Rehaif v. United States

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

REHAIF v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 17–9560. Argued April 23, 2019—Decided June 21, 2019

Petitioner Rehaif entered the United States on a nonimmigrant student

visa to attend university but was dismissed for poor grades. He sub-

sequently shot two firearms at a firing range. The Government pros-

ecuted him under 18 U. S. C. §922(g), which makes it unlawful for

certain persons, including aliens illegally in the country, to possess

firearms, and §924(a)(2), which provides that anyone who “knowingly

violates” the first provision can be imprisoned for up to 10 years. The

jury at Rehaif’s trial was instructed that the Government was not re-

quired to prove that he knew that he was unlawfully in the country.

It returned a guilty verdict. The Eleventh Circuit affirmed.

Held: In a prosecution under §922(g) and §924(a)(2), the Government

must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred

from possessing a firearm. Pp. 3–12.

(a) Whether a criminal statute requires the Government to prove

that the defendant acted knowingly is a question of congressional in-

tent. This inquiry starts from a longstanding presumption that Con-

gress intends to require a defendant to possess a culpable mental

state regarding “each of the statutory elements that criminalize oth-

erwise innocent conduct,” United States v. X-Citement Video, Inc., 513

U. S. 64, 72, normally characterized as a presumption in favor of “sci-

enter.” There is no convincing reason to depart from this presump-

tion here.

The statutory text supports the presumption. It specifies that a de-

fendant commits a crime if he “knowingly” violates §922(g), which

makes possession of a firearm unlawful when the following elements

are satisfied: (1) a status element (here “being an alien . . . illegally or

unlawfully in the United States”); (2) a possession element (to “pos-

2 REHAIF v. UNITED STATES

Syllabus

sess”); (3) a jurisdictional element (“in or affecting commerce”); and

(4) a firearm element (a “firearm or ammunition”). Aside from the ju-

risdictional element, which is not subject to the presumption in favor

of scienter, §922(g)’s text simply lists the elements that make a de-

fendant’s behavior criminal. The term “knowingly” is normally read

“as applying to all the subsequently listed elements of the crime.”

Flores-Figueroa v. United States, 556 U. S. 646, 650. And the “know-

ingly” requirement clearly applies to §922(g)’s possession element,

which follows the status element in the statutory text. There is no

basis for interpreting “knowingly” as applying to the second §922(g)

element but not the first.

This reading of the statute is also consistent with a basic principle

underlying the criminal law: the importance of showing what Black-

stone called “a vicious will.” Scienter requirements advance this

principle by helping to separate wrongful from innocent acts. That is

the case here. Possessing a gun can be entirely innocent. It is the de-

fendant’s status, not his conduct alone, that makes the difference.

Without knowledge of that status, a defendant may lack the intent

needed to make his behavior wrongful. Pp. 3–7.

(b) The Government’s arguments to the contrary are unpersuasive.

In claiming that Congress does not normally require defendants to

know their own status, it points to statutes where the defendant’s

status is the “crucial element” separating innocent from wrongful

conduct. X-Citement Video, supra, at 73. Those statutes are quite

different from the provisions at issue here, where the defendant’s sta-

tus separates innocent from wrongful conduct. The Government also

argues that whether an alien is “illegally or unlawfully in the United

States” is a question of law, not fact, and thus appeals to the maxim

that “ignorance of the law” is no excuse. But that maxim normally

applies where a defendant possesses the requisite mental state in re-

spect to the elements of the crime but claims to be unaware of a law

forbidding his conduct. That maxim does not normally apply where a

defendant’s mistaken impression about a collateral legal question

causes him to misunderstand his conduct’s significance, thereby ne-

gating an element of the offense. Rehaif’s status as an alien “illegally

or unlawfully in the United States” refers to what commentators call

a “collateral” question of law, and a mistake regarding that status

negates an element of the offense. Finally, the statutory and legisla-

tive history on which the Government relies is at best inclusive.

Pp. 7–11.

888 F. 3d 1138, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH,

Cite as: 588 U. S. ____ (2019) 3

Syllabus

JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J.,

joined.

Cite as: 588 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–9560

_________________

HAMID MOHAMED AHMED ALI REHAIF,

PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 21, 2019]

JUSTICE BREYER delivered the opinion of the Court.

A federal statute, 18 U. S. C. §922(g), provides that “[i]t

shall be unlawful” for certain individuals to possess fire-

arms. The provision lists nine categories of individuals

subject to the prohibition, including felons and aliens who

are “illegally or unlawfully in the United States.” Ibid. A

separate provision, §924(a)(2), adds that anyone who

“knowingly violates” the first provision shall be fined or

imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “know-

ingly.” Does it mean that the Government must prove

that a defendant knew both that he engaged in the rele-

vant conduct (that he possessed a firearm) and also that

he fell within the relevant status (that he was a felon, an

alien unlawfully in this country, or the like)? We hold that

the word “knowingly” applies both to the defendant’s

conduct and to the defendant’s status. To convict a de-

fendant, the Government therefore must show that the

defendant knew he possessed a firearm and also that he

knew he had the relevant status when he possessed it.

2 REHAIF v. UNITED STATES

Opinion of the Court

I

Petitioner Hamid Rehaif entered the United States on a

nonimmigrant student visa to attend university. After he

received poor grades, the university dismissed him and

told him that his “ ‘immigration status’ ” would be termi-

nated unless he transferred to a different university or left

the country. App. to Pet. for Cert. 3a. Rehaif did neither.

Rehaif subsequently visited a firing range, where he

shot two firearms. The Government learned about his

target practice and prosecuted him for possessing firearms

as an alien unlawfully in the United States, in violation of

§922(g) and §924(a)(2). At the close of Rehaif ’s trial, the

judge instructed the jury (over Rehaif ’s objection) that the

“United States is not required to prove” that Rehaif “knew

that he was illegally or unlawfully in the United States.”

App. to Pet. for Cert. 4a (internal quotation marks omit-

ted). The jury returned a guilty verdict, and Rehaif was

sentenced to 18 months’ imprisonment.

Rehaif appealed. He argued that the judge erred in

instructing the jury that it did not need to find that he

knew he was in the country unlawfully. The Court of

Appeals for the Eleventh Circuit, however, concluded that

the jury instruction was correct, and it affirmed Rehaif ’s

conviction. See 888 F. 3d 1138, 1148 (2018). The Court of

Appeals believed that the criminal law generally does not

require a defendant to know his own status, and further

observed that no court of appeals had required the Gov-

ernment to establish a defendant’s knowledge of his status

in the analogous context of felon-in-possession prosecu-

tions. Id., at 1145–1146.

We granted certiorari to consider whether, in prosecu-

tions under §922(g) and §924(a)(2), the Government must

prove that a defendant knows of his status as a person

barred from possessing a firearm. We now reverse.

Cite as: 588 U. S. ____ (2019) 3

Opinion of the Court

II

Whether a criminal statute requires the Government to

prove that the defendant acted knowingly is a question of

congressional intent. See Staples v. United States, 511

U. S. 600, 605 (1994). In determining Congress’ intent, we

start from a longstanding presumption, traceable to the

common law, that Congress intends to require a defendant

to possess a culpable mental state regarding “each of the

statutory elements that criminalize otherwise innocent

conduct.” United States v. X-Citement Video, Inc., 513

U. S. 64, 72 (1994); see also Morissette v. United States,

342 U. S. 246, 256–258 (1952). We normally characterize

this interpretive maxim as a presumption in favor of

“scienter,” by which we mean a presumption that criminal

statutes require the degree of knowledge sufficient to

“mak[e] a person legally responsible for the consequences

of his or her act or omission.” Black’s Law Dictionary

1547 (10th ed. 2014).

We apply the presumption in favor of scienter even

when Congress does not specify any scienter in the statu-

tory text. See Staples, 511 U. S., at 606. But the pre-

sumption applies with equal or greater force when Con-

gress includes a general scienter provision in the statute

itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985)

(when a statute “prescribes the kind of culpability that is

sufficient for the commission of an offense, without distin-

guishing among the material elements thereof, such provi-

sion shall apply to all the material elements of the offense,

unless a contrary purpose plainly appears”).

A

Here we can find no convincing reason to depart from

the ordinary presumption in favor of scienter. The statu-

tory text supports the presumption. The text of §924(a)(2)

says that “[w]hoever knowingly violates” certain subsec-

tions of §922, including §922(g), “shall be” subject to penal-

4 REHAIF v. UNITED STATES

Opinion of the Court

ties of up to 10 years’ imprisonment. The text of §922(g) in

turn provides that it “shall be unlawful for any person

. . . , being an alien . . . illegally or unlawfully in the United

States,” to “possess in or affecting commerce, any firearm

or ammunition.”

The term “knowingly” in §924(a)(2) modifies the verb

“violates” and its direct object, which in this case is

§922(g). The proper interpretation of the statute thus

turns on what it means for a defendant to know that he

has “violate[d]” §922(g). With some here-irrelevant omis-

sions, §922(g) makes possession of a firearm or ammuni-

tion unlawful when the following elements are satisfied:

(1) a status element (in this case, “being an alien . . . ille-

gally or unlawfully in the United States”); (2) a possession

element (to “possess”); (3) a jurisdictional element (“in or

affecting commerce”); and (4) a firearm element (a “fire-

arm or ammunition”).

No one here claims that the word “knowingly” modifies

the statute’s jurisdictional element. Jurisdictional ele-

ments do not describe the “evil Congress seeks to prevent,”

but instead simply ensure that the Federal Government

has the constitutional authority to regulate the defend-

ant’s conduct (normally, as here, through its Commerce

Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___–

___ (2016) (slip op., at 15–16). Because jurisdictional

elements normally have nothing to do with the wrongful-

ness of the defendant’s conduct, such elements are not

subject to the presumption in favor of scienter. See id., at

___ (slip op., at 16).

Jurisdictional element aside, however, the text of

§922(g) simply lists the elements that make a defendant’s

behavior criminal. As “a matter of ordinary English

grammar,” we normally read the statutory term “ ‘know-

ingly’ as applying to all the subsequently listed elements

of the crime.” Flores-Figueroa v. United States, 556 U. S.

646, 650 (2009); see also id., at 652 (we “ordinarily read a

Cite as: 588 U. S. ____ (2019) 5

Opinion of the Court

phrase in a criminal statute that introduces the elements

of a crime with the word ‘knowingly’ as applying that word

to each element”). This is notably not a case where the

modifier “knowingly” introduces a long statutory phrase,

such that questions may reasonably arise about how far

into the statute the modifier extends. See id., at 659

(ALITO, J., concurring in part). And everyone agrees that

the word “knowingly” applies to §922(g)’s possession ele-

ment, which is situated after the status element. We see

no basis to interpret “knowingly” as applying to the second

§922(g) element but not the first. See United States v.

Games-Perez, 667 F. 3d 1136, 1143 (CA10 2012) (Gorsuch,

J., concurring). To the contrary, we think that by specify-

ing that a defendant may be convicted only if he “knowingly

violates” §922(g), Congress intended to require the

Government to establish that the defendant knew he

violated the material elements of §922(g).

B

Beyond the text, our reading of §922(g) and §924(a)(2) is

consistent with a basic principle that underlies the crimi-

nal law, namely, the importance of showing what Black-

stone called “a vicious will.” 4 W. Blackstone, Commen-

taries on the Laws of England 21 (1769). As this Court

has explained, the understanding that an injury is crimi-

nal only if inflicted knowingly “is as universal and persis-

tent in mature systems of law as belief in freedom of the

human will and a consequent ability and duty of the nor-

mal individual to choose between good and evil.” Moris-

sette, 342 U. S., at 250. Scienter requirements advance

this basic principle of criminal law by helping to “separate

those who understand the wrongful nature of their act

from those who do not.” X-Citement Video, 513 U. S., at

72–73, n. 3.

The cases in which we have emphasized scienter’s im-

portance in separating wrongful from innocent acts are

6 REHAIF v. UNITED STATES

Opinion of the Court

legion. See, e.g., id., at 70; Staples, 511 U. S., at 610;

Liparota v. United States, 471 U. S. 419, 425 (1985); United

States v. Bailey, 444 U. S. 394, 406, n. 6 (1980); United

States v. United States Gypsum Co., 438 U. S. 422, 436

(1978); Morissette, 342 U. S., at 250–251. We have inter-

preted statutes to include a scienter requirement even

where the statutory text is silent on the question. See

Staples, 511 U. S., at 605. And we have interpreted stat-

utes to include a scienter requirement even where “the

most grammatical reading of the statute” does not support

one. X-Citement Video, 513 U. S., at 70.

Applying the word “knowingly” to the defendant’s status

in §922(g) helps advance the purpose of scienter, for it

helps to separate wrongful from innocent acts. Assuming

compliance with ordinary licensing requirements, the

possession of a gun can be entirely innocent. See Staples,

511 U. S., at 611. It is therefore the defendant’s status,

and not his conduct alone, that makes the difference.

Without knowledge of that status, the defendant may well

lack the intent needed to make his behavior wrongful. His

behavior may instead be an innocent mistake to which

criminal sanctions normally do not attach. Cf. O. Holmes,

The Common Law 3 (1881) (“even a dog distinguishes

between being stumbled over and being kicked”).

We have sometimes declined to read a scienter require-

ment into criminal statutes. See United States v. Balint,

258 U. S. 250, 254 (1922). But we have typically declined

to apply the presumption in favor of scienter in cases

involving statutory provisions that form part of a “regula-

tory” or “public welfare” program and carry only minor

penalties. See Staples, 511 U. S., at 606; Morissette, 342

U. S., at 255–259. The firearms provisions before us are

not part of a regulatory or public welfare program, and

they carry a potential penalty of 10 years in prison that we

have previously described as “harsh.” X-Citement Video,

513 U. S., at 72. Hence, this exception to the presumption

Cite as: 588 U. S. ____ (2019) 7

Opinion of the Court

in favor of scienter does not apply.

III

The Government’s arguments to the contrary do not

convince us that Congress sought to depart from the nor-

mal presumption in favor of scienter.

The Government argues that Congress does not normally

require defendants to know their own status. But the

Government supports this claim primarily by referring to

statutes that differ significantly from the provisions at

issue here. One of these statutes prohibits “an officer,

employee, contractor, or consultant of the United States”

from misappropriating classified information. 18 U. S. C.

§1924(a). Another statute applies to anyone “at least

eighteen years of age” who solicits a minor to help avoid

detection for certain federal crimes. 21 U. S. C. §861(a)(2).

A third applies to a “parent [or] legal guardian” who al-

lows his child to be used for child pornography. 18 U. S. C.

§2251(b).

We need not decide whether we agree or disagree with

the Government’s interpretation of these statutes. In the

provisions at issue here, the defendant’s status is the

“crucial element” separating innocent from wrongful con-

duct. X-Citement Video, 513 U. S., at 73. But in the stat-

utes cited by the Government, the conduct prohibited—

misappropriating classified information, seeking to evade

detection for certain federal crimes, and facilitating child

pornography—would be wrongful irrespective of the de-

fendant’s status. This difference assures us that the

presumption in favor of scienter applies here even assum-

ing the Government is right that these other statutes do

not require knowledge of status.

Nor do we believe that Congress would have expected

defendants under §922(g) and §924(a)(2) to know their

own statuses. If the provisions before us were construed

to require no knowledge of status, they might well apply to

8 REHAIF v. UNITED STATES

Opinion of the Court

an alien who was brought into the United States unlawfully

as a small child and was therefore unaware of his un-

lawful status. Or these provisions might apply to a person

who was convicted of a prior crime but sentenced only to

probation, who does not know that the crime is “punish-

able by imprisonment for a term exceeding one year.”

§922(g)(1) (emphasis added); see also Games-Perez, 667

F. 3d, at 1138 (defendant held strictly liable regarding his

status as a felon even though the trial judge had told him

repeatedly—but incorrectly—that he would “leave this

courtroom not convicted of a felony”). As we have said, we

normally presume that Congress did not intend to impose

criminal liability on persons who, due to lack of

knowledge, did not have a wrongful mental state. And we

doubt that the obligation to prove a defendant’s knowledge

of his status will be as burdensome as the Government

suggests. See Staples, 511 U. S., at 615, n. 11 (“knowledge

can be inferred from circumstantial evidence”).

The Government also argues that whether an alien is

“illegally or unlawfully in the United States” is a question

of law, not fact, and thus appeals to the well-known

maxim that “ignorance of the law” (or a “mistake of law”) is no

excuse. Cheek v. United States, 498 U. S. 192, 199 (1991).

This maxim, however, normally applies where a defend-

ant has the requisite mental state in respect to the ele-

ments of the crime but claims to be “unaware of the exist-

ence of a statute proscribing his conduct.” 1 W. LaFave &

A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986).

In contrast, the maxim does not normally apply where a

defendant “has a mistaken impression concerning the

legal effect of some collateral matter and that mistake

results in his misunderstanding the full significance of his

conduct,” thereby negating an element of the offense.

Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of

law is a defense if the mistake negates the “knowledge . . .

required to establish a material element of the offense”).

Cite as: 588 U. S. ____ (2019) 9

Opinion of the Court

Much of the confusion surrounding the ignorance-of-the-

law maxim stems from “the failure to distinguish [these]

two quite different situations.” LaFave, Substantive

Criminal Law §5.1(d), at 585.

We applied this distinction in Liparota, where we con-

sidered a statute that imposed criminal liability on “who-

ever knowingly uses, transfers, acquires, alters, or pos-

sesses” food stamps “in any manner not authorized by the

statute or the regulations.” 471 U. S., at 420 (quotation

altered). We held that the statute required scienter not

only in respect to the defendant’s use of food stamps, but

also in respect to whether the food stamps were used in a

“manner not authorized by the statute or regulations.”

Id., at 425, n. 9. We therefore required the Government to

prove that the defendant knew that his use of food stamps

was unlawful—even though that was a question of law.

See ibid.

This case is similar. The defendant’s status as an alien

“illegally or unlawfully in the United States” refers to a

legal matter, but this legal matter is what the commenta-

tors refer to as a “collateral” question of law. A defendant

who does not know that he is an alien “illegally or unlaw-

fully in the United States” does not have the guilty state of

mind that the statute’s language and purposes require.

The Government finally turns for support to the statu-

tory and legislative history. Congress first enacted a crimi-

nal statute prohibiting particular categories of persons

from possessing firearms in 1938. See Federal Firearms

Act, 52 Stat. 1250. In 1968, Congress added new cate-

gories of persons subject to the prohibition. See Omnibus

Crime Control and Safe Streets Act, 82 Stat. 197. Then, in

1986, Congress passed the statute at issue here, the Fire-

arms Owners’ Protection Act, 100 Stat. 449, note following

18 U. S. C. §921, which reorganized the prohibition on

firearm possession and added the language providing that

only those who violate the prohibition “knowingly” may be

10 REHAIF v. UNITED STATES

Opinion of the Court

held criminally liable.

The Government says that, prior to 1986, the courts had

reached a consensus that the law did not require the

Government to prove scienter regarding a defendant’s

status. And the Government relies on the interpretive

canon providing that when particular statutory language

has received a settled judicial construction, and Congress

subsequently reenacts that “same language,” courts

should presume that Congress intended to ratify the judi-

cial consensus. Helsinn Healthcare S. A. v. Teva Pharma-

ceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op.,

at 7).

Prior to 1986, however, there was no definitive judicial

consensus that knowledge of status was not needed. This

Court had not considered the matter. As the Government

says, most lower courts had concluded that the statute did

not require knowledge of status. See, e.g., United States v.

Pruner, 606 F. 2d 871, 874 (CA9 1979). But the Sixth

Circuit had held to the contrary, specifically citing the risk

that a defendant “may not be aware of the fact” that

barred him from possessing a firearm. United States v.

Renner, 496 F. 2d 922, 926 (1974). And the Fourth Circuit

had found that knowledge of a defendant’s status was not

needed because the statute “[b]y its terms” did not require

knowledge of status. United States v. Williams, 588 F. 2d

92 (1978) (per curiam).

This last-mentioned circumstance is important. Any

pre-1986 consensus involved the statute as it read prior to

1986—without any explicit scienter provision. But Con-

gress in 1986 added a provision clarifying that a defendant

could be convicted only if he violated the prohibition on

firearm possession “knowingly.” This addition, which

would serve no apparent purpose under the Government’s

view, makes it all but impossible to draw any inference

that Congress intended to ratify a pre-existing consensus

when, in 1986, it amended the statute.

Cite as: 588 U. S. ____ (2019) 11

Opinion of the Court

The Government points to the House Report on the

legislation, which says that the 1986 statute would require

the Government to prove “that the defendant’s conduct

was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em-

phasis added). Although this statement speaks of “con-

duct” rather than “status,” context suggests that the Re-

port may have meant the former to include the latter. In

any event, other statements suggest that the word “know-

ingly” was intended to apply to both conduct and status.

The Senate Report, for example, says that the proposed

amendments sought to exclude “individuals who lack all

criminal intent and knowledge,” without distinguishing

between conduct and status. S. Rep. No. 97–476, p. 15

(1982). And one Senate sponsor of the bill pointed out that

the absence of a scienter requirement in the prior statutes

had resulted in “severe penalties for unintentional mis-

steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen.

Hatch).

Thus, assuming without deciding that statutory or

legislative history could overcome the longstanding pre-

sumption in favor of scienter, that history here is at best

inconclusive.

* * *

The Government asks us to hold that any error in the

jury instructions in this case was harmless. But the lower

courts did not address that question. We therefore leave

the question for those courts to decide on remand. See

Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10)

(citing Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)).

We conclude that in a prosecution under 18 U. S. C.

§922(g) and §924(a)(2), the Government must prove both

that the defendant knew he possessed a firearm and that

he knew he belonged to the relevant category of persons

barred from possessing a firearm. We express no view,

however, about what precisely the Government must

12 REHAIF v. UNITED STATES

Opinion of the Court

prove to establish a defendant’s knowledge of status in

respect to other §922(g) provisions not at issue here. See

post, at 13–15 (ALITO, J., dissenting) (discussing other

statuses listed in §922(g) not at issue here). We accordingly

reverse the judgment of the Court of Appeals and re-

mand the case for further proceedings consistent with this

opinion.

It is so ordered.

Cite as: 588 U. S. ____ (2019) 13

Opinion

Appendix of the of

to opinion Court

the Court

APPENDIX

18 U. S. C. §924(a)(2)

“Whoever knowingly violates subsection (a)(6), (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.”

18 U. S. C. §922(g)

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one

year;

“(2) who is a fugitive from justice;

“(3) who is an unlawful user of or addicted to any con-

trolled substance . . . ;

“(4) who has been adjudicated as a mental defective or

who has been committed to a mental institution;

“(5) who, being an alien—(A) is illegally or unlawfully in

the United States; or (B) . . . has been admitted to the

United States under a nonimmigrant visa (as that term is

defined in section 101(a)(26) of the Immigration and Na-

tionality Act (8 U.S.C. 1101(a)(26)));

“(6) who has been discharged from the Armed Forces

under dishonorable conditions;

“(7) who, having been a citizen of the United States, has

renounced his citizenship;

“(8) who is subject to a court order that—(A) was issued

after a hearing of which such person received actual no-

tice, and at which such person had an opportunity to

participate; (B) restrains such person from harassing,

stalking, or threatening an intimate partner of such per-

son or child of such intimate partner or person, or engag-

ing in other conduct that would place an intimate partner

in reasonable fear of bodily injury to the partner or child;

and (C)(i) includes a finding that such person represents a

credible threat to the physical safety of such intimate

14 REHAIF v. UNITED STATES

Appendix to opinion of the Court

partner or child; or (ii) by its terms explicitly prohibits the

use, attempted use, or threatened use of physical force

against such intimate partner or child that would reason-

ably be expected to cause bodily injury; or

“(9) who has been convicted in any court of a misde-

meanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammuni-

tion; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.”

Cite as: 588 U. S. ____ (2019) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–9560

_________________

HAMID MOHAMED AHMED ALI REHAIF,

PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 21, 2019]

JUSTICE ALITO, with whom JUSTICE THOMAS joins,

dissenting.

The Court casually overturns the long-established in-

terpretation of an important criminal statute, 18 U. S. C.

§922(g), an interpretation that has been adopted by every

single Court of Appeals to address the question. That

interpretation has been used in thousands of cases for

more than 30 years. According to the majority, every one

of those cases was flawed. So today’s decision is no minor

matter. And §922(g) is no minor provision. It probably

does more to combat gun violence than any other federal

law. It prohibits the possession of firearms by, among

others, convicted felons, mentally ill persons found by a

court to present a danger to the community, stalkers,

harassers, perpetrators of domestic violence, and illegal

aliens.

Today’s decision will make it significantly harder to

convict persons falling into some of these categories, and

the decision will create a mountain of problems with re-

spect to the thousands of prisoners currently serving

terms for §922(g) convictions. Applications for relief by

federal prisoners sentenced under §922(g) will swamp the

lower courts. A great many convictions will be subject to

challenge, threatening the release or retrial of dangerous

individuals whose cases fall outside the bounds of

2 REHAIF v. UNITED STATES

ALITO, J., dissenting

harmless-error review. See ante, at 11.

If today’s decision were compelled by the text of §922(g)

or by some other clear indication of congressional intent,

what the majority has done would be understandable. We

must enforce the laws enacted by Congress even if we

think that doing so will bring about unfortunate results.

But that is not the situation in this case. There is no

sound basis for today’s decision. Indeed, there was no

good reason for us to take this case in the first place. No

conflict existed in the decisions of the lower courts, and

there is no evidence that the established interpretation of

§922(g) had worked any serious injustice.

The push for us to grant review was based on the super-

ficially appealing but ultimately fallacious argument that

the text of §922(g) dictates the interpretation that the

majority now reaches. See Pet. for Cert. 8. Ironically,

today’s decision, while casting aside the established inter-

pretation of §922(g), does not claim that the text of that

provision is itself dispositive. Instead, what the majority

relies on, in the end, is its own guess about congressional

intent. And the intent that the majority attributes to

Congress is one that Congress almost certainly did not

harbor.

I

The majority provides a bowdlerized version of the facts

of this case and thus obscures the triviality of this peti-

tioner’s claim. The majority wants readers to have in

mind an entirely imaginary case, a heartless prosecution

of “an alien who was brought into the United States un-

lawfully as a small child and was therefore unaware of his

unlawful status.” Ante, at 8. Such a defendant would

indeed warrant sympathy, but that is not petitioner, and

no one has called to our attention any real case like the

one the majority conjures up.

Here is what really happened. Petitioner, a citizen of

Cite as: 588 U. S. ____ (2019) 3

ALITO, J., dissenting

the United Arab Emirates, entered this country on a visa

that allowed him to stay here lawfully only so long as he

remained a full-time student. 888 F. 3d 1138, 1140 (CA11

2018). He enrolled at the Florida Institute of Technology,

but he withdrew from or failed all of his classes and was

dismissed. Brief for Petitioner 4–5. After he was condi-

tionally readmitted, he failed all but one of his courses.

His enrollment was then terminated, and he did not ap-

peal. The school sent him e-mails informing him that he

was no longer enrolled and that, unless he was admitted

elsewhere, his status as a lawful alien would be termi-

nated. 888 F. 3d, at 1140–1141. Petitioner’s response was to

move to a hotel and frequent a firing range. Each evening

he checked into the hotel and always demanded a room on

the eighth floor facing the airport. Each morning he

checked out and paid his bill with cash, spending a total of

more than $11,000. This went on for 53 days. Brief for

United States 4. A hotel employee told the FBI that peti-

tioner claimed to have weapons in his room. Arrested and

charged under §922(g) for possession of a firearm by an

illegal alien, petitioner claimed at trial that the Govern-

ment had to prove beyond a reasonable doubt that he

actually knew that his lawful status had been terminated.

Following what was then the universal and long-

established interpretation of §922(g), the District Court

rejected this argument, and a jury found him guilty. 888

F. 3d, at 1141. The Eleventh Circuit affirmed. Id., at

1140. Out of the more than 8,000 petitions for a writ of

certiorari that we expected to receive this Term, we chose

to grant this one to see if petitioner had been deprived of

the right to have a jury decide whether, in his heart of

hearts, he really knew that he could not lawfully remain

in the United States on a student visa when he most

certainly was no longer a student.

4 REHAIF v. UNITED STATES

ALITO, J., dissenting

II

A

Petitioner claims that the texts of §922(g) and a com-

panion provision, 18 U. S. C. §924(a)(2), dictate a decision

in his favor, and I therefore begin with the text of those

two provisions. Section 924(a)(2) provides in relevant part

as follows:

“Whoever knowingly violates subsection . . . (g) of sec-

tion 922 shall be fined as provided in this title,

imprisoned for not more than 10 years, or both.”

(Emphasis added.)

Section 922(g), in turn, makes it unlawful for nine cate-

gories of persons to engage in certain interstate-

commerce-related conduct involving firearms. These

categories consist of: (1) convicted felons; (2) fugitives from

justice; (3) users of illegal drugs or addicts; (4) persons

found to have very serious mental problems; (5) illegal

aliens; (6) individuals who were dishonorably discharged

from the Armed Forces; (7) persons who renounced U. S.

citizenship; (8) stalkers, harassers, and abusers subject to

restraining orders; and (9) persons convicted of a misde-

meanor crime of domestic violence.1 Persons falling into

——————

1 Title

18 U. S. C. §922(g) provides as follows:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;

“(2) who is a fugitive from justice;

“(3) who is an unlawful user of or addicted to any controlled sub-

stance (as defined in section 102 of the Controlled Substances Act (21

U. S. C. §802));

“(4) who has been adjudicated as a mental defective or who has been

committed to a mental institution;

“(5) who, being an alien—

“(A) is illegally or unlawfully in the United States; or

“(B) except as provided in subsection (y)(2), has been admitted to the

United States under a nonimmigrant visa (as that term is defined in

Cite as: 588 U. S. ____ (2019) 5

ALITO, J., dissenting

these categories are forbidden, as relevant here, to “pos-

sess in or affecting commerce, any firearm.”

Petitioner argues that, when §924(a)(2) and §922(g) are

put together, they unambiguously show that a defendant

must actually know that he falls into one of the nine enu-

merated categories. But this purportedly textual argu-

ment requires some moves that cannot be justified on the

basis of the statutory text. Petitioner’s argument tries to

hide those moves in the manner of a sleight-of-hand artist

at a carnival.

Petitioner begins by extracting the term “knowingly”

from §924(a)(2). He then transplants it into the beginning

of §922(g), ignores the extraordinarily awkward prose that

this surgery produces, and proclaims that because “know-

ingly” appears at the beginning of the enumeration of the

——————

section 101(a)(26) of the Immigration and Nationality Act (8 U. S. C.

§1101(a)(26)));

“(6) who has been discharged from the Armed Forces under dishonor-

able conditions;

“(7) who, having been a citizen of the United States, has renounced

his citizenship;

“(8) who is subject to a court order that—

“(A) was issued after a hearing of which such person received actual

notice, and at which such person had an opportunity to participate;

“(B) restrains such person from harassing, stalking, or threatening

an intimate partner of such person or child of such intimate partner or

person, or engaging in other conduct that would place an intimate

partner in reasonable fear of bodily injury to the partner or child; and

“(C)(i) includes a finding that such person represents a credible

threat to the physical safety of such intimate partner or child; or

“(ii) by its terms explicitly prohibits the use, attempted use, or

threatened use of physical force against such intimate partner or child

that would reasonably be expected to cause bodily injury; or

“(9) who has been convicted in any court of a misdemeanor crime of

domestic violence,

“to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.”

6 REHAIF v. UNITED STATES

ALITO, J., dissenting

elements of the §922(g) offense, we must assume that it

modifies the first of those elements, i.e., being a convicted

felon, illegal alien, etc. To conclude otherwise, he con-

tends, is to commit the sin of having the term “knowingly”

leap over that element and then land conveniently in front

of the second. Pet. for Cert. 8.

But petitioner’s reading is guilty of the very sort of

leaping that it condemns—and then some. It has “know-

ingly” performed a jump of Olympian proportions, taking

off from §924(a)(2), sailing backward over more than 9,000

words in the U. S. Code, and then landing—conveniently—

at the beginning of the enumeration of the elements of the

§922(g) offense. Of course, there is no logical reason why

this jump has to land at that particular point in §922(g).

That is petitioner’s first sleight of hand. But there is

another.

What petitioner and those who have pressed this leap-

ing argument want §922(g) to say is essentially this: Who-

ever knowingly is an illegal alien and possesses a firearm

shall be fined and/or imprisoned if his possession of the

gun was in or affecting interstate commerce. If we had

before us a provision that reads like that, there would be a

strong textual argument that a defendant’s status as an

illegal alien must actually be known to him. That is es-

sentially what we held in Flores-Figueroa v. United States,

556 U. S. 646, 652 (2009). But when the term “knowingly”

is excised from §924(a)(2) and inserted at the beginning of

§922(g), what we get is something quite different:

Whoever knowingly . . . It is unlawful for any per-

son . . . who, being an alien—is illegally or unlawfully

in the United States . . . to possess in or affecting

commerce, any firearm or ammunition . . . .

Congress did not—and certainly would not—enact a

statute that reads like that. To convert this garbled con-

glomeration into intelligible prose, editing is obviously

Cite as: 588 U. S. ____ (2019) 7

ALITO, J., dissenting

needed, and the editing process would compel the editor to

make decisions with substantive implications that could

hardly go unnoticed. Here is a way of amalgamating

§924(a)(1) and §922(g) that minimizes the changes in the

language of the two provisions:

Whoever knowingly . . . It is unlawful for any per-

son . . . who, being an alien—is illegally or unlawfully

in the United States . . . and possesses in or affecting

commerce, any firearm or ammunition . . . [commits a

crime punishable by . . . .]

The most natural reading of this version is that the de-

fendant must know only that he is an alien, not that his

presence in the country is illegal or unlawful. And under

this version, it is not even clear that the alien’s possession

of the firearm or ammunition must be knowing—even

though everyone agrees that this is required.

Here are two other possibilities that require more

changes. The first is this:

Whoever knowingly . . . It is unlawful for any per-

son . . . who, being an alien who—is illegally or un-

lawfully in the United States . . . to possesses in or af-

fecting commerce, any firearm or ammunition . . .

[commits a crime punishable by . . . .]

The second, which differs from the first only in that the

clause “who is illegally or unlawfully in the United States”

is set off by commas, is this:

Whoever knowingly . . . It is unlawful for any per-

son . . . who, being an alien, who—is illegally or un-

lawfully in the United States, . . . to possesses in or

affecting commerce, any firearm or ammunition . . .

[commits a crime punishable by . . . .]

A strict grammarian, noting that the clause “who is legally

or unlawfully in the United States” is restrictive in the

8 REHAIF v. UNITED STATES

ALITO, J., dissenting

first of these versions and nonrestrictive in the second,

might interpret the first to favor petitioner and the second

to favor the Government. And under both of these ver-

sions, it is again unclear whether a defendant’s possession

of the firearm or ammunition must be knowing.

All of the versions discussed so far place the term

“knowingly” at the beginning of our transformed version of

§922(g), but as noted, there is no reason why this term’s

leap from §924(a)(2) must land at that point. So our new

version of §922(g) could just as logically read like this:

Whoever . . . It is unlawful for any person . . . who,

being an alien who—is illegally or unlawfully in the

United States . . . to knowingly possesses in or af-

fecting commerce, any firearm or ammunition . . .

[commits a crime punishable by . . . .]

That would make it clear that the long-established inter-

pretation of §922(g) is correct.

What these possibilities show is that any attempt to

combine the relevant language from §924(a)(2) with the

language of §922(g) necessarily entails significant choices

that are not dictated by the text of those provisions. So

the purportedly textualist argument that we were sold at

the certiorari stage comes down to this: If §§922(g) and

924(a)(2) are arbitrarily combined in the way that peti-

tioner prefers, then, presto chango, they support petition-

er’s interpretation. What a magic trick!

B

The truth behind the illusion is that the terms used in

§§924(a)(2) and 922(g), when read in accordance with their

use in ordinary speech, can easily be interpreted to treat

the question of mens rea in at least four different ways.

First, the language of §§924(a)(2) and 922(g) can be read

to require that a defendant know that his conduct is a

violation of §922(g). In ordinary speech, to knowingly

Cite as: 588 U. S. ____ (2019) 9

ALITO, J., dissenting

violate a rule may mean to violate a known rule. (“He was

told it is forbidden to smoke in the restroom of a plane, but

he knowingly did so.”) Neither petitioner nor the Gov-

ernment suggests that this is the proper interpretation of

§§922(g) and 924(a)(2), but their reason is not based on the

plain or ordinary meaning of the statutory text. Instead,

it rests on an inference about congressional intent that, in

turn, is based on a drafting convention, namely, that

where Congress wants to require proof that a criminal

defendant knew his conduct was illegal, it specifies that

the violation must be “willful.” In ordinary speech, “will-

fulness” does not require or even suggest knowledge of

illegality. See Webster’s Third New International Dic-

tionary 2617 (1976). But we have construed the term as

used in statutes to mean the “intentional violation of a

known legal duty.” United States v. Bishop, 412 U. S. 346,

360 (1973). Thus, the pointed use of the term “knowingly,”

as opposed to “willfully,” in §922(g), provides a ground to

infer that Congress did not mean to require knowledge of

illegality.

Second, a “knowing” violation could require knowledge

of every element that makes up the offense. As applied to

§922(g), that would mean that the Government would

have to prove that the defendant: (1) knew that he is an

alien “illegally or unlawfully in the United States,”

(2) knew that the thing he “possess[ed]” was “a firearm or

ammunition,” and (3) knew that what he did was “in or

affecting commerce.” But again, the parties (and the

majority) disclaim this reading because, they contend, the

mens rea requirement does not apply to the interstate-

commerce element of the offense. To reach this conclu-

sion, however, neither the parties nor the majority relies

on the text. How could they? If positioning the term

“knowingly” at the beginning of a list of elements (or

incorporating it through a separate provision) means that

it applies to every element, then it would have to apply to

10 REHAIF v. UNITED STATES

ALITO, J., dissenting

the interstate-commerce element just like the others.

Once again, the conclusion that “knowingly” does not

apply to the interstate-commerce element is not based on

any rule of English usage but on yet another inference

about congressional intent: that the question whether a

defendant knew that his act of possessing a gun or ammu-

nition was “in or affecting commerce” is simply not the

sort of question that Congress wanted a jury to decide.

The conclusion is sound, see, e.g., Luna Torres v. Lynch,

578 U. S. ___, ___ (2016) (slip op., at 15). But the inference

that this is not what Congress intended is in no way com-

pelled by the text of §922(g), which simply includes the

jurisdictional element among the other elements of the

crime with no textual indication that Congress meant for

it to be treated differently.2

Third, a “knowing” violation could require knowledge of

both the conduct and status elements of the offense (but

not the jurisdictional element). This is the reading that

petitioner advocates and that the majority adopts. Yet

again, this interpretation is not based on the text of the

provisions but on two other factors: the inference about

congressional intent just discussed and the assumption

that Congress, had it incorporated the term “knowingly”

into §922(g), would have placed it at the beginning of that

provision. As I have explained, there is no textual basis

for that assumption.

Fourth, a “knowing” violation could require knowledge

of the conduct element—the possession of a firearm or

ammunition—but not the others. Putting aside the ques-

——————

2 Indeed, the jurisdictional element is listed before the firearm ele-

ment of the offense, to which everyone agrees the mens rea requirement

applies. The text alone does not explain why the word “knowingly”

would “leapfro[g]” over the middle element, which is perhaps why the

majority does not adopt the novel “grammatical gravity” canon. United

States v. Games-Perez, 667 F. 3d 1136, 1143 (CA10 2012) (Gorsuch, J.,

concurring); see also Tr. of Oral Arg. 32.

Cite as: 588 U. S. ____ (2019) 11

ALITO, J., dissenting

tion of the jurisdictional element, that is how one would

naturally read §922(g) if Congress had incorporated the

knowledge requirement into §922(g) after the status ele-

ment and just before the conduct element. Of course,

Congress did not do that—but neither did it place “know-

ingly” at the beginning of the list of elements.

As these competing alternatives show, the statutory text

alone does not tell us with any degree of certainty the

particular elements of §922(g) to which the term “know-

ingly” applies. And once it is recognized that the statutory

text does not specify the mens rea applicable to §922(g)’s

status element, there is no reason to assume that what

Congress wanted was either a very high mens rea re-

quirement (actual knowledge) or no mens rea at all. See

infra, at 22. However, if we limit ourselves to those op-

tions, as the parties and the majority assume we must, the

latter is more likely.

C

1

That is so for at least six reasons. First, in no prior case

have we inferred that Congress intended to impose a mens

rea requirement on an element that concerns the defend-

ant’s own status. Nor has petitioner pointed to any stat-

ute with text that plainly evinces such a congressional

intent. Instead, in instances in which Congress has ex-

pressly incorporated a mens rea requirement into a provi-

sion with an element involving the defendant’s status, it

has placed the mens rea requirement after the status

element. For example, 18 U. S. C. §2251(b) punishes any

“person having custody or control of a minor who know-

ingly permits such minor to engage in . . . sexually explicit

conduct for the purpose of producing any visual depiction

of such conduct.” To show a violation, the Government

need not prove that the defendant knew that the person

under his custody or control was a minor. Even where the

12 REHAIF v. UNITED STATES

ALITO, J., dissenting

issue of a defendant’s status is open and shut, Congress

has taken pains to place the mens rea requirement so that

it clearly does not apply to the status element. Thus, 18

U. S. C. §1924(a) punishes an “officer, employee, contrac-

tor, or consultant of the United States [who] knowingly

removes [classified] documents or materials without au-

thority.” And 21 U. S. C. §861(a) prohibits “any person at

least eighteen years of age [from] knowingly and inten-

tionally . . . receiv[ing] a controlled substance from a per-

son under 18 years of age.” So what the majority has done

in this case is groundbreaking.

Second, there are sound reasons for treating §922(g)’s

status element like its jurisdictional element. The parties

agree that federal criminal statutes presumptively do not

require proof that an accused knew that his conduct satis-

fied a jurisdictional element, and our cases support this

proposition. See Luna Torres, 578 U. S. ___; United States

v. Yermian, 468 U. S. 63 (1984); United States v. Feola,

420 U. S. 671 (1975). We have never provided a compre-

hensive explanation of the basis for this presumption, but

our decision in Feola, which concerned the offense of as-

saulting a federal officer in violation of 18 U. S. C. §111, is

instructive. Agreeing with the interpretation that had

been adopted with “practical unanimity” by the courts of

appeals, Feola held that an accused need not be shown to

have been aware of his victim’s status. We inferred that

this is what the statute means because requiring proof of

knowledge would undermine the statute’s dual objectives

of protecting federal officers and preventing the obstruc-

tion of law enforcement. 420 U. S., at 679.

A similar consideration appears to provide the basis for

the conclusion that a §922(g) defendant need not know

that his possession of a gun is “in or affecting commerce.”

Whether or not conduct satisfies that requirement in-

volves a complicated legal question; requiring proof of such

knowledge would threaten to effectively exempt almost

Cite as: 588 U. S. ____ (2019) 13

ALITO, J., dissenting

everyone but students of constitutional law from the stat-

ute’s reach; and that would obviously defeat the statute’s

objectives.

The reason for the rule exempting knowledge of jurisdic-

tional elements supports the conclusion that knowledge of

§922(g)’s status element is also not required. Whether a

defendant falls into one of the §922(g) categories often

involves complicated legal issues, and demanding proof

that a defendant understood those issues would seriously

undermine the statute’s goals.

Take the category defined in §922(g)(4), which applies to

a person who has been “adjudicated as a mental defective,”

a term that is defined by regulation to mean

“(a) A determination by a court, board, commission, or

other lawful authority that a person, as a result of

marked subnormal intelligence, or mental illness, in-

competency, condition, or disease:

“(1) Is a danger to himself or to others; or

“(2) Lacks the mental capacity to contract or manage

his own affairs.” 27 CFR §478.11(a) (2019).

Congress thought that persons who fall into this category

lack the intellectual capacity to possess firearms safely. Is

it likely that Congress wanted §922(g) to apply only to

those individuals who nevertheless have the capacity to

know that they fall within the complicated definition set

out in the regulation? If a person has been found by a

court to present a “danger . . . to others” due to mental

illness or incompetency, should he escape the reach of

§922(g) because he does not know that a court has so

found?

Or consider the category defined by §922(g)(8), which

applies to a person

“who is subject to a court order that—

“(A) was issued after a hearing of which such person

received actual notice, and at which such person had

14 REHAIF v. UNITED STATES

ALITO, J., dissenting

an opportunity to participate;

“(B) restrains such person from harassing, stalking,

or threatening an intimate partner of such person or

child of such intimate partner or person, or engaging

in other conduct that would place an intimate partner

in reasonable fear of bodily injury to the partner or

child; and

“(C)(i) includes a finding that such person repre-

sents a credible threat to the physical safety of such

intimate partner or child; or

“(ii) by its terms explicitly prohibits the use, at-

tempted use, or threatened use of physical force

against such intimate partner or child that would rea-

sonably be expected to cause bodily injury . . . .”

Under this reticulated provision, does the majority’s inter-

pretation require proof beyond a reasonable doubt that the

defendant knew, when he possessed the gun or ammuni-

tion, (1) that his restraining order had been issued after a

hearing, (2) that he had received actual notice of the hear-

ing, (3) that he had been given an opportunity to partici-

pate at the hearing, (4) that the order covered harassing,

stalking, or threatening, (5) that the person protected by

the order qualified as his “intimate partner,” and (6) that

the order explicitly prohibited the “use, attempted use, or

threatened use of physical force”? Did Congress want a

person who terrorized an intimate partner to escape con-

viction under §922(g) by convincing a jury that he was so

blinded by alcohol, drugs, or sheer rage that he did not

actually know some of these facts when he acquired a gun?

What about the category defined by §922(g)(9), which

covers a person “who has been convicted in any court of a

misdemeanor crime of domestic violence”? Did Congress

want this provision to apply only to those abusers who

actually know that an offense for which they were con-

victed falls within the complicated definition of a “crime of

Cite as: 588 U. S. ____ (2019) 15

ALITO, J., dissenting

domestic violence”? The Members of this Court have been

unable to agree on the meaning of that concept. Is it

limited to offenses that have an element requiring proof

that the abuser had a domestic relationship with the

victim? In United States v. Hayes, 555 U. S. 415 (2009),

the majority said no, but THE CHIEF JUSTICE and Justice

Scalia disagreed. Can a conviction qualify if the offense

required only recklessness? In Voisine v. United States,

579 U. S. ___ (2016), the Court said yes, but JUSTICE

THOMAS and JUSTICE SOTOMAYOR dissented. Does this

provision apply if only slight force is required for convic-

tion by the misdemeanor provision under which the de-

fendant was convicted? Again, the Members of the Court

have disagreed. Compare United States v. Castleman, 572

U. S. 157, 162 (2014) (opinion of the Court), with id., at

175 (opinion of Scalia, J.). If the Justices of this Court,

after briefing, argument, and careful study, disagree about

the meaning of a “crime of domestic violence,” would the

majority nevertheless require the Government to prove at

trial that the defendant himself actually knew that his

abuse conviction qualified? Can this be what Congress

had in mind when it added this category in 1996 to combat

domestic violence?

Serious problems will also result from requiring proof

that an alien actually knew—not should have known or

even strongly suspected but actually knew—that his con-

tinued presence in the country was illegal. Consider a

variation on the facts of the present case. An alien admit-

ted on a student visa does little if any work in his courses.

When his grades are sent to him at the end of the spring

semester, he deliberately declines to look at them. Over

the summer, he receives correspondence from the college,

but he refuses to open any of it. He has good reason to

know that he has probably flunked out and that, as a

result, his visa is no longer good. But he doesn’t actually

know that he is not still a student. Does that take him

16 REHAIF v. UNITED STATES

ALITO, J., dissenting

outside §922(g)(8)? Is it likely that this is what Congress

wanted?

That is most doubtful. Congress enacted §922(g)’s status-

based restrictions because of its judgment that specific

classes of people are “potentially irresponsible and dan-

gerous” and therefore should be prohibited from owning or

possessing firearms and ammunition. Barrett v. United

States, 423 U. S. 212, 218 (1976). It is highly unlikely that

Congress wanted defendants to be able to escape liability

under this provision by deliberately failing to verify their

status.

Third, while the majority’s interpretation would frus-

trate Congress’s public safety objectives in cases involving

some of the §922(g) status categories, in prosecutions

under the most frequently invoked category, possession by

a convicted felon, the majority’s interpretation will pro-

duce perverse results. A felony conviction is almost al-

ways followed by imprisonment, parole or its equivalent,

or at least a fine. Juries will rarely doubt that a defendant

convicted of a felony has forgotten that experience, and

therefore requiring the prosecution to prove that the

defendant knew that he had a prior felony conviction will

do little for defendants. But if the prosecution must prove

such knowledge to the satisfaction of a jury, then under

our decision in Old Chief v. United States, 519 U. S. 172

(1997), it is questionable whether a defendant, by offering

to stipulate that he has a prior conviction, can prevent the

prosecution from offering evidence about the nature of

that offense. And the admission of that information may

work to a §922(g) defendant’s detriment.

Old Chief recognized that a party is generally entitled to

admit evidence to prove a necessary fact even if the oppos-

ing party offers to stipulate to that fact, id., at 186–190,

but the Court held that a §922(g) defendant’s offer to

stipulate to the fact that he had a prior felony conviction

precluded the prosecution from offering evidence about the

Cite as: 588 U. S. ____ (2019) 17

ALITO, J., dissenting

identity of that offense. This holding appears to rest on

the understanding that §922(g) requires proof of status

but not of knowledge. See id., at 190 (suggesting that a

prosecutor would be entitled to seek admission of evidence

of the nature of a prior felony if offered to prove

knowledge). So if a defendant’s knowledge is now neces-

sary, the logic of Old Chief is undermined.

Fourth, the majority’s interpretation of §922(g) would

lead to an anomaly that Congress is unlikely to have

intended. Another provision of §922—i.e., §922(d)(5)(A)—

prohibits firearms sellers from selling to persons who fall

within a §922(g) category, but this provision does not

require proof that the seller had actual knowledge of the

purchaser’s status. It is enough if the seller had “reason-

able cause” to know that a purchaser fell into a prohibited

category. A person who falls into one of the §922(g) cate-

gories is more likely to understand his own status than is

a person who sells this individual a gun. Accordingly, it is

hard to see why an individual who may fall into one of the

§922(g) categories should have less obligation to verify his

own situation than does the person who sells him a gun.

Yet that is where the majority’s interpretation leads.

Fifth, the legal landscape at the time of §922(g)’s enact-

ment weighs strongly against the majority’s reading.

Long before Congress added the term “knowingly” to

§924(a)(2), federal law prohibited certain categories of

people from possessing firearms. See Federal Firearms

Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87–342, 75

Stat. 757; Omnibus Crime Control and Safe Street Act of

1968, Pub. L. 90–351, 82 Stat. 197; Gun Control Act of

1968, Pub. L. 90–618, 82 Stat. 1213, note following 18

U. S. C. §921. These predecessors of §922(g) did not ex-

pressly include any mens rea requirement, but courts

generally interpreted them to require proof that a defend-

ant acted knowingly in receiving, transporting, or pos-

sessing a firearm. The courts did not, however, require

18 REHAIF v. UNITED STATES

ALITO, J., dissenting

proof that a defendant knew that he fell within one of the

covered categories or that his conduct satisfied the stat-

utes’ interstate-commerce requirement. See, e.g., United

States v. Santiesteban, 825 F. 2d 779, 782–783 (CA4 1987);

United States v. Schmitt, 748 F. 2d 249, 252 (CA5 1984);

United States v. Oliver, 683 F. 2d 224, 229 (CA7 1982);

United States v. Lupino, 480 F. 2d 720, 723–724 (CA8

1973); United States v. Pruner, 606 F. 2d 871, 873–874

(CA9 1979).3

During this same period, many States adopted similar

laws,4 and no State’s courts interpreted such a law to

require knowledge of the defendant’s status. See, e.g.,

People v. Nieto, 247 Cal. App. 2d 364, 368, 55 Cal. Rptr.

546, 549 (1966). People v. Tenorio, 197 Colo. 137, 144–145,

590 P. 2d 952, 957 (1979); State v. Harmon, 25 Ariz. App.

137, 139, 541 P. 2d 600, 602 (1975); State v. Heald, 382

A. 2d 290, 297 (Me. 1978); Williams v. State, 565 P. 2d 46,

49 (Okla. Crim. App. 1977).

All this case law formed part of the relevant backdrop of

which we assume Congress was aware when it enacted

§924(a)(2)’s mens rea requirement in 1986. See Firearms

Owners’ Protection Act, 100 Stat. 449, note following 18

U. S. C. §921. “We normally assume that, when Congress

enacts statutes, it is aware of relevant judicial precedent.”

Ryan v. Valencia Gonzales, 568 U. S. 57, 66 (2013) (inter-

nal quotation marks omitted). Where all the Federal

Courts of Appeals and all the state courts of last resort to

have interpreted statutes prohibiting certain classes of

——————

3 The majority highlights a single case where the Sixth Circuit did

require knowledge that the defendant was under indictment, out of a

concern about secret indictments. Ante, at 10 (citing United States v.

Renner, 496 F. 2d 922, 924, 927 (1974)). But Congress addressed this

concern separately when it enacted the mens rea requirement. It

moved the provision involving indictments to its own statutory subsec-

tion, §922(n), and punished only willful violations, see §924(a)(1)(D).

4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8.

Cite as: 588 U. S. ____ (2019) 19

ALITO, J., dissenting

persons from possessing firearms agreed that knowledge

of status was not required, it is fair to expect Congress to

legislate more clearly than it has done here if it seeks to

deviate from those holdings. Adding the mens rea provi-

sion in §924(a)(2) “clarif[ied]” that knowledge is the re-

quired mens rea with respect to a defendant’s conduct,

ante, at 10, but it did not indicate any disagreement with

the established consensus that already applied that mens

rea to §922(g)’s conduct element but not to the element of

the defendant’s status.5

Finally, the judgment of the courts of appeals should

count for something. In Feola, the Court cited the “practi-

cal unanimity” of the courts of appeals, 420 U. S., at 676;

see also Luna Torres, 578 U. S., at ___, ___ (slip op., at 15–

16), and here, even after Congress added the mens rea

requirement, all the courts of appeals to address the ques-

tion have held that it does not apply to the defendant’s

status.6 In addition, the decisions of the highest courts of

——————

5 Contrary to the majority’s suggestion, ante, at 10, the addition of the

mens rea requirement does serve a purpose under this interpretation: It

codifies the holdings of the lower courts that knowledge is required for

the conduct element. If Congress had left §922(g) off the list of offenses

requiring knowledge in §924(a)(2), some may have invoked expressio

unius to argue that a violation of §922(g) required no mens rea at all.

Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal

Texts 107 (2012).

6 See United States v. Smith, 940 F. 2d 710, 713 (CA1 1991); United

States v. Huet, 665 F. 3d 588, 596 (CA3 2012); United States v. Langley,

62 F. 3d 602, 604–608 (CA4 1995) (en banc); United States v. Rose, 587

F. 3d 695, 705–706, and n. 9 (CA5 2009) (per curiam); United States v.

Dancy, 861 F. 2d 77, 80–82 (CA5 1988) (per curiam); United States v.

Lane, 267 F. 3d 715, 720 (CA7 2001); United States v. Thomas, 615 F.

3d 895, 899 (CA8 2010); United States v. Kind, 194 F. 3d 900, 907 (CA8

1999); United States v. Miller, 105 F. 3d 552, 555 (CA9 1997); United

States v. Games-Perez, 667 F. 3d 1136, 1142 (CA10 2012); United States

v. Capps, 77 F. 3d 350, 352–354 (CA10 1996); United States v. Jackson,

120 F. 3d 1226, 1229 (CA11 1997) (per curiam); United States v. Bryant,

523 F. 3d 349, 354 (CADC 2008).

20 REHAIF v. UNITED STATES

ALITO, J., dissenting

States with laws similar to §922(g) have continued to

unanimously interpret those provisions in the same way.7

2

Petitioner contends that all the Courts of Appeals to

address the question now before us have gone astray

because they have not given proper weight to the pre-

sumption that a mens rea requirement applies to every

element of an offense that results in the criminalization of

otherwise innocent conduct. See Elonis v. United States,

575 U. S. ___ (2015); United States v. X-Citement Video,

Inc., 513 U. S. 64 (1994); Morissette v. United States, 342

U. S. 246 (1952). This concern, which also animates much

of the majority’s analysis, is overstated.

The majority does not claim that the Constitution re-

quires proof of mens rea for every status element or every

element that has the effect of criminalizing what would

otherwise be lawful conduct. Nor does it suggest that the

presumption it invokes is irrebuttable for any other rea-

son. That would be a radical conclusion because it has

long been accepted that some status elements do not

require knowledge. Laws that aim to protect minors, for

example, often do not require proof that an offender had

actual knowledge of the age of a minor who is the victim of

a crime. “ ‘The majority rule in the United States is that a

defendant’s knowledge of the age of a victim is not an

essential element of statutory rape. . . . A defendant’s good

faith or reasonable belief that the victim is over the age of

consent is simply no defense.’ ” United States v. Gomez-

Mendez, 486 F. 3d 599, 603, n. 7 (CA9 2007) (citation

omitted). Similarly, 18 U. S. C. §2243(a) makes it a crime,

punishable by up to 15 years’ imprisonment, knowingly to

engage in a sexual act with a person who is between the

——————

7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19

(collecting cases).

Cite as: 588 U. S. ____ (2019) 21

ALITO, J., dissenting

ages of 12 and 16 and is less than four years younger than

the accused. This statute expressly provides that

knowledge of the victim’s age need not be proved.

§2241(d). I do not understand the majority to suggest that

these laws, which dispense with proof of knowledge for

public safety purposes, are invalid.

Not only is there no blanket rule requiring proof of mens

rea with respect to every element that distinguishes be-

tween lawful and unlawful conduct, but petitioner exag-

gerates in suggesting that the so-called jurisdictional

elements in federal criminal statutes comply with this

“rule” because they do no more than provide a hook for

prosecuting a crime in federal court. These elements often

do more than that. They sometimes transform lawful

conduct into criminal conduct: In a State that chooses to

legalize marijuana, possession is wrongful only if the

defendant is on federal property. Cf. 41 CFR §102–74.400

(2018). Jurisdictional elements may also drastically in-

crease the punishment for a wrongful act. For example,

the statute at issue in Feola, which criminalizes assault on

a federal officer, doubles the possible prison sentence that

would have been applicable to simple assault. Compare

18 U. S. C. §111 and §113. Just like a status element, a

jurisdictional element can make the difference between

some penalty and no penalty, or between significantly

greater and lesser penalties.

Since a legislative body may enact a valid criminal

statute with a strict-liability element, the dispositive

question is whether it has done so or, in other words,

whether the presumption that petitioner invokes is rebut-

ted. This rebuttal can be done by the statutory text or

other persuasive factors. See Liparota v. United States,

471 U. S. 419, 425 (1985) (applying presumption “[a]bsent

indication of contrary purpose in the language or legisla-

tive history”); X-Citement Video, 513 U. S., at 70–72 (dis-

cussing statutory context in reaching conclusion); Flores-

22 REHAIF v. UNITED STATES

ALITO, J., dissenting

Figueroa, 556 U. S., at 652; id., at 660 (ALITO, J., concur-

ring in part and concurring in judgment). And here, for

the reasons discussed above, §922(g) is best interpreted

not to require proof that a defendant knew that he fell

within one of the covered categories.

I add one last point about what can be inferred regard-

ing Congress’s intent. Once it becomes clear that statu-

tory text alone does not answer the question that we face

and we are left to infer Congress’s intent based on other

indicators, there is no reason why we must or should infer

that Congress wanted the same mens rea to apply to all

the elements of the §922(g) offense. As we said in Staples

v. United States, 511 U. S. 600, 609 (1994), “different

elements of the same offense can require different mental

states.” And if Congress wanted to require proof of some

mens rea with respect to the categories in §922(g), there is

absolutely no reason to suppose that it wanted to impose

one of the highest degrees of mens rea—actual knowledge.

Why not require reason to know or recklessness or negli-

gence? To this question, neither petitioner nor the major-

ity has any answer.

D

Because the context resolves the interpretive question,

neither the canon of constitutional avoidance nor the rule

of lenity can be invoked to dictate the result that the

majority reaches. As to the canon, we have never held

that the Due Process Clause requires mens rea for all

elements of all offenses, and we have upheld the constitu-

tionality of some strict-liability offenses in the past. See

United States v. Freed, 401 U. S. 601 (1971); United States

v. Dotterweich, 320 U. S. 277 (1943); United States v.

Balint, 258 U. S. 250 (1922); United States v. Behrman,

258 U. S. 280 (1922). In any event, if the avoidance of a

serious constitutional question required us to infer that

some mens rea applies to §922(g)’s status element, that

Cite as: 588 U. S. ____ (2019) 23

ALITO, J., dissenting

would hardly justify bypassing lower levels of mens rea

and going all the way to actual knowledge.

As for the rule of lenity, we resort to it “only if, after

seizing everything from which aid can be derived, we can

make no more than a guess as to what Congress intended.”

Muscarello v. United States, 524 U. S. 125, 138 (1998)

(alterations and internal quotation marks omitted). And

what I have just said about the constitutional avoidance

canon applies equally to lenity: It cannot possibly justify

requiring actual knowledge.

III

Although the majority presents its decision as modest,

its practical effects will be far reaching and cannot be

ignored. Tens of thousands of prisoners are currently

serving sentences for violating 18 U. S. C. §922(g).8 It is

true that many pleaded guilty, and for most direct review

is over. Nevertheless, every one of those prisoners will be

able to seek relief by one route or another. Those for

whom direct review has not ended will likely be entitled to

a new trial. Others may move to have their convictions

vacated under 28 U. S. C. §2255, and those within the

statute of limitations will be entitled to relief if they can

show that they are actually innocent of violating §922(g),

which will be the case if they did not know that they fell

into one of the categories of persons to whom the offense

applies. Bousley v. United States, 523 U. S. 614, 618–619

(1998). If a prisoner asserts that he lacked that

knowledge and therefore was actually innocent, the dis-

trict courts, in a great many cases, may be required to

hold a hearing, order that the prisoner be brought to court

——————

8 The U. S. Sentencing Commission reports that in fiscal year 2017

there were 6,032 offenders convicted under 18 U. S. C. §922(g), with an

average sentence of 64 months, https:// www.ussc.gov / sites / default /

files / pdf / research - and - publications / quick - facts / Felon_in_Possession_

FY17.pdf (as last visited June 19, 2019).

24 REHAIF v. UNITED STATES

ALITO, J., dissenting

from a distant place of confinement, and make a credibil-

ity determination as to the prisoner’s subjective mental

state at the time of the crime, which may have occurred

years in the past. See United States v. Garth, 188 F. 3d

99, 109 (CA3 1999); United States v. Jones, 172 F. 3d 381,

384–385 (CA5 1999); United States v. Hellbusch, 147 F. 3d

782, 784 (CA8 1998); United States v. Benboe, 157 F. 3d

1181, 1184 (CA9 1998). This will create a substantial

burden on lower courts, who are once again left to clean up

the mess the Court leaves in its wake as it moves on to the

next statute in need of “fixing.” Cf. Mathis v. United

States, 579 U. S. ___, ___–___ (2016) (ALITO, J., dissenting)

(slip op., at 5–6).

Nor is there any reason to think that the Court’s reason-

ing here will necessarily be limited to §922(g). The Court

goes out of its way to point out that it is not taking a

position on the applicability of mens rea requirements in

other status-based offenses, even where the statute lists

the status before the mens rea. Ante, at 7.

* * *

The majority today opens the gates to a flood of litiga-

tion that is sure to burden the lower courts with claims for

relief in a host of cases where there is no basis for doubt-

ing the defendant’s knowledge. The majority’s interpreta-

tion of §922(g) is not required by the statutory text, and

there is no reason to suppose that it represents what

Congress intended.

I respectfully dissent.