THOMAS, J., DISSENTING
SMALL V. UNITED STATES
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-750
GARY SHERWOOD SMALL, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the third circuit
[April 26, 2005]
Justice Thomas, with whom Justice
Scalia and Justice Kennedy join, dissenting.
Gary Small, having recently
emerged from three years in Japanese prison for illegally importing
weapons into that country, bought a gun in the United States. This
violated 18 U. S. C. §922(g)(1), which makes it unlawful for
any person “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year” to
possess a firearm in or affecting commerce. Yet the majority
decides that Small’s gun possession did not violate the statute,
because his prior convictions occurred in a Japanese court rather
than an American court. In concluding that “any” means not what it
says, but rather “a subset of any,” the Court distorts the plain
meaning of the statute and departs from established principles of
statutory construction. I respectfully dissent.
I
In December 1992, Small shipped a
19-gallon electric water heater from the United States to Okinawa,
Japan, ostensibly as a present for someone in Okinawa. App. to
Brief for Appellant in No. 02–2785 (CA3), pp. 507a–510a, 530a–531a,
534a, 598a (hereinafter Appellant’s App.). Small had sent two other
water heaters to Japan that same year.
Id., at 523a–527a.
Thinking it unusual for a person to ship a water tank from overseas
as a present,
id., at 599a, Japanese customs officials
searched the heater and discovered 2 rifles, 8 semiautomatic
pistols, and 410 rounds of ammunition.
Id., at 603a–604a;
id., at 262a, 267a, 277a.
The Japanese Government indicted
Small on multiple counts of violating Japan’s weapons-control and
customs laws.
Id., at 261a–262a. Each offense was
punishable by imprisonment for a term exceeding one year. 333
F. 3d 425, 426 (CA3 2003). Small was tried before a
three-judge court in Naha, Japan, Appellant’s App. 554a, convicted
on all counts on April 14, 1994, 333 F. 3d, at 426, and sentenced
to 5 years’ imprisonment with credit for 320 days served,
id., at 426, n. 1; Government’s Brief in Support of
Detention in Crim. No. 00–160 (WD Pa.), pp. 3–4. He was paroled on
November 22, 1996, and his parole terminated on May 26, 1998. 333
F. 3d, at 426, n. 1
.
A week after completing parole for his
Japanese convictions, on June 2, 1998, Small purchased a
9-millimeter SWD Cobray pistol from a firearms dealer in
Pennsylvania. Appellant’s App. 48a, 98a. Some time later, a search
of his residence, business premises, and automobile revealed a .380
caliber Browning pistol and more than 300 rounds of ammunition.
Id., at 47a–51a, 98a–99a. This prosecution ensued.
II
The plain terms of §922(g)(1)
prohibit Small—a person “convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year”—from
possessing a firearm in the United States. “Read naturally, the
word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’ ”
United States
v.
Gonzales, 520 U. S. 1, 5 (1997)
(quoting Webster’s Third New International Dictionary 97 (1976)
(hereinafter Webster’s 3d)); see also
Department of Housing and
Urban Development v.
Rucker, 535 U. S. 125, 130–131
(2002) (statute making “any” drug-related criminal activity cause
for termination of public housing lease precludes requirement that
tenant know of the activity);
Brogan v.
United
States, 522 U.
S. 398, 400–401 (1998) (statute criminalizing “any” false
statement within the jurisdiction of a federal agency allows no
exception for the mere denial of wrongdoing);
United
States v.
Alvarez-Sanchez, 511 U. S. 350, 356, 358
(1994) (statute referring to “any” law-enforcement officer includes
all law enforcement officers—federal, state, or local—capable of
arresting for a federal crime). No exceptions appear on the face of
the statute; “[n]o modifier is present, and nothing suggests any
restriction,”
Lewis v.
United States, 445 U. S. 55, 60 (1980),
on the scope of the term “court.” See
Gonzales,
supra, at 5 (statute referring to “ ‘any other term
of imprisonment’ ” includes no “language limiting the breadth
of that word, and so we must read [the statute] as referring to all
‘term[s] of imprisonment’ ”). The broad phrase “any court”
unambiguously includes all judicial bodies[
Footnote 1] with jurisdiction to impose the requisite
conviction—a conviction for a crime punishable by imprisonment for
a term of more than a year. Indisputably, Small was convicted in a
Japanese court of crimes punishable by a prison term exceeding one
year. The clear terms of the statute prohibit him from possessing a
gun in the United States.
Of course, the phrase “any
court,” like all other statutory language, must be read in context.
E.g.,
Deal v.
United States, 508 U. S. 129, 132
(1993). The context of §922(g)(1), however, suggests that there is
no geographic limit on the scope of “any court.”[
Footnote 2] By contrast to other parts of the
firearms-control law that expressly mention only state or federal
law, “any court” is not qualified by jurisdiction. See 18 U.
S. C. §921(a)(20) (excluding certain “Federal or State
offenses” from the definition of “crime punishable by imprisonment
for a term exceeding one year”); §921(a)(33)(A)(i) (defining a
“misdemeanor crime of domestic violence” by reference to “Federal
or State law”).[
Footnote 3]
Congress’ explicit use of “Federal” and “State” in other provisions
shows that it specifies such restrictions when it wants to do
so.
Counting foreign convictions, moreover,
implicates no special federalism concerns or other clear statement
rules that have justified construing “any” narrowly in the
past.[
Footnote 4] And it is
eminently practical to put foreign convictions to the same use as
domestic ones; foreign convictions indicate dangerousness just as
reliably as domestic convictions. See Part III–B,
infra.
The expansive phrase “convicted in any court” straightforwardly
encompasses Small’s Japanese convictions.
III
Faced with the inescapably broad
text, the Court narrows the statute by assuming that the text
applies only to domestic convictions,
ante, at 5;
criticizing the accuracy of foreign convictions as a proxy for
dangerousness,
ante, at 3–5; finding that the broad,
natural reading of the statute “creates anomalies,”
ante,
at 5; and suggesting that Congress did not consider whether foreign
convictions counted,
ante, at 7–8. None of these arguments
is persuasive.
A
The Court first invents a canon
of statutory interpretation—what it terms “an ordinary assumption
about the reach of domestically oriented statutes,”
ante,
at 5—to cabin the statute’s reach. This new “assumption” imposes a
clear statement rule on Congress: Absent a clear statement, a
statute refers to nothing outside the United States. The Court’s
denial that it has created a clear statement rule is implausible.
Ibid. After today’s ruling, the only way for Congress to
ensure that courts will construe a law to refer to foreign facts or
entities is to describe those facts or entities specifically as
foreign. If this is not a “special burden of specificity,”
ibid., I am not sure what is.
The Court’s innovation is
baseless. The Court derives its assumption from the entirely
different, and well-recognized, canon against extraterritorial
application of federal statutes: “It is a longstanding principle of
American law that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction
of the United States.”
EEOC v.
Arabian American Oil
Co., 499 U. S.
244, 248 (1991) (internal quotation marks omitted). But the
majority rightly concedes that the canon against
extraterritoriality itself “does not apply directly to this case.”
Ante, at 3. Though foreign as well as domestic convictions
trigger §922(g)(1)’s prohibition, the statute criminalizes gun
possession in this country, not abroad. In prosecuting Small, the
Government is enforcing a domestic criminal statute to punish
domestic criminal conduct.
Pasquantino v.
United
States,
ante, at 20–21 (federal wire fraud statute
covers a domestic scheme aimed at defrauding a foreign government
of tax revenue).
The extraterritoriality cases cited by the
Court,
ante, at 3, do not support its new assumption. They
restrict federal statutes from applying outside the territorial
jurisdiction of the United States. See
Smith v.
United
States, 507 U.
S. 197, 203–204 (1993) (Federal Tort Claims Act does not apply
to claims arising in Antarctica);
Arabian American Oil
Co., supra, at 249–251 (Title VII of the Civil Rights
Act of 1964 does not regulate the employment practices of American
firms employing American citizens abroad);
Foley Bros.,
Inc. v.
Filardo, 336 U. S. 281, 285–286
(1949) (federal labor statute does not apply to a contract between
the United States and a private contractor for construction work
done in a foreign country);
United States v.
Palmer, 3 Wheat. 610, 630–634 (1818) (statute punishing
piracy on the high seas does not apply to robbery committed on the
high seas by a noncitizen on board a ship belonging exclusively to
subjects of a foreign state). These straightforward applications of
the extraterritoriality canon, restricting federal statutes from
reaching conduct
beyond U. S. borders, lend no support to
the Court’s unprecedented rule restricting a federal statute from
reaching conduct
within U. S. borders.
We have, it is true, recognized that the
presumption against extraterritorial application of federal
statutes is rooted in part in the “commonsense notion that Congress
generally legislates with domestic concerns in mind.”
Smith, supra, at 204, n. 5. But my reading of
§922(g)(1) is entirely true to that notion: Gun possession in this
country is surely a “domestic concern.” We have also consistently
grounded the canon in the risk that extraterritorially applicable
U. S. laws could conflict with foreign laws, for example, by
subjecting individuals to conflicting obligations.
Arabian
American Oil Co., supra, at 248. That risk is
completely absent in applying §922(g)(1) to Small’s conduct. Quite
the opposite, §922(g)(1) takes foreign law as it finds it. Aside
from the extraterritoriality canon, which the Court properly
concedes does not apply, I know of no principle of statutory
construction justifying the result the Court reaches. Its
concession that the canon is inapposite should therefore end this
case.
Rather than stopping there, the Court
introduces its new “assumption about the reach of domestically
oriented statutes”
sU. S.onte, without briefing or
argument on the point,[
Footnote
5] and without providing guidance on what constitutes a
“domestically oriented statut[e].”
Ante, at 5. The
majority suggests that it means all statutes except those dealing
with subjects like “immigration or terrorism,”
ibid.,
apparently reversing our previous rule that the extraterritoriality
canon “has special force” in statutes “that may involve foreign and
military affairs,”
Sale v.
Haitian Centers Council,
Inc., 509 U. S.
155, 188 (1993) (provision of the Immigration and Nationality
Act does not apply extraterritorially); cf.
Palmer,
supra (statute criminalizing piracy on the high seas does
not apply to robbery by noncitizen on ship belonging to foreign
subjects). The Court’s creation threatens to wreak havoc with the
established rules for applying the canon against
extraterritoriality.[
Footnote
6]
B
In support of its narrow reading
of the statute, the majority opines that the natural reading has
inappropriate results. It points to differences between foreign and
domestic convictions, primarily attacking the reliability of
foreign convictions as a proxy for identifying dangerous
individuals.
Ante, at 3–5. Citing various foreign laws,
the Court observes that, if interpreted to include foreign
convictions, §922(g) would include convictions for business and
speech activities “that [United States] laws would permit,”
ante, at 3; convictions “from a legal system that is
inconsistent with an American understanding of fairness,”
ante, at 4; and convictions “for conduct that [United
States] law punishes far less severely,”
ibid. The Court
therefore concludes that foreign convictions cannot trigger
§922(g)(1)’s prohibition on firearm possession.
The Court’s claim that foreign
convictions punishable by imprisonment for more than a year
“somewhat less reliably identif[y] dangerous individuals” than
domestic convictions,
ibid., is untenable. In compiling
examples of foreign convictions that might trigger §922(g)(1),
ibid., the Court constructs a parade of horribles. Citing
laws of the Russian Soviet Federated Socialist Republic, Cuba, and
Singapore, it cherry-picks a few egregious examples of convictions
unlikely to correlate with dangerousness, inconsistent with
American intuitions of fairness, or punishable more severely than
in this country.
Ibid. This ignores countless other
foreign convictions punishable by more than a year that serve as
excellent proxies for dangerousness and culpability.[
Footnote 7] Surely a “reasonable human
being” drafting this language would have considered whether foreign
convictions are, on average and as a whole, accurate at gauging
dangerousness and culpability, not whether the worst-of-the-worst
are. Breyer, On the Uses of Legislative History in Interpreting
Statutes, 65 S. Cal. L. Rev. 845, 854 (1992). The Court
also ignores the facts of this very case: A week after completing
his sentence for shipping two rifles, eight semiautomatic pistols,
and hundreds of rounds of ammunition into Japan, Small bought a gun
in this country. It was eminently reasonable for Congress to use
convictions punishable by imprisonment for more than a year—foreign
no less than domestic—as a proxy for dangerousness.
Contrary to the majority’s assertion, it makes
sense to bar people convicted overseas from possessing guns in the
United States. The Court casually dismisses this point with the
observation that only “ ‘10 to a dozen’ ” prosecutions
under the statute have involved foreign convictions as predicate
convictions.
Ante, at 8 (quoting Tr. of Oral Arg. 32). The
rarity of such prosecutions, however, only refutes the Court’s
simultaneous claim,
ante, at 3–5, that a parade of
horribles will result if foreign convictions count. Moreover, the
Court does not claim that any of these few prosecutions has been
based on a foreign conviction inconsistent with American law. As
far as anyone is aware, the handful of prosecutions thus far rested
on foreign convictions perfectly consonant with American law, like
Small’s conviction for international gunrunning. The Court has no
answer for why including foreign convictions is unwise, let alone
irrational.
C
The majority worries that reading
§922(g)(1) to include foreign convictions “creates anomalies” under
other firearms control provisions.
Ante, at 5–7. It is
true, as the majority notes, that the natural reading of §922(g)(1)
affords domestic offenders more lenient treatment than foreign ones
in some respects: A domestic antitrust or business regulatory
offender could possess a gun, while a similar foreign offender
could not; the perpetrator of a state misdemeanor punishable by two
years or less in prison could possess a gun, while an analogous
foreign offender could not.
Ibid. In other respects,
domestic offenders would receive harsher treatment than their
foreign counterparts: One who committed a misdemeanor crime of
domestic violence in the United States could not possess a gun,
while a similar foreign offender could; and a domestic drug
offender could receive a 15-year mandatory minimum sentence for
unlawful gun possession, while a foreign drug offender could not.
Ante, at 6–7.
These outcomes cause the Court
undue concern. They certainly present no occasion to employ, nor
does the Court invoke, the canon against absurdities. We should
employ that canon only “where the result of applying the plain
language would be, in a genuine sense, absurd,
i.e., where
it is quite impossible that Congress could have intended the result
. . . and where the alleged absurdity is so clear as to be obvious
to most anyone.”
Public Citizen v.
Department of
Justice, 491 U.
S. 440, 470–471 (1989) (Kennedy, J., concurring in judgment);
Nixon v.
Missouri Municipal League,
541 U. S. 125, 141 (2004) (Scalia, J.,
concurring in judgment) (“avoidance of unhappy consequences” is
inadequate basis for interpreting a text); cf.
Sturges v.
Crowninshield, 4 Wheat. 122, 203 (1819) (before
disregarding the plain meaning of a constitutional provision, the
case “must be one in which the absurdity and injustice of applying
the provision to the case, would be so monstrous, that all mankind
would, without hesitation, unite in rejecting the
application”).
Here, the “anomalies” to which the Court
points are not absurd. They are, at most, odd; they may even be
rational. For example, it is not senseless to bar a Canadian
antitrust offender from possessing a gun in this country, while
exempting a domestic antitrust offender from the ban. Congress
might have decided to proceed incrementally and exempt only
antitrust offenses with which it was familiar, namely, domestic
ones. In any event, the majority abandons the statute’s plain
meaning based on results that are at most incongruous and certainly
not absurd. As with the extraterritoriality canon, the Court
applies a mutant version of a recognized canon when the recognized
canon is itself inapposite. Whatever the utility of canons as
guides to congressional intent, they are useless when modified in
ways that Congress could never have imagined in enacting
§922(g)(1).
Even assuming that my reading of the statute
generates anomalies, the majority’s reading creates ones even more
dangerous. As explained above, the majority’s interpretation
permits those convicted overseas of murder, rape, assault,
kidnaping, terrorism, and other dangerous crimes to possess
firearms freely in the United States.
Supra, at 9, and n.
7. Meanwhile, a person convicted domestically of tampering with a
vehicle identification number, 18 U. S. C. §511(a)(1), is
barred from possessing firearms. The majority’s concern with
anomalies provides no principled basis for choosing its
interpretation of the statute over mine.
D
The Court hypothesizes “that
Congress did not consider whether the generic phrase ‘convicted in
any court’ applies to domestic as well as foreign convictions,”
ante, at 7, and takes that as license to restrict the
clear breadth of the text. Whether the Court’s empirical assumption
is correct is anyone’s guess. Regardless, we have properly rejected
this method of guesswork-as-interpretation. In
Beecham v.
United States, 511 U. S. 368 (1994), we
interpreted other provisions of the federal firearms laws to mean
that a person convicted of a federal crime is not relieved of the
firearms disability unless his civil rights have been restored
under federal (as opposed to state) law. We acknowledged the
possibility “that the phrases on which our reading of the statute
turns . . . were accidents of statutory drafting,”
id., at
374; and we observed that some legislators might have read the
phrases differently from the Court’s reading, “or, more likely, . .
. never considered the matter at all,”
ibid. We
nonetheless adhered to the unambiguous meaning of the statute.
Ibid.; cf.
National Organization for Women, Inc.
v.
Scheidler, 510 U. S. 249, 262
(1994) (“The fact that [the Racketeer Influenced and Corrupt
Organizations Act] has been applied in situations not expressly
anticipated by Congress does not demonstrate ambiguity. It
demonstrates breadth” (internal quotation marks and brackets
omitted)). Here, as in
Beecham, “our task is not the
hopeless one of ascertaining what the legislators who passed the
law would have decided had they reconvened to consider [this]
particular cas[e],” 511 U. S., at 374, but the eminently more
manageable one of following the ordinary meaning of the text they
enacted. That meaning includes foreign convictions.
The Court’s reliance on the
absence of any discussion of foreign convictions in the legislative
history is equally unconvincing.
Ante, at 7–8. Reliance on
explicit statements in the history, if they existed, would be
problematic enough. Reliance on silence in the history is a new and
even more dangerous phenomenon.
Koons Buick Pontiac GMC,
Inc. v.
Nigh, 543 U. S. ___, ___ (2004) (slip op., at
5) (Scalia, J., dissenting) (criticizing the Court’s novel “Canon
of Canine Silence”).
I do not even agree, moreover, that the
legislative history is silent. As the Court describes, the Senate
bill that formed the basis for this legislation was amended in
Conference, to change the predicate offenses from “ ‘Federal’
crimes” punishable by more than one year’s imprisonment and “crimes
‘determined by the laws of a State to be a felony’ ” to
conviction “ ‘in any court, of a crime punishable by a term of
imprisonment exceeding one year.’ ”
Ante, at 7. The
Court seeks to explain this change by saying that “the enacted
version is simpler and . . . avoids potential difficulties arising
out of the fact that States may define the term ‘felony’
differently.”
Ante, at 8. But that does not explain why
all limiting reference to “Federal” and “State” was eliminated. The
revised provision would have been just as simple, and would just as
well have avoided the potential difficulties, if it read “convicted
in any Federal or State court of a crime punishable by a term of
imprisonment exceeding one year.” Surely that would have been the
natural change if expansion beyond federal and state convictions
were not intended. The elimination of the limiting references
suggests that not
only federal and state convictions were
meant to be covered.
Some, of course, do not believe that any
statement or text that has not been approved by both Houses of
Congress and the President (if he signed the bill) is an
appropriate source of statutory interpretation. But for those who
do, this committee change ought to be strong confirmation of the
fact that “any” means not “any Federal or State,” but simply
“any.”
IV
The Court never convincingly
explains its departure from the natural meaning of §922(g)(1).
Instead, it institutes the troubling rule that “any” does not
really mean “any,” but may mean “some subset of ‘any,’ ” even
if nothing in the context so indicates; it distorts the established
canons against extraterritoriality and absurdity; it faults without
reason Congress’ use of foreign convictions to gauge dangerousness
and culpability; and it employs discredited methods of determining
congressional intent. I respectfully dissent.
Footnote 1
See,
e.g., The Random House
Dictionary of the English Language 335 (1966) (defining “court” as
“a place where justice is administered,” “a judicial tribunal duly
constituted for the hearing and determination of cases,” “a session
of a judicial assembly”); The Concise Oxford Dictionary of Current
English 282 (5th ed. 1964) (defining “court” as an“[a]ssembly of
judges or other persons acting as tribunal”); Webster’s 3d 522
(1961) (defining “court” as “the persons duly assembled under
authority of law for the administration of justice,” “an official
assembly legally met together for the transaction of judicial
business,” “a judge or judges sitting for the hearing or trial of
cases”).
Footnote 2
The Court’s observation that “a speaker who
says, ‘I’ll see any film,’ may or may not mean to include films
shown in another city,”
ante, at 2, therefore adds nothing
to the analysis. The context of that statement implies that such a
speaker, despite saying “any,” often means only the subset of films
within an accessible distance. Unlike the context of the film
remark, the context of 18 U. S. C. §922(g)(1) implies no
geographic restriction.
Footnote 3
See also §921(a)(15) (defining a “fugitive
from justice,” who is banned from possessing firearms under
§922(g)(2), as “any person who has fled from any State to avoid
prosecution for a crime or to avoid giving testimony”); §924(e)(2)
(defining a “serious drug offense,” which can trigger an enhanced
sentence, by reference to particular federal laws or “State
law”).
Footnote 4
Nixon v.
Missouri Municipal
League, 541 U. S. 125 (2004), considered a
federal statute authorizing preemption of state and local laws
“prohibiting the ability of any entity” to provide
telecommunications services.
Id., at 128 (internal
quotation marks omitted). The Court held that the statute did not
provide the clear statement required for the Federal Government to
limit the States’ ability to restrict delivery of such services by
their own political subdivisions.
Id., at 140–141; see
also
id., at 141 (Scalia, J., concurring in judgment);
Raygor v.
Regents of Univ. of Minn., 534 U. S. 533, 540–541
(2002) (“any” in federal statute insufficiently clear statement to
abrogate state sovereign immunity);
Atascadero State
Hospital v.
Scanlon, 473 U. S. 234, 245–246
(1985) (same). No such clear statement rule is at work here.
Footnote 5
Neither party mentions the
quasi-extraterritoriality principle that the Court fashions. The
briefs barely discuss the extraterritoriality canon itself. The
only reference to that canon is a footnote in the respondent’s
brief pointing out that it is inapposite. Brief for United States
44, n. 31.
Footnote 6
The Court attempts to justify applying its
new canon with the claim that “other indicia of intent are in
approximate balance.”
Ante, at 5. This claim is false.
Other indicia of intent are not in balance, so long as text counts
as an indicium of intent. As I have explained, Part II,
supra, the text of §922(g)(1) encompasses foreign
convictions.
Footnote 7
Brottsbalk (Swedish Criminal Code), SFS
1962:700, ch. 3, §1 (murder); Criminal Code of Canada,
R. S. C. ch. C–46, §244(b) (1985), as amended
(discharging firearm at a person with intent to endanger life);
§102(2) (making an automatic weapon); Laws of the State of Israel,
Penal Law §345(b)(2) (rape by threat of firearm or cutting weapon);
Penal Code of Egypt Art. 143 (giving weapons to a detained person
in order to help him escape); Federal Penal Code of Mexico Art. 139
(terrorism by explosives, toxic substances, firearms, fire,
flooding, or other violent means); Art. 163 (kidnaping); Firearms
Offenses Act 1968 (United Kingdom), ch. 27, §18(1) (carrying
firearm with intent to commit an indictable offense or to resist
arrest); 7 L. Rep. of Zambia Cap. 87, ch. 19, §§200–201 (1995)
(murder); ch. 24, §248 (assault occasioning actual bodily harm);
ch. 25, §§251–262 (kidnaping, abduction, and buying or selling
slaves).
Comments
Be the first to comment
Leave a Comment