Langley Footnotes

¹  The term "crime punishable by imprisonment for a term exceeding one year" is commonly referred to as a "felony." In this opinion, these terms are used interchangeably.

² Section 924(a)(2) provides:

Whoever knowingly violates subsection (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

³ Though the short-form, "felon-in-possession," is commonly used in referring to this (and related) provisions, it is important to remember that the relevant statutory language does not use the legal terms "felon" or "felony" in defining the criminal status whose existence makes otherwise innocent conduct criminal. This means that what must be "known," if knowledge of that status is an element of the offense, is a raw fact and not its "legal" implications. Cf. Staples Ginsburg, J., concurring) (necessary to confine knowledge requirement to "facts that make the defendant's conduct illegal, lest it conflict with the related presumption ... that, ordinarily, ignorance of the law or a mistake of law is no defense to criminal prosecution"); Liparota v. United States, (making comparable distinction).

⁴ This interpretation of § 922(g)(1)'s predecessors was based on the Supreme Court's decision in United States v. Freed, which held that a conviction under a provision of the National Firearms Act making it unlawful for any person "to receive or possess a firearm which is not registered to him," did not require proof that the defendant knew of the fact that the weapon in question was unregistered. Though Freed 's holding was actually quite narrow, most lower courts read it as indicating that all federal firearms offenses that did not contain explicit mens rea language were "public welfare" or "regulatory" offenses that carried no mens rea requirement other than that the defendant had "knowingly" engaged in the prohibited conduct. The Supreme Court recently has made plain that this was too expansive a reading of Freed.

⁵ See also Liparota, (word "knowingly" in statute providing that "whoever knowingly ... acquires ... [or] possesses [food stamps] in any manner not authorized by [the statute]" can fairly be read either to modify both the prohibited conduct of acquiring and possessing food stamps and the circumstance that the acquisition or possession was in a manner not authorized by the statute, or to modify only the prohibited conduct of acquiring and possessing food stamps).

⁶ This powerful canon of construction is based on the notion that Congress is "presumed to have legislated against the background of our traditional legal concepts," United States Gypsum, among which is the fundamental concept that "[t]he existence of a mens rea is the rule ..., rather than the exception." See generally Staples

While the presumption does not apply to an uncertain category of "public welfare" or "regulatory" offenses, see Staples, Staples squarely holds that firearms offenses of the type here in issue are not in that category, notwithstanding any contrary implications that some courts may have drawn from United States v. Freed.

⁷ It is on this aspect of the proper method for determining the intended reach of a non-specific scienter requirement that the majority's approach and mine fundamentally differ. As I read the majority's analysis, it approaches the question of legislative intent as one uninfluenced by the Morissette presumption. Indeed, the majority's analysis nowhere acknowledges this presumption's existence as an independent interpretive canon having settled primacy with respect to this particular problem of statutory interpretation.