungement in one State for purposes of this statute, that takes care of -- it removes the conviction in every state --

MR. LEWIN: Yes, sir.

QUESTION: Because it's no longer a conviction to be considered under the statute, so if you are pardoned in Nevada for a Federal offense, you've got a carte blanche for the whole country.

MR. LEWIN: That's exactly what Congress has said. Congress has said this entire -- this statute, Justice Stevens, by its very terms is one which creates a patchwork quilt, as it were, depending on the jurisdiction -- the different jurisdictions.

QUESTION: But surely the State of Nevada wouldn't pardon one for the committing of a Federal offense, would it?

MR. LEWIN: No, it couldn't. It wouldn't have the jurisdiction. I assume --

QUESTION: No, but it would say, we used to disqualify you for jury service or for --

MR. LEWIN: Right.

QUESTION: -- various rights. We now restore those rights in Nevada.

MR. LEWIN: Yes.

QUESTION: That would take care of -- give him a carte blanche for the whole country. It has to -- it is no longer a conviction within the meaning of the statute.

MR. LEWIN: Once he has had his rights restored, that's right, Justice Stevens. That's what the statute says. A person has --

QUESTION: Even if you only spent 10 minutes in Nevada, just enough time to have rights taken away and restored.

MR. LEWIN: Well, I think he'd have to spend enough time to qualify otherwise, to be a voter, or a juror, or to run for public office. You can't have your rights restored -- I mean, obviously, somebody goes in for a sham -- you know, just runs in to test out the casinos in Nevada for a day and then leaves, and says, well, I've now gotten my civil rights back.

QUESTION: Establish residence for long enough to file a divorce action, which used to require, I think, 30 days or something like that. Whatever that period is would be enough to (a) have your rights taken away from you and then later restored.

MR. LEWIN: Frankly, Justice Stevens, I don't see why that's so troublesome. If people don't -- I don't think it's realistic to expect people to change --

QUESTION: It's not troublesome at all. It's just a question of whether that's what Congress intended.

MR. LEWIN: And I think -- I submit that Congress intended it with regard to bona fide residences. If somebody resides some place where his civil rights have been restored, then Congress said, if he can be a juror, and he can decide on guilt or innocence of somebody else with regard to a felony, or he can run for Governor of the State, he can run to be an elected officer in that State, we're not going to deprive him of the right to carry a gun.

QUESTION: Except that there's a difference --

QUESTION: Whatever may be the evils of that particular interpretation, they're not going to be made any different by whether or not we construe the language to include a Federal statute, are they? I mean, there are still all sorts of possibilities, presumably, regardless of how we construe the language affecting a Federal conviction.

MR. LEWIN: Definitely, Mr. Chief Justice, and Mr. Stevens -- Justice Stevens, let me point that out, too, that regardless of this issue, as the Chief Justice has said, even by the Government's own admission, the very same concerns and the very same parade of horribles, if one views it as horribles, would be possible simply by the use of State law to affect State convictions.

Somebody's convicted in New York and decides he wants to possess a rifle, he travels to Nevada for enough time, he then lives there, he gets his rights restored, and the very same thing could happen, because the Federal-State --

QUESTION: It only happens in that State. It only happens in that State, which is master within its own house, but you're saying that Congress has somehow given it to that State to remove this individual's subjection to increase penalty Nationwide, or to this particular sanction Nationwide.

MR. LEWIN: Because the statute does not say, has been pardoned by the jurisdiction that convicted him, it simply says, it has been pardoned.

QUESTION: No, but that's not the implication of what Justice Scalia is saying. Justice Scalia is suggesting that you might have a regime in which in Nevada he can possess the gun, but he can't cross the line into California and possess the gun, but you're saying when he goes to California, his status remains the same. Isn't that your position?

MR. LEWIN: Well, Justice Souter, quite frankly that's even another question which the courts of appeals have not resolved.

QUESTION: Well, are you not taking a position on that?

MR. LEWIN: I'm saying I think reading it literally I think once his rights have been restored he could go to California. However, I'm saying that's another question --

QUESTION: I think your position is yes, he can go to California, and his -- the removal of the disability goes with him.

MR. LEWIN: On the other hand, my point is that in this case there are various questions that this court need not reach, the question of whether somebody who lives in Nevada and may therefore own a rifle in Nevada, and then moves to a State which does not provide for restoration of rights, and therefore his old New York conviction again might prevent him from voting or serving on a jury, could that person possess a rifle under Federal firearms law?

I'm saying, it's another question. I think read literally, I think the statute would apply, but I could see a court of appeals reaching that question and saying, oh, no, just as with the Federal jury qualification, a person might be qualified to be a juror in a Federal court in Nevada, and then when he moves to a State which doesn't restore the rights, suddenly that right is taken away from him.

QUESTION: But your argument on the jury question is at least different vis-a-vis whether the restoration is a function of Federal law or State law, isn't it, because -- I may be wrong in this, but I don't think there's any Federal statute that restores a convicted felon's rights to serve on a Federal jury, whereas there is a Federal statute by which a convicted felon can apply to be excused from the prohibition on gun ownership.

MR. LEWIN: Yes, Justice Souter, but we certainly do not think that that is a restoration of civil rights statute. That statute appears at page 3 of our brief. It sets up wholly different standards. It requires reputation testimony, it requires likelihood to act in a manner not dangerous to public safety, various other standards. It's not a restoration of civil rights.

The Government tries, looking around for something which they can say is a Federal statute.

QUESTION: Well, it's a restoration of a civil right.

MR. LEWIN: It's a restoration of a right. I guess it's a civil right.

QUESTION: Okay.

MR. LEWIN: But it is not -- I don't think it can be classified within the language that Congress has used in 1921 --

QUESTION: I guess my only point was, your -- the position vis-a-vis jury service I think is indisputably on your side, because I don't think there's a Federal statute that provides for any way to become eligible, whereas that is not true with respect to the firearms ownership.

QUESTION: May I ask if your theory would apply to -- say Canada had a law that deprived people of the right to vote if they had been convicted of a felony in another country. They went to Canada, then they restored the right to vote in Canada. That would remove the conviction for purposes in the United States, I suppose.

MR. LEWIN: Well --

QUESTION: Literally. Literally. Same --

MR. LEWIN: That is -- that is -- I think clearly what the courts could say and should say is that what Congress was contemplating was not under the law of some foreign jurisdiction, which might say any --

QUESTION: But you would acknowledge --

MR. LEWIN: They are talking about American jurisdictions.

QUESTION: But you would acknowledge the plain language would apply equally to that case?

MR. LEWIN: Well, I'd acknowledge that it would be possible to make that argument, but I think in the context of what legislates about, I just don't think that that's a realistic interpretation.

QUESTION: And except you're not really reading it literally. If you read it literally, you would say it doesn't matter where he resides, if any State has restored his civil rights, he can own guns. You're not reading it literally, so the dispute between you and the Government is whether the limitation that you import is going to be a limitation of residence, or rather, a limitation of the State of conviction. It's one or the other. Nobody reads it literally.

MR. LEWIN: Well, I'm sorry, Justice Scalia, I think first of all our disagreement with the Government, as I say, in this case really doesn't have to do with State of residence.

I think the Court can decide it without deciding the State of residence question, but beyond that, our reading is that nobody gets his rights restored unless he's within the jurisdiction. He lives within the jurisdiction so that his rights are restored.

The mere fact that there is some State that says hypothetically, if you lived here you would get your rights restored, that's not a literal reading of the statute. We don't think so. It doesn't say he would hypothetically could have had his rights restored. He did have his rights restored. You have to be in the jurisdiction to have your rights restored in that jurisdiction. We think that that's what a literal reading of the statute means.

We'd like to reserve the rest of our time for rebuttal.

QUESTION: Very well, Mr. Lewin.

Mr. DuMont.

ORAL ARGUMENT OF EDWARD C. DuMONT ON BEHALF OF THE RESPONDENT

MR. DuMONT: Thank you, Mr. Chief Justice, may it please the Court:

The Government's construction of the language at issue here is succinctly stated. The status of any prior conviction for purposes of the Federal Gun Control Act is determined by reference to the law of the jurisdiction that rendered the jurisdiction.

There are two basic propositions that I'd like to focus on that we think make the case straightforward. First, ours is the natural reading of the statute, particularly in light of its background and purpose, and second, our reading provides clear, textually bounded and easily administered rule.

QUESTION: What would you say was the purpose, Mr. DuMont? One could certainly infer that the purpose was to make sure that people in prisons didn't get guns, but as soon as they got out, they could. I mean, this was really quite a bath that Congress gave after our Dickerson decision.

MR. DuMONT: Well, I think it would be an extraordinary reading to think that Congress intended that anyone, once you got out of prison, could have had a gun, because if they had intended that, they could have said that much more simply. What they did intend to do was to take the state of pre-1986 law, pre-Dickerson law, which was that Federal law determined the status of a State criminal disposition no matter what it was, so that for instance, in one of the famous cases, a State pardon, which explicitly restored State firearms rights, was not given effect for Federal law.

Now, Congress was reacting to that kind of situation, and what they said about that was, look, if we're relying on a State's conviction for purposes of Federal law, we ought to defer to the State's characterization of whether something was a conviction in the first place -- that was Dickerson -- and also, any subsequent action that a State might take, that a rendering jurisdiction might take to attenuate the ongoing effects of the conviction.

QUESTION: When you see in the back of the petitioner's brief the State laws collected, almost all States seem to restore civil rights, so that I don't think it's an unfair inference to say that perhaps the only time you can't own a gun under this statute is when you're in prison.

MR. DuMONT: Well, I -- with respect, I don't think that's right. The States have many laws covering the subject of restoration of rights. Some of them do restore firearms rights, many of them do not restore firearms rights, although they do restore other rights. Some of them don't restore all rights at all. Texas, for instance, never restores the right to serve on a jury.

QUESTION: Tennessee certainly restored the rights of one of these petitioners, didn't it?

MR. DuMONT: Well, that's not at all clear, Your Honor. Tennessee -- Mr. Beecham had three prior convictions, two State and one Federal. They are in the record in the argument over -- or, in the testimony and in the argument over this issue in the district court.

The Tennessee procedure changed in 198 --

QUESTION: 6.

MR. DuMONT: -- 5, I believe, or 6. Prior to that, if you had a conviction from prior to 1986, you were required to go to a court and get an affirmative order, and there's no evidence that Mr. Beecham ever did that, or that he didn't do it. There's no evidence in the record about that, and as to the Federal conviction, there's no evidence that Tennessee law -- that he ever requested that the Tennessee statute be applied to his Federal conviction.

QUESTION: Will you clear up one thing for me, am I correct in assuming that in most, if not all States that have a procedure for the restoration of civil rights, it's not automatic. There has to be some specific action taken by some State official.

MR. DuMONT: Well, it really varies all over the lot. In Minnesota, for instance, it's quite automatic. In Tennessee, before 1986 --

QUESTION: As soon as he serves the sentence it's restored, is that it?

MR. DuMONT: Then all of his general civil rights are restored, although, interestingly, not all of his firearms rights.

QUESTION: Well, but -- does that mean that in a State in which it does automatically restore civil rights, that under your opponent's reading of the statute that would mean that that conviction -- well, that would -- obviously, it would mean that that would never count, under your reading as well. If you are convicted in Minnesota, you automatically get your rights back after you serve. Then he can own a gun, anywhere in the country.

MR. DuMONT: Well, Minnesota is complicated, because Minnesota imposes certain firearms restrictions on felons even though their other civil rights have been restored, so in fact under a different part of the statute the Government does not interpret that as a --

QUESTION: Well, he may not be able to own a gun in Minnesota, but the Federal statute would not be an impediment to his ownership of a gun.

MR. DuMONT: The Federal statute gives effect to Minnesota's continuing firearm restriction under the last proviso.

QUESTION: Well, how about in Tennessee, which is involved here? Post 1986, it's automatic, is it not?

MR. DuMONT: Post 1986, it appears to be automatic, at least for State convictions, that's correct.

QUESTION: Mr. DuMont, you mentioned the jury situation. Under the jury statute, which refers to the restoration of civil rights, there is no Federal statute providing for that restoration, I believe, is that correct?

MR. DuMONT: There is no Federal -- general Federal scheme for restoration of Federal rights.

QUESTION: Is the phrase, restore -- well, I shouldn't say restoring civil rights. The phrase in the statute is, civil rights have not been restored. As that phrase is used in the jury statute, it's got to reference back to State law, doesn't it?

MR. DuMONT: We don't think so, Your Honor. The language is very similar, although not identical here, but there has been no litigation on this point, first of all.

QUESTION: No, but if there's no Federal statute on the restoration of the rights, then how would one's right to serve on a jury -- or, how would one's civil rights be restored for purposes of serving on a jury if not by reference to State law?

MR. DuMONT: Well, there are two things I would say in response to that. First of all, the indications in the legislative history of the jury rights statute are that Federal rights used to always depend on State law, and in the 1940's when that statute was originally passed, the explicit intention was to federalize the rules for qualification to sit on a Federal jury.

Now, when the statute was later amended in the mid-seventies to change some of the language that relates to this, again, the indications in the legislative history are that what Congress had in mind, they refer specifically to two Federal statutes which they had in mind, both of which are not restoration statutes but in fact expungement statutes, and I think there is also an indication that pardons may have been in consideration.

So our position on this would be there's no reason to read these two statutes differently, but the correct reading, in the absence of anything else in the statute to guide us, is that the restoration of rights for both statutes must be accorded by the jurisdiction that rendered the conviction.

QUESTION: But I think you're telling me that they would be read differently, because I think you're suggesting that restoration of civil rights under the jury statute might be a restoration by pardon or expungement, whereas it is clear from the text of the firearms statute that restoration cannot be by pardon or expungement because they're separately listed in the statute.

MR. DuMONT: But that's why I say the language is not identical, and I think some of the differences may be relevant in the sense that I think the words, civil rights restored, used in the jury qualification statute, may be broader, because they're intended to sweep in a Federal pardon, for instance, or the one instance that I'm aware of where there's a possibility for expungement of the Federal conviction, which --

QUESTION: Well, the Federal Government does not take away any civil rights to begin with, does it?

MR. DuMONT: Well, it depends largely on what you classify as a civil right. It takes away the jury right, the right to sit on a Federal jury.

QUESTION: Under this statue, 1865?

MR. DuMONT: Under 1865. There are a variety of occupational disabilities for certain kinds of convictions that have to do with serving on trust funds for pension funds, serving in labor unions, this kind of thing.

There are some crimes which -- part of which the penalty is, or may be, that you can't hold Federal office. There are instances where civil rights are --

QUESTION: Well, do States eliminate that disability -- those disabilities?

MR. DuMONT: I'm aware of no instance under which a State can eliminate one of those disabilities, although the issue may be somewhat unclear under the labor statutes.

QUESTION: Well then, the State -- even the State can't restore the civil rights, then.

MR. DuMONT: Depending on whether you consider those civil rights for purposes of this statute.

Now, it's true that in the case of State convictions, which is -- I ought to emphasize, the vast majority of the felony convictions we're talking about that are covered here are State convictions, which is what Congress had in mind. For purposes of a State conviction, the civil rights restoration language is fairly clear.

QUESTION: Mr. DuMont, when Congress -- we know what it meant to do with that first sentence. It meant to overturn Dickerson, right, and the conviction is -- the dimensions of the conviction are determined by the jurisdiction in which the proceedings were held.

MR. DuMONT: It meant to overturn Dickerson for convictions that were State convictions, that's correct.

QUESTION: Then we get to the second sentence, and everything except for restoration of rights is tied into a particular jurisdiction, expunged, set aside, as Justice Scalia pointed out before.

MR. DuMONT: That's correct.

QUESTION: When a draft like this appears, is there anybody minding the shop who would look at such a sentence when this legislation is just on the drawingboards, civil rights restored, and say, wait a minute, that one doesn't fit, and maybe the Department of Justice should call the attention of the congressional committee to that misfit?

MR. DuMONT: In general we do try to look at pending legislation and point out whatever problems we can identify with it. I wasn't here when that particular statute was --

(Laughter.)

QUESTION: Not on my watch -- yes, right.

MR. DuMONT: -- when that particular statute was vetted by the Department of Justice.

QUESTION: Maybe we should adopt a contra preferentem mode of interpretation, and just at least when it's in title 18, simply construe it against the Department.

(Laughter.)

QUESTION: It might induce more care in these matters.

MR. DuMONT: Well, I must say I don't think that even if we focused purely on the language of the statute that there's anything particularly unclear about it, because if you look at the language of the statute and at the legislative history, such as it is, which does not address this particular point, but which does make clear that what Congress was thinking about in response to Dickerson was the Federal treatment of State convictions --

QUESTION: Well, how about Mr. Lewin's point that sections (A) and (B) expressly modified the term, offenses, by saying State, or Federal, or both, and then this language after that just doesn't say anything?

MR. DuMONT: Well, I think there's a good reason why subsections (A) and (B) distinguish Federal and State, and that is that in (B) when we're talking about distinguishing misdemeanors, really that's just getting at the fact that Federal law had decided to get away from defining these things as felonies.

This is traditionally referred to as a felon with a firearm statute, but it doesn't really define it that way, it defines it in terms of crimes punishable by imprisonment for more than a year.

This -- (B) is really just intended to take care of State cases, where States still use felony and misdemeanor classifications, and therefore it's something that only applies to a State.

Now, in the second two sentences, we would submit that there's nothing narrowing about them that prevents them from applying to both Federal and State convictions, so there's nothing that was necessary to do to distinguish that, but the fact is that that doesn't mean that every part of the laundry list in the second sentence that was added in 1986 -- pardons, expungements, set-asides, or restorations.

As Justice Scalia pointed out earlier, not every one of those has to apply to both Federal and State convictions. It's perfectly possible -- well, it is true that there are some States that never restore rights, and yet no one thinks that the restoration of rights language doesn't apply to States because of that, and it may be that the Federal Government simply does not provide a restoration mechanism, but that doesn't mean that the pardon, expungement, and set-aside terms don't apply equally to Federal convictions.

QUESTION: As a matter of policy, I can't understand why the Federal -- I mean, if you're trying to conceive of what the plausible intention of whoever wrote this thing was, I find it hard to think why Congress would say, well, so long as the State where he was convicted says he can carry a gun, he can carry a gun anywhere, even in those States that don't allow ex-felons to carry guns, ever. That's a strange disposition.

Whereas I -- it would make a lot of sense to say, if the -- I'm not sure it should be the State of residence, but if the State where he's acting, if the State where he possesses the gun, or ships the gun, or receives the gun, if they've said, you know, your civil rights are restored, we don't care, we don't mind felons -- ex-felons owning guns. We believe in redemption. So be it. I can understand that. Why shouldn't we interpret it that way --

MR. DuMONT: Well, I think --

QUESTION: -- on a State-by-State basis? Where are the -- and that would make more sense from the standpoint of the citizen knowing what the law is. I mean, you know, I'm acting in New York. I read the New York statutes. They say, ex-felons -- you know. Why shouldn't that be the way we interpret it, which isn't residence. It's not quite what the petitioner is saying.

MR. DuMONT: I think the reason not to interpret it that way, or as residents, or as the State where -- in the case of a Federal conviction where the prior conviction was rendered, the reason to avoid all those readings is not that they might not make sense under some statutory scheme, it's just that they're not what Congress said when it wrote this statute.

Again, we would have two sentences here that were added in 1986. They are two sides of the same coin, and they really address two halves of the same thought. The thought was to give a rendering jurisdiction the power to control what effect its convictions would be given for purposes of the Federal firearms statute.

Now, the -- if you look at -- first of all the first sentence explicitly ties in the disabilities here, or the term conviction, to a State where -- or to the jurisdiction where the conviction was rendered, and we see no reason to read those two sentences separately. We think that logical connection ought to carry on through interpretation of the second sentence.

Even if you look, as I take it my colleague would have you look, at the second sentence simply by itself, then again, as you pointed out earlier, Justice Scalia, we have three things listed which can only be done by the jurisdiction that has originally rendered the conviction, and then we have a fourth thing. Well, you know, noscitur a sociis, and the logical reading of that fourth --

QUESTION: I don't know if it's correct to say that only the jurisdiction which rendered the conviction can set it aside. It can be set aside on Federal habeas.

MR. DuMONT: Well, as we acknowledge, that's a possible colloquial exception. Now, it's not technically correct, because technically a Federal habeas judgment doesn't operate on the conviction, the State conviction, it operates on the body of the accused, but one can see that that might have been encompassed there.

We think it would -- to read a lot into that would be to let a very small tail wag a very large dog, because the vast majority of set-asides are done as a matter of State law, and by the way, you can see that even more clearly if you think about the fact that if the second sentence weren't there at all and there were no explicit statutory reference to setting aside convictions, we don't think anyone would suggest, and certainly we would not suggest, that the Federal law could make use of a State conviction for purposes of this statute that had been invalidated on a Federal habeas.

I think the third thing to observe about the language of the statute is that those two sentences are tied in not only by their simultaneous enactment, and by their adjacency in the text, but by the fact that they both express two halves of one congressional purpose, which, as we've said, is to give the States the power to determine the existence, in the first instance, and the continuing effects for purposes of this law of their own criminal adjudication.

As the legislative history says, in the typical case, the Federal conviction rests on a State predicate, and therefore in those cases it makes sense to defer to the State definition of whether that predicate exists or not.

Now, the same logic -- the same logic extends to Federal convictions simply by saying that if you have a Federal conviction, then its existence and its continuing effect for purposes of this law are a matter of Federal law, and that, I will point out also, is the part of Dickerson that was not overturned.

When Congress addressed Dickerson, it addressed it in the sense of the broad number of cases which rely on State law, but there was no indication that it meant to disturb Dickerson's application to a Federal conviction and the status of a Federal conviction under Federal law.

QUESTION: Mr. DuMont, I noticed in your briefing you don't rely to any extent as a background norm on the full faith and credit principle, both article IV and 1738, that says a judgment shall have the same full faith and credit as it has in the jurisdiction of the State from which it is taken.

If we're saying that these words -- the meaning is not clear, then that is one general rule set by the Constitution and implemented by statute that judgment is to have the same full faith and credit every place as it has in the jurisdiction where it's rendered.

MR. DuMONT: Well, that's correct. It's not entirely clear to me what relevance the full faith and credit rule has to Federal convictions, which are the specific convictions we're dealing with here.

QUESTION: Well, don't you think the Supremacy Clause would require the same respect for a Federal judgment that is required by the Full Faith and Credit Clause for a State judgment?

MR. DuMONT: One would hope so, although here, I suppose the question is, Congress has spoken to defer a State law in certain instances, and the question would be whether this is one of those instances, but as a background law, that is certainly correct that we think the basic supposition ought to be that Congress would not intend States to be determining the effect of a Federal conviction for purposes of Federal law.

QUESTION: What do you think the Congress' reason was for saying that as to State convictions, if they had been set aside, or there had been a pardon, rights were restored, they would not count in deciding eligibility to have a firearm, but the Federal conviction shouldn't be treated that way?

MR. DuMONT: Well, I think Congress was concerned that -- as far as I can tell, that in the case of a State conviction where the State had taken some -- either did not regard the conviction as sufficiently serious enough to see it as a conviction for purposes of its own collateral consequence rules, or did regard it so -- that way in the initial case, but then had made a determination of some sort that the person's time had been served or that for other reasons the collateral consequences ought to be wiped off, that the Federal Government ought to respect that determination in the realm of firearms disabilities.

So that if you had a Tennessee felon who the State of Tennessee had made a judgment was now competent to carry guns, whether he had not been before, the Federal Government ought to defer to that judgment, and I think that's all they were trying to do.

QUESTION: So -- but Federal convictions, since there isn't any recognized mechanism for restoring civil rights, that just would be with a person, and you could never get out from under that.

MR. DuMONT: Well, that's not entirely true. Congress provided a very specific provision in section 925(c) for going to the Secretary of the Treasury, in the case of a Federal conviction, and regaining Federal firearms rights in the face of a Federal conviction, based on the same sorts of judgments about rehabilitation and good character.

There's always also the possibility of a presidential pardon.

QUESTION: Is it your position that the restoration of any civil right is enough? I mean, what if they restore some but not all?

MR. DuMONT: The -- in the context largely of State convictions, the courts of appeals have held -- have focused on three rights: jury rights, the right to hold public office, and the right to vote, and --

QUESTION: You need all three of those.

MR. DuMONT: You need all three of those, and then there's a separate question about firearms rights.

QUESTION: Gotcha.

MR. DuMONT: Whether they're -- that's a civil right, or --

QUESTION: Well, that's in the statute, unless -- right.

MR. DuMONT: Right.

I'd just like to dwell briefly on the fact that our rule, as I said, gives us a fairly clear, simple, and administrable system, and one which is grounded in and limited by the statute, and petitioners -- I can, here, stand in admiration of their willingness to embrace the full breadth of their position, because what I understand them to be saying is that we read the statute literally, and that therefore, if any State restores the civil rights of a convicted felon, no matter where his original conviction was, then that restoration is good for purposes of Federal law.

QUESTION: No, I don't think they say --

QUESTION: Your ruling doesn't -- your interpretation doesn't rule out that interpretation for State vis-a-vis State, does it?

MR. DuMONT: Our interpretation does rule out that particular problem, because what we say is, no matter where you are, for purposes of the Federal law you will always look to the civil rights restoration rules of the jurisdiction where you were convicted, whether that be a Federal jurisdiction or a State jurisdiction.

Now, it is true that under FOPA as written by Congress there will always be some problems about a court in California having to determine what Idaho law was or what Florida law was because criminals move, people move, and that prior conviction may be from another State.

QUESTION: Well, doesn't that also perhaps detract some from the purpose of the statute? If someone has lived in California for 20 years, and California says people who have been convicted of this sort of an offense have civil rights restored, but back in the State where he was convicted they say, no, we don't agree with that, wouldn't it make much more sense to go by the California rule where the person has lived for 20 years than where he was convicted 25 years ago?

MR. DuMONT: It might or might not make more sense. Again, we think that that's not what Congress did here. What Congress did was to refer to the jurisdiction -- to the defining ability of the jurisdiction where a conviction was rendered, and then in a second sentence talk about the restoration of civil rights, and we think it's clear from the context and the language that that refers back to the place of the original jurisdiction, which I might point out one could take as being the jurisdiction that has, first the greatest familiarity with the seriousness and the actual details of the original crime, and second, the greatest interest in making sure that its convictions carry whatever kind of weight it chooses to make them carry.

QUESTION: Well, Mr. DuMont, can't another State, however, still criminalize this behavior, if it wants to?

MR. DuMONT: It certainly --

QUESTION: We're dealing with defenses to a criminal -- Federal criminal statute, I suppose, in the Chief Justice's example, but couldn't, on your view California say, we don't care whether you've been pardoned, had civil rights restored, et cetera, by anybody, if you've ever had a conviction for a felony, you can't carry a gun in California?

MR. DuMONT: That's absolutely correct, and it merely points out that there may be a disjuncture between State law and Federal law as to your rights to carry firearms no matter where it is that you happen to be when you possess them, and we think that our reading of the statute minimizes those and channels them in the directions that Congress intended.

QUESTION: What about an argument that, looking at the name of the statute, the Firearm Owners' Protection Act, and the fact that it no doubt was sponsored by the NRA, which wants to broaden the market for the sale of firearms, that in the case of an ambiguity we should construe it in the light of its general overall purpose to expand the market?

MR. DuMONT: Well, I think that --

QUESTION: Were you here for the prior argument? Was that a different team?

(Laughter.)

MR. DuMONT: Without wishing to step outside the record -- I think that one could look at the title of the act. The act was intended to address a Dickerson problem, and the Dickerson problem was that Congress felt insufficient --

QUESTION: Well, it clearly also was intended to make more people eligible to buy firearms.

MR. DuMONT: If they had been validated for that purpose by the State which had originally handed down their conviction, and I believe the premise on which the NRA and the Congress and everybody else would have been proceeding was that somebody had made a determination that this person, although he had previously been convicted, was now eligible to carry firearms, and Congress took the route of allowing that determination to be made by the jurisdiction that had rendered the conviction.

Now, I might point out that actually, incidentally, under the jury selection statute, that the only case interpreting the civil rights restoration language in the jury statute, which you asked about earlier, has held that restoration there can only be accomplished by affirmative act.

In other words, somebody actually has to think about it, think about your case, and hand you a piece of paper saying you can carry -- your civil rights are restored, and that's an interpretation that has not been adopted in the main by the courts of appeals for this statute, and would not be helpful to the petitioners in this case.

If the Court has no further questions --

QUESTION: Thank you, Mr. DuMont.

Mr. Lewin, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

MR. LEWIN: Thank you, Mr. Chief Justice.

First, with regard to the Chief Justice's question about somebody living in California and having an old conviction, Congress could have said, has had civil rights restored by the jurisdiction of conviction.

It did not have those words, and that's why we went through several pages in our brief, the most recent decision of this court is the NOW and Scheidler opinion, where this court said that when Congress omits certain words that would limit the breadth of the statute, the statute should be read literally as if those words are not there.

I can accept Justice Scalia's suggestion that instead of the State of residence, look at the State where the man is found with the gun, but in that case as well, the Government is wrong, and a special rule for Federal convictions is wrong, and that's the only issue in this case.

The issue in this case is, is there a special rule for Federal convictions, and we submit that neither the language nor sensible policy justifies a special rule, and indeed, Justice Scalia said that maybe there should be a provision that title 18 -- a statute should be construed against the Government. That's exactly the Rule of Lenity.

Here is Mr. Jones having a document that says, all his civil rules heretofore forfeited are restored. Why should he not think legitimately, if he has that, that he has met the provision of this Federal statute? If the Rule of Lenity is ever to apply, it ought to apply to this kind of a case where if he looked at the statute and looked at his certificate, he thought he was entitled to carry a gun.

And the final answer is Congress determined to overrule this Court's opinion in Dickerson. It used language. If the language it used was unfortunate, that's Congress' job to correct. If Congress thinks it's wrong to allow people who are convicted in a Federal court to carry guns, they can go out tomorrow and amend the statute, but this Court ought not to rescue Congress from what it has done with its statute.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lewin.

The case is submitted.

(Whereupon, at 11:58 a.m., the case in the above-entitled matter was submitted.)

Print this transcript Transcript: 

Argument of Speaker

Mr. Lewin: I have an opinion to announce on behalf of Justice O'Connor who is also absent today.

This is No.93-445, Beecham and Jones against the United States.

This case comes to us on certiorari to the United States Court of Appeals for the Fourth Circuit.

Petitioners, Beecham and Jones, were convicted of being felons in possession of firearms.

Under the felon in possession law, a person may regain the right to possess firearms if he has had civil rights restored for his conviction, and Beecham and Jones claimed this exemption applied to them.

But both petitioners had prior federal convictions as well as prior state convictions and their civil rights had been restored only under state law, and for this reason, the Court of Appeals ruled against the petitioners.

In an opinion filed today, we affirm that judgment.

We hold that a civil rights restoration can nullify the affect of a conviction only if it was performed by the convicting jurisdiction.

Petitioner's state civil rights restorations, therefore, cannot undo the disability flowing from their Federal Court convictions.

And this opinion also is unanimous.