MODEL PENAL CODE ANNOTATED
UNITED STATES, Petitioner,
Supreme Court of the United States
404 U.S. 336 (1971)
Mr. Justice MARSHALL delivered the opinion of the Court.
Respondent was convicted in the Southern District of New York
of possessing firearms in violation of Title VII of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C.App. s 1202(a). In pertinent
part, that statute reads:
'Any person who--
(1) has been convicted by a court of the United States or of a State
or any political subdivision thereof of a felony . . . and who receives,
possesses, or transports in commerce or affecting commerce . . . any firearm
shall be fined not more than $10,000 or imprisoned for not more than two
years, or both.' [n. 1]
1. Section 1202(a) reads in full:
The evidence showed that respondent, who had previously been convicted
of a felony in New York State, possessed [p. 338] on separate occasions
a pistol and then a shotgun. There was no allegation in the indictment
and no attempt by the prosecution to show that either firearm had been
possessed 'in commerce or affecting commerce.' The Government proceeded
on the assumption that s 1202(a) (1) banned all possessions and receipts
of firearms by convicted felons, and that no connection with interstate
commerce had to be demonstrated in individual cases.
'Any person who--
'(1) has been convicted by a court of the United States or of a State
or any political subdivision thereof of a felony, or
'(2) has been discharged from the Armed Forces under dishonorable conditions,
'(3) has been adjudged by a court of the United States or of a State
or any political subdivision thereof of being mentally incompetent, or
'(4) having been a citizen of the United States has renounced his citizenship,
'(5) being an alien is illegally or unlawfully in the United States,
and who receives, possesses, or transports in commerce or affecting commerce,
after the date of enactment of this Act, any firearm shall be fined not
more than $10,000 or imprisoned for not more than two years, or both.'
After his conviction, [n. 2] respondent unsuccessfully moved for
arrest of judgment on two primary grounds: that the statute did not reach
possession of a firearm not shown to have been 'in commerce or affecting
commerce,' and that, if it did, Congress had overstepped its constitutional
powers under the Commerce Clause. 308 F.Supp. 1385. The Court of
Appeals reversed the conviction, being of the view that if the Government's
construction of the statute were accepted, there would be substantial doubt
about the statute's constitutionality. 434 F.2d 1296 (CA 2). We granted
certiorari, 401 U.S. 993, 91 S.Ct. 1234, 28 L.Ed.2d 530 to resolve a conflict
among lower courts over the proper reach of the statute. We affirm
the judgment of the court below, [p. 339] but for substantially different
reasons. We conclude that s 1202 is ambiguous in the critical respect.
Because its sanctions are criminal and because, under the Government's
broader reading, the statute would mark a major inroad into a domain traditionally
left to the States, we refuse to adopt the broad reading in the absence
of a clearer direction from Congress.
2. Respondent was acquitted on another count charging him with carrying
a firearm during the commission of a felony (the sale of a narcotic drug),
a federal offense under 18 U.S.C. s 924(c)(2).
Not wishing 'to give point to the quip that only when legislative
history is doubtful do you go to the statute,' [n. 5] we begin by looking
to the text itself. The critical textual question is whether the
statutory phrase 'in commerce or affecting commerce' applies to 'possesses'
and 'receives' as well as to 'transports.' If it does, then the Government
must prove as an essential element of the offense that a possession, receipt,
or transportation was 'in commerce or affecting commerce'--a burden not
undertaken in this prosecution for possession.
5. Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev.
527, 543 (1947).
While the statute does not read well under either view, 'the natural
construction of the language' suggests that the clause 'in commerce or
affecting commerce' qualifies all three antecedents in the list.
Porto Rico Railway Light & Power Co. v. Mor, 253 U.S. 345, 348, 40
S.Ct. 516, 518, 64 L.Ed. 944 (1920). Since 'in commerce or affecting
commerce' undeniably [p. 340] applies to at least one antecedent,
and since it makes sense with all three, the more plausible construction
here is that it in fact applies to all three. But although this is
a beginning, the argument is certainly neither overwhelming nor decisive.
6. The Government, noting that there is no comma after 'transports,'
argues that the punctuation indicates a congressional intent to limit the
qualifying phrase to the last antecedent. But many leading grammarians,
while sometimes noting that commas at the end of series can avoid ambiguity,
concede that use of such commas is discretionary. See, e.g., B.
Evans & C. Evans, A Dictionary of Contemporary American Usage 103 (1957);
M. Nicholson, A Dictionary of American-English Usage 94 (1957); R. Copperud,
A Dictionary of Usage and Style 94--95 (1964); cf. W. Strunk & E. White,
The Elements of Style 1--2 (1959). When grammarians are divided,
and surely where they are cheerfully tolerant, we will not attach significance
to an omitted comma. It is enough to say that the statute's punctuation
is fully consistent with the respondent's interpretation, and that in this
case grammatical expertise will not help to clarify the statute's meaning.
In a more significant respect, however, the language of the statute
does provide support for respondent's reading. Undeniably, the phrase
'in commerce or affecting commerce' is part of the 'transports' offense.
But if that phrase applies only to 'transports,' the statute would have
a curious reach. While permitting transportation of a firearm unless
it is transported 'in commerce or affecting commerce,' the statute would
prohibit all possessions of firearms, and both interstate and intrastate
receipts. Since virtually all transportations, whether interstate
or intrastate, involve an accompanying possession or receipt, it is odd
indeed to argue that on the one hand the statute reaches all possessions
and [p. 341] receipts, and on the other hand outlaws only interstate
transportations. Even assuming that a person can 'transport' a firearm
under the statute without possessing or receiving it, there is no reason
consistent with any discernible purpose of the statute to apply an interstate
commerce requirement to the 'transports' offense alone. [n. 7] In
short, the Government has no convincing explanation for the inclusion of
the clause 'in commerce or affecting commerce' if that phrase only applies
to the word 'transports.' It is far more likely that the phrase was
meant to apply to 'possesses' and 'receives' as well as 'transports.'
As the court below noted, the inclusion of such a purase 'mirror(s) the
approach to federal criminal jurisdiction reflected in many other federal
statutes.' [n. 8]
7. The Government urges that 'transports' includes the act of 'causing
a firearm to be transported,' and therefore would connote an offense separate
in some cases from 'receives' or 'possesses.' From this, the Government
argues that 'Congress might have felt that the broader scope of the term
'transports,' as compared to the terms 'receives' or 'possesses,' justified
its qualification by the interstate commerce requirement.' Brief
for the United States 14--15. The Government's view about the comparative
breadth of the various offenses certainly does not follow from its definition
of 'transports.' But beyond that, its argument about what Congress
'might have felt' is purely speculative, and finds no support in any arguable
purpose of the statute. There is certainly no basis for concluding
that Congress was less concerned about the transporting and supplying of
guns than their acquisition.
Nevertheless, the Government argues that its reading is to be preferred
because the defendant's narrower interpretation would make Title VII redundant
with Title IV of the same Act. Title IV, inter alia, makes it a [p.
342] crime for four categories of people--including those convicted of
a crime punishable for a term exceeding one year--'to ship or transport
any firearm or ammunition in interstate or foreign commerce . . . (or)
to receive any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce.' 18 U.S.C. s 922(g) and (h). As
Senator Long, the sponsor of Title VII, represented to Senator Dodd, the
sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong.Rec.
14774; see also 114 Cong.Rec. 16286. Respondent's reading of Title VII
is fully consistent with this view. First, although subsections of
the two Titles do address their prohibitions to some of the same people,
each statute also reaches substantial groups of people not reached by the
other. [n. 9] Secondly, Title VII complements Title IV by punishing a broader
class of behavior. Even under respondent's view, a Title VII offense
is made out if the firearm was possessed or received 'in commerce or affecting
commerce'; however, Title IV apparently does not reach possessions or intrastate
transactions at all, even those with an interstate commerce nexus, but
is [p. 343] limited to the sending or receiving of firearms as part
of an interstate transportation.
8. 434 F.2d, at 1298. See, e.g., 18 U.S.C. s 2421 (prostitution); 18
U.S.C. s 1952 (Travel Act); 18 U.S.C. s 1951 (robbery and extortion); 18
U.S.C. s 1231 (strikebreaking); 18 U.S.C. s 1201 (kidnaping); 18 U.S.C.
s 1084 (gambling); 18 U.S.C. s 842(i) (explosives); 15 U.S.C. s 1 et seq.
(antitrust); 15 U.S.C. s 77e (securities fraud).
9. Title VII limits the firearm-related activity of convicted felons,
dishonorable discharges from the Armed Services, persons adjudged 'mentally
incompetent,' aliens illegally in the country, and former citizens who
have renounced their citizenship. See n. 1, supra. A felony is defined
as 'any offense punishable by imprisonment for a term exceeding one year,
but does not include any offense (other than one involving a firearm or
explosive) classified as a misdemeanor under the laws of a State and punishable
by a term of imprisonment of two years or less . . ..' 18 U.S.C.App. s
In addition, whatever reading is adopted, Title VII and Title IV
are, in part, redundant. The interstate commerce requirement in Title
VII minimally applies to transportation. Since Title IV also prohibits
convicted criminals from transporting firearms in interstate commerce,
the two Titles overlap under both readings. The Government's broader reading
of Title VII does not eliminate the redundancy, but simply creates a larger
area in which there is no overlap. While the Government would be
on stronger ground if its reading were necessary to give Title VII some
unique and independent thrust, this is not the case here. In any
event, circumstances surrounding the passage of Title VII make plain that
Title VII was not carefully molded to complement Title [p. 344] IV.
Title VII was a last-minute Senate amendment to the Omnibus Crime Control
and Safe Streets Act. The Amendment was hastily passed, with little discussion,
no hearings and no report. The notion that it was enacted to dovetail
neatly with Title IV rests perhaps on a conception of the model legislative
process; but we cannot pretend that all statutes are model statutes.
While courts should interpret a statute with an eye to the surrounding
statutory landscape and an ear for harmonizing potentially discordant provisions,
these guiding principles are not substitutes for congressional lawmaking.
In our view, no conclusion can be drawn from Title IV concerning the correct
interpretation of Title VII.
Title IV reaches persons 'under indictment for, or . . . convicted
in any court of, a crime punishable by imprisonment for a term exceeding
one year'; fugitives from justice; users or addicts of various drugs;
persons adjudicated as 'mental defective(s) or . . . committed' to a mental
institution. 18 U.S.C. s 922(g) and (h).
[p. 345] Other aspects of the meager legislative history,
however, do provide some significant support for the Government's interpretation.
On the Senate floor, Senator Long, who introduced s 1202, described various
evils that prompted his statute. These evils included assassinations
of public figures and threats to the operation of businesses significant
enough in the aggregate to affect commerce. Such evils, we note,
would be most thoroughly mitigated by forbidding every possession of any
firearm by specified classes of especially risky people, regardless of
whether the gun was possessed, received, or transported 'in commerce or
affecting commerce.' In addition, specific remarks of the Senator
can be read to state that the amendment reaches the mere possession of
guns without any showing of an interstate commerce nexus. [n. 13] But Senator
Long never specifically says that no connection with commerce need be shown
in the individual case. And nothing in his statements explains why,
if an interstate commerce nexus is irrelevant in individual cases, the
phrase 'in commerce or affecting commerce' is in the statute at all.
But even if Senator [p. 346] Long's remarks were crystal clear to
us, they were apparently not crystal clear to his congressional colleagues.
Meager as the discussion of Title VII was, one of the few Congressmen who
discussed the amendment summarized Title VII as 'mak(ing) it a Federal
crime to take, possess, or receive a firearm across State lines . . ..'
114 Cong.Rec. 16298 (statement of Rep. Pollock).
13. For example, Senator Long began his floor statement by announcing:
In short, 'the legislative history of (the) Act hardly speaks with
that clarity of purpose which Congress supposedly furnishes courts in order
to enable them to enforce its true will.' Universal Camera Corp.
v. NLRB, 340 U.S. 474, 483, 71 S.Ct. 456, 462, 95 L.Ed. 456 (1951).
Here, as in other cases, the various remarks by legislators 'are sufficiently
ambiguous, insofar as this narrow issue is concerned . . . to invite mutually
destructive dialectic,' and not much more. [p. 347] FCC v.
Columbia Broadcasting System, 311 U.S. 132, 136, 61 S.Ct. 152, 154, 85
L.Ed. 87 (1940). Taken together, the statutory materials are inconclusive
on the central issue of whether or not the statutory phrase 'in commerce
or affecting commerce' applies to 'possesses' and 'receives' as well as
'transports.' While standing alone, the legislative history might
tip in the Government's favor, the respondent explains far better the presence
of critical language in the statute. The Government concedes that
'the statute is not a model of logic or clarity.' Pet. for Cert.
5. After 'seiz(ing) every thing from which aid can be derived,' United
States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805) (Marshall, C.J.),
we are left with an ambiguous statute.
'I have prepared an amendment which I will offer at an appropriate
time, simply setting forth the fact that anybody who has been convicted
of a felony (or comes within certain other categories) . . . is not permitted
to possess a firearm . . ..' 114 Cong.Rec. 13868.
Given this ambiguity, we adopt the narrower reading: the phrase
'in commerce or affecting commerce' is part of all three offenses, and
the present conviction must be set aside because the Government has failed
to show the requisite nexus with interstate commerce. This result
is dictated by two wise principles this Court has long followed.
First, as we have recently reaffirmed, 'ambiguity concerning the
ambit of criminal statutes should be resolved in favor of lenity.'
Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d
493 (1971). See also Ladner v. United States, 358 U.S. 169, 177, 79 S.Ct.
209, 213, 3 L.Ed.2d 199 (1958); Bell v. United States, 349 U.S. 81, 75
S.Ct. 620, 99 L.Ed. 905 (1955); United States v. Five Gambling Devices,
etc., 346 U.S. 441, 74 S.Ct. 190, 98 L.Ed. 179 (1953) (plurality opinion
for affirmance). In various ways over the years, we have stated that
'when choice has to be made between two readings of what conduct Congress
has made a crime, it is appropriate, before we choose the harsher alternative,
to require that Congress should have spoken in language that is clear and
definite.' United States v. Universal C.I.T. Credit Corp., [p.
348] 344 U.S. 218, 221--222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952).
This principle is founded on two policies that have long been part of our
tradition. First, 'a fair warning should be given to the world in
language that the common world will understand, of what the law intends
to do if a certain line is passed. To make the warning fair, so fair
as possible the line should be clear.' McBoyle v. United States,
283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.). [n.
15] See also United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189,
97 L.Ed. 200 (1952). Second, because of the seriousness of criminal
penalties, and because criminal punishment usually represents the moral
condemnation of the community, legislatures and not courts should define
criminal activity. This policy embodies 'the instinctive distastes
against men languishing in prison unless the lawmaker has clearly said
they should.' H. Friendly Mr. Justice Frankfurter and the Reading
of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is
ambiguity in a criminal statute, doubts are resolved in favor of the defendant.
Here, we conclude that Congress has not 'plainly and unmistakably,' United
States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61 L.Ed. 857
(1917), made it a federal crime for [p. 349] a convicted felon simply
to possess a gun absent some demonstrated nexus with interstate commerce.
15. Holmes prefaced his much-quoted statement with the observation
that 'it is not likely that a criminal will carefully consider the text
of the law before he murders or steals . . ..' But in the case of gun acquisition
and possession it is not unreasonable to imagine a citizen attempting to
'(steer) a careful course between violation of the statute (and lawful
conduct),' United States v. Hood, 343 U.S. 148, 151, 72 S.Ct. 568, 570,
96 L.Ed. 846 (1952). Of course, where there is a state law prohibiting
felons from possessing firearms, as in New York State, N.Y. Penal Law s
265.05 (McKinney's Consol.Laws, c. 40, Supp.1971--1972), it may be unreal
to argue that there are notice problems under the federal law. There are
many States, however, that do not have their own laws prohibiting felons
from possessing firearms. See Geisel, Roll, & Wettick, The Effectiveness
of State and Local Regulation of Handguns: A Statistical Analysis, 1969
Duke L.J. 647, 652--653. Since ex-offenders in these States are limited
only by the federal gun control laws, the notice problem of that law may
be quite real.
There is a second principle supporting today's result: unless Congress
conveys its purpose clearly, it will not be deemed to have significantly
changed the federal-state balance. Congress has traditionally been
reluctant to define as a federal crime conduct readily denounced as criminal
by the States. [n. 17] This congressional policy is rooted in the same
concepts of American federalism that have provided the basis for judge-made
doctrines. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971). As this Court emphasized only last Term in Rewis
v. United States, supra, we will not be quick to assume that Congress has
meant to effect a significant change in the sensitive relation between
federal and state criminal jurisdiction. In traditionally sensitive areas,
such as legislation affecting the federal balance, the requirement of clear
statement assures that the legislature has in fact faced, and intended
to bring into issue, the critical matters involved in the judicial decision.
In Rewis, we declined to accept an expansive interpretation of the Travel
Act. To do so, we said then, 'would alter sensitive federalstate relationships
(and) could overextend limited federal police resources.' While we
noted there that '(i)t is not for us to weigh the merits of these factors,'
we went on to conclude that 'the fact [p. 350] that they are not
even discussed in the legislative history . . . strongly suggests that
Congress did not intend that (the statute have the broad reach).' 401 U.S.,
at 812, 91 S.Ct., at 1059. In the instant case, the broad construction
urged by the Government renders traditionally local criminal conduct a
matter for federal enforcement and would also involve a substantial extension
of federal police resources. Absent proof of some interstate commerce nexus
in each case, s 1202(a) dramatically intrudes upon traditional state criminal
jurisdiction. As in Rewis, the legislative history provides scanty
basis for concluding that Congress faced these serious questions and meant
to affect the federal-state balance in the way now claimed by the Government.
Absent a clearer statement of intention from Congress than is present here,
we do not interpret s 1202(a) to reach the 'mere possession' of firearms.
17. H. Hart & A. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law 1241 (tent. ed. 1958).
Having concluded that the commerce requirement in s 1202(a) must
be read as part of the 'possesses' and 'receives' offenses, we add a final
word about the nexus with interstate commerce that must be shown in individual
cases. The Government can obviously meet its burden in a variety
of ways. We note only some of these. For example, a person
'possesses . . . in commerce or affecting commerce' if at the time of the
offense the gun was moving interstate or on an interstate facility, or
if the possession affects commerce. Significantly broader in reach, however,
is the offense of 'receiv(ing) . . . in commerce or affecting commerce,'
for we conclude that the Government meets its burden here if it demonstrates
that the firearm received has previously traveled in interstate commerce.
This is [p. 351] not the narrowest possible reading of the statute,
but canons of clear statement and strict construction do 'not mean that
every criminal statute must be given the narrowest possible meaning in
complete disregard of the purpose of the legislature.' United States
v. Bramblett, 348 U.S. 503, 510, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955).
We have resolved the basic uncertainty about the statute in favor of the
narrow reading, concluding that 'in commerce or affecting commerce' is
part of the offense of possessing or receiving a firearm. But, given
the evils that prompted the statute and the basic legislative purpose of
restricting the firearm-related activity of convicted felons, the readings
we give to the commerce requirement, although not all narrow, are appropriate.
And consistent with our regard for the sensitive relation between federal
and state criminal jurisdiction, our reading preserves as an element of
all the offenses a requirement suited to federal criminal jurisdiction
The judgment is affirmed.
Mr. Justice BRENNAN joins the judgment of the Court and the opinion
except for Part III. . . .
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, joins, dissenting.