United States v. Bass/Dissent Blackmun

by Harry Blackmun

United States Supreme Court

404 U.S. 336

United States  v.  Bass

 Argued: Oct. 18, 1971. --- Decided: Dec 20, 1971

Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, joins, dissenting.

I cannot join the Court's opinion and judgment. Five of the six United States courts of appeals that have passed upon the issue presented by this case have decided it adversely to the position urged by the respondent here. United States v. Cabbler, 429 F.2d 577 (CA4 1970), cert. denied, 400 U.S. 901, 91 S.Ct. 138, 27 L.Ed.2d 138; United States, v. Mullins, 432 F.2d 1003 (CA4 1970); United States v. Donofrio, 450 F.2d 1054 (CA5 1971); Stevens v. United States, 440 F.2d 144 (CA6 1971) (one judge dissenting); United States v. Synnes, 438 F.2d 764 (CA8 1971); United States v. Wiley, 438 F.2d 773 (CA8 1971); United States v. Taylor, 438 F.2d 774 (CA8 1971); United States v. Daniels, 431 F.2d 697 (CA9 1970); United States v. Crow, 439 F.2d 1193 (CA9 1971). Only the Second Circuit stands opposed. ^[1]

1. The statute, 18 U.S.C.App. § 1202 (a), when it speaks of one 'who receives, possesses, or transports in commerce or affecting commerce,' although arguably ambiguous and, as the Government concedes, 'not a model of logic or clarity,' ^[2] is clear enough. The structure of the vital language and its punctuation make it refer to one who receives, to one who possesses, and to one who transports in commerce. If one wished to say that he would welcome a cat, would welcome a dog, or would welcome a cow that jumps over the moon, he would likely say 'I would like to have a cat, a dog, or a cow that jumps over the moon.' So it is here.

2. The meaning the Court implants on the statute is justified only by the addition and interposition of a comma after the word 'transports.' I perceive no warrant for this judicial transfiguration.

3. In the very same statute the phrase 'after the date of enactment of this Act' is separated by commas and undeniably modifies each of the preceding words, 'receives,' 'possesses,' and 'transports.' Obviously, then, the draftsman-and the Congress-knew the use of commas for phrase modification. We should give effect to the only meaning attendant upon that use.

4. The specific finding in 18 U.S.C.App. § 1201 ^[3] clearly demonstrates that Congress was attempting to reach and prohibit every possession of a firearm by a felon; that Congress found that such possession, whether interstate or intrastate, affected interstate commerce; and that Congress did not conclude that intrastate possession was a matter of less concern to it than interstate possession. That finding was unnecessary if Congress also required proof that each receipt or possession of a firearm was in or affected interstate or foreign commerce.

5. Senator Long's explanatory comments reveal clearly the purpose, the intent, and the extent of the legislation:

'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 . . . is not permitted to possess a firearm . . ..

'It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless as this bill sets forth-he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.' 114 Cong.Rec. 13868 (emphasis supplied).

'So Congress simply finds that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce.

'You cannot do business in an area, and you certainly cannot do as much of it and do it as well as you would like, if in order to do business you have to go through a street where there are burglars, murderers, and arsonists armed to the teeth against innocent citizens. So the threat certainly affects the free flow of commerce.' 114 Cong.Rec. 13869 (emphasis supplied).

'What the amendment seeks to do is to make it unlawful for a firearm-be it a handgun, a machinegun, a longrange rifle, or any kind of firearm-to be in the possession of a convicted felon who has not been pardoned and who has therefore lost his right to possess firearms. . . . It also relates to the transportation of firearms.

'Clauses 1-5 describe persons who, by their actions, have demonstrated that they are dangerous, or that they may become dangerous. Stated simply, they may not be trusted to possess a firearm without becoming a threat to society. This title would apply both to hand guns and to long guns.

'All of these murderers had shown violent tendencies before they committed the crime for which they are most infamous. They should not have been permitted to possess a gun. Yet, there is no Federal law which would deny possession to these undesirables.

'The killer of Medgar Evers, the murderer of the three civil rights workers in Mississippi, the defendants who shot Captain Lemuel Penn (on a highway while he was driving back to Washington after completion of reserve Military duty) would all be free under present Federal law to acquire another gun and repeat those same sorts of crimes in the future.

'So under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and has been expressly authorized by his pardon to possess a firearm.

'It has been said that Congress lacks the power to outlaw mere possession of weapons. . . .

'. . . The important point is that this legislation demonstrates that possession of a deadly weapon by the wrong people can be controlled by Congress, without regard to where the police power resides under the Constitution.

'Without question, the Federal Government does have power to control possession of weapons where such possession could become a threat to interstate commerce . . ..

'State gun control laws where they exist have proven inadequate to bar possession of firearms from those most likely to use them for unlawful purposes . . ..

'Nor would Title VII impinge upon the rights of citizens generally to possess firearms for legitimate and lawful purposes. It deals solely with those who have demonstrated that they cannot be trusted to possess a firearm-those whose prior acts-mostly voluntary-have placed them outside of our society. . . .

'. . . I am convinced that we have enough constitutional power to prohibit these categories of people from possessing, receiving, or transporting a firearm. . . .

'This amendment would provide that a convicted felon who participates in one of these marches and is carrying a firearm would be violating the law. . . .' 114 Cong.Rec. 14773-14774 (emphasis supplied).

One cannot detect in these remarks any purpose to restrict or limit the type of possession that was being considered for proscription.

6. The Court's construction of § 1202(a), limiting its application to interstate possession and receipt, shrinks the statute into something little more than a duplication of 18 U.S.C. §§ 922(g) and (h). I cannot ascribe to Congress such a gesture of nonaccomplishment.

I thus conclude that § 1202(a) was intended to and does reach all possessions and receipts of firearms by convicted felons, and that the Court should move on and decide the constitutional issue present in this case.

Notes

1. Unappealed district court decisions are in conflict. Those upholding the Government's position include United States v. Davis, 314 F.Supp. 1161 (ND Miss. 1970); United States v. Vicary, No. CR 44,205 (ED Mich., June 29, 1970) (en banc); United States v. Childress, No. 8039-R (ED Va., Jan. 6, 1969); United States v. Boggs, No. 8138 (Wyo., June 17, 1970). Those opposed include United States v. Harbin, 313 F.Supp. 50 (ND Ind.1970); United States v. Steed, No. CR 70-57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR 14,465 (MD Tenn., Feb. 10, 1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969).
2. Pet. for Cert. 5.
3. '§ 1201. Congressional findings and declaration.

'The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons . . . constitutes-

'(1) a burden on commerce or threat affecting the free flow of commerce . . ..'