[ Breyer ]
[ Thomas ]
GARY SHERWOOD SMALL, PETITIONER v.
ON WRIT OF CERTIORARI TO THE UNITED STATES
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 Smalls 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.
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. 022785 (CA3), pp. 507a510a, 530a531a, 534a, 598a (hereinafter Appellants App.). Small had sent two other water heaters to Japan that same year. Id., at 523a527a. 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 603a604a; id., at 262a, 267a, 277a.
The Japanese Government indicted Small on multiple counts of violating Japans weapons-control and customs laws. Id., at 261a262a. 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, Appellants 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; Governments Brief in Support of Detention in Crim. No. 00160 (WD Pa.), pp. 34. 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. Appellants 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 47a51a, 98a99a. This prosecution ensued.
The plain terms of §922(g)(1)
prohibit Smalla person convicted in any court of, a
crime punishable by imprisonment for a term exceeding one
yearfrom 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.
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.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).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.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 IIIB, infra. The expansive phrase convicted in any court straightforwardly encompasses Smalls Japanese convictions.
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 35; 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 78. None of these arguments is persuasive.
The Court first invents a canon of statutory interpretationwhat it terms an ordinary assumption about the reach of domestically oriented statutes, ante, at 5to cabin the statutes 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 Courts denial that it has created a clear statement rule is implausible. Ibid. After todays 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 Courts 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 2021 (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, 203204 (1993) (Federal Tort Claims Act does not apply to claims arising in Antarctica); Arabian American Oil Co., supra, at 249251 (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, 285286 (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, 630634 (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 Courts 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 Smalls 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 sua sponte, without briefing or argument on the point,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 Courts creation threatens to wreak havoc with the established rules for applying the canon against extraterritoriality.6
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 35. 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 Courts 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.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 yearforeign no less than domesticas a proxy for dangerousness.
Contrary to the majoritys
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
The majority worries that reading §922(g)(1) to include foreign convictions creates anomalies under other firearms control provisions. Ante, at 57. 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 67.
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, 470471 (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 statutes 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 majoritys reading creates ones even more dangerous. As explained above, the majoritys 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 majoritys concern with anomalies provides no principled basis for choosing its interpretation of the statute over mine.
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 Courts empirical assumption is correct is anyones 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 Courts 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 Courts reliance on the absence of any discussion of foreign convictions in the legislative history is equally unconvincing. Ante, at 78. 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 Courts 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
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.
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,
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); Websters 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).
2. The Courts observation that a speaker who says, Ill 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.
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).
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 140141; see also id., at 141 (Scalia, J., concurring in judgment); Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 540541 (2002) (any in federal statute insufficiently clear statement to abrogate state sovereign immunity); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 245246 (1985) (same). No such clear statement rule is at work here.
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 respondents brief pointing out that it is inapposite. Brief for United States 44, n. 31.
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.
7. Brottsbalk (Swedish Criminal Code), SFS 1962:700, ch. 3, §1 (murder); Criminal Code of Canada, R. S. C. ch. C46, §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, §§200201 (1995) (murder); ch. 24, §248 (assault occasioning actual bodily harm); ch. 25, §§251262 (kidnaping, abduction, and buying or selling slaves).