Brief for the United States — Small v. United States

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AUG 16 2004

No. 03-750

eel

In the Supreme Court of the United States

BRIEF FOR THE UNITED STATES

PATRICIA A. MILLET

15 tant to .

6 rey

JOHN A. DRENNA

Ar ö /

QUESTION PRESENTED

Section 922(g)(1) of Title 18, United States Code,

renders it “unlawful for any person * * * who has

been convicted in any court ofſ] a crime punishable by

imprisonment for a term exceeding one year” to possess

a firearm. The question presented is:

Whether the statutory reference to convictions

entered in “any court” includes convictions entered by

the courts of foreign countries.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statutory and regulatory provisions involved

Statement

Summary of argument

Argument:

The federal prohibition on the possession of fire-

arms by persons convicted in “any court” applies

to persons convicted of crimes in foreign courts .............. 10

A. The natural meaning of “any court” includes

foreign courts 10

B. Section Ag Ns purpose of keeping firearms

out of the hands of potentially dangerous persons

requires the recognition of foreign convictions ......... 15

C. The structure and context of the gun control law

confirms that “any court” includes foreign courts .... 18

D. The exclusion of certain federal and state

business crimes from the ban on gun possession

by criminals supports the coverage of foreign

convictions 22

E. The legislative history of Section 922(g\1)

supports its straightforward application to

convictions in foreign courts 28

F. Concerns about possible unfairness in the

criminal procedures of foreign courts do not

mandate the wholesale exclusion of foreign con-

victions from Section 922(g)\1)

1. Section Mg,) focuses on the fact of

conviction

(IIT)

IV V

TABLE OF CONTENTS—Continued: Page Cases—Continued: Page

2. Congress was aware that foreign convictions FCC v. Beach Communications, Inc., 50 US. 307

often have domestic consequences 38 (1998) 2R

21 ͤ Fernandez v. Phillips, 268 U.S. 311 (1925) 38-39

, ae — — ——

1 ’ N * Huddleston v. United States, 415 U.S. 814 14,

— (1974) 14, 16, 17

Appendix A 0 INS v. Aguirre-Aguirre, 526 U.S. 415 (19990 41

Appendix B — Intel Corp. v. Advanced Micro Devices, Inc., 124

Appendix C 53a S. Ct. 2466 (2004) 29

Appendix D — D Jhirad v. Ferrandina, 536 F 2d 478 (2d Cir.), cert.

Appendix E 0 denied, 429 U.S. 833 (1976) 40

Appendix F Ta Kastnerova v. United States, 365 F 3d 980 (11th

Cir.), cert. denied, 124 S. Ct. 2826 (2004) 39

TABLE OF AUTHORITIES Keene Corp. v. United States, 508 U.S. 200 (1998) . 29:30

— Lewis v. United States, 445 US. 55 (1980)

. Lloyd v. American Export Lines, Inc., 580 F 2d

Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990——.— * 1179 (3d Cir. 1978), cert. denied, 439 U.S. 969 (1978) . 21-22

Almendarez-Torres v. United States, 523 U.S. 224 LB ». SL. 519 US. 102 (1996) 45

(1998) —.— : oe Maul v. United States, 274 U.S. 501 (1927) 21

Banco Nacwnale de Cuba v. Sabbatino, 376 US. Muscarello v. United States, 524 US. 125 (1998)... 47

398 (1964) ..... 40 National Org. for Women, Inc. v. Scheidler, 510

(1976) . 12, 13, 14, 18, 32 36 Neely v. Henkel, 180 U.S. 109 (1901) 39, 40, 45

Brogan v. United States, 522 U.S. 398 (198) 11 — 1

Caron v. United States, 524 U. S. 308 (1988). 16. 18, 25, 27 Oncale v. Sundowner Offshore Servs., Inc, 582 US. 75

Chiaramonte v. INS, 626 F 2d 198 (2d Cir. 1980) 0... 41 — 8

Custio v. United States, S18 US. —— 18,98, 5 Ornelas v. Ruiz, 161 U.S. 502 (1896) 39

— v. United Shin, SBUS ENE)... Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999) 4

Department of Hous. & Urban Dev. v. Rucker, People v. Braithwaite, 240 N. W. 2d 298 (Mich. Ct.

535 U.S. 125 (2002) 11 App. 1976) 43

103 (1983) passim 1983) 43

(1991) * 1997) , appeal denied, 586 N. W. 2d 408 (Mich. 188) 43

Cases—Continued: Page

Ratzlaf v. United States, 510 US. 135 (1994) — 23,28

Requested Extradition of Smyth, In re, 61 F.3d 711

(9th Cir. 1995), amended by 73 F.3d 887, cert. denied,

518 U.S. 1022 (1996) 40

Ritchie v. McMullen, 159 US. 235 (1895) .... 43

Russello v. United States, 464 US. 16 (1988) .................. 13

Scarborough v. United States, 431 US. 568

(1977) 13, 16, 18

Schriro v. Summerlin, 124 S8. Ct. 2519 (2004) .............. 1 46

Stone v. INS, 514 U.S. 386 (1995) 29

South Dakota v. Yankton Sioux Tribe, 522 US.

329 (1998) — 24

TRW Inc. v. Andrews, 534 US. 19 (2001) 27

United States v. Atkins, 872 F 2d 94 (4th Cir.),

cert. denied, 498 U.S. 836 (1989) 5, 11, 29, 35

United States v. Bass, 404 U.S. 336 (1971) .............. 17.29, 32

United States v. Bean, 537 US. 71 (2002) 24

United States v. Bowman, 260 US. 94 (1922) .............. 21. 47

United States v. Concha, 233 F 3d 1249 (10th Cir.

2000) 29, 35

United States v. Craft, 535 US. 274 (2002) 32

United States v. Fernandez Morris, 99 F. Supp. 2d

1358 (S.D. Fla. 1999) *

United States v. Fordham, 187 F 3d 344 (3d Cir.

1999), cert. denied, 528 U.S. 1175 (2000) 43

United States v. Gayle, 342 F 3d 89 (2003), as amended

on reh g (2d Cir. 2004), cert. denied, No. 03-10327, 124

S. Ct. 2888 (2004), and petition for cert. pending,

No. 03-1510 (filed May 6, 2004) 27, 30, 31, 35

United States v. Gonzales, 520 US.1

(1997) 10-11, 12, 13, 18, 23

United States v. Kin-Hong, 110 F.3d 103 (let Cir.

1997) : 40

United States ». Kole, 164 F 2d 164 (3d Cir. 1998),

cert. denied, 526 US. 1079 (1999) 19, 27, 46

ee AO „

VII

Cases—Continued:

Page

United States v. Lee, 428 F 2d 917 (6th Cir 1970),

cert. denied, 404 U.S. 1017 (1972) 12

United States v. MacDonald, 992 F 2d 967 (9th

Cir. 1998) 12

United States v. Martinez, 122 F 3d 421 (7th Cir.

1997) 12

United States v. Mendoza-Lopez, 481 US. 828

(1987) 46

United States v. Oakland Cannabis Buyers’ Coop.

532 U.S. 483 (2001)

United States v. Philadelphia Nat'l Bank, 374

US. 321 (1963)

United States v. Price, 361 U.S. 304 (1960)

Umited States v. Ron Pair Enters., Inc., 489 US.

235 (1989)

United States v. Simmons, 343 F 3d 72 (2d Cir.

2003)

United States v. Turkette, 452 U.S. 576 (1981)

United States v. Winson, 793 F 2d 754 (6th Cir.

1986) 15, 26-27, 29, 35

United States R. R. Retirement Bd. vy. Fritz, 449 US.

166 (1980) 7 , 23

Wilson v. Girard, 354 U.S. 524 (1957) 40

Constitution, treaty, statutes, regulations and rules:

US. Const. Art. III 12

Treaty on Extradition, between the United States of

America and Japan, 31 S. T. 892 (Mar. 3, 1978) 40

Brady Handgun Violence Prevention Act of 1998,

Pub. L. No. 103-159, Title I. 107 Stat. 1536 34

Federal Firearms Act, ch, 850, § 2, 52 Stat. 1250:

15 U.S.C. 02d) (1940)

15 U.S.C. S (1964)

Vill

Statutes, regulations and rule—Continued: Page

Firearms Owners’ Protection Act, Pub. L. No. 99-308,

100 Stat. 449:

51026, D), 100 Stat. 452 29

§ 104(b), 100 Stat. 449 (18 U.S.C. 459) : 12

Gun Control Act of 1968, Pub. L. No. 90-618, § 922(g),

Stat. 1220 30, 31

Homeland Security Act of 2002, Pub. L. No. 107-

296, 116 Stat. 2135:

§ L111(cX1), 116 Stat. 2135 14

OR G oO ———>———————————————EE 14

Omnibus Crime Control and Safe Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197 10

Title IV. 82 Stat. 225 32, 33

§ 901(a\1), 82 Stat. 225 19

§ 901(aX7), 82 Stat. 226 10, 19, 32

§ 901(aX8), 82 Stat. 226 20

Ne), 82 Stat. 230-231 29

Title VII, 82 Stat. 236 32, 33

Public Health Security and Bioterrorism Preparedness

Response Act of 2002, Pub. L. No. 107-188, Zia),

116 Stat. 660 (to be codified at 18 U.S.C.

ID, X2KB)) 20-21

USA PATRIOT Act, Pub. L. No. 107-56, Title VIII,

115 Stat. 374:

§ 817, 115 Stat. 386 20

§ 817(2), 115 Stat. 386 20

8 USC. 110MaX43) 15, 41

8 U.S.C. 1158(bK2)A Ki) 15

8 USC. II ANA 41

8 USC. 1182(aX2K AKT) 15

8 USC. 123100 K3KB Kili) 15

10 U.S.C. Se-) 21

15 USC.8 21

15 U.S.C. 645 25

18 USC. 2 25

18 USC. 51Ma) 26

18 US.C. d ‘ 21

18 U.S.C. 842011)

18 US.C. 921(aX2) 2

Statutes, regulations and rule—Continued: Page

18 U.S.C. 921(aX(15) 12

18 U.S.C. 921(aX20) 13,

18 U.S.C. 921(aX20KA) — —

18 U.S.C. M420 25

18 U.S.C. 921(aX21) 19

18 U.S.C. 921(aX22) 19, 20, 26

18 U.S.C. 921(aX22\B) 25

18 U.S.C. UH . Cu, 26

18 U.S.C. IA 12. 13

18 U.S.C. HQ (ANA 27

18 US.C. 922 5, 14, 18, 37

18 U.S.C. aN) 2.4

18 U.S.C. 922(d\(1) 37

18 U.S.C. 922(e) 31

18 U.S.C. 922(g) !

18 U.S.C. Sg —

18 U.S.C. 9202 12

18 U.S.C. g 18, 19

18 U.S.C. Ag 2,37

18 U.S.C. 922(gX7) 18

18 U.S.C. g 4, 18, 30

18 U.S.C. 922th) (1970) 12

18 U.S.C. 922(n) 37

18 U.S.C. 922(q) 22

18 U.S.C. 922(sX1XAMGKD) 4

18 U.S.C. 922(sX3\B) 4

18 U.S.C. 924(aX4) 22

18 U.S.C. 924(eX1) 23

18 U.S.C. 924(e) 12, 13, 29

18 U.S.C. 924(e\2) 13

18 U.S.C. 924(m) (2000), as amended by Pub. L. No.

108-174, § 1(2), 117 Stat. 2481 (2008) 19

18 US.C. 92) 24

18 U.S.C. 926(a) 14

18 U.S.C. 0e! 25

18 U.S.C. 980(gX3) 21

18 U.S.C. App. 1202(a) (1970) 25, 33

18 U.S.C. App. 12024 (1) (1970) 12, 29

18 U.S.C. App. 1202(a)(1) (1976) 11, 36

Statutes, regulations and rule Continued:

18 U.S.C. 1302

18 U.S.C. 2333(c)

18 U.S.C. 3146(b)(A Xiii)

18 U.S.C. 3181

18 U.S.C. 3184

18 U.S.C. 3186

18 U.S.C. 3196

18 U.S.C. 3505

18 U.S.C. 3581(b)(6)(8)

18 U.S.C. 4100

18 U.S.C. 4102

20 U.S.C. 6736(d)(1)(A) (Supp. I 2001)

21 U.S.C. 206

21 U.S. C. 841(6)(3)

21 U.S.C. 843(a)(6)

21 U.S. C. 844(a)

21 U.S.C. 851(a)

28 U.S.C. 1254(1)

26 U.S.C. 5691(a)

42 U.S. C. 14503(f)(1)(A)

Cal. Penal Code § 668 (West 2004)

Kan. Stat. Ann.:

§ 21-4704(j) (Supp. 2002), as amended by 2004 Kan.

Sess. Laws 175 (May 20, 2004)

§ 21-4504(b) (1995 & Supp. 2004)

2004 Kan. Sess. Laws 175 (May 20, 2004)

La. Rev. Stat. Ann. § 15.529.1 (West 2004)

Ohio Rev. Code Ann. (Anderson 2003):

§ 2950.01(D\(1(f)

§ 2950.09 A)

Okla. Stat. Ann. title 21, § 54 (West 2002)

42 Pa. Cons. Stat. Ann. § 9721, ch. 303.8(f)

(West 2004)

Tenn. Code Ann. (2003):

§ 40-35-106(b)(5)

§ 40-35-107(b)(5)

§ 40-35-108(b (5)

Vt. Stat. Ann. title 13, § 11 (2003)

BERS 8 BES BER B BER SREREERRREESBSRES |

Statutes, regulations and rule—Continued: Page

27 C. F. R.:

Section 0.133 14

Section 478.11 14, 15

Section 571.72 42

28 C. F. R. 0.133 14

32 C. F. R. Pt. 70 37

United States Senteneing Guidelines:

§ 4A1.2(h) 42

§ 4A1.3(a) — 42

Fed. R. Evid. 803(22) 21

Miscellaneous:

Tracey A. Basler, Does “Any” Mean “All” or Does “Any”

mean “Some”? An Analysis of the Any Court Am-

biguity of the Armed Career Criminal Act and

Whether Foreign Convictions Count as Predicate

Convictions, 37 New Eng. L. Rev. 147 (Fall 2002) — 16-17

Bureau of Prisons, Dep’t of Justice, Program Statement

No. 5141.02 (Dec. 14, 1998) 42

114 Cong. Rec. (1968):

p. 13,219 17

p. 13,220 , 16, 18

p. 14,778 16, 18

p. 14,773-14,774 16

p. 16,298 16

p. 21,784 16

FBI, Dep’t of Justice, National Instant Criminal

Background Check System (Jan. 2004) 15

37 Fed. Reg. 11,696 (1972) 14

52 Fed. Reg. 2048 (1987) 14

Alex Glashausser, The Treatment of Foreign

Country Convictions as Predicates for Sentence

Enhancement Under Recidivist Statutes,

44 Duke L. J. 134 (Oct. 1994) 42

H.R. 17735, 90th Cong., 2d Sess. (1968) 31

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess.

(1968) 31, 32-38

Japanese Ministry of Justice, Criminal Justice in

Japan 40

XII

Miscellaneous Continued: Page

Office of Justice Programs, Dep’t of Justice, Stalking

and Domestic Violence: The Third Annual Report to

Congress Under the Violence Against Women Act

(July 1998) 27-28

Recent Cases, Criminal Law—Predicate Offenses

Barring Possession of a Firearm, 117 Harv. L.

Rev. 1267 (Feb. 2004) 32

Restatement (Third) of Foreign Relations Law

United States (1987) 6, 43, 44-45

Vol. 1 7

S. 49, 99th Cong., Ist Sess. (1985) 33

— S. 914, 98th Cong., 2d Sess. (1984) 33

S. 3633, 90th Cong., 2d Sess. (1968) 31

S. Rep. No. 583, 98th Cong., 2d Sess. (1984) 33-34

S. Rep. No. 1501, 90th Cong., 2d Sess. (1968) 30-31

1 The Oxford English Dictionary (1933) 11

Webster’s Third New International Dictionary

(1976) 11

In the Supreme Court of the United States

No. 03-750

GARY SHERWOOD SMALL, PETITIONER

vz.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-7a)

is reported at 333 F.3d 425. The district court’s opinion

(Pet. App. 8a-40a) is repérted at 183 F. Supp. 2d 755.

JURISDICTION

The court of appeals entered its judgment on June 23,

2003. A petition for rehearing was denied on July 23,

2003 (Pet. App. 41a-42a). On October 15, 2003, Justice

Souter extended the time within which to file a petition

for a writ of certiorari to and including November 20,

2003, and the petition was filed on November 17, 2003.

The petition for a writ of certiorari was granted on

March 29, 2004. The jurisdiction of this Court rests on

28 U.S.C. 1254(1).

(1)

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant statutory and regulatory provisions are

reproduced in an appendix to this brief.

STATEMENT

A federal grand jury returned a four-count indict-

ment against petitioner that charged him with making a

false statement intended or likely to deceive a licensed

firearms dealer with respect to the sale of a firearm, in

violation of 18 U.S.C. 922(a)(6), and with possessing an

SWD Cobray pistol, a Browning .380 caliber pistol, and

firearm ammunition, in or affecting interstate com-

merce, while having been previously convicted of an

offense punishable by imprisonment for a term ex-

ceeding one year, each in violation of 18 U.S.C.

922(¢)(1). Following a conditional plea of guilty,

petitioner was convicted in the United States District

Court for the Western District of Pennsylvania on one

count of possessing an SWD Cobray pistol, in violation

of 18 U.S.C. 922(g)(1). The district court sentenced

petitioner to eight months of imprisonment, to be

followed by three years of supervised release. The

court of appeals affirmed.

1. In December 1992, petitioner shipped from the

United States to Osaka, Japan, via cargo airplane, a 19-

gallon electric water heater, ostensibly as a present for

“his Papa-san in Okinawa.” 3 Pet. C.A. App. 507-510,

521-525, 598. Small had sent two other water heaters to

Japan earlier that year. Id. at 525-527. Considering it

unusual for an individual to “go out of his way to bring a

water tank from the U.S. as a present,” id. at 598-599,

Japanese Customs officials X-rayed the water heater

upon its arrival and discovered firearms packaged

inside. When petitioner appeared at the airport to

accept delivery, he confirmed that the water heater was

his, whereupon Customs officials served him with a

search warrant. Upon opening the water heater,

Customs officials discovered two rifles wrapped in

black tape, eight pistols, and 410 ammunition shells. Id.

at 603-604.

The Japanese government indicted petitioner on

multiple counts of violating Japan's Guns and Knives

Control Law, the Explosives Control Law, and the

Customs Law. 2 Pet. C. A. App. 261a-262a. His

eriminal trial before the Naha Distriet Court in Japan

was publie and was conducted before three impartial

judges. Petitioner was present, the proceedings were

translated, and he was afforded the assistance of

counsel, who cross-examined witnesses and made a

closing argument. The judges also actively questioned

the prosecution’s witnesses. See, e.g., 3 Pet. C.A. App.

610-611, 685-688. Following trial, petitioner was con-

victed on all counts. Pet. App. 2a. Each offense was

punishable by imprisonment for a term exceeding one

year. [bid. Petitioner received a sentence of five years

of imprisonment, to be followed by eighteen months of

parole. Id. at 10a n.3.“

2. Within a week of completing parole for his

Japanese convictions, petitioner purchased an SWD

Cobray nine-millimeter handgun from a firearms dealer

in Pennsylvania. Pet. App. 2a n.1; 1 Pet. C.A. App. 47a-

51a; Govt. C.A. Br. 6. Federal law required petitioner

3 Pet. C. A. App. 554, 562, 580, 587-589, 596, 608-610, 614-615,

621, 626, 631-635, 647-648, 652, 656, 674, 680, 684-685, 696, 699, 704,

711-712; Gov’t C. A. Br. 41.

2 An English translation of the transcript of the entire

Japanese trial was submitted to the district court, Pet. App. 29a,

and is included in the record, see 2 & 3 Pet. C.A. App. 25la-713a.

to provide truthful background information on a federal

form before making that purchase. 18 U.S.C.

92268) (I(A)(i) () and (3)(B). In completing the form,

petitioner answered “no” to the question have you

been convicted in any court of a crime for which the

judge could have imprisoned you for more than one

year, even if the judge actually gave you a shorter

sentence?” Gov’t C.A. Br. 6. A subsequent search, pur-

suant to warrant, of petitioner’s apartment uncovered a

Browning .380 caliber pistol and more than 300 rounds

of ammunition. 1 Pet. C.A. App. 50a-5la.

3. On August 30, 2000, a federal grand jury in the

Western District of Pennsylvania returned a four-count

indictment against petitioner, charging him with one

count of making a false statement intended or likely to

deceive a licensed firearms dealer, in violation of 18

U.S.C. 922(a)(6), and with three counts of possessing

firearms or ammunition in or affecting interstate

commerce while having been previously convicted in

Japan of an offense punishable by imprisonment for a

term exceeding one year, in violation of 18 U.S.C.

922(¢)(1). See Pet. App. 8a-9a; Pet. C. A. App. 47a-51la.

Petitioner moved to dismiss the indictment on the

ground that Section 922(g)¢1)’s ban on the possession of

firearms by persons convicted “in any court,” as well as

Section 922(s)(3)(B)’s background question about prior

convictions “in any court,” refer to domestic convictions

only. Pet. App. 10a. Petitioner also argued that his

Japanese convictions had been obtained through funda-

mentally unfair procedures. Ibid.

The district court denied the motion. Pet. App. 8a-

40a. The district court first ruled that the phrase “any

court” in Section 922(g)(1) embraced all courts, do-

mestic and foreign. Id. at 1la-16a. The court reasoned

that “‘[aJny’ court means any court and there is nothing

in the plain and nambiguous language of Section 922

indicating that Congress intended to exclude foreign

convictions from such a broad term.” Id. at 16a.

The district court also rejected petitioner’s claim that

his convictions were the product of fundamentally

unfair proceedings in Japan. Pet. App. 29a-39a. The

court first noted that the Japanese Constitution grants

criminal defendants many of the same rights and pro-

tections they enjoy in this country. Id. at 30a-82a. The

court then rejected petitioner’s objections to the trial

proceedings, noting both that petitioner failed to

identify any actu ] prejudice arising from the alleged

errors and that there was “overwhelming evidence”

against him. Id. at 39a; see id. at 33a-38a. The court

concluded that petitioner’s convictions were “suffi-

ciently consistent with our concepts of fundamental

fairness * * * that we may have confidence in the reli-

ability of the fact-finding process.” Id. at 39a.

4. The court of appeals affirmed. Pet. App. 1a-7a.

Agreeing with decisions of the Fourth and Sixth

Circuits, the court concluded that “foreign convictions,

generally, can count as predicate offenses for the

purposes of § 922.” Id. at 3a n.2 (citing United States v.

Atkins 872 F. 2d 94 (4th Cir.), cert. denied, 493 U.S. 836

(1989), and United States v. Winson, 793 F.2d 754 (6th

Cir. 1986)).

The court of appeals also rejected petitioner’s claim

that the Japanese proceedings were fundamentally

unfair. Pet. App. 4a-6a. The court first held that,

before recognizing a foreign conviction as a predicate

offense under Section 922(g), the court “must satisfy

itself that the foreign conviction comports with our

notions of fundamental fairness as required by the Due

Process Clause.” Id. at 4a. To that end, the court of

appeals applied the factors for recognition of foreign

judgments identified by the Restatement (Third) of

Foreign Relations Law of the United States (1987)

(Restatement):

(1) A court in the United States may not

recognize a judgment of the court of a foreign

state if:

(a) the judgment was rendered under a judicial

system that does not provide impartial tri-

bunals or procedures compatible with due pro-

cess of law; or

(b) the court that rendered the judgment did

not have jurisdiction over the defendant in

accordance with the law of the rendering state

and with the rules set forth in § 421.

(2) A court in the United States need not recog-

nize a judgment of the court of a foreign state if:

(a) the court that rendered the judgment did

not have jurisdiction of the subject matter of

the action;

(b) the defendant did not receive notice of the

proceedings in sufficient time to enable him to

defend;

(d) the cause of action on which the judgment

was based, or the judgment itself, is repugnant

to the public policy of the United States or of

the State where recognition is sought;

(e) the judgment conflicts with another final

judgment that is entitled to recognition; or

(f) the proceeding in the foreign court was con-

trary to an agreement between the parties to

submit the controversy on which the judgment

is based to another forum.

1 Restatement § 482, at 604. Applying that framework,

the court of appeals concluded that “there were no

grounds for non-recognition of the Japanese conviction

as the predicate offense to [petitioner’s] § 922(g)(1)

conviction.” Pet. App. 6a.

SUMMARY OF ARGUMENT

The plain text of Section 922(g)(1) makes convictions

entered in foreign courts proper predicates for the

federal bar on firearms possession. Congress directed

that any person who has been convicted in “any court”

of a crime punishable by more than one year in prison

may not possess firearms, and the ordinary

understanding of “any court” includes foreign courts.

The natural meaning of the modifier “any” denotes the

comprehensive inclusion of all courts capable of

imposing the requisite convictions. In addition, as this

Court has repeatedly recognized, Congress chose the

language of Section 922(g)(1) with care and intended it

to mean exactly what it says. Congress’s choice of the

unqualified “any court” language in Section 922(g)(1)

stands in sharp contrast to references elsewhere in the

gun control law that are expressly limited to “United

States” and “State” courts. Furthermore, Congress has

twice amended the gun control law to delete language

limiting disqualifying convictions to those entered by

courts of the United States or the States.

. Petitioner has not sought this Court’s review of that portion

of the court of appeals’ judgment concluding that his convictions

were obtained through fundamentally fair procedures. Pet. i, 3 n.1;

Pet. Br. 4 n.3.

The structure of the gun control law and the

specialized pattern of legislative usage of the phrase

“eonviction in any court” underscore that Congress

meant “any” to encompass all convictions for qualifying

offenses, whether foreign or domestic. Other pro-

visions of the gun control law evidence that Congress

was specifically concerned with the international and

cross-border trafficking of firearms, as well as with

keeping guns out of the hands of persons if the domestic

or foreign consequences of their conduct renders their

possession of firearms an unacceptable risk to the

American public. Moreover, a review of federal law

reveals that Congress uses the phrase “conviction in

any court” sparingly, reserving it for contexts, such as

the possession of biological weapons or explosive

materials, where recognizing convictions entered by

foreign courts makes sense and where ignoring those

convictions could have dire consequences.

In addition, excluding foreign convictions would

frustrate the central purpose of Section 922(g)(1)’s

prohibition on the possession of firearms. Congress

enacted that prohibition to keep firearms out of the

hands of potentially dangerous persons—those whose

past conduct evidenced that their possession of fire-

arms could pose a risk to public safety. That threat

does not dissipate when those individuals cross the

border. A foreign murderer is just as dangerous as a

domestic one.

At bottom, petitioner’s argument is that “any” should

not mean “any” because that reading might produce

occasional anomalies in practice and because some

foreign court systems employ criminal procedures less

protective of defendant’s rights than the United States

does. But, while giving “any court” its natural reading

as including foreign courts could result in the disparate

coverage of those convicted of certain business crimes

depending on the locus of their misconduct, worse

anomalies arise under petitioner’s reading of the

statute. Petitioner would allow foreign murderers

rapists, and armed robbers to purchase and possess as

many firearms as they want, while those convicted

domestically of mailing a lottery ticket, 18 U.S.C. 1302,

could not. Petitioner’s position also would require the

Court to conclude that, while Congress sought to curb

importers’, manufacturers’, and dealers’ trafficking of

firearms to terrorists, Congress meant to impose no bar

on the domestic acquisition and possession of firearms

by convicted terrorists themselves. In any event, legis-

lating necessarily entails line-drawing. A criminal

defendant’s ability to hypothesize unusual applications

of the law—applications that are not remotely impli-

cated in his case—provides no sound basis for ignoring

explicit statutory text.

Second, attaching domestic consequences to the fact —

of a foreign conviction is not unusual and it does not

require that the foreign penal system mirror the

constitutional processes afforded criminal defendants in

the United States. As the Court has recognized

Section 922(g)(1) is, in essence, a civil firearms dis-

ability that is enforced through the criminal system.

The fact of a conviction is enough to trigger that dis-

ability, regardless of whether the processes used

to obtain the conviction comport with constitutional

dictates, because the fact of conviction alone is a

reasonable proxy for a heightened risk arising from the

possession of firearms. The Court held as much in

Lewis v. United States, 445 U.S. 55 (1980), when it ruled

that state convictions may support a Section 922(g)(1)

prosecution regardless of whether they are susceptible

to collateral attack as unconstitutional. If funda-

mentally unfair and unconstitutional state court convic-

tions can provide a predicate for Section 922(g)(1)’s

firearms bar, nothing in law or logic supports ignoring

petitioner’s fundamentally fair conviction in Japan.

ARGUMENT

THE FEDERAL PROHIBITION ON THE POSSES-

SION OF FIREARMS BY PERSONS CONVICTED IN

“ANY COURT” APPLIES TO PERSONS CONVICTED

OF CRIMES IN FOREIGN COURTS

A. The Natural Meaning Of “Any Court” Includes Foreign

Courts

Deterr ining whether Section 922(g)(1)’s prohibition

on the possession of firearms by persons convicted in

“any court” reaches convictions in foreign courts

“begins where all such inquiries must begin: with the

language of the statute itself.” United States v. Ron

Pair Enters., Inc., 489 U.S. 235, 241 (1989); see also

Lewis v. United States, 445 U.S. 55, 60 (1980) (“[Ijn any

case concerning the interpretation of a statute the

‘starting point’ must be the language of the statute

itself.”) (citations omitted).

1. The natural meaning of “any court” includes

foreign courts because “any” is an all-encompassing and

deliberately inclusive word that reaches all members of

a class. In construing a parallel provision of the same

gun control statute at issue here, the Omnibus Crime

Control and Safe Streets Act of 1968 (1968 Omnibus

Act), Pub. L. No. 90-351, 82 Stat. 226, this Court held

that, Irjead naturally, the word ‘any’ has an expansive

meaning, that is, ‘one or some indiscriminately of

whatever kind. United States v. Gonzales, 520 U.S. 1,

5 (1997) (quoting Webster’s Third New Int Dictionary

97 (1976)) (construing 18 U.S.C. 924(c)(1)).*

Section 922(g)(1) thus “could not be more plain,”

Lewis, 445 U.S. at 65, in its intent to cover convicted

felons broadly without geographic limitation. In Lewis,

in construing a parallel prohibition in Title VII of the

1968 Omnibus Act on the possession of firearms by “any

person * * * who has been convicted” of a felony, 18

U.S.C. App. 1202(a)(1) (1976), the Court stressed that

the prohibition “is directed unambiguously at any per-

son who ‘has been convicted,“ regardless of whether

their convictions were subject to collateral attack. 445

U.S. at 60. Here, as in Lewis, Injo modifier is present,

* See also Department of Housing & Urban Dev. v. Rucker, 535

U.S. 125, 130-131 (2002) (“Congress’ decision not to impose any

qualification in the statute, combined with its use of the term ‘any’

to modify ‘drug-related criminal activity,’ precludes any knowledge

requirement.”); Brogan v. United States, 522 U.S. 398, 400-401

(1998) (“any false, fictitious or fraudulent statements” includes

false statements of all kinds and is not restricted to such state-

ments “that pervert governmental functions”); United States v.

Turkette, 452 U.S. 576, 580-581 (1981) (“any enterprise” includes

both legitimate and illegitimate enterprises); United States v.

Atkins, 872 F.2d 94, 96 (4th Cir.) (in Section 922(g)(1), “‘{aJny’ is

hardly an ambiguous term, being all inclusive in nature”), cert.

denied, 493 U.S. 836 (1989); 1 The Oxford English Dictionary 378

(1933) (“any” defined as “indifference as to the particular one or

ones that may be selected”; embracing all “no matter which” and

“of whatever kind”). Petitioner’s reliance (Br. 22-23) on Nixon v.

Missouri Municipal League, 124 S. Ct. 1555 (2004), misses the

mark. There, the Court gave the statutory language a particularly

narrow construction because the legislation “threaten[ed] to

trench on the States’ arrangements for conducting their own

governments,” and thus Congress was required to express its

intent with particular clarity. Id. at 1565 (citing Gregory v.

Ashcroft, 501 U.S. 452 (1991)). No clear-statement rule applies in

this context.

and nothing suggests any restriction on the scope of”

the phrase “any court” that would limit its reference to

domestic courts. Jbid. Likewise, in Barrett v. United

States, 423 U.S. 212 (1976), the Court concluded that

the same provision at issue here—then codified as 18

U.S.C. 922(h) (1970)—was “directed unrestrictedly at

the felon’s receipt of any firearm that ‘has been’

shipped.” 423 U.S. at 216. That unqualified statutory

language, the Court held, “is without ambiguity.” Ibid.;

see also Gonzales, 520 U.S. at 5; Dickerson v. New

Banner Inst., Inc., 460 U.S. 103, 111 (1983).°

2. Congress’s use of the expansive phrase “any

court” in Section 922(g)(1) contrasts with other parts of

the same law that are limited to convictions, prose-

cutions, or prohibitions under state or federal law. See,

e.g., 18 U.S.C. App. 1202(a)(1) (1970) (banning posses-

sion, receipt, or transport of a firearm by any person

who “has been convicted by a court of the United States

or of a State or any political subdivision thereof of a

felony”) (repealed by the 1986 Firearms Owners’ Pro-

tection Act, Pub. L. No. 99-308, § 104(b), 100 Stat. 459).“

For that same reason, courts have held that Section

922(g)(1)’s reference to “any court” is not limited to Article III

courts and, in fact, includes military courts. See United States v.

Martinez, 122 F.3d 421, 424 (7th Cir. 1997); United States v.

MacDonald, 992 F.2d 967, 969-970 (9th Cir. 1993); ef. United States

v. Lee, 428 F.2d 917, 920 (6th Cir. 1970), cert. denied, 404 U.S. 1017

(1972).

® See also 18 U.S.C. 921(a)(15) (defining a “fugitive from

justice,” who is proscribed from possessing firearms, 18 U.S.C.

922(g)(2), as “any person who has fled from any State to avoid

prosecution for a crime or to avoid giving testimony”); 18 U.S.C.

921(a)(20) (excluding certain “Federal or State offenses” from the

definition of “crime punishable by imprisonment for a term

exceeding one year”); 18 U.S.C. 921(a)(33)(A) (defining a “mis-

demeanor crime of domestic violence” by reference to “Federal or

That- legislative pattern demonstrates that, when

Congress wishes to restrict the gun control law’s

operation to state and federal crimes, it Says so

explicitly.

The absence of similar narrowing language in Section

922(g)(1) underscores Congress’s intent to reach all

convictions, whether foreign or domestic. “{[WJhere

Congress includes particular language in one section of

a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Russello v. United States, 464 U.S. 16, 23

(1983). The Court has repeatedly invoked that principle

of statutory construction to interpret parallel

provisions of the gun control law. See Gonzales, 520

U.S. at 5; Custis v. United States, 511 U.S. 485, 492

( met (interpreting 18 U.S.C. 924(e)); Barrett, 423 U.S.

a A

3. This Court has long recognized that Congress, in

Section 922(g), “was reaching far and was doing so

intentionally.” Dickerson, 460 U.S. at 116. In Barrett,

supra, the Court noted the detailed precision with

which Congress crafted the provision containing the

forerunner to Section 922(g). See 423 U.S. at 216-217.

“Congress knew the significance and meaning of the

language it employed” in Section 922(g) in particular.

Id. at 217. In fact, it is obvious” that the lan

employed “throughout * * * [was] chosen with care,”

and that the provisions represented “a carefully con-

structed package of gun control legislation.” Scar-

borough v. United States, 431 U.S. 563, 570 (1977); see

State law”); 18 U.S.C. 924(e)(2) (defining a “serious drug offense,”

which can trigger an enhanced sentence, by reference to identified

federal laws or “State law”).

also Dickerson, 460 U.S. at 116. Thus, by all indications,

Congress’s unqualified prohibition on the possession of

firearms by persons who have been convicted “in any

court” “means exactly what it says.” Barrett, 423 U.S.

at 216 (finding coverage of intrastate acquisitions of

firearms previously transported in interstate com-

merce). “There is no indication in either the committee

reports or in the congressional debates that the scope

of the statute was to be in any way restricted.”

Huddleston v. United States, 415 U.S. 814, 825 (1974).

4. Finally, the natural understanding of “any court”

is reflected in how the law has been interpreted and

administered by those charged with its day-to-day

enforcement. Congress charged the Secretary of the

Treasury (now, the Attorney General) with issuing

“such rules and regulations as are necessary to carry

out the provisions of” Section 922 and the companion

sections of the gun control law. 18 U.S.C. 926(a). That

authority was delegated to the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF). See 37 Fed.

Reg. 11,696 (1972); 28 C.F.R. 0.133.’ In 1987, ATF pro-

mulgated a regulation that interpreted the phrase

“crime punishable by imprisonment for a term ex-

ceeding 1 year” to include “[aJny Federal, State

or foreign offense for which the maximum penalty,

whether or not imposed, is capital punishment or impri-

sonment in excess of 1 year.” 27 C. F. R. 478.11; see 52

Fed. Reg. 2048 (1987).°

The Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 1111(c)(1) and (2), 116 Stat. 2135, transferred, with certain excep-

tions not relevant here, the “authorities, functions, personnel, and

assets” of ATF from the Department of the Treasury to the De-

partment of Justice.

® Petitioner's reliance (Br. 36) on a 30-year-old unpublished

memorandum from ATF’s Technical Division, which suggested

More recently, the National Instant Criminal Back-

ground Check System, a computerized system designed

to search criminal record systems and identify in-

dividuals who are disqualified from receiving or posses-

sing firearms, has begun to implement that interpreta-

tion on a practical level. The system includes the

records of the National Crime Information Center and

the Interstate Identification Index. FBI, Dep’t of

Justice, National Instant Criminal Background Check

System (Jan. 2004). While the coverage is far from

comprehensive, those systems include some Canadian,

British, German, and Italian criminal history records.

And as computerization expands worldwide, the

number of foreign conviction records included in the

system will expand. Furthermore, whenever a back-

ground check is run on an alien, the system auto-

matically initiates a search of the records of the Depart-

ment of Homeland Security’s Immigration and Customs

Enforcement, which may include information about

foreign criminal convictions, see 8 U.S.C. 1101(a)(43),

1158(b)(2)(A (iii), 1182(a(2)( Ai) (IT), 1231(b)(3)(B iii).

B. Section 922(g)(1)’s Purpose Of Keeping Firearms Out

Of The Hands Of Potentially Dangerous Persons

Requires The Recognition Of Foreign Convictions

The “obvious breadth of the language” employed by

Congress comports with Congress’s “expansive legis-

lative approach” to the “problem of firearm abuse by

felons.” Lewis, 445 U.S. at 61. Congress intended “to

impose a firearms disability on any felon based on the

that foreign convictions are not covered, is misplaced. That purely

internal document, unlike the regulation cited above, did not pur-

port to provide to the public an official interpretation of the statute

by ATF. See United States v. Winson, 793 F.2d 754, 758-759 & n.4

(6th Cir. 1986).

fact of conviction.” Id. at 62 (emphasis added); see id. at

64. Accordingly, in enacting Section 922(g)(1) and

its counterpart provisions of the gun control law,

“Congress sought to rule broadly—to keep guns out of

the hands of those who have demonstrated that they

may not be trusted to possess a firearm without

becoming a threat to society.” Dickerson, 460 U.S. at

112 (internal quotation marks and citation omitted).

Indeed, At he principal purpose of the federal gun

control legislation * * * was to curb crime by keeping

‘firearms out of the hands of those not legally entitled

to possess them because of age, criminal background, or

incompetency.’” Huddleston, 415 U.S. at 824.”

See also Caron v. United States, 524 U.S. 308, 315 (1998)

(“Congress meant to keep guns away from all offenders who, the

Federal Government feared, might cause harm, even if those

persons were not deemed dangerous by States.”); Dickerson, 460

U.S. at 119 (“Congress obviously determined that firearms must

be kept away from persons, such as those convicted of serious

crimes, who might be expected to misuse them.“); Scarborough,

431 U.S. at 573 (noting congressional purpose to keep firearms

away from those “whose prior behaviors have established their

violent tendencies”) (quoting 114 Cong. Rec. 14,773-14,774 (1968)

(Sen. Long)); 114 Cong. Rec. at 16,298 (Rep. Pollock) (“The overall

thrust is to prohibit possession of firearms by criminals or other

persons who have specific records or characteristics which raise

serious doubt as to their probable use of firearms in a lawful

manner.”); id. at 13,220 (Sen. Tydings) (law is concerned with “any

person who has a criminal record”); id. at 14,773 (Sen. Long) (law is

concerned with “persons who, by their actions, have demonstrated

that they are dangerous, or that they may become dangerous”); id.

at 21,784 (Rep. Celler) (“This bill seeks to maximize the possibility

of keeping firearms out of the hands of such persons.”); see

generally Tracey A. Basler, Does “Any” Mean “All” or Does

“Any” Mean “Some”? An Analysis of the “Any Court” Ambiguity

of the Armed Career Criminal Act and Whether Foreign Con-

The prohibition of firearms possession by persons

who have been convicted of serious crimes abroad

directly advances Congress’s legislative effort to stem

the “general availability [of firearms] to those whose

possession thereof was contrary to the public interest,”

Huddleston, 415 U.S. at 824, and to keep “these lethal

weapons out of the hands of criminals * * * and other

persons whose possession of them is too high a price in

danger to us all to allow,” id. at 825 (quoting 114 Cong.

Rec. 13,219 (1968) (Sen. Tydings)). Whether entered

abroad or domestically, a criminal conviction for a

felony serves as a reasonable indication that the person

is “too much of a risk to be allowed firearms privileges.”

Dickerson, 460 U.S. at 116; see id. at 120 (“[S]uch

convictions provide a convenient, although somewhat

inexact, way of identifying ‘especially risky people.’”)

(quoting United States v. Bass, 404 U.S. 336, 345

(1971)). “Congress could rationally conclude that any

felony conviction, even an allegedly invalid one, is a

sufficient basis on which to prohibit the possession of a

firearm.” Lewis, 445 U.S. at 66. The same is true of a

criminal conviction entered by a foreign government.

In light of Congress’s broad public-safety purpose,

this Court has construed parallel provisions of the gun

control law expansively to reach (i) “all types of sales or

dispositions,” Huddleston, 415 U.S. at 825 (emphasis

added); (ii) all convictions, regardless of whether they

are subject to collateral attack or expungement, Lewis,

445 U.S. at 60-61; Dickerson, 460 U.S. at 119-120; (iii)

all possible manifestations of “convicted” status,

including guilty pleas, Dickerson, 460 U.S. at 114; (iv)

all terms of imprisonment, whether state or federal,

vietions Count as Predicate Convictions, 37 New Eng. L. Rev.

(Fall 2002). 1 ace

Gonzales, 520 U.S. at 5-8; (v) all purchases of firearms,

even if not directly in interstate commerce, Barrett, 423

U.S. at 216-217; (vi) all acts of possession of firearms, .

even if not directly in interstate commerce, Scar-

borough, 431 U.S. at 571; and (vii) all convictions, even

if the defendant had his civil rights restored under the

law of another jurisdiction, Beecham v. United States,

511 U.S. 368, 372-373 (1994); see also Caron v. United

States, 524 U.S. 308, 314-316 (1998) (state law authoriza-

tion to possess rifles or shotguns insufficient). Con-

gress’s deliberate choice of the phrase “any court”

should be afforded a similarly comprehensive scope,

in accord with Congress’s unqualified purpose of

“deny[ing] every assassin, murderer, thief and burglar

of the right to possess a firearm in the future.” Lewis,

445 U.S. at 63 (quoting 114 Cong. Rec. at 14,773 (Sen.

Long)) (emphasis added).

C. The Structure And Context Of The Gun Control Law

Confirm That “Any Court” Includes Foreign Courts

1. The overall statutory context and structure

confirm that Congress’s effort to restrict access to fire-

arms by potentially dangerous persons was intended to

take into account the risk evidenced by individuals’

conduct abroad. In addition to prohibiting the posses-

sion and receipt of firearms by felons, Section 922(g)

bars aliens who are “illegally or unlawfully in the

United States” or here on a non-immigrant visa, and in-

dividuals who have renounced their United States

citizenship from possessing, receiving, or trans, orting

firearms. 18 U.S.C. 922(g)(5) and (7). Those categories

demonstrate Congress’s awareness of the risks posed

by the international fluidity of gun purchases and

transfers and the dangers posed by individuals coming

into the United States from abroad and purchasing

firearms.*°

In addition, in defining the importers, manufacturers,

and dealers whose activities are covered by the Act and

who are subject to its criminal prohibitions, Congress

made it easier to establish coverage for “a person who

engages in the regular and repetitive purchase and dis-

position of firearms for criminal or terrorism.”

18 U.S.C. 921(a)(22); see also 18 U.S.C. 921(6a) 21). Con-

gress then defined “terrorism” as:

activity, directed against United States persons,

which—

(A) is committed by an individual who is not a

national or permanent resident alien of the

United States;

(B) involves violent acts or acts dangerous to

human life which would be a criminal violation if

committed within the jurisdiction of the United

States; and j

That the dangers posed by individuals who engage in gun

trafficking across national boundaries was a focus of Section 922 is

documented by the fact that Section 922 references “foreign com-

merce” 23 different times and “importer” 34 times. See also 18

U.S.C. 924(m) (2000), as amended by Pub. L. No. 108-174, § 1(2),

117 Stat. 2481 (2003); 1968 Omnibus Act, Pub. L. No. 90-351, §

901(a)(1) and (7), 82 Stat. 225, 226 (congressional finding that

“there is a widespread traffic in firearms moving in or otherwise

affecting interstate or foreign commerce,” and that “the United

States has become the dumping ground of the castoff surplus

military weapons of other nations”); cf. United States v. Kole, 164

F.3d 164, 175 (8d Cir. 1998) (“We do not think that Congress

enacted a law that was intended to reach persons involved in

international drug trafficking and then limited enhanced penalties

to those persons who had previously been convicted in a court in

the United States.”), cert. denied, 526 U.S. 1079 (1999).

(i) to intimidate or coerce a civilian popu-

lation;

(ii) to influence the policy of a government

by intimidation or coercion; or

(iii) to affect the conduct of a government by

assassination or kidnapping.

18 U.S.C. 921(a)(22). This provision makes explicit

Congress’s intent to regulate and proscribe the fire-

arms activities of persons within the United States

based on their criminal conduct and the consequences of

their conduct outside the United States. In light of

Congress’s manifest concern with the transnational

threat of gun trafficking, Section 922(g)(1)’s reference

to convictions “in any court” should be given the full

scope denoted by its text.

2. Congress, as a matter of legislative practice, has

limited use of the unqualified phrase “convicted in

any court” to contexts where its natural meaning—

embracing convictions in both domestic and foreign

courts—comports with the congressional design. For

example, Section 817 of the USA PATRIOT ACT, Pub.

L. No. 107-56, Title VIII, 115 Stat. 386, which was

enacted in the wake of the September 11, 2001,

terrorist attacks on the United States, precludes

persons who have been “convicted in any court” of a

crime punishable by imprisonment for more than one

year from possessing biological weapons. § 817(2), 115

Stat. 386, as amended by the Public Health Security

" See also 1968 Omnibus Act, Pub. L. No. 90-351, § 901(a)(8), 82

Stat. 226 (congressional finding that gun trafficking in interstate

and foreign commerce has allowed weapons “to fall into the hands

of lawless persons, including armed groups who would supplant

lawful authority, thus creating a problem of national concern”).

and Bioterrorism Preparedness Response Act of 2002,

Pub. L. No. 107-188, § 231(a)(4), 116 Stat. 660 (to be

codified at 18 U.S.C. 175b(d)(2)(B)). Likewise, 18

U.S.C. 842(d)(2) and 842(i)(1) prohibit persons who have

been “convicted in any court” of a crime punishable by

imprisonment for more than one year from possessing,

shipping, transporting, or receiving explosive materials.

Given the potentially devastating consequences of

putting biological weapons or explosive materials in the

hands of the wrong person, Congress’s choice of

statutory language that covers both foreign and do-

mestic convictions makes sense.” And where the

operation of a criminal statute is “not logically depen-

dent on the[] locality” of the triggering conduct, neither

Congress nor this Court has “thought it necessary to

make specific provision in the law that the locus shall

include the high seas and foreign countries, but allows it

to be inferred from the nature of the offense.” United

States v. Bowman, 260 U.S. 94, 98 (1922)."

he three other statutes in which the phrase “convicted in

any court” appears similarly support the coverage of both domestic

and foreign convictions. See 20 U.S.C. 6736(d)(1)(A) (Supp. I 2001)

(federal limitations on the liability of teachers to lawsuits do not

apply to conduct arising from any “act of international terrorism

* * * for which the defendant has been convicted in any court”);

21 U.S.C. 206 (regulation applying to consular districts in China);

42 U.S.C. 14503(f)(1)(A) (federal limitations on the liability of

volunteers to lawsuits do not apply to conduct arising from any

“act of international terrorism * * * for which the defendant has

been convicted in any court”). By contrast, several other statutory

provisions, including one within the gun control law itself, refer to

convictions entered “in any court of the United States” or of the

States. E. g., 18 U.S.C. g 10 U.S.C. 986(c(1); 15 U.S.C. 8.

in See also Maul v. United States, 274 U.S. 501, 510-511 (1927);

Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1187-1190

(3d Cir.) (admitting record of a Japanese conviction under Federal

D. The Exclusion Of Certain Federal And State Business

Crimes From The Ban On Gun Possession By

Criminals Supports The Coverage Of Foreign Con-

victions

Petitioner places great weight (Br. 17-19) on a

definitional provision, which provides that the phrase

“crime punishable by imprisonment for a term ex-

ceeding one year” does not include

(A) any Federal or State offenses pertaining to

antitrust violations, unfair trade practices, re-

straints of trade, or other similar offenses relating

to the regulation of business practices, or

(B) any State offense classified by the laws of the

State as a misdemeanor and punishable by a term of

imprisonment of two years or less.

18 U.S.C. 921(a)(20).* That reliance is misplaced, for at

least three reasons.

First, if “any court” referred exclusively to federal

and State courts, then there would have been no reason

for Congress to include “Federal or State” as modifiers

to identify which business crimes were excluded in

Section 921(aX20\A). Likewise, there would have been

no need to include the modifier “State” for the mis-

demeanor offenses excluded in Section 921(a)(20)(B).” —

Rule of Evidence 803(22), even though Congress made no specific

reference in that rule to convictions obtained in foreign countries),

cert. denied, 439 U.S. 969 (1978).

Congress separately defined “State” to include “the District

of Columbia, the Commonwealth of Puerto Rico, and the pos-

sessions of the United States (not including the Canal Zone).” 18

U.S.C. 921(aX2).

‘© The government is aware of no federal offenses that, although

classified as misdemeanors, are punishable by more than one year

but less than two years in prison. See 18 U.S.C. 3581(b)(6)-(8); ef.

This Court has refused time and again to treat

statutory text “essentially as surplusage—as words of

no consequence.” Natzlaf v. United States, 510 U.S.

135, 140 (1994). That rule applies with particular force

to the construction of criminal laws. Id. at 140-141

(“Judges should hesitate so to treat statutory terms in

any setting, and resistance should be heightened when

the words describe an element of a criminal offense.”).

That Congress considered it necessary to restrict the

exceptions to “Federal” and “State” offenses therefore

confirms rather than undermines the conclusion that

Section 922(g)(1) starts with an even larger universe of

convictions. See Gonzales, 520 U.S. at 5 (“Given that

Congress expressly limited the phrase ‘any crime’ to

only federal crimes, we find it significant that no similar

restriction modifies the phrase ‘any other term of

imprisonment.’”) (construing 18 U.S.C. 9240 (1).

Second, and in any event, in light of the gun control

law’s broadly protective purpose, Congress could rea-

sonably choose to proceed circumspectly in the creation

of exceptions. By excluding only state and federal

crimes, Congress carved out from Section 922(g)’s

prohibition only business crimes involving forms of

regulation with which Congress was quite familiar.

Due to the variety and disparity in how other nations

define, label, and classify their penal provisions, how-

ever, Congress could be less confident that

conduct in foreign jurisdictions would lead to felony

convictions in the first place, or that granting the ex-

18 U.S.C. 924(a)(4) (deeming a violation of 18 U.S.C. 922(q) to be a

misdemeanor despite the five-year sentence imposed).

clusion would exempt only relatively non-dangerous

individuals.”

Third, the crux of petitioner’s argument is not

that the text of Section 922(g)(1) excludes foreign

convictions—its plain meaning encompasses them—but

that it would be “peculiar” if Jan individual convicted

of an offense in Canada classified as a misdemeanor

which carries a maximum sentence of two years im-

prisonment could not possess a firearm, but an

individual convicted of an o’fense in a State court

~ whieh carries a maximum sentence of two years

imprisonment could possess a firearm.” Pet. Br. 17.

Perhaps that would be an unusual outcome. But sub-

jective assessments of whether particular applications

of a law are “peculiar” provide no basis for courts to

‘© Furthermore, at the same time that Congress first enacted

and then reenacted in 1986 Section 922(g)(1)’s “any court”

provision, the law provided a mechanism for individuals to obtain

relief from firearms disabilities like Section 922(g)(1). Section

925(c) permits individuals to apply to the Attorney General for

relief, inter alia, from the prohibition on possessing firearms. The

enacting Congress thus knew that the statute contained a safety

valve for individuals whose foreign convictions did not warrant a

ban on possessing firearms. The Attorney General has delegated

the authority to grant relief from the firearms disability to ATF.

Since 1992,-Congress has included language in ATF’s annual

appropriation that forbids it from expending any funds to act upon

applications by individuals for relief under Section 925(c). See

generally United States v. Bean, 537 U.S. 71, 73-75 (2002). That

action by subsequent Congresses, however, casts no rele ant light

on the intent of the 1968 and 1986 Congresses that enacted and re-

enacted the “any court” language. See, e.g., South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (“We have often

observed, however, that ‘the views of a subsequent Congress form

a hazardous basis for inferring the intent of an earlier one.’”)

(quoting United States v. Philadelphia Nat'l Bank, 374 US. 321,

348-349 (1963)).

disregard duly enacted statutory text. The Consti-

tution leaves such value judgments to the political

branches.

Beyond that, to the extent that petitioner can espy in

the statutory text the potential for an occasional

anomaly, Congress evidently was untroubled by that

prospect in framing the firearm prohibitions. To

illustrate, under Section 921(a)(20)(B), federal convic-

tions for offenses punishable by up to two years in

prison serve as disabling predicates, while their state-

law counterparts do not—if they are classified under

state law as “misdemeanors.” See, eg., 21 U.S.C.

841(b)(3) (drug possession); 21 U.S.C. 844(a) (same); 18

U.S.C. 3146(b)(A)(iii) (failure to appear); 18 U.S.C. 228

(failure to pay child support); 15 U.S.C. 645 (theft or

embezzlement of certain funds); 26 U.S.C. 5691(a) (non-

payment of tax)."” More generally, differences in state

laws mean that conduct that would give rise to the

firearms disability if committed in one State (because

that State treats the conduct as a felony) would not lead

to a disability if committed in a State that denominates

the equivalent crime a misdemeanor. Petitioner pre-

sumably would not argue that courts must rewrite the

statute to prevent those disparate results from arising.

But, if courts lack the authority to emend statutory

language to eliminate such anomalies under domestic

law, courts have no greater license to read “any” to

mean something less than “any” just to avoid the

differential treatment of domestic and foreign convic-

Congress was fully aware that there were federal offenses

that were punishable by up to two years of imprisonment at the

time it enacted 18 U.S.C. 921(a)(20)(B), because that is the exact

penalty it imposed for violations of 18 U.S.C. App. 1202(a) (1970);

see also 18 U.S.C. 930(e)(1).

tions that petitioner hypothesizes. Cf. Caron, 524 U.S.

at 314-316 (construing the gun control law’s exception

for persons whose state-law right to possess firearms

has been restored, 18 U.S.C. 921(a)(20), to pernit a

Section 922(g)(1) prosecution for the possession of

firearms that state law expressly permits the defendant

to possess, despite the potential for “incongruities”).

More importantly, petitioner’s proposed reading of

“any court” as excluding foreign courts would create a

greater and more dangerous interpretive anomaly. If

foreign convictions are entirely excluded, then those

convicted of murder, rape, armed robbery, and terror-

ism overseas could freely possess, receive, ship, and

transport firearms within the United States, while a

person convicted domestically of tampering with a

vehicle identification number, 18 U.S.C. 511(a), or

ing a “three-neck round-bottom flask,” 21 U.S.C.

843(a)(6), could be barred for life from possessing fire-

arms. It is hard to see the sense in that. Furthermore,

petitioner’s cramped reading of statutory text pre-

supposes that, while Congress wanted to prevent im-

porters, dealers, and manufacturers from trafficking

firearms to terrorists, 18 U.S.C. 921(a)(22), Congress

cared not at all whether those persons actually

convicted of assassination, kidnapping, or other “violent

acts or acts dangerous to human life” abroad, 18 U.S.C.

921(a)(22) (B) and (C)(iii), are able to ship, transport,

receive, and possess firearms in the United States.

There is “no reason why the commission of serious

crimes elsewhere in the world is likely to make the

person so convicted less dangerous than he whose

crimes were committed within the United States.”

United States v. Winson, 793 F.2d 754, 758 (6th Cir.

1986) (citations omitted). Thus, if statutory construc-

tion is to be driven by the desire to avoid “peculiar”

results, that mode of analysis dictates that Section

922(g)(1)’s reference to convictions in “any court” be

read to include foreign courts.

For many of those same reasons, petitioner’s reliance

(Br. 24-25) on the express reference in 18 U.S.C.

921(a)(33)(A)(i) to domestic violence misdemeanors

under “Federal or State law” is misplaced. Petitioner’s

reading of the statute would leave the phrase “Federal

or State law” no work to do. See TRM Inc. v. Andrews,

534 U.S. 19, 29 (2001). And petitioner’s reading creates

worse anomalies in coverage than those he hypo-

thesizes (Br. 24-25). Under his approach, a person con-

victed of violating a restraining order by telephoning

his estranged wife is barred for life from possessing

firearms, but if that same person shoots and kills his

estranged wife during a Canadian vacation, he can buy

as many guns as he wants. See Caron, 524 U.S. at 316

(rejecting reading of gun control law that “would

undermine [Congress’s] protective purpose“).

W See also United States v. Gayle, 342 F.3d 89, 93 (2008),

(“[T}here are legitimate reasons why, depending upon the crime,

Congress might have wished to include foreign convictions. For

example, Congress might well have intended that a violent crime

* * * such as murder qualify as a predicate offense under

§ 922(g)(1).”), as amended on reh’g (2d Cir. 2004), cert. denied, No.

03-10327, 124 S. Ct. 2888 (2004), and petition for cert. pending, No.

03-1510 (filed May 6, 2004); cf. Kole, 164 F.3d at 175 (Because the

statutory text “reflects a congressional intent to significantly

increase sentences for drug offenders with prior convictions for

felony drug offenses[,]) * * * it would not be logical to limit the

enhancement to those persons who had been convicted of a prior

drug felony (or its equivalent) only in the United States.“).

See Office of Justice Programs, Dep’t of Justice, Stalking and

Domestic Violence: The Third Annual Report to Congress Under

In short, legislation requires linedrawing, and the

gun control law is no exception. Petitioner no doubt

would prefer that those lines had fallen elsewhere. But

the “fact [that] the line might have been drawn

differently at some points is a matter for legislative,

rather than judicial, consideration.” FCC v. Beach

Communications, Inc., 508 U.S. 307, 316 (1993)

(quoting United States R.R. Retirement Bd. v. Fritz,

449 U.S. 166, 179 (1980)). The Court’s task is to

“interpret, rather than author,” federal laws. United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S.

483, 494 n.7 (2001). Here, Congress chose comprehen-

sive language to serve a broad and comprehensively

protective purpose. The Court is “not at liberty to

rewrite” that language, id. at 495 n.7, or to afford it

anything other than its full and natural meaning.

E. The Legislative History Of Section 922(g)(1) Supports

Its Straightforward Application To Convictions In

Foreign Courts

1. Because the natural meaning of Section

922(¢)(1)’s language “any court” includes foreign courts

and because that understanding is confirmed by the

statute’s structure, purpose, the administering agency’s

reasonable interpretation of the statutory language,

and Congress’s specialized usage of the phrase “con-

victed in any court,” there is no need to resort to

legislative history. Ratzlaf, 510 U.S. at 147-148 ([We

do not resort to legislative history to cloud a statutory

text that is clear.”). In any event, there is no

the Violence Against Women Act 24-26 & App. B (July 1998)

(listing States that treat the violation of a protective order as the

felony). ~

legislative history that specifically discusses whether

“any court” includes or excludes foreign courts.”

To the extent that the legislative history is relevant,

the evolution of Section 922(g)(1) supports the con-

clusion that “any court” includes foreign courts. On two

occasions before the present version of Section

922(g)(1) was enacted, Congress passed laws disquali-

fying felons from possessing or trafficking in firearms

based only on convictions from state and federal courts.

See Federal Firearms Act, ch. 850, § 2, 52 Stat. 1250

(codified at 15 U.S.C. 902(d) (1940), and 15 U.S.C. 902(d)

(1964)); 18 U.S.C. App. 1202(a)(1) (1970). Congress

specifically deleted those limitations through later

amendments, as part of a concerted legislative effort to

“enlarge[] the group of people coming within the Act’s

substantive prohibitions,” Bass, 404 U.S. at 343 n.10.

See 1968 Omnibus Act, Pub. L. No. 90-351, § 922(e), 82

Stat. 230-231 (1968); 1986 Firearms Owners’ Protection

Act, Pub. L. No. 99-308, § 102(6)(D), 100 Stat. 452.

“When Congress acts to amend a statute, we presume it

intends its amendment to have real and substantial

effect.” Intel Corp. v. Advanced Micro Devices, Inc.,

124 S. Ct. 2466, 2479 (2004) (quoting Stone v. INS, 514

U.S. 386, 397 (1995)). There thus is no basis for con-

struing the present version of Section 922(g) to incor-

porate a limitation that Congress twice deleted from

the law. See Keene Corp. v. United States, 508 U.S.

” See Atkins, 872 F.2d at 96 (1989) (noting that “the scant

legislative history of 18 U.S.C. § 922 * * * offer{s] no illumination

as to Congress’s intended meaning”); Winson, 793 F.2d at 756

(An examination of the legislative history of Title IV reveals no

discussion of the actual meaning of the phrase “in any court.”); cf.

United States v. Concha, 233 F.3d 1249, 1256 (10th Cir. 2000) (“The

legislative history does not illuminate the meaning of ‘convictions

by any court’” in 18 U.S.C. 924(e)).

200, 208 (1993) (it is the Court’s “duty to refrain from

reading a phrase into the statute when Congress has

left it out”).

Nor can it fairly be argued that Congress dispensed

with the qualifying “State or Federal” court language

on the ground that such terms of limitation were

unnecessary because “any court” would naturally be

understood to refer only to domestic courts. If that

were the case, there was no reason for Congress to

enact, in conjunction with its 1968 and 1986 adoption of

the “any court” phraseology, the “State and Federal”

law limitations on the statutes’ coverage of business,

misdemeanor, and domestic violence crimes, 18 U.S.C.

921(a)(20), 922(¢)(9).

In short, petitioner’s reading of the legislative

history would require the Court to hold that the 1968

and 1986 amendments deleting “State” and “Federal”

were meaningless and that the qualifying “State” and

“Federal” language simultaneously included elsewhere

was surplusage. By contrast, affording “any court” its

natural compass, as including foreign courts, would give

practical effect to the 1968 and 1986 amendments,

would be consistent with Congress’s legislative pur-

pose, and would give meaning to all of the words Con-

gress enacted.

2. Petitioner (Br. 31-37), like the Second Circuit in

United States v. Gayle, 342 F.3d 89, 94-95 (2003), as

amended on rehearing (2d Cir. 2004), cert. denied, No.

03-10327, 124 S. Ct. 2888 (2004), and petition for cert.

pending, No. 03-1510 (filed May 6, 2004), places great

weight on the Senate Judiciary Committee’s Report on

the Gun Control Act of 1968, Pub. L. No. 90-618, 82

Stat. 1220. See S. Rep. No. 1501, 90th Cong., 2d Sess.

(1968). That Report accompanied a bill that defined the.

“felony” convictions that would debar an individual

from possessing firearms as, “in the case of a Federal

law, an offense punishable by imprisonment for a term

exceeding one year, and in the case of a State law, an

offense determined by the laws of the State to be a

felony.” S. 3633, 90th Cong., 2d Sess. 11 (1968); see also

S. Rep. No. 1501, supra, at 31. As the Second Circuit

(Gayle, 342 F.3d at 95-96) and petitioner (Br. 33-35)

further note, the House bill referred broadly to “any

court.” See H.R. 17735, 90th Cong., 2d Sess. 17-18

(1968). The two competing bills went to a Conference

Committee, where the language of the Senate bill was

rejected in favor of the broader “any court” language of

the House bill. See H.R. Conf. Rep. No. 1956, 90th

Cong., 2d Sess. 28-29 (1968). The Second Circuit rea-

soned (342 F.3d at 95), in an argument that petitioner

echoes (Br. 35), that the Conference Report’s failure to

voice: express disagreement with the Senate Report’s

definition of “felony” compels the conclusion that “any

court” refers only to domestic courts.

In so holding, the Second Circuit noted that those

“lluminating reports have never been cited in a

judicial opinion on the question and were not cited in

the briefs furnished to us.” Gayle, 342 F.3d at 95 n.6.

There is a good reason for that. Those reports postdate

by three and four months respectively Congress’s

enactment of the “any court” language in Section 922(e)

of the 1968 Omnibus Act. All that the 1968 Gun Control

Act did with respect to that Section was move it to its

current location at 18 U.S.C. 922(g)(1), and add unre-

lated additions to the list of prohibited persons. Pub. L.

No. 90-618, § 922(g), 82 Stat. 1220.

Petitioner’s argument suffers from a second critical

flaw. The Senate bill and the qualifying language to

which the Report refers were not enacted. Instead, the

Conference Report expressly rejected the Senate’s

language and adopted the House bill’s definition of

“felony,” whicn lacked language limiting the qualifying

felonies to those entered by state or federal courts.

H.R. Conf. Rep. No. 1956, supra, at 28-29. Far from

being “illuminating” (342 F.3d at 95 n.6), such “failed

legislative proposals,” and a fortiori the Committee

Reports elaborating on those failed proposals, “are ‘a

particularly dangerous ground on which to rest an

interpretation of a prior statute.’” United States v.

Craft, 535 U.S. 274, 287 (2002) (citation omitted).” Con-

trary to petitioner’s argument (Br. 34), that rejection

was one of substance not “terminology.” The Senate

version of the law that went to the Conference

Committee had not only restricted the courts that could

enter triggering felonies, but also had limited the bar to

“crime[s] of violence.” H.R. Conf. Rep. No. 1956, supra,

at 28-29. The law as enacted thus rejected the Senate’s

proposed restrictions on qualifying convictions and, for

the third time, specifically omitted language that would

have limited qualifying convictions to domestic courts.

3. Petitioner’s reliance (Br. 37-41) on the legislative

history of the 1986 Firearms Owners’ Protection Act

fares no better. Petitioner relies on the fact that Con-

gress consolidated two largely overlapping prohibitions

that had previously been enacted in Titles IV and VII

of the 1968 Omnibus Act. See Barrett, 423-U.S. at 220;

see generally Bass, 404 U.S. at 342-343 & nn.9-10

(describing legislation). Petitioner insists (Br. 37) that

Congress intended only to “merge[]” Title VII's pro-

“1 See also United States v. Price, 361 U.S. 304, 310-311 (1960)

(“Such non-action by Congress affords the most dubious foundation

for drawing positive inferences.”); see generally Recent Cases,

Criminal Law—Predicate Offenses Barring Possession of a

Firearm, 117 Harv. L. Rev. 1267 (Feb. 2004).

visions into Title IV, and contends that Congress’s

deletion of the limiting phrase court of the “United

States or of a State or any political subdivision thereof”

in the Title VII provision, 18 U.S.C. App. 1202(a)

(1970), was of no consequence because Injo one sug-

gested that any inconsistencies existed” (Br. 39). But

on the face of the laws, textual inconsistencies did exist

between Title IV's unqualified reference to “any court”

and Title VII’s more limited reference. The absence of

legislative history discussing the difference is beside

the point.”

Petitioner further emphasizes (Br. 38-39) that, in dis-

cussing the choice-of-law provision (now codified at 18

U.S.C. 921(a)(20)), Congress discussed developments in

state law. See S. Rep. No. 588, 98th Cong., 2d Sess. 7

(1984). That is true. It is also beside the point. The

Report nowhere says or suggests that foreign convic-

tions are excluded or that “any” means something less

than “any.” Perhaps some Members of Congress “had

in mind” (Pet. Br. 39) federal and state law crimes. But

Congress often legislates in broader terms than the

precise problem that motivated some of the legislators,

and the limited concerns of some legislators cannot

justify disregarding duly enacted statutory text. The

more reliable indicator of congressional intent is what

Congress said—“any court“ —and what Congress

did—delete language that would have limited Section

* Moreover, petitioner relies (Br. 37-39) principally on Senate

Report No. 583, 98th Cong., 2d Sess. (1984). But once again, peti-

tioner relies on legislative history that pertains to an unenacted

bill Senate Report No. 583 accompanied S. 914, 98th Cong., 2d

Sess. (1984). That bill was succeeded by S. 49, 99th Cong., Ist Sess.

(1985), which was the ultimate basis for the 1986 Act.

922(g)(1)’s bar to convictions entered by courts of “the

United States or of a State.

Petitioner’s invocation (Br. 41-42) of the Brady

Handgun Violence Prevention Act of 1993 (Brady Act),

Pub. L. No. 103-159, Title I, 107 Stat. 1536, is equally

unhelpful. The Brady Act postdates by a quarter

century Congress’s enactment of the “ary court” lan-

guage in Section 922(g)(1). See Almendarez-Torres v.

United States, 523 U.S. 224, 237 (1998) (AILlater

enacted laws * * * do not declare the meaning

of earlier law.”). In any event, Congress’s directive

that the Attorney General establish on an expeditious

basis a computerized National Instant Criminal Back-

ground Check System (NICS) incorporating state

criminal conviction records does not mean that foreign

convictions are excluded. It just means that Congress

set priorities, in light of limited resources and the state

of computer technology worldwide in the early 1990s.

Moreover, as discussed at page 15, supra, NICS does

include some foreign convictions and cross-references

the records of Immigration and Customs Enforce-

ment.

* See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

79 (1998) (“But statutory prohibitions often go beyond the

principal evil to cover reasonably comparable evils, and it is

ultimately the provisions of our laws rather than the principal

concerns of our legislators by which we are governed.”); Beecham,

511 U.S. at 374 (“{OJur task is not the hopeless one of ascertaining

what the legislators who passed the law would have decided had

they reconvened to consider petitioners’ particular cases. Rather,

it is to determine whether the language the legislators actually

enacted has a plain, unambiguous meaning.”).

* The fact that the Attorney General is not required to notify

foreign governments of any mistakes in their records (see Pet. Br.

43) simply reflects Congress s preeminent concern with improving

domestic recordkeeping, as well as Congress’s traditional hesita-

F. Concerns About Possible Unfairness In The Criminal

Procedures Of Foreign Courts Do Not Mandate The

Wholesale Exclusion Of Foreign Convictions From

Section 922(g)(1)

Petitioner’s objection to the inclusion of foreign

convictions rests heavily on the potential for unfairness

he perceives in foreign criminal proceedings. Pet. Br.

10-11, 16. But, despite his complaints (Br. 10-11),

petitioner does not claim that there was any funda-

mental unfairness in the proceedings by which he was

convicted in Japan. Pet. i, 3 n. I: Pet. Br. 4n.3. Nor has

any such unfairness been identified in the foreign

convictions in any of the prosecutions that have been

brought under Section 922(g)(1). See Atkins, 872 F.2d

at 95 n. I; Winson, 793 F. 2d at 757; see also Gayle, 342

F. 3d at 91-96 (no suggestion of impropriety for Cana-

dian conviction); United States v. Concha, 233 F.3d

1249, 1253-1257 (10th Cir. 2000) (no suggestion of

impropriety for British conviction). The “mere possi-

bility of making thle] argument” that a particular

application of a law could be unfair did not lead this

Court to deny the phrase “convicted in any court” its

full and natural meaning in Lewis, 445 U.S. at 61 n.5,

and it should not do so here. There is no basis for

broadly foreclosing the use of any foreign conviction

under Section 922(g)(1), no matter how serious the

crime and no matter how fairly obtained, just to dispel

tion to prescribe Executive Branch communications with foreign

governments. Petitioner’s focus (ibid.) on the absence of a private

cause of action against foreign governments to require them to

correct their criminal records overlooks the serious enforceability,

sovereign immunity, international comity, and foreign relations

implica**oms of authorizing such suits.

the possibility that someone else’s foreign conviction

might be entered unfairly.

1. Section 922(g)(1) focuses on the fact of conviction

In Lewis, this Court rejected the argument that po-

tentially unconstitutional state court convictions should

not trigger a firearms disability under the former 18

U.S.C. App. 1202(a)(1) (1976) or Section 922(g)(1). See

445 U.S. at 60-67; id. at 58 n.4 (noting that the “identical

issue” arises under Section 922(g)(1)). The Court first

held that the plain language of Section 1202(a)(1) (like

Section 922(g)(1)) contains no textual basis for re-

stricting its coverage to lawful convictions or those im-

mune from collateral attack. Id. at 60. The Court then

held that it is “the fact of a felony conviction” alone that

triggers the firearm disability. Ibid. The fact of a con-

viction is sufficient, without more, to implicate Con-

gress’s concern that firearms be kept away from

“potentially irresponsible and dangerous” persons. /d.

at 65 (quoting Barrett, 423 U.S. at 218); see also Custis,

511 U.S. at 490-491 (“The statute focuses on the fact of

the conviction and nothing suggests that the prior final

conviction may be subject to collateral attack for po-

tential constitutional errors before it may be counted.”).

That same rationale applies to foreign convictions.

Indeed, if an actually unconstitutional and funda-

mentally unfair state conviction still validly disqualifies

an individual from possessing firearms under Section

922(g\(1), then there is no sound reason why peti-

tioner’s fundamentally fair conviction from a foreign

jurisdiction should automatically be excluded. The

law’s “focus [is] not on reliability, but on the mere fact

of conviction, or even indictment, in order to keep fire-

arms away from potentially dangerous persons.”

Lewis, 445 US. at 67.

Furthermore, the prohibition on possessing firearms

is an “essentially civil disability.” Lewis, 445 U.S. at 67.

“The statute focuses on the fact of the conviction and

nothing suggests that the prior final conviction may be

subject to collateral attack for potential constitutional

errors before it may be counted.” Custis, 511 U.S. at

490-491. Thus, even if the Constitution requires some

review of the fairness by which a foreign conviction is

obtained when it is used to “support guilt or enhance

punishment,” Lewis, 445 U.S. at 67 (citation omitted),

Lewis makes clear that there is no such prerequisite

to the enforcement of an essentially civil disability

through a criminal sanction, ibid.

The fact that indictment alone is sufficient to trigger

what is in effect a statutory prohibition on purchasing

or receiving firearms (see 18 U.S.C. 922(d)(1), 922(n))

underscores the essentially civil character of the dis-

ability imposed, as does Section 922’s bar on possession

by persons dishonorably discharged by the military, 18

U.S.C. 922(g)(6); see 32 C. F. R. Pt. 70 (discharge pro-

cedures). Those provisions confirm that Congress did

not intend compliance with the full panoply of criminal

defendant’s rights under the federal Constitution to be

a prerequisite for Section 922’s proscriptions to attach.

Rather, Congress was looking for a “convenient,” albeit

“somewhat inexact, way of identifying ‘especially risky

people,’” Dickerson, 460 U.S. at 120. Thus, a foreign

conviction is used in Section 922(g)(1), not as an

authoritative adjudication of criminal liability for pur-

poses of imposing criminal sanctions for the foreign

offense of conviction, but rather as a roughly reliable

indicator of the individual’s status as a potentially

dangerous person. Cf. Hilton v. Guyot, 159 U.S. 113,

145 (1895) (“A judgment affecting the status of persons

* * * is recognized as valid in every country, unless

contrary to the policy of its own law.”). Congress’s

judgment that the fact of a conviction—whether

federal, state, or foreign—adequately serves that pur-

pose is rational and should be respected, especially

“when one considers Congress’ broad purpose.” Lewis,

445 U.S. at 67.

2. Congress was aware that foreign convictions often

have domestic consequences

Petitioner expresses concern (Br. 4-8 & n.3, 16) that

recognizing foreign convictions as qualifying felonies for

Section 922(g)(1) would result in the consideration of

convictions obtained without the protections afforded

criminal defendants in American courts (Pet. Br. 30-31),

and he thus concludes that Congress would not have

intended their inclusion. But attaching essentially civil

consequences to the fact of a foreign conviction is not as

uncommon as petitioner supposes. In fact, it occurs in a

variety of areas, and Congress must be presumed to

have enacted Section 922(g)(1)’s “any court” language

with those background practices in mind.

a. A prime example is extradition proceedings.

Extradition is a quasi-civil process by which fugitive

individuals, including American citizens, are removed to

foreign countries to face criminal charges or to serve a

sentence following a conviction there. See 18 U.S.C.

3184, 3196; United States v. Fernandez-Morris, 99 F.

Supp. 2d 1358 (S.D. Fla. 1999). Upon application by the

federal government, the district court issues an arrest

warrant and certifies extraditability upon finding only

that (1) the crime is extraditable (i.e., it is covered by

the terms of an existing extradition treaty and

is a crime in both countries), and (2) there is probable

cause to believe the fugitive committed the charged

crime. See generally Fernandez v. Phillips, 268 U.S.

311, 312-314 (1925); Ornelas v. Ruiz, 161 U.S. 502, 512

(1896). Direct appeal of the certification is not avail-

able, but the person can obtain collateral review

through habeas corpus. See Kastnerova v. United

States, 365 F.3d 980, 984 & n.4 (11th Cir.), cert. denied,

124 S. Ct. 2826 (2004). Habeas corpus review is narrow

and limited to whether the extraditing court had

jurisdiction, whether there was jurisdiction over the

fugitive individual, whether the extradition treaty was

in force and covered the crime at issue, and whether

any evidence supports the extraditing court’s finding of

probable cause. Id. at 984. Once those basic findings

are made, the decision whether to extradite the person

is committed to the discretion of the Secretary of State.

See 18 U.S.C. 3186.

It is the fact of a foreign conviction or charge covered

by an extradition treaty, combined with probable cause,

that empowers the United States government to seize a

person (including a citizen) and hand the individual over

to another country’s criminal justice system. The

judiciary undertakes no inquiry into the perceived

fairness or reliability of the foreign courts’ proceedings.

The foreign court is not required to conduct its criminal

trials according to the requirements of the United

States Constitution. “(T)Jhose provisions have no

relation to crimes committed without the jurisdiction of

the United States against the laws of a foreign

country.” Neely v. Henkel, 180 U.S. 109, 122 (1901).

Furthermore, whatever his complaints about the

Japanese criminal justice system (Pet. Br. 4-8),

petitioner’s

citizenship does not give him an immunity to commit

crime in other countries, nor entitle him to demand,

of right, a trial in any other mode than that allowed

to its own people by the country whose laws he has

violated.

Neely, 180 U.S. at 123. Petitioner thus “cannot com-

plain” that he was “required to submit to such modes of

trial and to such punishment as the laws of [Japan] may

prescribe for its own people.” Ibid.; see also Wilson v.

Girard, 354 U.S. 524 (1957) (upholding extradition of

American citizen to Japan). For extradition, it is

enough that the Legislative and Executive Branches

together, as manifested in the particular treaty or con-

vention, have jointly determined that the foreign

country’s procedures are “adequate to the ends of

justice.” Neely, 180 U.S. at 123. Beyond that, “[iJt is

not the business of our courts to assume the respons-

ibility for supervising the integrity of the judicial

system of another sovereign nation.” Ahmad v. Wigen,

910 F.2d 1063, 1066 (2d Cir. 1990) (quoting Jhirad v.

Ferrandina, 536 F.2d 478, 484-485 (2d Cir.), cert.

denied, 429 U.S. 833 (1976)).

The United States has extradition treaties with

Japan and more than 100 other foreign governments

permitting the extradition of United States citizens to

stand trial or serve sentences in those countries. See

Treaty on Extradition Between the United States of

America and Japan, 31 U.S.T. 892 (Mar. 3, 1978); 18

See also In re Requested Extradition of Smyth, 61 F.3d 711,

714 (“(C)jourts are ill-equipped as institutions and ill-advised as a

matter of separation of powers and foreign relations policy to make

inquiries into and pronouncements about the workings of foreign

countries’ justice systems.“), amended by 73 F.3d 887 (9th Cir.

1995), cert. denied, 518 U.S. 1022 (1996); United States v. Kin-

Hong, 110 F.3d 103, 110 (Ist Cir. 1997); ef. Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 416 (1964) ([The courts of one

country will not sit in judgment on the acts of the government of

another, done within its own territory.”).

}

U.S.C. 3181 (Historical and Statutory Notes) (listing

119 extradition treaties). That documents the joint con-

clusion of Congress and the Executive Branch that the

criminal justice systems of many nations sufficiently

comport with the rudiments of fair process as to war-

rant seizing American citizens and handing them over

for trial and punishment in those countries. And, since

Congress concluded that those countries’ judicial sys-

tems warranted respect in an extradition treaty, there

is no reason why Congress would have hesitated to

make convictions entered in those same systems the

basis for a domestic firearms disability.”

b. Foreign criminal convictions and criminal activi-

ties are also accorded recognition in federal immigra-

tion law. 8 U.S.C. 1101(a)(43) (defining an aggravated

felony, which disqualifies aliens from a variety of forms

of immigration relief and benefits, to include “an offense

in violation of the law of a foreign country for which the

term of imprisonment was completed within the pre-

vious 15 years”); 8 U.S.C. 1182(a)(2)(A)(i) (convictions

of controlled substance offense or crimes of moral turpi-

tude in foreign country render alien admissible).”

In addition, the Antiterrorism Act of 1990 provides

that a foreign criminal conviction generally will “estop

the defendant from denyng the essential allegations of

the criminal offense in any subsequent civil proceeding”

Because Japan is among those countries with which the

United States has an extradiction treaty, this case does not

present the question whether the predicate foreign convictions

under Section 922(g)(1) include those countries with which the

United States does not have such a treaty.

See also Ortiz v. INS, 179 F.3d 1148, 1154-1155 (9th Cir. 1999);

Chiaramonte v. INS, 626 F.2d 1093, 1098 & n.4 (2d Cir. 1980); ef.

INS v. Aguirre-Aguirre, 526 U.S. 415, 424-425 (1999).

for damages arising from a terrorist act. 18 U.S.C.

2223(c).

e. Foreign convictions for sexual offenses are also

taken into account in administering some sex offender

registries and notification systems. For example, if the

federal Bureau of Prisons receives, under the Inter-

national Treaty Transfer Program, 18 U.S.C. 4100,

4102, a United States citizen who was convicted of a

sexual crime in a foreign country, that foreign convic-

tion subjects him to the rules requiring community

notification, including se offender registration, before

release. See 28 C.F.R. 571.72; Bureau of Prisons, Dep’t

of Justice, Program Statement No. 5141.02 (Dec. 14,

1998). At least two States also include convictions for

foreign sex offenses in their sex offender registration

programs. See Kan. Stat. Ann. § 21-4704) (Supp.

2002), as amended by 2004 Kan. Sess. Laws 175 (May

20, 2004); Ohio Rev. Code Ann. §§ 2950.01(D)(1)(f),

2950.09(A) (Anderson 2003). *

d. The federal Sentencing Guidelines also permit

consideration of foreign convictions. While sentences

resulting from foreign convictions are not counted in

determining a defendant’s criminal history category,

they may be considered by the court in assessing the

adequacy of the criminal history category to determine

23 A number of States also count foreign convictions in their

provisions governing habitual offenders. See Cal. Penal Code

§ 668 (West 2004); Kan. Stat. Ann. § 21-4504(b) (1995 & Supp.

2004); La. Rev. Stat. Ann. § 15.529.1 (West 2004); Okla. Stat. Ann.,

title 21, § 54 (West 2002); 42 Pa. Cons. Stat. Ann. § 9721, ch.

303.8(f) (West 2004); Tenn. Code Ann. §§ 40-35-106(b)(5), 40-35-

107(b)\(5), 40-35-108(b)(5) (2003); Vt. Stat. Ann. title 13, § 11 (1998);

see generally Alex Glashausser, The Treatment of Foreign

Country Convictions as Predicates for Sentence Enhancement

Under Recidivist Statutes, 44 Duke L. J. 134 (Oct. 1994)

whether an upward departure is warranted. See

Sentencing Guidelines §§ 4A1.2(h), 4A1.3(a); see also

United States v. Simmons, 343 F.3d 72, 78-79 (2d Cir.

2003) (upward departure based on Canadian convic-

tions); United States v. Fordham, 187 F.3d 344, 347-348

(3d Cir. 1999), cert. denied, 528 U.S. 1175 (2000).”

In short, including convictions entered by foreign

courts in Section 922(g)(1), would not be the anomaly

that petitioner postulates. In light of the large number

of individuals moving transnationally and the undeni-

able reality of trans-border crime, a variety of statutory

schemes take cognizance of foreign convictions. To do

otherwise would create serious disparities in the face of

the increasing prevalence of individual criminals and

crimes that are not strictly contained within national

boundaries. Indeed, no country has proven more recep-

tive to the recognition of foreign judgments than the

United States. Restatement, swpra, at 592 (intro-

ductory note).” What petitioner has not attempted to

explain is how Congress could consider large numbers

of foreign courts systems sufficiently fair and reliable to

deprive an American citizen of liberty, to incarcerate

Simmons suggested that foreign convictions occurring in |

1 —

familiar legal systems might require “further inquiry and develop-

ment before they may properly support an upward departure,” 343

F.3d at 79, but the court had no occasion to decide that point.

See also Ritchie v. McMullen, 159 U.S. 235, 241-242 (1895);

Hilton, 159 U.S. at 182-206; 18 U.S.C. 3505 (allowing admission into

evidence of foreign records of regularly conducted activity). Peti-

tioner cites (Br. 29-30) People v. Braithwaite, 240 N.W2d 298

(Mich. Ct. App. 1976), for the proposition that courts refuse to

recognize foreign judgments, but that dicta has been repeatedly

repudiated. See, e.g., People v. Galvan, 572 N.W.2d 49, 50 n. 1

(Mich. Ct. App. 1997), appeal denied, 586 N. W. 2d 408 (Mich. 1998):

People v. Gaines, 341 N. W.2d 519, 521 (Mich. Ct. App. 1983).

American citizens abroad, to trigger civil sex offender

notification laws, and to withhold relief under the immi-

gration laws, but not reliable enough to trigger an

essentially civil firearms disability or to bar the posses-

sion of biological weapons and explosive materials.”

3. No extensive review for fundamental fairness is

required

The court of appeals considered it obvious that

foreign convictions were covered by Section 922(g)(1)’s

reference to “any court.” The court went on to hold,

however, that foreign convictions could provide the

predicate for a Section 922(g)(1) prosecution only if they

satisfied the multi-prong test of the Restatement,

supra, § 482, at 604. But, as this Court recognized in

Lewis, supra, Congress focused on the fact of conviction

and did not want to transform the firearms provisions

into a vehicle for collateral attacks on convictions

entered by other jurisdictions. Lewis thus made clear

that the fact of a conviction alone triggers Section

922(g¢)(1)’s coverage, even if the conviction could be

collaterally attacked as unconstitutional. 445 U.S. at 67.

A departure from constitutionally prescribed pro-

cedures is no more significant (and is arguably less so)

The presumption against the extraterritorial application of

federal law, see EEOC v. Arabian American Oil Co., 499 U.S. 244

(199'), has no application here. Section 922(g)(1) regulates the

possession, receipt, shipment, and transportation of firearms by

individuals within the territory of the United States. It does not

regulate conduct on foreign territory. The mere fact that domestic

consequences attach to foreign conduct does not make the law any

more extraterritorial than a domestic prohibition on donating

blood based on foreign travel or a law assessing Customs duties

based on purchases abroad.

when it occurs in a foreign country than when it occurs

at home.

Finally, if the Court concludes that some form of

collateral review of the foreign conviction is necessary

before it can trigger Section 922(g)(1)’s bar, that review

should be appropriately deferential and should require

nothing more than the most fundamental rudiments of

fair process. Principles of international comity preclude

(absent congressional direction to the contrary) re-

trying the merits of foreign judgments or insisting that

other nations follow every dictate of the United States

Constitution. That is especially true in cases like this,

where the Executive Branch has already exercised its

discretion to premise a prosecution on the foreign con-

viction. In Hilton, this Court held that the central

prerequisites for enforcement of a foreign judgment are

(1) jurisdiction in the trial court, (2) regularized

proceedings, (3) notice to the defendant, and (4) “a

system of jurisprudence likely to secure an impartial

administration of justice.” 159 U.S. at 202; see also

Neely, 180 U.S. at 123 (holding that, in extradition

cases, the foreign court system need only be “adequate

to the ends of justice” and not discriminate against

In Lewis, 445 U.S. at 67, the Court noted that criminal defen-

dants generally have other avenues for challenging their predicate

convictions, such as through an appeal. Likewise, those convicted

abroad often may appeal their convictions within the foreign court

system. See, e.g., Japanese Ministry of Justice, Criminal Justice

in Japan 20-21. For example, petitioner would have been provided

counsel to appeal his case, id. at 10, 20-21, but he “failed to pursue

that] remed[y],” so he now “is without recourse,” Daniels v

United States, 532 U.S. 374, 382 (2001). In any event, even in the

United States, the opportunity to appeal a criminal conviction is

not constitutionally mandated. M. L. B. v. S. L. J., 519 U.S. 102, 110

(1996).

American citizens). No more should be required for the

mere recognition of a foreign judgment under Section

922(g)(1).* a

With respect to petitioner's case, the very type of

evidentiary and cross-examination objections to the

Japanese proceedings that he levels (Br. 4-8) were

found inadequate to impeach a foreign judgment in

Hilton. See 159 U.S. at 205 (Because “the practice

followed and the method of examining witnesses were

according to the laws of France, we are not prepared to

hold that the fact that the procedure in these respects

differed from that of our own courts is, of itself, a

sufficient ground for impeaching the foreign judg-

ment.”); compare Pet. Br. 4 (objecting to lack of a jury

trial), with Schriro v. Summerlin, 124 S. Ct. 2519, 2525

(2004) (“the mixed reception that the right to jury trial

has been given in other countries * * * surely makes

it implausible that judicial factfinding so seriously

diminishes accuracy as to produce an impermissibly

large risk of injustice”) (internal quotation marks,

brackets, and emphasis omitted).

4. The rule of lenity does not apply

Petitioner errs (Br. 47-48) in invoking the rule of

lenity in the construction of criminal statutes. That rule

* Cf. United States v. Mendoza-Lopez, 481 U.S. 828, 841 (1987)

(due process requires some opportunity for “impartial judicial”

review before a civil administrative deportation order will support

a criminal prosecution for unlawful reentry); id. at 839 n.17; Kole,

164 F.3d at 171 (holding that, with respect to Philippines’ criminal

judgment used to enhance a defendant’s sentence under 21 U.S.C.

851(a), “Congress intended only to ensure fundamental fairness by

excluding any conviction that was obtained in a manner

inconsistent with concepts of fundamental fairness and liberty

endemic in the Due Process Clause of the Fifth Amendment of the

United States Constitution.”).

applies only when the statutory language is ambiguous,

Lewis, 445 U.S. at 65, and, even then, only when “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) (internal quotation marks omitted and

punctuation altered). The phrase “any court” is un-

deniably broad. But the fact that statutory language is

sweeping does not render it ambiguous. Nor does the

fact that Congress may not have specifically considered

the application of Section 922(g) to foreign convictions.

That a law can apply to situations not anticipated by its

drafters “does not demonstrate ambiguity. It demon-

strates breadth.” National Org. for Women, Inc. v.

Scheidler, 510 U.S. 249, 262 (1994) (quotation marks and

citations omitted). The natural expanse of “any court”

is clear, both on its face and when considered in light of

the overall structure, purpose, and history of Section

922(¢)(1). See Lewis, 445 U.S. at 60 (“The statutory

language is sweeping, and its plain meaning is that the

fact of a felony conviction imposes a firearm dis-

ability.”). That is sufficient to foreclose resort to the

rule of lenity. Bowman, 260 U.S. at 102. Indeed, it is

particularly hard for petitioner to contend that, when

he purchased a firearm one week after completing his

Japanese sentence, he was not on fair notice that he had

been “convicted in any court.”

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

PAUL D. CLEMENT

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JOHN A. DRENNAN

Attorney

AUGUST 2004

APPENDIX A

18 U.S.C.§ 921. Definitions

(a) As used in this chapter

(1) The term “person” and the term “whoever”

include any individual, corporation, company, associa-

tion, firm, partnership, society, or joint stock company.

(2) The term “interstate or foreign commerce” in-

cludes commerce between any place in a State and any

place outside of that State, or within any possession of

the United States (not including the Canal Zone) or the

District of Columbia, but such term does not include

commerce between places within the same State but

through any place outside of that State. The term

“State” includes the District of Columbia, the Common-

wealth of Puerto Rico, and the possessions of the

United States (not including the Canal Zone).

(3) The term “firearm” means (A) any weapon

(including a starter gun) which will or is designed to or

may readily be converted to expel a projectile by the

action of an explosive; (B) the frame or receiver of any

such weapon; (C) any firearm muffler or firearm si-

lencer; or (D) any destructive device. Such term does

not include an antique firearm.

(4) The term “destructive device” means—

(A) any explosive, incendiary, or poison gas—

(i) bomb,

(ii) grenade,

(iii) rocket having a propellant charge of more

than four ounces,

(la)

(iv) missile having an explosive or incendiary

charge of more than one-quarter ounce,

(v) mine, or

(vi) device similar to any of the devices

described in the preceding clauses;

(B) any type of weapon (other than a shotgun or

a shotgun shell which the Attorney General finds is

generally recognized as particularly suitable for

sporting purposes) by whatever name known which

will, or which may be readily converted to, expel a

projectile by the action of an explosive or other

propellant, and which has any barrel with a bore of

more than one-half inch in diameter; and

intended for use in converting any device into any

destructive device described in subparagraph (A) or

(B) and from which a destructive device may be

readily assembled.

The term “destructive device” shall not include any

device which is neither designed nor redesigned for use

as a weapon; any device, although originally designed

for use as a weapon, which is redesigned for use as a

signaling, pyrotechnic, line throwing, safety, or similar

device; surplus ordnance sold, loaned, or given by the

Secretary of the Army pursuant to the provisions of

section 4684(2), 4685, or 4686 of title 10; or any other

device which the Attorney General finds is not likely to

be used as a weapon, is an antique, or is a rifle which

the owner intends to use solely for sporting, re-

creational or cultural purposes.

(5) The term “shotgun” means a weapon designed

or redesigned, made or remade, and intended to be

fired from the shoulder and designed or redesigned and

made or remade to use the energy of an explosive to

fire through a smooth bore either a number of ball shot

or a single projectile for each single pull of the trigger.

(6) The term “short-barreled shotgun” means a

shotgun having one or more barrels less than eighteen

inches in length and any weapon made from a shotgun

(whether by alteration, modification or otherwise) if

such a weapon as modified has an overall length of less

than twenty-six inches.

(7) The term “rifle” means a weapon designed or

redesigned, made or remade, and intended to be fired

from the shoulder and designed or redesigned and made

or remade to use the energy of an explosive to fire only

a single projectile through a rifled bore for each single

pull of the trigger.

(8) The term “short-barreled rifle” means a rifle

having one or more barrels less than sixteen inches in

length and any weapon made from a rifle (whether by

alteration, modification, or otherwise) if such weapon,

as modified, has an overall length of less than twenty-

six inches.

(9) The term “importer” means any person

engaged in the business of importing or bringing

firearms or ammunition into the United States for

purposes of sale or distribution; and the term “licensed

importer” means any such person licensed under the

provisions of this chapter.

(10) The term “manufacturer” means any person

engaged in the business of manufacturing firearms or

ammunition for purposes of sale or distribution; and the

term “licensed manufacturer” means 2ny such person

licensed under the provisions of this chapter.

(11) The term “dealer” means (A) any person

engaged in the business of selling firearms at wholesale

or retail, (B) any person engaged in the business of

repairing firearms or of making or fitting special

barrels, stocks, or trigger mechanisms to firearms, or

“licensed dealer” means any dealer who is licensed

under the provisions of this chapter.

(12) The term “pawnbroker” means any person

whose business or occupation includes the taking or

receiving, by way of pledge or pawn, of any firearm as

security for the payment or repayment of money.

(13) The term “collector” means any person who

acquires, holds, or disposes of firearms as curios or

relics, as the Attorney General shall by regulation

define, and the term “licensed collector” means any

such person licensed under the provisions of this

chapter.

(14) The term “indictment” includes an indictment

or information in any court under which a crime

punishable by imprisonment for a term exceeding one

year may be prosecuted.

(15) The term “fugitive from justice” means any

person who has fled from any State to avoid

prosecution for a crime or to avoid giving testimony in

any criminal proceeding.

(16) The term “antique firearm” means—

(A) any firearm (including any firearm with a

matchlock, flintlock, percussion cap, or similar type

of ignition system) manufactured in or before 1898;

(B) any replica of any firearm described in

subparagraph (A) if such replica—

(i) is not designed or redesigned for using

rimfire or conventional centerfire fixed

ammunition, or

(ii) uses rimfire or conventional centerfire

fixed ammunition which is no longer manufactured

in the United States and which is not readily

available in the ordinary channels of commercial

trade; or

gun, or muzzle loading pistol, which is designed to

use black powder, or a black powder substitute, and

which cannot use fixed ammunition. For purposes of

this subparagraph, the term “antique firearm” shall

not include any weapon which incorporates a firearm

frame or receiver, any firearm which is converted

into a muzzle loading weapon, or any muzzle loading

weapon which can be readily converted to fire fixed

ammunition by replacing the barrel, bolt,

breechblock, or any combination thereof.

(17)(A) The term “ammunition” means ammunition

or cartridge cases, primers, bullets, or propellent

powder designed for use in any firearm.

(B) The term “armor piercing ammunition”

means—

(i) a projectile or projectile core which may be used

in a handgun and which is constructed entirely

(excluding the presence of traces of other

substances) from one or a combination of tungsten

alloys, steel, iron, brass, bronze, beryllium copper, or

depleted uranium; or

(ii) a full jacketed projectile larger than .22

caliber designed and intended for use in a handgun

and whose jacket has a weight of more than 25

percent of the total weight of the projectile.

include shotgun shot required by Federal or State

environmental or game regulations for hunting

purposes, a frangible projectile designed for target

shaoting, a projectile which the Attorney General finds

is primarily intended to be used for sporting purposes,

or any other projectile or projectile core which the

Attorney General finds is intended to be used for

industrial purposes, including a charge used in an oil

and gas well perforating device.

18) The term “Attorney General” means the

Attorney General of the United States;

(19) The term “published ordinance” means a

published law of any political subdivision of a State

which the Attorney General determines to be relevant

to the enforcement of this chapter and which is

contained on a list compiled by the Attorney General,

which list shall be published in the Federal Register,

revised annually, and furnished to each licensee under

this chapter.

(20) The term “crime punishable by imprisonment

for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to

antitrust violations, unfair trade practices, restraints

of trade, or other similar offenses relating to the

regulation of business practices, or

(B) any State offense classified by the laws of

the State as a misdemeanor and punishable by a term

of imprisonment of two years or less.

What constitutes a conviction of such a crime shall be

determined in accordance with the law of the

jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or for

which a person has been pardoned or has had civil

rights restored shall not be considered a conviction for

purposes of this chapter, unless such perdon, expunge-

ment, or restoration of civil rights expressly provides

that the person may not ship, transport, possess, or

receive firearms. |

(21) The term “engaged in the business” means—

(A) as applied to a manufacturer of firearms, a

person who devotes time, attention, and labor to

manufacturing firearms as a regular course of trade

or business with the principal objective of livelihood

and profit through the sale or distribution of the

firearms manufactured;

(B) as applied to a manufacturer of ammunition,

a person who devotes time, attention, and labor to

manufacturing ammunition as a regular course of

trade or business with the principal objective of

livelihood and profit through the sale or distribution

of the ammunition manufactured;

in section 921(a)(11)(A), a person who devotes time,

attention, and labor to dealing in firearms as a

regular course of trade or business with the principal

objective of livelihood and profit through the

repetitive purchase and resale of firearms, but such

term shall not include a person who makes occasional

sales, exchanges, or purchases of firearms for the

enhancement of a personal collection or for a hobby,

or whe sells all or part of his personal collection of

firearms;

(D) as applied to a dealer in firearms, as defined

in section 921(a)(11)(B), a person who devotes time,

attention, and labor to engaging in such activity as a

regular course of trade or business with the principal

objective of livelihood and profit, but such term shall

not include a person who makes occasional repairs of

firearms, or who occasionally fits special barrels,

stocks, or trigger mechanisms to firearms;

(E) as applied to an importer of firearms, a

person who devotes time, attention, and labor to

importing firearms as a regular course of trade or

business with the principal objective of livelihood and

profit through the sale or distribution of the firearms

imported; and

(F) as applied to an importer of ammunition, a

person who devotes time, attention, and labor to

importing ammunition as a regular course of trade or

business with the principal objective of livelihood and

profit through the sale or distribution of the

ammunition imported.

(22) The term “with the principal objective of liveli-

hood and profit” means that the intent underlying the

sale or disposition of firearms is predominantly one of

obtaining livelihood and pecuniary gain, as opposed to

other intents, such as improving or liquidating a

personal firearms collection: Provided, That proof of

profit shall not be required as to a person who engages

in the regular and repetitive purchase and disposition

of firearms for criminal purposes or terrorism. For

purposes of this paragraph, the term “terrorism” means

activity, directed against United States persons,

which—

(A) is committed by an individual who is not a

national cx permanent resident alien of the United

States;

(B) involves violent acts or acts dangerous to

human life which would be a criminal violation if

committed within the jurisdiction of the United

States; and

(i) to intimidate or coerce a civilian

population;

(ii) to influence the policy of a government

by intimidation or coercion; or

(iii) to affect the conduct of a government by

assassination or kidnapping.

(23) The term “machinegun” has the meaning given

such term in section 5845(b) of the National Firearms

Act (26 U.S.C. 5845(b)).

(24) The terms “firearm silencer” and “firearm

muffler” mean any device for silencing, muffling, or

diminishing the report of a portable firearm, including

any combination of parts, designed or redesigned, and

intended for use in assembling or fabricating a firearm

silencer or firearm muffler, and any part intended only

for use in such assembly or fabr cation.

(25) The term “school zone” means—

(A) in, or on the grounds of, a public, parochial

or private school; or

(B) within a distance of 1,000 feet from the

grounds of a public, parochial or private school.

10a

(26) The term “school” means a school which

provides elementary or secondary education, as

determined under State law.

(27) The term “motor vehicle” has the meaning

given such term in section 13102 of title 49, United

States Code.

(28) The term “semiautomatic rifle” means any

repeating rifle which utilizes a portion of the energy of

a firing cartridge to extract the fired cartridge case and

chamber the next round, and which requires a separate

pull of the trigger to fire each cartridge.

(29) The term “handgun” means

(A) a firearm which has a short stock and is

designed to be held and fired by the use of a single

hand; and

(B) any combination of parts from which a

firearm described in subparagraph (A) can be

assembled.

(30) The term “semiautomatic assault weapon”

means—

(A) any of the firearms, or copies or duplicates

of the firearms in any caliber, known as—

(i) Norinco, Mitchell, and Poly

Technologies Avtomat Kalashnikovs (all models);

(ii) Action Arms Israeli Military Industries

UZI and Galil;

(iii) Beretta Ar70 (SC-70);

(iv) Colt AR-15;

(v Fabrique National FN/FAL, FN/LAR,

and FNC;

lla

(vi) SWD M-10, M-11, M-11/9, and M-12;

(vii) Steyr AUG;

(vii) INTRATEC TEC-9, TEC-DC9 and

TEC-22; and

(ix) revolving cylinder shotguns, such as (or

similar to) the Street Sweeper and Striker 12;

(B) a semiautomatic rifle that has an ability to

accept a detachable magazine and has at least 2 of—

(i) a folding or telescoping stock;

(i) a pistol grip that protrudes

conspicuously beneath the action of the weapon;

(iii) a bayonet mount;

(iv) a flash suppressor or threaded barrel

designed to accommodate a flash suppressor; and

(v) agrenade launcher;

accept a detachable magazine and has at least 2 of—

(i) an ammunition magazine that attaches

to the pistol outside of the pistol grip;

(ii) a threaded barrel capable of accepting a

barrel extender, flash suppressor, forward

handgrip, or silencer;

(iii) a shroud that is attached to, or partially

or completely encircles, the barrel and that

permits the shooter to hold the firearm with the

nontrigger hand without being burned;

(iv) a manufactured weight of 50 ounces or

more when the pistol is unloaded; and

12a

(v) asemiautomatic version of an automatic

firearm; and

D) a semiautomatie shotgun that has at least 2

of—

(i) a folding or telescoping stock;

(ii) a pistol grip that protrudes

conspicuously beneath the action of the weapon;

(iii) a fixed magazine capacity in excess of 5

rounds; and

(iv) an ability to accept a detachable

magazine.

(31) The term “large capacity ammunition feeding

device“

(A) means a magazine, belt, drum, feed strip, or

similar device manufactured after the date of

enactment of the Violent Crime Control and Law

Enforcement Act of 1994 that has a capacity of, or

that can be readily restored or converted to accept,

more than 10 rounds of ammunition; but

(B) does not include an attached tubular device

designed to accept, and capable of operating only

with, .22 caliber rimfire ammunition.

(32) The term “intimate partner” means, with

respect to a person, the spouse of the person, a former

spouse of the person, an individual who is a parent of a

child of the person, and an individual who cohabitates

or has cohabited with the person.

13a

(330A) Except as provided in subparagraph (C),

the term “misdemeanor crime of domestic violence”

means an offense that

(i) is a misdemeanor under Federal or

State law; and

(ii) has, as an element, the use or attempted

use of physical force, or the threatened use of a deadly

weapon, committed by a current or former spouse,

parent, or guardian of the victim, by a person with

whom the victim shares a child in common, by a

person who is cohabiting with or has cohabited with

the victim as a spouse, parent, or guardian, or by a

person similarly situated to a spouse, parent, or

guardian of the victim

(BY i) A person shall not be considered to have

been convicted of such an offense for purposes of this

chapter, unless—

(I) the person was represented by counsel in

the case, or knowingly and intelligently waived

the right to counsel in the case; and

(II) in the case of a prosecution for an offense

described in this paragraph for which a person

was entitled to a jury trial in the jurisdiction in

which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelli-

gently waived the right to have the case

tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have

been convicted of such an offense for purposes of this

! So in original. No subparagraph (C) was enacted in subsec. (a)(33).

14a

chapter if the conviction has been expunged or set

aside, or is an offense for which the person has been

pardoned or has had civil rights restored (if the law of

the applicable jurisdiction provides for the loss of civil

rights under such an offense) unless the pardon,

expungement, or restoration of civil rights expressly

provides that the person may not ship, transport,

possess, or receive firearms.

(34) The term “secure gun storage or safety

device” means—

(A) a device that, when installed on a

firearm, is designed to prevent the firearm

from being operated without first deactivating

the device;

(B) a device incorporated into the design

of the firearm that is designed to prevent the

operation of the firearm by anyone not having

access to the device; or

other device that is designed to be or can be

used to store a firearm and that is designed to

be unlocked only by means of a key, a

combination, or other similar means.

(35) The term “body armor” means any product

sold or offered for sale, in interstate or foreign com-

merce, as personal protective body covering intended to

protect against gunfire, regardless of whether the

product is to be worn alone or is sold as a complement

to another product or garment.

(b) For the purposes of this chapter, a member of

the Armed Forces on active duty is a resident of the

State in which his permanent duty station is located.

15a

APPENDIX B

18 U.S.C. § 922. Unlawful acts

(a) It shall be unlawful—

(1) for any person—

(A) except a licensed importer, licensed manu-

facturer, or licensed dealer, to engage in the

business of importing, manufacturing, or dealing in

firearms, or in the course of such business to ship,

transport, or receive any firearm in interstate or

foreign commerce; or

(B) except a licensed importer or licensed

manufacturer, to engage in the business of import-

ing or manufacturing ammunition, or in the course

of such business, to ship, transport, or receive any

ammunition in interstate or foreign commerce;

(2) for any importer, manufacturer, dealer, or

collector licensed under the provisions of this chapter

to ship or transport in interstate or foreign

commerce any firearm to any person other than a

licensed importer, licensed manufacturer, licensed

dealer, or licensed collector, except that—

(A) tis paragraph and subsection (b)(3) shall

not be held to preclude a licensed importer,

licensed manufacturer, licensed dealer, or licensed

collector from returning a firearm or replacement

firearm of the same kind and type to a person from

whom it was received; and this paragraph shall not

be held to preclude an individual from mailing a

firearm owned in compliance with Federal, State,

l6a

and local law to a licensed importer, licensed

manufacturer, licensed dealer, or licensed collector;

(B) this paragraph shall not be held to

preclude a licensed importer, licensed manu-

facturer, or licensed dealer from depositing a

firearm for conveyance in the mails to any officer,

employee, agent, or watchman who, pursuant to the

provisions of section 1715 of this title, is eligible to

receive through the mails pistols, revolvers, and

other firearms capable of being concealed on the

person, for use in connection with his official duty;

and

construed as applying in any manner in the District

of Columbia, the Commonwealth of Puerto Rico, or

any possession of the United States differently

than it would apply if the District of Columbia, the

Commonwealth of Puerto Rico, or the possession

were in fact a State of the United States;

(3) for any person, other than a licensed

importer, licensed manufacturer, licensed dealer, or

licensed collector to transport into or receive in the

State where he resides (or if the person is a

corporation or other business entity, the State where

it maintains a place of business) any firearm

purchased or otherwise obtained by such person

outside that State, except that this paragraph (A)

shall not preclude any person who lawfully acquires a

firearm by bequest or intestate succession in a State

other than his State of residence from transporting

the firearm into or receiving it in that State, if it is

lawful for such person to purchase or possess such

firearm in that State, (B) shall not apply to the

transportation or receipt of a firearm obtained in

17a

conformity with subsection (b)(3) of this section, and

firearm acquired in any State prior to the effective

date of this chapter;

(4) for any person, other than a licensed im-

porter, licensed manufacturer, licensed dealer, or

licensed collector, to transport in interstate or

foreign commerce any destructive device, machine-

gun (as defined in section 5845 of the Internal

Revenue Code of 1986), short-barreled shotgun, or

short-barreled rifle, except as specifically authorized

by the Attorney General consistent with public

safety and necessity;

(5) for any person (other than a licensed

importer, licensed manufacturer, licensed dealer, or

licensed collector) to transfer, sell, trade, give, trans-

port, or deliver any firearm to any person (other than

a licensed importer, licensed manufacturer, licensed

dealer, or licensed collector) who the transferor

knows or has reasonable cause to believe does not

reside in (or if the person is a corporation or other

business entity, does not maintain a place of business

in) the State in which the transferor resides; except

that this paragraph shall not apply to (A) the

transfer, transportation, or delivery of a firearm

made to carry out a bequest of a firearm to, or an

acquisition by intestate succession of a firearm by, a

person who is permitted to acquire or possess a

firearm under the laws of the State of his residence,

and (B) the loan or rental of a firearm to any person

for temporary use for lawful sporting purposes;

(6) for any person in connection with the

acquisition or attempted acquisition of any firearm or

ammunition from a licensed importer, licensed manu-

18a

facturer, licensed dealer, or licensed collector, know-

ingly to make any false or fictitious oral or written

statement or to furnish or exhibit any false, fictitious,

or misrepresented identification, intended or likely to

deceive such importer, manufacturer, dealer, or

collector with respect to any fact material to the

lawfulness of the sale or other disposition of such

firearm or ammunition under the provisions of this

chapter;

(7) for any person to manufacture or import

armor piercing ammunition, except that this para-

graph shall not apply to—

(A) the manufacture or importation of such

ammunition for the use of the United States or any

department or agency thereof or any State or any

thereof;

(B) the manufacture of such ammunition for the

purpose of exportation; and

purposes of testing or experimentation authorized

by the Attorney General;

(8) for any manufacturer or importer to sell or

deliver armor piercing ammunition, except that this

paragraph shall not apply to—

(A) the sale or delivery by a manufacturer or

importer of such ammunition for use of the United

States or any department or agency thereof or any

State or any department, agency, or political

subdivision thereof;

19a

(B) the sale or delivery by a manufacturer or

importer of such ammunition for the purpose of

exportation;

importer of such ammunition for the purposes of

testing or experimenting authorized by the

Attorney General; and

(9) for any person, other than a licensed

importer, licensed manufacturer, licensed dealer, or

licensed collector, who does not reside in any State to

receive any firearms unless such receipt is for lawful

sporting purposes.

(b) It shall be unlawful for any licensed importer,

licensed manufacturer, licensed dealer, or licensed

coll to sell liver

department, agency, or political subdivision — 9. er Gaver

(1) any firearm or ammunition to any individual

who the licensee knows or has reasonable cause to

believe is less than eighteen years of age, and, if the

firearm, or ammunition is other than a shotgun or

rifle, or ammunition for a shotgun or rifle, to any

individual who the licensee knows or has reasonable

cause to believe is less than twenty-one years of age;

(2) any firearm to any person in any State where

the purchase or possession by such person of such

firearm would be in violation of any State law or any

published ordinance applicable at the place of sale,

delivery or other dispesition, unless the licensee

knows or has reasonable cause to believe that the

purchase or possession would not be in violation of

such State law or such published ordinance;

(3) any firearm to any person who the licensee

knows or has reasonable cause to believe does not

reside in (or if the person is a corporation or other

20a

business entity, does not maintain a place of business

in) the State in which the licensee’s place of business

is located, except that this paragraph (A) shall not

apply to the sale or delivery of any rifle or shotgun to

a resident of a State other than a State in which the

licensee’s place of business is located if the transferee

meets in person with the transferor to accomplish

the transfer, and the sale, delivery, and receipt fully

comply with the legal conditions of sale in both such

States (and any licensed manufacturer, importer or

dealer shall be presumed, for purposes of this

subparagraph, in the absence of evidence to the

contrary, to have had actual knowledge of the State

laws and published ordinances of both States), and

(B) shall not apply to the loan or rental of a firearm

to any person for temporary use for lawful sporting

purposes,

(4) to any person any destructive device, machine-

gun (as defined in section 5845 of the Internal

Revenue Code of 1986), short-barreled shotgun, or

short-barreled rifle, except as specifically authorized

by the Attorney General consistent with public

safety and necessity; and

(5) any firearm or armor-piercing ammunition to

any person unless the licensee notes in his records,

required to be kept pursuant to section 923 of this

chapter, the name, age, and place of residence of such

person if the person is an individual, or the identity

and principal and local places of business of such

person if the person is a corporation or other

business entity.

21a

collectors. Paragraph (4) of this subsection shall not

apply to a sale or delivery to any research organization

designated by the Attorney General.

(e) In any case not otherwise prohibited by this

chapter, a licensed importer, licensed manufacturer, or

licensed dealer may sell a firearm to a person who does

not appear in person at the licensee's business premises

(other than another licensed importer, manufacturer, or

dealer) only if— ;

(1) the transferee submits to the transferor a

sworn statement in the following form:

“Subject to penalties provided by law, I

swear that, in the case of any firearm other than

a shotgun or a rifle, I am twenty-one years or

more of age, or that, in the case of a shotgun or a

rifle, I am eighteen years or more of age; that I

am not prohibited by the provisions of chapter 44

of title 18, United States Code, from receiving a

firearm in interstate or foreign commerce; and

that my receipt of this firearm will not be in

violation of any statute of the State and

published ordinance applicable to the locality in

which I reside. Further, the true title, name,

and address of the principal law enforcement

officer of the locality to which the firearm will be

delivered are . Signature ........ Date . 1

and containing blank spaces for the attachment of a

true copy of any permit or other information re-

quired pursuant to such statute or published

ordinance;

Paragraphs (1), (2), (3), and (4) of this subsection shall (2) the transferor has, prior to the shipment

not apply to transactions between licensed importers, or delivery of the firearm, forwarded by registered

licensed manufacturers, licensed dealers, and licensed or certified mail (return receipt requested) a copy of

22a

the sworn statement, together with a description of

the firearm, in a form prescribed by the Attorney

General, to the chief law enforcement officer of the

transferee’s place of residence, and has received a

return receipt evidencing delivery of the statement

or has had the statement returned due to the refusal

of the named addressee to accept such letter in

accordance with United States Post Office Depart-

ment regulations; and

(3) the transferor has delayed shipment or

delivery for a period of at least seven days following

receipt of the notification of the acceptance or refusal

of delivery of the statement.

A copy of the sworn statement and a copy of the

notification to the local law enforcement officer, to-

gether with evidence of receipt or rejection of that

notification shall be retained by the licensee as a part of

the records required to be kept under section 923(g).

(d) It shall be unlawful for any person to sell or

otherwise dispose of any firearm or ammunition to any

person knowing or having reasonable cause to believe

that such person—

(1) is under indictment for, or has been

convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year;

(2) isa fugitive from justice;

(3) is an unlawful user of or addicted to any

controlled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802));

(4) has been adjudicated as a mental defective

or has been committed to any mental institution;

(5) who, being an alien—

23a

(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

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 dishonorable conditions;

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

States, has renounced his citizenship;

(8) is subject to a court order that 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, except that this paragraph shall only apply to a

court order that—

(A) was issued after a hearing of which such

person received actual notice, and at which such

person had the opportunity to participate; and

(BM) 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

2 So in original. The word “who” probably should not appear.

24a

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

meanor crime of domestic violence.

This subsection shall not apply with respect to the sale

or disposition of a firearm or ammunition to a licensed

importer, licensed manufacturer, licensed dealer, or

licensed collector who pursuant to subsection (b) of

section 925 of this chapter is not precluded from dealing

in firearms or ammunition, or to a person who has been

granted relief from disabilities pursuant to subsection

(e) It shall be unlawful for any person knowingly to

deliver or cause to be delivered to any common or

contract carrier for transportation or shipment in

interstate or foreign commerce, to persons other than

licensed importers, licensed manufacturers, licensed

dealers, or licensed collectors, any package or other

container in which there is any firearm or ammunition

without written notice to the carrier that such firearm

or ammunition is being transported or shipped; except

that any passenger who owns or legally possesses a

firearm or ammunition being transported aboard any

common or contract carrier for movement with the

passenger in interstate or foreign commerce may

deliver said firearm or ammunition into the custody of

the pilot, captain, conductor or operator of such

common or contract carrier for the duration of the trip

without violating any of the provisions of this chapter.

No common or contract carrier shall require or cause

any label, tag, or other written notice to be placed on

the outside of any package, luggage, or other container

that such package, luggage, or other container contains

a firearm.

(f(1) It shall be unlawful for any common or

contract carrier to transport or deliver in interstate or

25a

foreign commerce any firearm or ammunition with

knowledge or reasonable cause to believe that the

shipment, transportation, or receipt thereof would be in

violation of the provisions of this chapter.

(2) It shall be unlawful for any common or contract

carrier to deliver in interstate or foreign commerce any

firearm without obtaining written acknowledgement of

receipt from the recipient of the package or other

container in which there is a firearm.

(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

controlled substance (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

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 dishonorable conditions;

26a

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

States, has renounced his citizenship;

(8) whois subject toa 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

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.

(h) It shall be unlawful for any individual, who to

that individual’s knowledge and while being employed

for any person described in any paragraph of

subsection (g) of this section, in the course of such

employment—

27a

(1) to receive, possess, or transport any firearm

or ammunition in or affecting interstate or foreign

commerce; or

(2) to receive any firearm or ammunition which

has been shipped or transported in interstate or

foreign commerce.

(i) It shall be unlawful for any person to transport

or ship in interstate or foreign commerce, any stolen

firearm or stolen ammunition, knowing or having

reasonable cause to believe that the firearm or am-

munition was stolen.

) It shall be unlawful for any person to receive,

possess, conceal, store, barter, sell, or dispose of any

stolen firearm or stolen ammunition, or pledge or

accept as security for a loan any stolen firearm or

stolen ammunition, which is moving as, which is a part

of, which constitutes, or which has been shipped or

transported in, interstate or foreign cor-merce, either

before or after it was stolen, knowing or having

reasonable cause to believe that the firearm or

ammunition was stolen.

(k) It shall be unlawful for any person knowingly

to transport, ship, or receive, in interstate or foreign

commerce, any firearm which has had the importer’s

or manufacturer’s serial number removed, obliterated,

or altered or to possess or receive any firearm which

has had the importer’s or manufacturer’s serial

number removed, obliterated, or altered and has, at

any time, been shipped or transported in interstate or

foreign commerce.

() Except as provided in section 925(d) of this

chapter, it shall be unlawful for any person knowingly

to import or bring into the United States or any

28a

possession thereof any firearm or ammunition; and it

shall be unlawful for any person knowingly to receive

any firearm or ammunition which has been imported or

brought into the United States or any possession

thereof in violation of the provisions of this chapter.

(m) It shall be unlawful for any licensed importer,

licensed manufacturer, licensed dealer, or licensed

collector knowingly to make any false entry in, to fail

to make appropriate entry in, or to fail to properly

maintain, any record which he is required to keep

pursuant to section 923 of this chapter or regulations

promulgated thereunder.

(n) It shall be unlawful for any person who is

under indictment for a crime punishable by imprison-

ment for a term exceeding one year to ship or trans-

port in interstate or foreign commerce any firearm or

ammunition or receive any firearm or ammunition

which has been shipped or transported in interstate or

foreign commerce.

(o“) Except as provided in paragraph (2), it shall

be unlawful for any person to transfer or possess a

machinegun.

(2) This subsection does not apply with respect

to—

(A) atransfer to or by, or possession by or under

the authority of, the United States or any depart-

ment or agency thereof or a State, or a department,

agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a

machinegun that was lawfully possessed before the

date this subsection takes effect.

29a

(p1) It shall be unlawful for any person to manu-

facture, import, sell, ship, deliver, possess, transfer, or

receive any firearm—

(A) that, after removal of grips, stocks, and

magazines, is not as detectable as the Security

Exemplar, by walk-through metal detectors cali-

brated and operated to detect the Security Ex-

emplar; or

(B) any major component of which, when sub-

jected to inspection by the types of x-ray machines

commonly used at airports, does not generate an

image that accurately depicts the shape of the

component. Barium sulfate or other compounds may

be used in the fabrication of the component.

(2) For purposes of this subsection—

(A) the term “firearm” does not include the frame

or receiver of any such weapon;

(B) the term “major component” means, with

respect to a firearm, the barrel, the slide or cylinder,

or the frame or receiver of the firearm; and

object, to be fabricated at the direction of the

Attorney General, that is—

(i) constructed of, during the 12-month

period beginning on the date of the enactment of

this subsection, 3.7 ounces of material type 17-4

PH stainless steel in a shape resembling a

handgun; and

(ii) suitable for testing and calibrating metal

detectors:

30a

Provided, however, That at the close of such 12-

month period, and at appropriate times thereafter the

Attorney General shall promulgate regulations to

permit the manufacture, importation, sale, shipment,

delivery, possession, transfer, or receipt of firearms

previously prohibited under this subparagraph that are

as detectable as a “Security Exemplar” which contains

3.7 ounces of material type 17-4 PH stainless steel, in a

shape resembling a handgun, or such lesser amount as

is detectable in view of advances in state-of-the-art

developments in weapons detection technology.

(3) Under such rules and regulations as the Attorney

General shall prescribe, this subsection shall not apply

to the manufacture, possession, transfer, receipt, ship-

ment, or delivery of a firearm by a licensed manufac-

turer or any person acting pursuant to a contract with a

licensed manufacturer, for the purpose of examining

and testing such firearm to determine whether

paragraph (1) applies to such firearm. The Attorney

General shall ensure that rules and regulations adopted

pursuant to this paragraph do not impair the manu-

facture of prototype firearms or the development of

new technology.

(4) The Attorney General shall permit the conditional

importation of a firearm by a licensed importer or

licensed manufacturer, for examination and testing to

determine whether or not the unconditional importa-

tion of such firearm would violate this subsection.

(5) This subsection shall not apply to any firearm

which—

(A) has been certified by the Secretary of

Defense or the Director of Central Intelligence, after

consultation with the Attorney General and the

3la

Administrator of the Federal Aviation Administra-

tion, as necessary for military or intelligence applica-

tions; and

(B) is manufactured for and sold exclusively to

military or intelligence agencies of the United States.

(6) This subsection shall not apply with respect to

any firearm manufactured in, imported into, or

possessed in the United States before the date of the

enactment of the Undetectable Firearms Act of 1988.

(q-) The Congress finds and declares that

(A) crime, particularly crime involving drugs and

guns, is a pervasive, nationwide problem;

(B) crime at the local level is exacerbated by the

interstate movement of drugs, guns, and criminal

gangs,

interstate commerce and have been found in in-

creasing numbers in and around schools, as docu-

mented in numerous hearings in both the Committee

on the Judiciary the House of Representatives and

the Committee on the Judiciary of the Senate;

(D) in fact, even before the sale of a firearm, the

gun, its component parts, ammunition, and the raw

materials from which they are made have con-

siderably moved in interstate commerce;

(E) while criminals freely move from State to

State, ordinary citizens and foreign visitors may fear

to travel to or through certain parts of the country

due to concern about violent crime and gun violence,

So in original. Probably should be “of the”.

32a

and parents may decline to send their children to

school for the same reason;

(F) the occurrence of violent crime in school

zones has resulted in a decline in the quality of

education in our country;

(G) this decline in the quality of education has an

adverse impact on interstate commerce and the

foreign commerce of the United States;

(H) States, localities, and school systems find it

almost impossible to handle gun-related crime by

themselves—even States, localities, and school

systems that have made strong efforts to prevent,

detect, and punish gun-related crime find their efforts

unavailing due in part to the failure or inability of

other States or localities to take strong measures; and

(I) the Congress has the power, under the

interstate commerce clause and other provisions of

the Constitution, to enact measures to ensure the

integrity and safety of the Nation’s schools by

enactment of this subsection.

(2(A) It shall be unlawful for any individual

knowingly to possess a firearm that has moved in or

that otherwise affects interstate or foreign commerce

at a place that the individual knows, or has reasonable

cause to believe, is a school zone.

(B) Subparagraph (A) does not apply to the

possession of a firearm—

(i) on private property not part of school

grounds;

(ii) if the individual possessing the firearm is

licensed to do so by the State in which the school

zone is located or a political subdivision of the State,

33a

and the law of the State or political subdivision

requires that, before an individual obtains such a

license, the law enforcement authorities of the State

or political subdivision verify that the individual is

qualified under law to receive the license;

(iii) that is

(I) not loaded; and

(II) in a locked container, or a locked firearms

rack that is on a motor vehicle;

(iv) by an individual for use in a program

approved by a school in the school zone;

(v) by an individual in accordance with a

contract entered into between a school in the school

zone and the individual or an employer of the

individual;

(vi) by a law enforcement officer acting in his

or her official capacity; or

(vii) that is unloaded and is possessed by an

individual while traversing school premises for the

purpose of gaining access to public or private lands

open to hunting, if the entry on school premises is

authorized by school authorities.

(3A) Except as provided in subparagraph (B), it

shall be unlawful for any person, knowingly or with

reckless disregard for the safety of another, to dis-

charge or attempt to discharge a firearm that has

moved in or that otherwise affects interstate or foreign

commerce at a place that the person knows is a school

zone.

(B) Subparagraph (A) does not apply to the

discharge of a firearm—

34a

(i) on private property not part of school

grounds;

(ii) as part of a program approved by a school

in the school zone, by an individual who is

participating in the program;

(iii) by an individual in accordance with a

contract entered into between a school in a school

zone and the individual or an employer of the

individual; or

(iv) by a law enforcement officer acting in his

or her official capacity.

(4) Nothing in this subsection shall be construed as

preempting or preventing a State or local government

from enacting a statute establishing gun free school

zones as provided in this subsection.

(r) It shall be unlawful for any person to assemble

from imported parts any semiautomatic rifle or any

shotgun which is identical to any rifle or shotgun

prohibited from importation under section 925(d)(3) of

this chapter as not being particularly suitable for or

readily adaptable to sporting purposes except that this

subsection shall not apply to—

(1) the assembly of any such rifle or shotgun

for sale or distribution by a licensed manufacturer to

the United States or any department or agency

thereof or to any State or any department, agency, or

political subdivision thereof; or

(2) the assembly of any such rifle or shotgun

for the purposes of testing or experimentation

authorized by the Attorney General.

(STI) Beginning on the date that is 90 days

after the date of enactment of this subsection and

35a

ending on the day before the date that is 60 months

after such date of enactment, it shall be unlawful for

any licensed importer, licensed manufacturer, or

licensed dealer to sell, deliver, or transfer a handgun

(other than the return of a handgun to the person from

whom it was received) to an individual who is not

licensed under section 923, unless— |

(A) after the most recent proposal of such

transfer by the transferee—

(i) the transferor has—

(I) received from the transferee a state-

ment of the transferee containing the infor-

mation described in paragraph (3);

(II) verified the identity of the transferee

by examining the identification document pre-

sented;

(III) within 1 day after the transferee

furnishes the statement, provided notice of the

contents of the statement to the chief law

enforcement officer of the place of residence of

the transferee; and

(IV) within 1 day after the transferee

furnishes the statement, transmitted a copy of

the statement to the chief law enforcement

officer of the place of residence of the trans-

feree; and

(iT) 5 business days (meaning days on

which State offices are open) have elapsed from the

date the transferor furnished notice of the contents

of the statement to the chief law enforcement officer,

during which period the transferor has not received

information from the chief law enforcement officer

36a

that receipt or possession of the handgun by the

transferee would be in violation of Federal, State, or

local law; or

(II) the transferor has received notice

from the chief law enforcement officer that the

officer has no information indicating that receipt or

possession of the handgun by the transferee would

violate Federal, State, or local law;

(B) the transferee has presented to the transferor

a written statement, issued by the chief law

enforcement officer of the place of residence of the

transferee during the 10-day period ending on the date

of the most recent proposal of such transfer by the

transferee, stating that the transferee requires access

to a handgun because of a threat to the life of the

transferee or of any member of the household of the

transferee;

(Ci) the transferee has presented to the trans-

feror a permit that—

(I) allows the transferee to possess or

acquire a handgun; and

(II) was issued not more than 5 years

earlier by the State in which the transfer is to take

place; and

(ii) the law of the State provides that such a

permit is to be issued only after an authorized govern-

ment official has verified that the information available

to such official does not indicate that possession of a

handgun by the transferee would be in violation of the

law;

(D) the law of the State requires that, before any

licensed importer, licensed manufacturer, or licensed

37a

dealer completes the transfer of a handgun to an

individual who is not licensed under section 923, an

authorized government official verify that the infor-

mation available to such official does not indicate that

possession of a handgun by the transferee would be in

violation of law;

(E) the Attorney General has approved the

transfer under section 5812 of the Internal Revenue

Code of 1986; or

(F) on application of the transferor, the Attorney

General has certified that compliance with subpara-

graph (A)(i)(II]) is impracticable because

(i) the ratio of the number of law enforce-

ment officers of the State in which the transfer is to

occur to the number of square miles of land area of the

State does not exceed 0.0025;

(ii) the business premises of the transferor at

which the transfer is to occur are extremely remote in

relation to the chief law enforcement officer; and

(iii) there is an absence of telecommunications

facilities in the geographical area in which the

business premises are located.

(2) A chief law enforcement officer to whom a

transferor has provided notice pursuant to paragraph

(Il shall make a reasonable effort to ascertain

within 5 business days whether receipt or possession

would be in violation of the law, including research in

whatever State and local recordkeeping systems are

available and in a national system designated by the

Attorney General.

(3) The statement referred to in paragraph

(DA) shall contain only

38a

(A) the name, address, and date of birth

appearing on a valid identification document (as

defined in section 1028(d)(1)) of the transferee con-

taining a photograph of the transferee and a des-

cription of the identification used;

(B) a statement that the transferee—

(i) is not under indictment for, and has not

been convicted in any court of, a crime punishable

by imprisonment for a term exceeding 1 year, and

has not been convicted in any court of a

misdemeanor crime of domestic violence;

(ii) is not a fugitive from justice;

(iii) is not an unlawful user of or addicted to

any controlled substance (as defined in section 102

of the Controlled Substances Act);

(iv) has not been adjudicated as a mental

defective or been committed to a mental insti-

tution:

(v) is not an alien Who

(I) is illegally or unlawfully in the

United States; or

(II) subject to subsection (y)(2), 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

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

(vi) has not been discharged from the Armed

Forces under dishonorable conditions; and

(vii) is not a person who, having been a citizen

of the United States, has renounced such citizen-

ship;

39a

(D) notice that the transferee intends to

obtain a handgun from the transferor.

(4) Any transferor of a handgun who, after such

transfer, receives a report from a chief law enforcement

officer containing information that receipt or possession

of the handgun by the transferee violates Federal,

State, or local law shall, within 1 business day after

receipt of such request, communicate any information

related to the transfer that the transferor has about the

transfer and the transferee to—

(A) the chief law enforcement officer of the

place of business of the transferor; and

(B) the chief law enforcement officer of the

place of residence of the transferee.

(5) Any transferor who receives information, not

otherwise available to the public, in a report under this

subsection shall not disclose such information except. to

the transferee, to law enforcement authorities, or

pursuant to the direction of a court of law.

(6(A) Any transferor who sells, delivers, or

otherwise transfers a handgun to a transferee shall

retain the copy of the statement of the transferee with

respect to the nandgun transaction, and shall retain

evidence that the transferor has complied with sub-

clauses (III)) and (IV) of paragraph (1)(A)(i) with re-

spect to tire statement.

(B) Unless the chief law enforcement officer to

whom a statement is transmitted under paragraph

(1(A)G)1V) determines that a transaction would vio-

late Federal, State, or local law—

40a

(i) the officer shall, within 20 business days

after the date the transferee made the statement on

the basis of which the notice was provided, destroy

the statement, any record containing information

derived from the statement, and any record created

as a result of the notice required by paragraph

(Id,

(ii) the information contained in the statement

shall not be conveyed to any person except a person

who has a need to know in order to carry out this

subsection; and

(iii) the information contained in the statement

shall not be used for any purpose other than to carry

out this subsection.

that an individual is ineligible to receive a handgun and

the individual requests the officer to provide t' reason

for such determination, the officer shall p: ovide such

reasons to the individual in writing within 20 business

days after receipt of the request.

(7) A chief law enforcement officer or other person

responsible for providing criminal history background

information pursuant to this subsection shall not be

liable in an action at law for damages

(A) for failure to prevent the sale or transfer of a

handgun to a person whose receipt or possession of

the handgun is unlawful under this section; or

(B) for preventing such a sale or transfer to a

person who may lawfully receive or possess a

handgun.

(8) For purposes of this subsection, the term “chief

law enforcement officer” means the chief of police, the

4la

sheriff, or an equivalent officer or the designee of any

such individual.

(9) The Attorney General shall take necessary

actions to ensure that the provisions of this subsection

are published and disseminated to licensed dealers, law

enforcement officials, and the public.

(t)(1) Beginning on the date that is 30 days after the

Attorney General notifies licensees under section 103(d)

of the Brady Handgun Violence Prevention Act that

the national instant criminal background check system

is established, a licensed importer, licensed

manufacturer, or licensed dealer shall not transfer a

firearm to any other person who is not licensed under

this chapter, unless—

(A) before the completion of the transfer, the

licensee contacts the national instant criminal back-

ground check system established under section 103 of

that Act;

(B)) the system provides the licensee with a

unique identification number; or

(ii) 3 business days (meaning a day on which

State offices are open) have elapsed since the

licensee contacted the system, and the system has

not notified the licensee that the receipt of a fire-

arm by such other person would violate subsection

(g) or (n) of this section; and

transferee by examining a valid identification docu-

ment (as defined in section 1028(d) of this title) of the

transferee containing a photograph of the transferee.

(2) If receipt of a firearm would not violate

subsection (g) or (n) or State law, the system shall—

42a

(A) assign a unique identification number to the

transfer;

(B) provide the licensee with the number; and

to the call (other than the identifying number and the

date the number was assigned) and all records of the

system relating to the person or the transfer.

(3) Paragraph (1) shall not apply to a firearm transfer

between a licensee and another person if—

(AXi) such other person has presented to the

licensee a permit that—

(J) allows such other person to possess or

acquire a firearm; and

(II) was issued not more than 5 years earlier

by the State in which the transfer is to take place;

and

(ii) the law of the State provides that such a

permit is to be issued only after an authorized govern-

ment official has verified that the information available

to such official does not indicate that possession of a |

firearm by such other person would be in violation of

law;

(B) the Attorney General has approved the

transfer under section 5812 of the Internal Revenue

Code of 1986; or

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