United States v. John Laton

SUTTON, Circuit Judge,

dissenting.

“Some say the world will end in fire, Some say in ice.” Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220 *303 (Edward Connery Lathem ed., 2002). From what the 970 residents of Henning, Tennessee have seen of John Latón, their fire chief, one could certainly understand why they would “hold with those who favor fire.” Id.

Yet the incompatibility of this crime with this alleged criminal merely serves as a prelude to other oddities of this case. Consider what happened after the fire chief set fire to the Henning Fire Station. While arson is a state-law felony in Tennessee, as in all States, neither the local prosecutors nor the Attorney General of Tennessee indicted this defendant. While the federal crime of arson applies just to property “used in” interstate commerce, 18 U.S.C. § 844 (i), the National Government indicted this defendant for destroying a building that has a uniquely public, noncommercial and sovereign purpose. And while the United States acknowledged at oral argument that it was not aware of a single other prosecution under § 844(i) for the arson of a local public building, the United States Attorney for the Western District of Tennessee invoked this statute in response to the destruction of a rural fire department by a local fire chief.

This case, however, is not just unusual as a matter of fact, law, or history; it is also unusual as a matter of precedent. Three Terms ago, in a 9-0 decision, the United States Supreme Court held that § 844(i) does not apply to the burning of residential homes. Jones v. United States, 529 U.S. 848 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000). In doing so, the Court made clear that the provision applies only to the destruction of buildings with an “active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.” Id. at 855, 120 S.Ct. 1904 . Fire stations are no more “actively]” used for “commercial purposes” than residential homes are. In point of fact, this would seem to be the easier case — as firefighting represents the epitome of an unbargaining public service and the arsonist in this instance represents the epitome of a local public official. To conclude otherwise is to embrace the view that even the most attenuated connections to commerce will suffice in prosecuting individuals under this statute, a perspective that by my reading of Jones is no longer an option for the lower courts. For these reasons and those elaborated below, I would affirm the judgment of the district court dismissing this case.

I.

On March 3, 2000, John Latón allegedly set fire to the Henning, Tennessee Fire Station. At the time, Latón served as the Chief of the Henning Volunteer Fire Department, a city government position. Henning, Tenn. Mun.Code §§ 7-301, 7-305. Under Tennessee law and the Hen-ning Municipal Code, Laton’s job qualified him as a state officer, specifically an assistant to the state fire marshal, subject to all of the duties and obligations imposed on state officers under Tennessee’s fire-prevention laws. Tenn.Code Ann. § 68-102-108; Henning, Tenn. Mun.Code § 7-308.

Henning is a small rural town located in western Tennessee. It has a population of 970 and sits in Lauderdale County (population 27,101). U.S. Census Bureau, Census 2000, Table DP-1. Henning lies about fifty miles north of Memphis and can be found at the crossroads of State Routes 87 and 209. (The author Alex Haley grew up in Henning.)

On September 18, 2001, a federal grand jury indicted Latón for arson in violation of 18 U.S.C. § 844 (i). Latón moved to dismiss the indictment, arguing that § 844(i) did not encompass this incident because the Henning Fire Station was not “used in” interstate commerce or a com *304 merce-affecting activity. Before ruling on Laton’s motion, the district court received a stipulation from the parties agreeing on several pertinent facts.

The stipulation contains few surprises. The parties agree, for example, that the function of the Fire Station building is to “house[ ] the fire fighting equipment including trucks, as well as the office, kitchen and meeting spaces for the Henning Volunteer Fire Department.” The Hen-ning Municipal Code adds that “[a]ll [such] apparatus, equipment, and supplies” must be “purchased by or through the town” and “remain the property of the town.” Henning, Tenn. Mun.Code § 7-301.

The parties agree that the Fire Department responds to firefighting calls in a rural area of Tennessee that includes numerous residences, churches, public buildings, several businesses and one U.S. highway. In some instances, the Fire Department has provided emergency services to vehicles on fire and/or involved in accidents on the highway.

The parties agree that the Fire Department has occasional connections to three types of economic transactions. First, the Department has purchased equipment from, and had equipment repaired by, out-of-state vendors. Second, the Department charges a fee when it responds to calls outside the city limits, which it does on average no more than three times a year. According to the Henning Municipal Code, the Fire Department responds to such calls only when a fire outside the city limits threatens property within the city limits or when the mayor and aldermen grant the Fire Department permission to respond to the call. Henning, Tenn. Mun. Code § 7-307. City employees working at City Hall bill these fees, which amounted to $300 per call in March 2000, and have on occasion billed these fees directly to out-of-state insurance companies. The total amount billed in a year, the parties agree, does not exceed $1,000. Third, the City of Henning pays wages to the “volunteer” fire fighters based on the amount of time they spend at the scene of a fire. Total wages paid by the City in a typical year do not exceed $1,000. According to the Municipal Code, the mayor and aider-men determine the compensation for Fire Department personnel. Henning, Tenn. Mun.Code § 7-305.

The parties lastly agree about the general economic impact of the loss of a fire station. In calculating property-insurance premiums, virtually all insurers of homes and businesses use a designation made by the Insurance Services Office called the Public Protection Classification (PPC). A community’s PPC depends on the ability of fire departments to respond to calls. Property owners in areas with no fire service receive the highest PPC, and they accordingly pay substantially higher premiums than those paid by similarly-situated property owners who live in areas with a lower PPC.

The district court granted Laton’s motion to dismiss the indictment. In doing so, the court concluded that the Henning Fire Station is not “used in” interstate commerce or in “an activity affecting interstate commerce,” but is used for the noncommercial purpose of housing the City’s Fire Department. To the extent that the activities of the Fire Department have any effects on commerce — through responding to fires, purchasing fire equipment, paying wages, receiving fees or affecting insurance rates — the district court added that they are merely “incidental” and “passive, at best.” That attenuated connection to interstate commerce, the court concluded, did not suffice to bring this arson within the compass of § 844(i) or of the Supreme Court’s recent interpretation of the provision in Jones v. United States, 529 U.S. *305 848 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000).

II.

The text of the statute does not provide a natural home for this prosecution. Section 844(i) provides in pertinent part: “Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate commerce or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned-”18 U.S.C. § 844(i).

By its terms, § 844(i) combines a broad grant of statutory authority (to federalize the arson of “any” property) with a broad limitation on that language (to do so only with respect to property “used [1] in interstate or foreign commerce or [2] in an activity affecting interstate or foreign commerce”). Congress defines “interstate or foreign commerce” for these purposes to mean “commerce between any place in a State and any place outside of that State, or ... between places within the same State but through any place outside of that State.” 18 U.S.C. § 841 (b).

As commonly understood, these words do not cover the arson of a rural fire station by a local fire chief. Fire stations are not naturally referred to as property used in interstate commerce or in commerce-affecting activity. By everyday standards of language, common sense and tradition, local governments build fire stations to put out fires and save lives, activities that serve distinctly intrastate public-safety objectives, not interstate commercial ends.

III.

Precedent reinforces this conclusion. Three years ago, Jones v. United States, 529 U.S. 848 , 120 S.Ct. 1904 , 146 L.Ed.2d 902 (2000), construed the same statute and determined that it does not apply to a typical private residence. Id. at 850-51, 120 S.Ct. 1904 .

The Court initially explained that Congress did not “invoke its full authority under the Commerce Clause” in enacting § 844(i). Id. at 854, 120 S.Ct. 1904 . While Congress might have “ define[d] the crime ... as the [destruction] of a building whose damage or destruction might affect interstate commerce,’ ” it instead required “ ‘that the damaged or destroyed property ... itself have been used in commerce or in an activity affecting commerce.’ ” Id. at 854, 120 S.Ct. 1904 (quoting United States v. Mennuti, 639 F.2d 107, 110 (2d Cir.1981) (Friendly, J.)).

In determining whether an alleged arson fits within the terms of the statute, Jones instructs lower courts to ask (and answer) two questions. First, a court must determine “ ‘the function of the building itself.’ ” Id. at 854, 120 S.Ct. 1904 (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir.1993) (Arnold, C.J., concurring in part and dissenting in part)). Second, a court must “ ‘determine] whether that function affects interstate commerce,’ ” id., mindful that this requires “active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce,” id. at 855, 120 S.Ct. 1904 (emphasis added).

The burning of the Henning Fire Station does not satisfy these requirements. Viewed from any angle, the Fire Station served sovereign rather than commercial ends. The Fire Station constitutes municipal real property (a building and land), used to store municipal personal property (firefighting equipment), deployed by a municipal entity (the Fire Department), to perform a uniquely municipal function (firefighting). Local governments simply *306 do not “sell” fire services “in the ordinary commercial sense.” Cleveland v. United States, 531 U.S. 12, 23-24 , 121 S.Ct. 365 , 148 L.Ed.2d 221 (2000) (a State “does not ‘sell’ video poker licenses in the ordinary commercial sense”- and a State’s interest in them “surely implicates the Government’s role as sovereign, not as property holder”). They instead provide an eminently useful, sovereign and necessary public service. Id.; see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 344, 348 (4th Cir.2000) (stating that “it is difficult to conceive of a service associated more closely with the state than the provision of fire protection services,” and holding that a Maryland volunteer fire department that was formed as a non-profit corporation is a state actor for § 1983 purposes); Tenn. Code Ann. § 29-20-102 (3)(A) (for purposes of governmental immunity, the term “governmental entity” includes “municipalities]” and “nonprofit volunteer fire departments] receiving funds appropriated by ... a municipality”); cf. United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir.1979) (rejecting the argument that a pickup truck used by a state court judge to drive back and forth from court was used in a commerce-affecting activity just because state court proceedings may have some effect on commerce).

That the Fire Station served sovereign rather than commercial objectives should be dispositive here. For while § 844(i) does not necessarily require the property at issue to be used for an interstate purpose, it does require the property to be used for a commercial purpose. Only buildings, Jones instructs, “actively] employed] for commercial purposes,” 529 U.S. at 855, 120 S.Ct. 1904 , “affect[ ] interstate or foreign commerce” within the meaning of § 844(i). Buildings offered for rent and those from which goods and services are sold fall within § 844(i)’s compass because they serve commercial purposes, whether or not the commercial enterprises that use them have a profit motive. Russell v. United States, 471 U.S. 858, 862 , 105 S.Ct. 2455 , 85 L.Ed.2d 829 (1985) (rental property); United States v. Rayborn, 312 F.3d 229, 234 (6th Cir.2002) (church building used to record radio messages to be broadcast out of state on commercial radio); United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir.1995) (private college dormitory); United States v. Terry, 257 F.3d 366, 369-70 (4th Cir.2001) (church building with daycare center); cf. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 584 , 117 S.Ct. 1590 , 137 L.Ed.2d 852 (1997) (holding that the dormant Commerce Clause applies to the not-for-profit sector of the economy). But see United States v. Lamont, 330 F.3d 1249, 1259 (9th Cir.2003) (Reinhardt, J.) (church building “used ... in ordinary religious activities” is not covered); United States v. Rea, 300 F.3d 952, 962 (8th Cir.2002) (church annex with de minimis commercial functions is not covered). In marked contrast to the activities at issue in every one of these cases, governmental buildings in general and local fire stations in particular are not “actively] employ[ed] for commercial purposes.” Jones, 529 U.S. at 855, 120 S.Ct. 1904 .

IV.

A.

Other interpretive guidelines, each of which Jones endorsed in construing § 844(i), point to the same conclusion. In determining whether a federal criminal statute applies to the arson of a local public building by a local public official, Jones reminds us that we do so in the shadow of several constitutional considerations. First of all, “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise *307 and by the other of which such questions are avoided, [a court’s] duty is to adopt the latter.” Jones, 529 U.S. at 857, 120 S.Ct. 1904 (quotation omitted). See also United States v. Bass, 404 U.S. 336, 349 , 92 S.Ct. 515 , 30 L.Ed.2d 488 (1971) (applying this principle, as in Jones, to a setting where one construction of a statute would “define as a federal crime conduct readily denounced as criminal by the States”). In applying this constitutional-avoidance principle to the arson of a private residence, Jones emphasized “that the area was one of traditional state concern and that the legislation [was] aimed at activity in which neither the actors nor their conduct has a commercial character.” 529 U.S. at 858, 120 S.Ct. 1904 (citation and quotation omitted). See United States v. Lopez, 514 U.S. 549, 567 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995) (holding that the Gun-Free School Zone Act exceeds Congress’s authority to regulate commerce).

Jones likewise teaches that federal courts should not casually read a statute in a way that alters the federal-state balance. When the National Legislature wishes to regulate an area traditionally regulated exclusively by the States, it must “convey[ ] its purpose clearly.”' Jones, 529 U.S. at 858, 120 S.Ct. 1904 (citation and quotation omitted). In Jones, a unanimous Court held that Congress had not clearly conveyed a desire to criminalize the arson of a private dwelling. Id. Not long after Jones, Cleveland v. United States, 531 U.S. 12 , 121 S.Ct. 365 , 148 L.Ed.2d 221 (2000), reached a similar conclusion in construing the mail-fraud statute. There, the Court (again unanimously) declined to “approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement by Congress” and refused to extend the statute to cover “a wide range of conduct traditionally regulated by state and local authorities.” Id. at 24 , 121 S.Ct. 365 . See id. at 27 , 121 S.Ct. 365 (“Absent clear statement by Congress, we will not read the mail fraud statute to place under federal superintendence a vast array of conduct traditionally policed by the States.”). See also Gregory v. Ashcroft, 501 U.S. 452, 467 , 111 S.Ct. 2395 , 115 L.Ed.2d 410 (1991) (“We will not read the ADEA to cover state judges unless Congress made it clear that judges are included.”).

Jones finally explains that these rules have special application in the context of criminal statutes. “[W]hen choice has to be made between two readings of what conduct Congress has made a crime,” courts should not “choose the harsher alternative ... [unless] Congress [has] spoken in language that is clear and definite,” and, accordingly, any “ambiguity ... should be resolved in favor of lenity.” Jones, 529 U.S. at 858, 120 S.Ct. 1904 ; see Cleveland, 531 U.S. at 26 , 121 S.Ct. 365 (“[W]e decline to attribute to [the mail-fraud statute] a purpose so encompassing where Congress has not made such a design clear.”); id. at 25 , 121 S.Ct. 365 (“[T]o the extent that the word ‘property’ is ambiguous ..., we have instructed that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ ”) (quoting Rewis v. United States, 401 U.S. 808, 812 , 91 S.Ct. 1056 , 28 L.Ed.2d 493 (1971)); Bass, 404 U.S. at 348 , 92 S.Ct. 515 (“This policy embodies ‘the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.’ ”) (quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)).

These principles assuredly apply here. “[A]rson,” Jones reminds us, “is a paradigmatic common-law state crime.” 529 U.S. at 858, 120 S.Ct. 1904 . It is a felony in all States, and that has been true since colonial days. See John Panneton, Federalizing Fires: The Evolving Federal Response *308 To Arson Related Crimes, 23 Am.Crim. L.Rev. 151, 151 (1985). See generally Arthur F. Curtis, A Treatise on the Law of Arson (1936). And the Federal Government’s role in this area historically has been a limited one. Not until 1982 did Congress enact the first federal law prohibiting the arson of a “building” “by fire.” See Jones, 529 U.S. at 852-53 & n. 4, 120 S.Ct. 1904 .

Indeed, this case appears to be not just an awkward exercise of federal power, but a nearly unprecedented one. At oral argument, counsel for the Federal Government could not identify a single other federal prosecution for arson of a governmental building under this provision. The majority cites a single unpublished decision, United States v. Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec.2, 1993), decided before Jones, to counter this admission. But Woodward , which concerned an arson arising from a botched robbery, does not address any of the issues raised here or in Jones. Even the most charitable reading of Woodward , at any rate, suggests that it is a solitary and unexplained exception to the traditional rule that the Federal Government does not construe § 844(i) as applying to the arson of government buildings and as displacing the criminal-law choices of local governments in this area.

In contrast to the minimal federal interests in this case, the state interests would seem to be at their apex. Surely the commission of “a paradigmatic common-law” crime (Jones, 529 U.S. at 858, 120 S.Ct. 1904 ) by a Henning official involving Henning property is a matter traditionally taken up, if not in Henning, at least in Nashville. Tennessee imposes criminal sanctions on state fire officials (such as the Chief) who fail in their official duties. Tenn.Code Ann. § 68-102-139. And Tennessee, of course, makes arson a felony. Id. § 39-14-301. That there is friction between the policy choices of the National Legislature and the Tennessee Legislature over the appropriate criminal sanction for this felony only underscores the sensitivity of the issue and the inter-branch tension raised by the United States’ position. Compare 18 U.S.C. § 844 (i) (providing for a five-year minimum sentence and twenty-year maximum sentence under these circumstances), with Tenn.Code Ann. §§ 39-14-301(b)(l), 40-35-111(b)(3) (providing for a shorter three-year minimum sentence and fifteen-year maximum sentence under these circumstances). See Jones, 529 U.S. at 859-60, 120 S.Ct. 1904 (Stevens, J., concurring, joined by Thomas, J.) (such a disparity “illustrates how a criminal law like this may effectively displace a policy choice made by the State” and, for this reason, courts “should interpret narrowly federal criminal laws that overlap with state authority unless congressional intention to assert its jurisdiction is plain”). The Federal Government’s policy choice to authorize a 5-20 year sentence for this crime effectively displaces the State’s policy choice to authorize a 3-15 year sentence for the same crime, and that is true whether the State opts not to prosecute Latón in the future or exercises its discretion to prosecute him under state law as well (and potentially create an 8-35 year sentence). See Heath v. Alabama, 474 U.S. 82, 93 , 106 S.Ct. 433 , 88 L.Ed.2d 387 (1985) (holding that a double jeopardy violation does not result from prosecutions by different sovereigns arising from the same act).

The Federal Government’s own prior guidance in this area to United States Attorneys shows respect for many of these concerns. The Department of Justice recognizes that Congress intended “Restraint in [the] Exercise of Federal Jurisdiction” under this statute. 9 United States Attorneys’ Manual § 63.902 (Mar.2001). When Congress enacted the federal explosives *309 statute in 1970, and amended it to cover arson by fire in 1982, it made clear that “[n]o provision of [the statute] shall be construed as indicating an intent on the part of Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter.” 18 U.S.C. § 848 . The Criminal Division of the Justice Department “interprets [this provision] as a statement of congressional intent that the Federal government — absent a specific Federal interest — will not become involved in bombing matters that can be adequately investigated and prosecuted by local authorities.” 9 United States Attorneys’ Manual § 63.902 (emphasis added).

In view of this guidance, the. Federal Government’s decision to prosecute here is difficult to understand. No one has questioned the ability of local prosecutors to enforce state law in this area. No one has questioned Tennessee’s ability adequately to investigate and prosecute a local arsonist at the state level, if for some reason it cannot be done at the local level. See Tenn.Code Ann. § 8 — 7—106(b)(4) (permitting a district attorney to “specially appoint” the state attorney general “to conduct specific criminal proceedings”); Tenn. Const, art. VI, § 5 (permitting a court to appoint a special prosecutor if the district attorney fails to prosecute). And, consistent with the United States Attorneys’ Manual, no one has identified a “specific Federal interest” in this case, just exceedingly local ones.

B.

Because the National Government seeks to apply § 844(i) to a traditional state-law crime in a setting where no apparent federal interest exists, Jones requires the Government to show that the provision unambiguously extends to this arson. It has not done so.

First, the arson of a local fire station does not naturally — or plainly — cover a building “used in interstate commerce” or commerce-affecting activity. 18 U.S.C. § 844 (i). Still less does such an arson concern a building with an “active employment for commercial purposes.” Jones, 529 U.S. at 855, 120 S.Ct. 1904 . But even if one disagrees with this analysis, the best that can be said in response is that the provision remains ambiguous about its extension to the arson of a fire station. And that conclusion requires the application of the Jones default principles and the narrowing interpretation that they compel.

Second, Congress . does not generally regulate governmental entities in such an opaque manner. Instead of casting a wide net of regulation, indirectly picking up local governmental activities that happen to be involved in interstate. commerce while leaving out those that happen not to be, Congress generally regulates its sovereign sisters with much greater specificity — either by regulating them by name or by referring directly to entities that receive federal funds. Several other statutes (too many, in fact, to list) demonstrate that when Congress wishes to regulate sovereign activities or property, it tends to say so far more explicitly. See, e.g., Fair Labor Standards Act, 29 U.S.C. §§ 203 (d) (“ ‘Employer’ ... includes a public agency.”), 203(r)(2) (“For purposes of [defining ‘enterprise’], the activities performed by any person or persons ... in connection with the activities of a public agency shall be deemed to be activities performed for a business purpose.”), 203(e)(2) (“In the case of. an individual employed by a public agency, such term [‘employee’] means ... any individual employed by a State, political subdivision of a State, or an interstate governmental agency .... ”), 216(b) (providing for enforcement against “any employer (including a public agency)”); Age *310 Discrimination in Employment Act, 29 U.S.C. § 630 (b) (“ ‘[EJmployer’ means ... a State or political subdivision of a State.”); Family and Medical Leave Act, 29 U.S.C. §§ 2611 (4)(A) (“ ‘[EJmployer’ includes any public agency.’’); 2611(4)(B) (“For [these purposes], a public agency shall be considered to be a person engaged in commerce or in an industry or activity affecting commerce.”). Against this legislative backdrop, Congress’s decision not to mention governmental property more specifically in § 844(i) at a minimum establishes ambiguity about the scope of the provision. See generally Cleveland, 531 U.S. at 23-25 , 121 S.Ct. 365 (concluding that the mail-fraud statute, which covers “property” obtained by “fraudulent pretenses,” 18 U.S.C. § 1341 , does not apply to a State’s sales of video poker licenses because, among other reasons, the meaning of “property” is “ambiguous” in this setting).

Third, § 844 itself confirms that Congress knew how to distinguish between eminently sovereign activities and run-of-the-mine commercial activities. One of the statutory neighbors to § 844(i) specifically criminalizes arson of certain governmental buildings — all buildings occupied by the Federal Government or those occupied by entities receiving federal assistance, which will frequently be local governments. See 18 U.S.C. § 844 (f)(1) (“Whoever maliciously damages or destroys ... by means of fire or an explosive, any building ... owned or possessed by ... the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned.”). If it is true that a statute is “known by the company it keeps,” Gustafson v. Alloyd Co., 513 U.S. 561, 575 , 115 S.Ct. 1061 , 131 L.Ed.2d 1 (1995), then § 844(f) illustrates that Congress knew how to criminalize the destruction of all manner of public buildings when it wished to do so and suggests that § 844(i) was designed to reach commercial rather than governmental buildings. Nor, in view of the United States’ sweeping construction of § 844(i), which would cover all governmental buildings, does the prohibition of burning federal governmental buildings in § 844(f)(1) have any independent office. We generally construe statutes to avoid such redundancy, not accentuate it. See, e.g., Jones, 529 U.S. at 857, 120 S.Ct. 1904 ; Kungys v. United States, 485 U.S. 759, 778 , 108 S.Ct. 1537 , 99 L.Ed.2d 839 (1988).

All of this goes to prove one point. If it is true that federal regulation of the arson of a private home implicates these three expectations of clarity (constitutional avoidance, alteration of the federal-state balance, and the rule of lenity), as Jones holds, then assuredly the torching of thé local fire station does so as well. For here we have not just a matter of traditional local concern (arson), but two other factors as well — property uniquely amenable to local regulation (a city building) and an actor (the fire chief) uniquely at the beck and call of the local citizenry. Jones, in short, was the harder case. And if Jones applied each of these ambiguity default principles, then I would do so as well. In this instance, the application of those principles all points in one direction: A federal arson statute that does not mention public buildings by name, that is juxtaposed with a provision that does mention public buildings by name, and that requires the public property to be actively used for commercial purposes does not unambiguously cover the burning of a local fire station by the local fire chief.

V.

In the face of these considerations, the United States counters that at least some activities that take place at the Henning *311 Fire Station are commercial in nature and that these activities suffice to legitimate this prosecution. The Federal Government cites three activities in particular: (1) that the Fire Department sometimes purchases equipment from, or has equipment repaired by, out-of-state vendors; (2) that the Fire Department charges a $300 fee (billed through City Hall) on the few occasions each year when it responds to a call outside city limits; and (3) that the City of Henning pays wages to the “volunteer” fire fighters based on the amount of time they spend at a fire scene.

The Fire Department’s purchases and repairs do not advance the United States’ position. A fire station is no more “used” in the “activity” of purchasing interstate fire equipment than a residence is used in the activity of purchasing interstate natural gas, mortgages, or insurance — all activities that the Court rejected as jurisdictional hooks in Jones. See 529 U.S. at 856, 120 S.Ct. 1904 .

Neither does the fee occasionally charged by the Fire Department support this prosecution. The size of the fee ($300) and the infrequency with which it is charged (one to three times per year, when the Department responds to fires outside town limits) hardly suggest active employment for commercial purposes— which is what Jones requires. If de min-imis activity of this sort transformed every governmental building into one used for commercial purposes, then all public property in this country would be one bake sale away from federal jurisdiction. No fair reading of the statute suggests that this is what Congress meant to do.

More importantly, a State does not engage in traditional commercial activities every time it receives a sum of money in exchange for something or for that matter any time it imposes a tax. See Cleveland, 531 U.S. at 23 , 121 S.Ct. 365 (“Louisiana ... does not ‘sell’ video poker licenses in the ordinary commercial sense.”). That is especially true when the revenue arrives, as here, after the fact. See id. at 22 , 121 S.Ct. 365 (“The State receives the lion’s share of its expected revenue ... only after [the licenses] have been issued to licensees.”). No one suggests that the Fire Department would decline to extinguish a fire until and unless the fee was paid. Firefighters do not haggle over fees. In this instance, in fact, they are not even the ones who charge the fee; it is billed by City Hall.

At all events, this argument proves too much. Were the collection of revenue sufficient to trigger § 844(i), then presumably tax collection would suffice as well, leaving no public property untouched. And the separate provision covering buildings occupied by entities “receiving Federal assistance,” 18 U.S.C. § 844 (f), “would have no office,” Jones, 529 U.S. at 857, 120 S.Ct. 1904 , because receiving a federal grant is an economic transaction. “ ‘Judges should hesitate ... to treat statutory terms in any setting as [surplusage],’ ” Jones instructs, “ ‘and resistance should be heightened when the words describe the element of a criminal offense.’ ” Id. at 857, 120 S.Ct. 1904 (quoting Ratzlaf v. United States, 510 U.S. 135, 140-41 , 114 S.Ct. 655 , 126 L.Ed.2d 615 (1994)).

The Federal Government’s reliance on the fact that the Henning Fire Department occasionally “pays wages” to its “volunteer” firefighters fails for much the same reason. Congress, to be sure, may as a matter of power regulate the wages paid to firefighters, which is itself an economic transaction. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-56 , 105 S.Ct. 1005 , 83 L.Ed.2d 1016 (1985). But that does not mean Congress sought in this instance to regulate criminal conduct with respect to the buildings that *312 house firefighters or sought to do so on this basis. Teachers also receive wages, but that does not necessarily permit Congress to make possessing a gun in a school zone a federal crime. See Lopez, 514 U.S. at 567 , 115 S.Ct. 1624 . Indeed, if federal wage-and-hour laws have any relevance in this context, it is to show that Congress views firefighting and the nominal wages paid by the government to these volunteers differently from ordinary commerce. See Fair Labor Standards Act, 29 U.S.C. §§ 203 (e)(4)(A) (exempting individuals who volunteer to serve a public agency even when paid “nominal” wages), 207(k) (exempting firefighters from the Act’s overtime provisions).

Nor, for similar reasons, does it make any difference that fire stations house fire trucks, which (like police cars) may be used in interstate commerce and indeed are instrumentalities of interstate commerce. See Belflower v. United States, 129 F.3d 1459, 1462 (11th Cir.1997) (concluding that § 844(i) covered the bombing of a police car). See also Lopez, 514 U.S. at 558 , 115 S.Ct. 1624 (“Congress is empowered to regulate and protect the in-strumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.”); United States v. McHenry, 97 F.3d 125, 126 (6th Cir.1996) (“[C]ars are themselves instrumen-talities of commerce.”) (quotation omitted). The same of course could have been said in Jones: It is the rare private residence that does not house a car.

Also unavailing is the United States’ reliance on the economic impact of a fire station’s destruction — specifically, the lower PPC ratings, the higher insurance costs, or the inability to extinguish fires affecting local businesses or (occasionally) burning cars on the highways. Accepting this position would rewrite the statute to say something that it does not. As Jones indicates, Congress did not “define the crime ... as the [destruction] of a building whose damage or destruction might affect interstate commerce,” but instead required “that the damaged or destroyed property ... itself have been used in commerce or in an activity affecting commerce.” 529 U.S. at 854, 120 S.Ct. 1904 (citation and quotation omitted); cf. Lopez, 514 U.S. at 564 , 115 S.Ct. 1624 (rejecting a “costs of crime” rationale for connecting federal legislation banning guns near schools to interstate commerce). Two of Jones overriding lessons — that § 844(i) does not reach the full extent of Congress’s Commerce Clause powers, 529 U.S. at 854, 120 S.Ct. 1904 , and that the statute applies only when the building itself is “actively] employ[ed]” in commerce, id. at 855, 120 S.Ct. 1904— cannot be squared with the United States’ reliance on the economic impact of destroying the building or on the non-commercial activity (fighting fires) performed by the occupants of the building.

But, perhaps most critically, this argument has no logical stopping point. Al governmental services affect commerce at some level, whether those services are legislative, executive or judicial. Asked at oral argument to identify a single governmental building beyond the reach of § 844(i) under the Government’s theory, counsel for the United States could not name one. Whether the state building at issue houses the Department of Commerce or the Ministry of Uneconomic Affairs, it would seem, makes no difference. Either way, what goes on there first and foremost is a public and sovereign service, which in the main will rarely (if ever) be deemed “actively” “commercial” in any traditional sense of the terms — even if all such activities eventually affect commerce in one way or another. It is precisely the role of the clear-statement rules identified above, and applied faithfully in Jones, to prevent fed *313 eral courts from extending the reach of federal criminal statutes on the basis of the kinds of attenuated connections to interstate commerce that the Federal Government has raised here. If the majority is right that a state liquor store, a state building housing a lottery commission or a post office building (though a federal building) amounts to a building with an “active[ ] ... commercial purpose,” that is only because the statute unambiguously covers these properties, not because it unambiguously covers an eminently non-commercial fire station. At any rate, in view of Jones and Cleveland, 531 U.S. at 23-24 , 121 S.Ct. 365 (a State “does not ‘sell’ video poker licenses in the ordinary commercial sense” because the activity “implicates the Government’s role as sovereign”), it seems doubtful that the statute unambiguously covers even these buildings.

Neither may one overcome these objections by suggesting that, in the world of case-by-case determinations, the outcome here will be a ticket good for one train and one train only. Until now, there have been no other trains in the station, so it is not clear what the concession concedes. More to the point, it still remains to be seen what government buildings analytically would not be covered by this type of analysis — as the United States seems to recognize.

One last point deserves mention. The United States also seeks refuge in the legislative history, relying on an unenacted forerunner to § 844(i), which applied to the destruction of property used “for business purposes,” and on the statements of some legislators that § 844(i) as enacted would cover “police stations.” Congress eventually omitted the words “for business purposes,” and while doing so several House members individually explained that the language was eliminated because some members were afraid that the statute would not reach “police stations.” See Explosives Control: Hearings Before Sub-comm. No. 5 of the House Comm. on Judiciary on H.R. 17154, H.R. 16699, H.R. 1857S and Related Proposals, 91st Cong. 33 (1970) (“Hearings”) (Rep.McCulloch); id. at 56 (Rep.Rodino); id. at 73 (Rep. Polk); id. at 79 (Rep.Smith). The United States infers from this unenacted legislation and from these statements by individual representatives that Congress intended § 844(i) to cover the arson of city buildings.

This argument fails for three reasons. First, when clarity in the text of a law is required, legislative history by definition cannot supply it. See United States v. Nordic Village, 503 U.S. 30, 37 , 112 S.Ct. 1011 , 117 L.Ed.2d 181 (1992) (“[Ljegisla-tive history has no bearing on the ambiguity point [because] ... the ‘unequivocal expression’ of elimination of [the United States’] sovereign immunity that we insist upon is an expression in statutory text.”); Dellmuth v. Muth, 491 U.S. 223, 230 , 109 S.Ct. 2397 , 105 L.Ed.2d 181 (1989) (“[E]vi-dence of congressional intent must be both unequivocal and textual” to provide the clarity necessary to abrogate a State’s Eleventh Amendment immunity; “[l]egis-lative history generally will be irrelevant.”) (emphasis added); Gregory, 501 U.S. at 470 , 111 S.Ct. 2395 (equating the dear-statement rule applied in the sovereign immunity context with the clear-statement rule applied in the context of Commerce Clause, legislation that would alter the federal-state balance); see also Cleveland, 531 U.S. at 24, 27 , 121 S.Ct. 365 (requiring a “clear statement” to extend “federal criminal jurisdiction” to an area “traditionally policed by the States”).

Second, the use of legislative history to broaden the reach of a law seems particularly inappropriate in a setting like this one — where we have not just the risk of *314 the alteration of the federal-state balance and the imperative to avoid constitutional questions but the imposition of a criminal sanction. It stretches the necessary legal fiction that every person knows the law, see McBoyle v. United States, 283 U.S. 25, 27 , 51 S.Ct. 340 , 75 L.Ed. 816 (1931), to the breaking point when the unenacted views of a handful of legislators (here, for example, a few floor statements suggesting that the law covers police stations) become the basis for putting someone behind bars. Because “the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal,” Liparota v. United States, 471 U.S. 419, 427 , 105 S.Ct. 2084 , 85 L.Ed.2d 434 (1985), and because no one can plausibly conclude that a committee report or the floor statements of selected legislators provides such warning, the use of such material seems utterly incompatible with the purposes of the rule or the civilized interests it protects. In at least one opinion, the Supreme Court has said that very thing: “Even were the statutory language regarding the scope of a court’s authority to order restitution ambiguous, longstanding principles of lenity, which demand resolution of ambiguities in criminal statutes in favor of the defendant, Simpson v. United States, 435 U.S. 6, 14-15 , 98 S.Ct. 909 , 55 L.Ed.2d 70 (1978) (applying rule of lenity to federal statute that would enhance penalty), preclude our resolution of the ambiguity against petitioner on the basis of general declarations of policy in the statute and legislative history.” Hughey v. United States, 495 U.S. 411, 422 , 110 S.Ct. 1979 , 109 L.Ed.2d 408 (1990). While dicta in other cases may suggest a different approach, see Moskal v. United States, 498 U.S. 103, 108 , 111 S.Ct. 461 , 112 L.Ed.2d 449 (1990), I am aware of no decision from our Court or from the United States Supreme Court that broadens the reach of a criminal statute on the basis of legislative history and that does so in spite of these objections. The only Justices of the Supreme Court who have squarely addressed the issue (to my knowledge) have firmly concluded that “it is not consistent with the rule of lenity to construe a textually ambiguous penal statute against a criminal defendant on the basis of legislative history.” United States v. R.L.C., 503 U.S. 291, 307 , 112 S.Ct. 1329 , 117 L.Ed.2d 559 (1992) (Scalia, J. concurring in part and concurring in the judgment, joined by Kennedy, J., and Thomas, J.).

Third, the inference the Federal Government seeks to draw from the unenacted version of § 844(i) not only comes from an inappropriate source but also rests on a discredited premise. The Supreme Court has frequently rejected arguments based on unenacted legislation, noting the difficulty of determining whether a prior bill prompted objections because it went too far or not far enough. See Mead Corp. v. Tilley, 490 U.S. 714, 723 , 109 S.Ct. 2156 , 104 L.Ed.2d 796 (1989) (“We do not attach decisive significance to the unexplained disappearance of one word from an une-nacted bill because ‘mute intermediate legislative maneuvers’ are not reliable indicators of congressional intent.”) (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 61 , 67 S.Ct. 982 , 91 L.Ed. 1328 (1947)); Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501 , 108 S.Ct. 1350 , 99 L.Ed.2d 582 (1988) (“[U]ne-nacted approvals, beliefs, and desires are not laws.”). See also United States v. Granderson, 511 U.S. 39, 69 , 114 S.Ct. 1259 , 127 L.Ed.2d 611 (1994) (Kennedy, J., concurring) (“This admonition takes on particular importance when the Court construes criminal laws.”).

All of this perhaps explains why Jones mentions the very same legislative history that the United States cites here, see Jones, 529 U.S. at 853 n. 5, 120 S.Ct. 1904 , *315 then proceeds not only to ignore the alleged inferences created by this history but also proceeds to contradict them. Thus, while Congress omitted language proposed in an earlier draft of the bill (“for business purposes,” Hearings at 30) ostensibly suggesting that no business purpose is needed, Jones adopts an “active ... commercial purpose[ ]” test for ascertaining whether § 844(i) applies, 529 U.S. at 855, 120 S.Ct. 1904 . And some of the same legislators who suggested that § 844(i) would cover the arson of a “police station” also suggested that it would cover the arson of a “private home.” Hearings at 56 (Rep.Rodino). See also id. at 289 (Rep.Goldwater) (“this bill should include any building, vehicle or any real property ... not just businesses”); id. at 300-01 (Rep.Wylie) (suggesting that the bill should cover private dwellings and other property not used for business); id. at 304-05 (Rep.Cramer) (“a person has a right to safety and security of his home and to the security of his property”). But Jones of course specifically holds that § 844(i) does not cover private residences.

Because in the end the unbargained-for service of fighting fires is the antithesis of an activity engaged in for an “active ... commercial purpose[ ]” and because Jones has charted a course that in my view controls us here, I would affirm the district court’s judgment. That being a minority view, I respectfully dissent.