Logan v. United States - Oral Argument

Argument of Richard A. Coad

Chief Justice Roberts: We'll hear argument next in case 06-6911, Logan v. United States.

Mr. Coad.

Mr. Coad: Mr. Chief Justice, and may it please the Court: The provision at issue determines which convictions constitute a prior felony for imposition of the Federal firearms ban and its increased penalties.

Its exemption clause prescribes certain ways in which a conviction that otherwise meets that definition is nevertheless exempt.

Specifically, it looks to a State's indication that an offense is deprived of any continuing effect, such as whether the status of an offender's civil rights are the same after a conviction as they were before conviction.

The issue before the Court is whether the statute should be read to exempt convictions for which civil rights were lost and later regained while at the same time not exempting a conviction for which civil rights were never lost, even though both... in the end, both offenders have their civil rights following their conviction.

Congress's underlying objective in drafting the exemption clause was to ensure that Federal law respected a State's considered judgment that a particular offense should not subject a person to the Federal firearms law.

The Seventh Circuit's interpretation, which counted convictions for which rights were never lost, fails to respect that judgment.

It disregards the State's unequivocal indication to the Federal statute that an offender is worthy of fully participating in civic life.

Justice Ginsburg: So if you had a statute... a State like, I'm told, Vermont, that doesn't take away any one's civil rights, not even a first degree murderer's, then that first degree murderer would be equated to someone whose civil rights were taken away and then restored.

Mr. Coad: That's correct.

And I think that the Government points to Maine as an example where no offenders lose their civil rights, but felons lose their gun rights and certain misdemeanants also lose their gun rights, but get that gun right back.

And in States like Maine and in Vermont, the "unless" clause still applies and still precludes those types of convictions.

So I think when the Government alleges that there are certain anomalies that arise from our interpretation, it is simply not the case, and if they are anomalies that arise from our interpretation--

Justice Ginsburg: They're not anomalies because the gun prohibition would cover them, even though they never had their civil rights taken away?

Is that... is that what you're saying?

Mr. Coad: --Correct.

We have to read the... both clauses, the exemption clause and the unless cause.

And--

Justice Scalia: Mr. Coad, how are... how are civil rights which have been taken away typically restored?

What is... what is the process for restoring them?

Just if you don't commit another offense within a certain number of years?

Mr. Coad: --It depends on the State.

In the NACDL lodging that the Court has... I believe 29 States were identified as having some type of restoration procedures.

The majority of those, it is by automatic operation of law.

So there's no subsequent conditions met by the offender.

Justice Kennedy: Well, but even... even there I assume the law waits for a certain passage of time, and I would assume that there can be no felony committed during that interim period or the person's sentence has to be served or something?

It's ongoing, it's prospective.

And so restoration has a real component, in that... that is not present in the statute that we're faced with here.

Mr. Coad: Well, I think that there really isn't a difference between... by operation of law, a State taking away someone's rights and giving it back or allowing a offender to retain civil rights--

Justice Kennedy: Well, it is of... maybe no difference if the operation of law is 24 hours later.

Mr. Coad: --It could be a matter--

Justice Kennedy: But I assume that's not the case.

I assume that there's in every case, as Justice Scalia's question indicates, a certain passage of time that takes place.

Mr. Coad: --It could be as short as 24 hours.

In certain States if a probationer is convicted, rights aren't taken away.

But if a felony offender is sentenced to even one day in jail those rights are in theory taken away for that one day and restored to that offender the minute he walks out of jail.

Justice Scalia: Well, you... you can say, however, that... that in the restoring situation, there is at least a greater individuation of the... of the State's determination of the... the trustworthiness of the individual to be... to be trusted with arms.

That is to say well, this person has not committed an offense within so many years.

Or maybe in some States, it may be an individual determination.

That's why I asked you the question.

Is it ever one by one, you apply to have them restored?

Mr. Coad: In a minority of States, yes.

Justice Scalia: Well, I mean, that's... that's a totally different thing from just a gross determination by a State that everybody who commits this crime does not lose... does not lose firearm rights.

I think it's... it's... there's a greater degree of assurance when you're dealing with those States that... that have some degree of individuation.

At least this is an individual who hasn't committed an offense for so many years.

Or in those States where you have to apply personally, I think they're different situations.

Mr. Coad: I... I don't think they are, Your Honor.

As I just mentioned there are States in which a day in jail, your rights are lost and restored.

And there really isn't any difference between a broad legislative determination by a State--

Justice Kennedy: Well, but I'm suggesting... and I haven't done the research... that that's atypical.

Mr. Coad: --No, it's not atypical.

In 18 out of the 29 States identified in the NACDL lodging, rights are automatically restored.

There's no--

Justice Kennedy: I think it's atypical to give a felon one day in jail.

Mr. Coad: --Well, it could be a misdemeanor.

There are certainly misdemeanors punishable by more than two years.

In fact two of the misdemeanors at question here that were punishable by more than two years, my client did not serve a day in jail.

Justice Scalia: But a misdemeanor?

I see.

Mr. Coad: So there are misdemeanors--

Chief Justice Roberts: I understand that... I understand that it is rare for misdemeanants to lose their civil rights.

Mr. Coad: --It... that's the assumption.

But here we've identified in at least 12 States... excuse me, 16 States misdemeanors punishable by more than two years or felonies, rights are retained.

So there are States, for example, Maryland, where rights are lost for a misdemeanor punishable by more than two years.

Chief Justice Roberts: But certainly the minority approach.

In most States if you are convicted of a misdemeanor you do not lose civil rights?

Mr. Coad: Absolutely.

Chief Justice Roberts: So your argument, if accepted, would essentially weed out, or at least for a majority of the States, weed out subdivision (a)(20)(A)(b)... (a)(20)(B)?

In other words, there's coverage under the statute if you are convicted under a misdemeanor and you want to say, well, if your civil rights were never taken away, you shouldn't be covered.

Well, that would mean most misdemeanors aren't going to be covered.

Mr. Coad: Well, in, for example, Maryland, that's not the case.

In many... in 12 States, it is the case.

Chief Justice Roberts: Well, if I say most misdemeanors aren't going to be covered, it's not an answer to say, well, here's one State where they are covered.

It's maybe 49 are not.

Mr. Coad: There really are only 16 States in total that have misdemeanors punishable by more than two years where rights are retained.

We're not talking about a very big group to begin with.

This certainly is an issue on the margins.

Justice Souter: Mr. Coad, may I ask you a question that involves the comparison of what, for shorthand purposes I'll call Subsection (20) and Subsection (33).

I take it, it is your position that... and (20) applies here.

But I take it that it's your position that under (33), your argument could not prevail because the language of (33) makes it clear that there's got to be a... in effect, a revocation of the right first, before there can be a restoration within the meaning of that statute?

You accept that?

Mr. Coad: That's correct, Your Honor.

Justice Souter: Now that applies as I recall to cases, or primarily to cases, in which there has been a misdemeanor conviction for domestic violence, is that correct?

Mr. Coad: It only applies in that instance.

Justice Souter: Okay.

If your position prevails, then Subsection (20), which applies to more serious offenses, would in effect be held to provide for a restoration when, in fact, nothing had been taken away.

Whereas under (33), which applies simply to a relatively minor set of crimes in relation to (20), would not provide this relief.

So you would have the anomaly that in the more serious cases, you would win.

In the less serious cases, you would lose, because the statute was more onerous.

That's anomalous.

And my point is, and this is what I want you to comment on, I'll assume for the sake of argument that you're pointing out an anomaly here if you just look at (20) alone.

But if you look at (20) and (33), by going your way, we're going to create another anomaly, the other anomaly being that the more serious offense or the more serious offender gets better treatment than the less serious offender.

So either way we go, there's going to be some anomaly.

Am I right in reading it that way?

Mr. Coad: Well, in part.

Congress was specific in 1996 when it enacted the Lautenberg Amendment, which was the genesis for the (a)(33) and the prohibition on firearms for misdemeanor crimes of domestic violence, it was very... Congress was very specific that it thought those types of offenders were particularly dangerous.

Whereas when you look at (a)(20), yes, it generally applies to felons and to misdemeanors punishable by more than two years.

But in that group of people, you had varying degrees of seriousness.

You could have embezzlement convictions--

Justice Souter: But none of them is less serious in the classification of the crime than those covered by 33, because 33 simply covers a misdemeanor of domestic violence.

Mr. Coad: --I think what we have to look to here is Congress's clear choice in both.

In The Firearms Owners' Protection Act for (a)(20), Congress wanted to provide a broad exemption for individual States deemed to be trustworthy.

Whereas in (a)(33), Congress was legislating under a very different purpose, which was to target misdemeanor crimes of domestic violence as particularly dangerous offenders in relation to gun possession.

Justice Souter: Yes, but the State's judgment about trustworthiness may very well be the same in each case.

So the trustworthiness criterion, it seems to me, is being... would be applied differently in the two cases if we take your position.

Mr. Coad: It is.

And I think that it is okay for the Court to decide that because of the very specific nature of only one type of offender in (a)(33), which Congress decided they didn't want them to possess guns.

Whereas in (a)(20), The Firearms Owners' Protection Act had a very different purpose.

It was to expand gun ownership to even felons who States determine to be otherwise trustworthy.

Chief Justice Roberts: Isn't there another difficulty for you in this statutory comparison that Justice Souter has noted?

You're argument under (a)(20) is that it would be absurd for Congress to take people, exempt people, whose rights have been restored, but not people whose rights were never taken away.

That is exactly what Congress did in (a)(33).

So if Congress thought it was all right even in albeit in a different context, it seems to me to be very difficult to argue that it is inherently absurd to do it somewhere else.

Mr. Coad: Our absurdity argument you've identified for (a)(20) is more particular than that.

It is when you look to a particular State, because again we're in the realm here of delegation or at least deferring to States this trustworthy judgment.

It is within a particular State that a less serious offender as determined by that State ends up being punished more harshly than its more serious offenders.

Whereas in (a)(33) you don't run into that problem.

You accept the anomalies amongst the States.

There are varying States... ways to... States handle these types of issues.

But with (a)(33) you have one type of offender, and a State treats that offender in one particular way.

You aren't comparing State by State.

We don't look to Wisconsin versus Louisiana to see an absurdity.

We look within a particular State, for example, in Wisconsin to identify an absurdity.

There certainly is an acceptance when Congress decided--

Justice Scalia: Are you sure about that?

(33) applies to a number of different crimes, it seems to me, within every State.

Are you sure that in none of those crimes the civil rights are not taken away for some of them, but are taken away for others?

Mr. Coad: --The difference here, I think, between (a)(20) and (a)(33) is that Congress was legislating under the assumption for a felony you're going to lose your civil rights.

Whereas in (a)(33) Your Honor is correct.

Typically misdemeanors punishable by nine months or up to a year, rights are not lost.

And so I think that's the difference Your Honor is getting to.

I'm not sure if I answered the question.

Justice Alito: Well, with respect to the in-State anomaly that you were talking about, the government argues on page 30... 29 and 30 of its brief that there really are only a few States where this exists, and even in those... even in the States where it exists, there are very significant restrictions on the ability of the felon to obtain restoration of civil rights.

Is that incorrect?

Mr. Coad: I think it is incorrect in the sense that when the government sort of narrowed the number of States that we identified as being problem States, what it ignores is that the Armed Career Criminal Act and the prohibition against firearms goes back forever really.

You have to look at all of State law for 1980s, '70s '60s.

Now, the government argued, well, right now there are only a handful of States.

That might be correct for now.

But State laws have changed over the years.

And so, we have to look back farther.

So, it is a deeper problem than the government identified.

And I think what's key is that we're talking about Congress separating dangerous offenders from those who are otherwise considered trustworthy by a particular State.

And this Court has recognized this principal in both Caron and in Small.

And when you are excluding from the protections of the exemption clause offenders for which a State has clearly identified as its most... if you want to consider them its most trustworthy offenders, that is absurd.

And it certainly offends the societal norm that, all things being equal, we don't punish less serious offenders more harshly than we do more serious offenders.

Justice Ginsburg: Well, then, maybe the problem was that Congress included misdemeanants who were subject to over a two-year sentence.

The point has been made that, on your reading, that was a futile gesture, or Congress did one thing that was cancelled out by someone else, by another provision.

And then they put in this group of misdemeanants who were subject to an over-two-year sentence; but most of that group... and in many states all of them... would not have their civil rights taken away.

So what is left of the group that was put in, misdemeanants with over-two-year sentences?

Mr. Coad: I'm not sure I understand Your Honor's question.

Justice Ginsburg: What was the point of putting that group in the statute as covered by the Career Criminal Act?

Mr. Coad: Well, I... I think the point is that... that we can't ignore Congress's clear intent to exempt the... the most trustworthy offenders in a... in a given State.

And that's--

Justice Ginsburg: But how many would be... take a State that doesn't take civil rights away and gun rights from misdemeanants.

What effect in that State would this legislation have... what effect would the provision of this legislation... that says misdemeanants who are subject to a two-year... over-two-year term are covered?

It wouldn't be covered because the... because they're not having their civil rights taken away.

Mr. Coad: --Well, certainly, the Federal statute set a two-year floor, if you will.

But I don't think that we should read the civil-rights-restored exception in isolation.

I mean we have to make sense of Congress's choice to look to civil rights.

Justice Scalia: But does it make much sense, as... as Justice Ginsburg suggests, to read (a)(20)(B) as covering almost nothing?

I mean, you know, why go to the trouble of putting in that provision if it's only going to make a difference in those... in those very few States where... well--

Mr. Coad: Well, we're talking about very few States overall.

I mean even the problem we've identified is certainly a limited one.

We're talking about a dozen States, at most.

And so we can say, well, you know, it vitiates (B) because only two States are left that fall into (B).

But when we're talking about the civil rights restoration provision as applying to rights retained, we're still only talking about a dozen States.

So I don't think that that necessarily vitiates (B).

Chief Justice Roberts: You phrased Congress's intent as allowing an exemption for people the State has found trustworthy.

But I don't think that's how this legislative process works.

You have additional punishment, and then somebody says: Oh, let's not apply it to people who are convicted of antitrust violations.

And you say: Yeah, yeah.

And then somebody says: Let's not apply it to people whose civil rights have been restored.

And they say: Fine.

And then nobody pipes up and says: Well, let's not apply it to people whose civil rights were never taken away.

In other words, it's not an intent that is not effectuated.

It is just you want the intent to reach more broadly.

Mr. Coad: I think that the intent was broad, and Congress was operating under the assumption that rights would generally be lost for those serious types of offenses that it thought it was covering in (a)(20).

And I think there is no evidence in the Congressional Record--

Chief Justice Roberts: So it's based on a congressional mistake, in other words, about the breadth, but it still doesn't--

Mr. Coad: --It is an unthought-of application of the statute that... that leads to absurd results, which, if we go with the government's interpretation, we frustrate Congress's intent with passing legislation.

Justice Scalia: --Can we rewrite statutes like that?

Because, gee, look at this statute.

Congress didn't think about this, and it makes a really bad result here.

So we're going to add this... this new... I don't think that that's how we operate.

Mr. Coad: In the context of identifying an absurdity, it certainly strengthens the absurdity argument where--

Justice Scalia: It's not that absurd if Congress did the same thing in (a)(33).

Mr. Coad: --It's... it's... it might not be absurd in (a)(33).

But Congress, when it showed that... when it chose to limit the concept of restoration, it knew how to do so.

It was aware of three circuit courts evaluating (a)(20) to include rights retained, and so it did it there.

But it didn't do it in (a)(20).

Chief Justice Roberts: --What about securities law violations?

(A)(20)(A) says this doesn't apply if it's an antitrust violation.

Now, did Congress... you could say: Well, they would have applied it to securities law violations, too.

It's a business offense.

They're not interested in that.

So we should read this as applying to securities law violations.

Mr. Coad: I think that's different, because that's a separate type of violation; whereas, here we're talking about an area that Congress clearly identified, which is how a State treats the civil rights of its offenders.

And you're also talking about, in most instances, a broad, legislative determination that a State decides: Well, we're not going to take them away, or we're going to take them away and give them back; but it has nothing to do with the offender.

There is no act of forgiveness on the part of the State.

It is just a broad, legislative rule.

Chief Justice Roberts: That kind of begs the question for you to say Congress is worried about offenders States think are trustworthy.

What they actually said are, of course, offenders who have had their civil rights restored.

Maybe if they focused on the question of whether or not civil rights were taken away in the first place, they would have made a different judgment, as they did, of course, in (a)(33).

Mr. Coad: Well... and, again, in (a)(33) they did it for a very particular type of offender and a different type of offender.

And I think, if you even just look at the NACDL lodging, the expansiveness of it and the amount of detail, none of that is in the Congressional Record.

It's clear that Congress didn't consider exactly what was going to happen with the civil rights restored provision.

They just assumed rights would generally be lost for those types of convictions.

Chief Justice Roberts: Well, isn't... under our precedents, isn't what you just said fatal to your case: In other words, Congress didn't think about this, or they made a mistake in thinking about it?

In either case it's clear that they didn't legislate with respect to it.

Mr. Coad: I... I think that they did legislate with respect to civil rights.

They just didn't consider that this certain circumstance would exist.

And it's... and it's absurd to conclude that a less serious offender should be included within the Federal ban; whereas, a more serious offender should not as the State has determined.

And I think if you look at it this way, too, the... a State, in order to... if the Court decides: Well, sorry, you're out of luck to civil rights retained, if a State wishes to have its less serious offenders avoid the Federal ban, it would have to treat them more harshly than it currently does in order for those offenders to be treated better under Federal law.

And I think that that's an absurd notion.

And I also... I think... I just want to give one what I think is the most clear example, which is the State of North Dakota.

We're not talking about misdemeanors here.

We're talking about felony convictions.

In North Dakota the State has decided that if a felon is not sentenced to imprisonment, then the felon retains his civil rights, and his right to possess a firearm is restored after a short waiting period.

Whereas, a felon who is convicted to... and sent to prison, his rights are taken away and later restored.

So we have the result here of the complete opposite of what North Dakota intended, which is to treat the less serious offender accordingly and treat the more serious offender accordingly.

And that's directly contrary to Congress's purpose in passing a firearm owner's protection act, which was in direct response to this Court's holding in Dickerson, which ignored a State's expungement of... of a conviction, which, again, is another way of a State identifying an individual as trustworthy.

Justice Kennedy: Do you know, since you seem to have looked at it: In North Carolina, for the person whose had his civil rights taken away, is... is there any mechanism to get them back earlier by... by applying for clemency or a pardon or--

Mr. Coad: In North Dakota... in North Dakota you can apply for a pardon, I believe.

I'd have to check, but I think--

Justice Kennedy: --That would be about the only way?

Mr. Coad: --Yes.

And so you're talking about requiring less serious offenders to seek, in some instances, extraordinary relief in order to get on the same footing as more serious offenders.

And I... and I would look to point to the example of Wisconsin and the offenses, in particular, that we're talking about here.

For a misdemeanor crime as a repeat offender, before 2003, it was punishable by up to three years.

Now Wisconsin has changed that law, and it is only punishable by two years.

So it would be exempt under (b).

But Wisconsin allows that type of offender to retain civil rights and to retain the rights to possess a firearm.

And, yet, under the government's reading and the Seventh Circuit's reading the Federal statute would ignore that determination by the State and would impose the ban on that individual and require that individual to get on the same footing as a felon to receive a pardon, which are generally not available to misdemeanants but are readily available to... to felons.

And so you are talking about a less serious offender having to seek extraordinary remedies under State laws... and this, I think, is not just unique to the State of Wisconsin... in order to put themselves on the same footing as a more serious offender as identified by that State.

And if I can reserve the rest of my time?

Thank you.

Argument of Daryl Joseffer

Chief Justice Roberts: Thank you, Mr. Coad.

Mr. Joseffer.

Mr. Joseffer: Mr. Chief Justice, and may it please the Court: We just have a two points.

The first is that restoring a right does not mean leaving it alone, and the second is that the statute is not absurd.

And for those reasons, Petitioner's prior offenses are violent felonies under the meaning of the act.

The statute is clear on point.

It says "restored", and restoring a right means giving back a right that has been taken away.

It does not mean leaving a right alone.

And though words can sometimes have different meanings in contexts, we are aware of no context in which "restore" was "leave alone".

And this is certainly not such a context because the statute refers to a pardon, a set-aside, an expungement, or a restoration of rights.

And the one thing that those four items all have in common is that there are ways which a State essentially undoes its conviction by relieving a defendant of some or all of the consequences of that conviction.

Giving back rights that have been taken away as part of the conviction has that effect.

Simply leaving the rights alone does not.

And for that reason, because the statute is so clear, the only question in this case is whether the scope of the statutory exemption is so absurd that this Court should take the liberty to amend it in order to add an additional exemption for defendants who never lost their civil rights in the first place.

And the Court should not do so for numerous reasons.

The first is that the absurd results canon applies only if it is clear that Congress could not possibly have intended the result of the plain statutory text.

And as the Chief Justice pointed out, and Justice Souter did as well, we know from the subsequent enactment of the domestic violence misdemeanor provision that this result is not something that's beyond Congress's comprehension.

Everyone agrees that Congress did in fact mandate the supposedly alleged absurd results in a closely analogous statute.

And that's just fatal to the absurdity argument.

Justice Ginsburg: Everyone in this case.

The point might be arguable in a case that involved that domestic violence statute.

Everyone in this case.

This case doesn't involve that other provision.

Mr. Joseffer: Well, that's true, but my point is just that on the face of the domestic violence statute, and what it says is that the restoration of rights exception is limited to circumstances where the law of the applicable jurisdiction provides for the loss of civil rights.

So on the face of that provision... the provision says restoration occurs only if civil rights have been lost.

So it's clear as day that what Congress was saying there was it was mandating the allegedly absurd result here in situations where rights were not lost.

And what that means is that you can't say that it's impossible that Congress--

Justice Ginsburg: There are cases in the pipeline that don't think it's as clear as day.

Mr. Joseffer: --There is... in the context of subsection (33)... in the context of the domestic violence misdemeanor provision--

Justice Ginsburg: Yes.

Mr. Joseffer: --there is one circuit that has applied... that has basically overlooked the plain language there, not even attempted to deal with the plain language there.

And it's true, and it's found that that exemption was somehow satisfied in a situation where civil rights were never taken away or restored.

But the fact that, you know, a court of appeals reached that conclusion without even attempting to take a look at the statutory language doesn't diminish the very plain meaning--

Justice Scalia: What court--

Mr. Joseffer: --of the statutory language.

Justice Scalia: --What court of appeals was that?

I didn't get that.

Mr. Joseffer: It was the Sixth Circuit in the Burgin case, I believe it's called.

And the Sixth Circuit there, similar to the First Circuit in construing this statute, was very clear that it was just skipping the language and doing what it thought Congress would have wanted to do if it had thought about it.

But the plain language in the domestic violence provision is unmistakable because it expressly refers to civil rights--

Justice Alito: If Congress thought about the problem, what reason could they have for saying that the firearms ban should apply to someone who never lost his or her civil rights, but not... but would not apply to someone who had civil rights restored?

Automatically, let's say.

Automatically and within a short period of time.

What rationale reason could there be for doing that?

Mr. Joseffer: --The reason is that Congress was balancing two policies.

On the one hand, what it was looking to do in this provision was to defer to a State's decision to essentially undo its conviction.

And that applies where rights have been taken away and restored, but does not have anything to do with rights being left alone.

On the other hand, and a couple of Justices already made this point as well, Congress wanted to apply the Federal firearms disability to serious felonies, to felonies punishable by more than two years of imprisonment, but if Congress had included a retention of rights exemption, that would have all but gutted the statutory prohibition on serious misdemeanants possessing firearms.

And that's why, consistent with Congress's desire to get tough on firearms and impose the firearms disability on serious felons, it couldn't include a retention of rights exemption.

So it's a situation where Congress had a couple of different policies.

It clearly pursued both of them, and as a result, there is a seam, there is this anomaly that Petitioners have pointed to, but that's an inevitable consequence of Congress's desire to balance these two policies.

And because that's an inevitable and probably foreseen result of Congress's intent, it doesn't call Congress's intent into question.

In addition, the scope of the anomalies here is really quite minor.

There are... if you... read according to its plain language, there are a few States in which the Petitioner... the anomaly the Petitioner points to occurs.

It's currently about three States.

It used to be about six States.

On the other hand, if you take Petitioner's view, you create anomaly in a couple other States, which Justice Ginsburg referred to, whereby the most serious offenders, first-degree murderers, would not be treated as having their civil rights restored.

But in all of these States, the effect of the anomaly is greatly reduced by the firearms exception to the restoration of rights exemption because in... Petitioner's example was North Carolina, where he said that a more serious offender would be able to get firearms rights back promptly.

I guess what he meant by 10 years after completing the sentence if he had not committed further crimes.

So the incidence of this issue is really not very significant.

Instead, the real significance to departing from the plain statutory language would be to gut the statute as applied to misdemeanors punishable by tiers of imprisonment, which is contrary to Congress's clearly expressed intent by including such misdemeanors within the scope of the statute.

Petitioner has also argued at length that what Congress was looking at here was trustworthiness.

Did the State find the defendant trustworthy to possess firearms?

But we know, and this Court explained in Caron, that that's not what this provision goes to because the whole point of the Federal firearms laws is to prohibit firearms possession in some circumstances where at least some States were permitting it.

So the fact that a State would let a person possess firearms is not relevant here.

Instead, Congress was not deferring generally to the States' trustworthiness views but instead was looking to defer to their specific determination to essentially undo their own conviction.

If a State wanted to undo its own conviction, Congress was willing to give effect to that, but that's the only thing it was deferring to.

And it also bears emphasis that Congress--

Justice Alito: I can understand that argument where there's an individualized determination about each... each defendant, but I don't quite understand it when it's a blanket restoration of rights.

Mr. Joseffer: --Right.

That's--

Justice Alito: It's a formal difference matter.

There's no substance to it, is there?

Mr. Joseffer: --Well, there's still substance to the fact that rights were, in fact, taken away and were, in fact, restored, as opposed to someone having his rights all the time.

There's certainly a substantive legal difference there, but as a practical matter, I mean one reason that Congress may have decided not to distinguish between automatic and individualized restorations of rights is simply that it didn't want to attempt to micromanage the States in how they would go about choosing to do a pardon or a restoration of rights.

I mean... and... with respect to restoration or rights.

Louisiana automatically pardons most first-time offenders.

As this Court explained in Dickerson, of the States that expunge convictions, many of them do it automatically as well.

And so Congress from... because of what it was doing here was advocating Dickerson, was presumably aware of these points this Court had made in Dickerson regarding the great variance in the laws and the fact some of it was automatic.

Chief Justice Roberts: Louisiana automatically pardons all first-time offenders?

Mr. Joseffer: Most.

Chief Justice Roberts: Most?

Mr. Joseffer: Most, and--

Justice Scalia: Not murderers, I assume?

Mr. Joseffer: --I don't... I think that they are not automatically pardoned.

Justice Scalia: No, that's--

Mr. Joseffer: In fact, this practice is enshrined in the Louisiana Constitution.

But in any event, I think the point is just that Congress was going to defer to the States' decision to effectively undo their convictions, but was not going to micromanage how the States did it.

But the most that one might determine from that point of view is that if you think that Congress was really thinking about an individualized determination, then what that would mean is that some offenders who get automatic restorations are currently essentially catching a break from the fact that they got an automatic one.

But the fact that the plain language of the statute may give someone of the offenders a break is no reason to depart from the plain language of the statute, to give other offenders a break that Congress clearly did not intend.

And, Justice Scalia, you asked about what's a typical restoration process.

At the time the statute was enacted in 1986, of the States that did restorations, about half of them did it automatically and about half of them required individualized consideration before returning at least one of the rights.

Justice Kennedy: And in the automatic category, I take it, it's usually after the sentence has been served?

Mr. Joseffer: There's some variance.

In fact, the 50 States follow 49 different approaches to revoking and restoring civil rights.

So there's an exception to just about anything in this area, which again underscores why anomalies are inevitable, and therefore don't really call Congress's intention into question.

But the standard practice is that after a defendant has finished serving his sentence, and that would include not just maybe one day in jail but also the probationary period following that... but after the defendant has finished serving his sentence, if restoration is automatic, it will either be at the conclusion of the sentence or at some time period thereafter, which in some instances can be significantly thereafter.

Justice Stevens: At any time in consideration of these statutes did Congress consider, to your knowledge, perhaps making the test be the length of the actual sentence served rather than eligibility for... it seems to me one normal way of differentiating between those who are most trustworthy and those less trustworthy would be by looking at the actual sentence served.

Mr. Joseffer: I think that's true.

I guess there are two parts to that.

One is that, I mean, the provisions at issue here about the length of sentence served, were in the statute before this amendment was made.

They were in the statute before 1986.

So they're not directly relevant to the intent of the '86 Congress.

But I'm not aware of... I mean, of legislative history predating 1986 in which Congress looked at the length as opposed to the maximum term.

And also, one thing that reflects is that what Congress was not doing here was just looking to defer to the States' trustworthiness determinations as this Court explained in Caron.

The whole point of this law was to get tougher on gun crime than many of the States were at the time.

If the Court has no further questions?

Rebuttal of Richard A. Coad

Chief Justice Roberts: Thank you, Mr. Joseffer.

Mr. Coad, you have three minutes remaining.

Mr. Coad: Thank you, Your Honor.

First I would like to respond to my colleague's last point.

He speculates that... about legislate history and I think actually it is the exact... exact opposite.

Congress enacted a Firearm Owners Protection Act to broaden exemptions to the gun control act.

There's no question about that, and it did so in a way that would respect State law decisions about who should be eligible for exemptions.

And secondly, I was asked about... by the Court about substantive difference between automatic restoration of rights versus a State automatically allowing an individual to retain rights.

In many instances there's no passage of time.

There are no additional conditions that an offender must meet in order to get that restoration.

It is just as automatic as not having them taken away in the first instance.

And I think my last point to the Court: If the meaning of restored in (a)(20) is so clear, as the Government says it is, then I don't know why Congress would need to have added language to (a)(33) to clarify that they were limiting that concept to only rights that were taken away and restored.

Thank you.

Chief Justice Roberts: Thank you, Mr. Coad.

The case is submitted.