Barett v. United States Petition and Briefs

    The Supreme Court 
of the United States

Pearl Barrett
v e r su s

United States of America

Petition and Briefs

Law Reprints
Criminal Law Series vol. 7, no. 8 
1975/1976 Term



IN THE

upreme Court of tfje fltJniteb States;
OCTOBER TERM, 1974

NO. 74-5566

PEARL BARRETT,
Petitioner,

v.

THE UNITED STATES OF AMERICA,
Respondent.

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF OF PETITIONER

THOMAS A. SCHAFFER 
3409 Michigan Avenue 
Cincinnati, Ohio 45208

Attorney for Petitioner



(i)

TABLE OF CONTENTS
Page

OPINION BELOW ....................................................................... 1
JURISDICTION ............................................................................  2
QUESTION PRESENTED ..........................................    2
STATUTE INVOLVED ...............................................................  3
STATEMENT OF THE CASE .....................................................  3
SUMMARY OF ARGUMENT ....................    4

ARGUMENT .................      5
I. THE SCOPE OF TITLE 18 U.S.C. 922(h) 

DOES NOT EXTEND TO THOSE 
PERSONS WHO ARE MERELY IN 
POSSESSION OF A FIREARM, AND WHO 
HAVE NOT BEEN INVOLVED WITH, OR 
PARTICIPATED IN, THE INTERSTATE 
TRANSPORTATION OF THAT FIREARM.
A. Petitioner’s acquisition of the firearm

here in question was purely an intrastate 
transaction................ ..................................

B. Title 18 U.S.C. Section 922(h) does not
apply to purely intrastate sales or 
possessions; rather, it deals with inter­
state transportations and trafficking of 
firearms and dangerous weapons ..........

CONCLUSION ....................................................

TABLE OF AUTHORITIES

Cases:

M’Culloch v. Maryland, 4 Wheat. 316, 4 L.Ed 579
(1819) ............... ....................................................

Perez v. United States, 402 U.S. 146 (1971) ..........
Tot v. United States, 319 U.S. 463 (1943) ............



Page
United States v. Bass, 404 U.S. 336 (1971) ...............  2, 13, 14
United States v. Colicchio, 470 F.2d 977 (4th Cir.,

1972)   11

United States v. Craven, 478 F.2d 1329 (6th Cir.,
1973) .............................................................................. 12, 14

United States v. Day, 467 F.2d 562 (6th Cir., 1973)............. 8-9
United States v. Hornbeck, 489 F.2d 1325 (7th

Cir., 1973) .........................................................     8

United States v. Lehman, F.2d 68 (5th Cir., 1972) . .7-8, 10-11
United States v. Nelson, 458 F.2d 556 (5th Cir.,

1972)  .................................................................................... 10
United States v. Petrucci, 486 F.2d 329 (9th Cir.,

1973)   8

United States v. Ruffin, 490 F.2d 557 (8th Cir.,
1974) ..................................................................... 2 ,11-12,14

Other Authorities:

Senate Report #1097, 2 U.S. Code, Congressional
and Administrative News, pp. 2112-2248 (1968) . . . .  14-15



IN THE

Supreme Court of t(je ©niteb States
OCTOBER TERM, 1974

NO. 74-5566

PEARL BARRETT,
Petitioner,

v.

THE UNITED STATES OF AMERICA,
Respondent.

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF OF PETITIONER

OPINION BELOW

The opinion of the Sixth Circuit Court of Appeals 
reported at 504 F.2d 629 (1974), and is reproduced in 
the Appendix. A copy of the verdict and orders of the 
District Court for the Eastern District of Kentucky is 
also contained in the Appendix.

1



2
JURISDICTION

The judgment of the United States District Court for 
the Eastern District of Kentucky, Jackson Division, was 
entered against petitioner on May 24, 1973 convicting 
him of receiving and possessing a firearm transported in 
interstate commerce, having been convicted of a felony, 
in violation of Title 18, Section 922(h), United States 
Code. The United States Court of Appeals for the Sixth 
Circuit affirmed the conviction on October 18, 1974, 
stating that there was no ambiguity in Section 922(h), 
and that the United States did not have to prove that 
petitioner himself was directly involved in the interstate 
transportation of the firearm. The jurisdiction of this 
Court is invoked under 28 U.S.C. Section 1254 and 
Part V of the Rules of this Court; and more specifically 
because the Court of Appeals has rendered a decision 
which is in conflict with other Courts of Appeals on 
the same matter, namely the Eighth Circuit Court of 
Appeals’ decision in United States v. Ruffin , 490 F.2d 
557 (8th Cir., 1974); and in addition, the decision in 
this matter is in conflict with the Supreme Court’s 
finding in United States v. Bass, 404 U.S. 336 (1971).

QUESTION PRESENTED

Whether Title 18 U.S.C. Section 922(h) applies to 
petitioner who purchased a firearm in an intrastate 
transaction, and was not involved in any manner with 
the interstate transportation of said firearm.

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3

STATUTE INVOLVED

Title 18 U.S.C. Section 922(h)
It shall be unlawful for any person--------

(1) who is under indictment for, or 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 
marijuana or any depressant or stimulant drug (as 
defined in section 201 (v) of the Federal Food, 
Drug, and Cosmetic Act) or narcotic drug (as 
defined in section 4731(a) of the Internal Revenue 
Code of 1954); or
(4) who has been adjudicated as a mental 
defective or who has been committed to any 
mental institution;

to receive any firearm or ammunition which has been 
shipped or transported in interstate or foreign 
commerce.

STATEMENT OF THE CASE

On or about the first day of April, 1972, petitioner 
Pearl Barrett bought a Smith and Wesson .38 caliber 
pistol from Larry D. Bates, the owner and operator of 
the Western Auto Store in Bonneville, Kentucky. Some 
time after that purchase, Barrett was stopped by the 
Owsley County, Kentucky Sheriffs Department for 
driving while under the influence of an alcoholic 
beverage, and the firearm was discovered on the floor 
of his car and confiscated.

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4

Subsequent to the arrest for drunk driving, a warrant 
was issued for petitioner’s arrest for a violation of the 
Gun Control Act, and more specifically, Title 18 U.S.C. 
Section 922(h). Petitioner had been previously con­
victed of a felony in January, 1967, and Section 922(h) 
prohibits a convicted felon from possessing a firearm. 
Petitioner was then tried and convicted of this offense 
in the United States District Court for the Eastern 
District of Kentucky at Jackson on May 24, 1973. Prior 
to and during the trial, defense counsel moved to quash 
the indictment on the basis that petitioner had received, 
on June 20, 1969, by virtue of executive order of the 
Governor of Kentucky, a Restoration of All Civil Rights 
lost due to his felony conviction of January, 1967, but 
the trial court denied these motions.

This judgment was affirmed by the United States 
Court of Appeals for the Sixth Circuit, after oral 
argument, on October 18, 1974.

SUMMARY OF ARGUMENT

Petitioner’s act of purchasing a weapon in his home 
town was purely an intrastate transaction. Petitioner, 
himself, took no direct steps to have the weapon shipped 
to him, nor did he then travel to another state with 
said weapon.

The interpretation of 18 U.S.C. Section 922(h) by 
the courts has been that its principle purpose is to 
prevent certain classes of persons from buying or selling 
guns across state lines. It was enacted to regulate gun 
trafficking. As such, for an offense to be committed 
under Section 922(h), the offender must have had some

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5

connection with the actual transportation of the 
weapon in interstate commerce. The mere fact that the 
weapon itself had previously travelled across state lines 
is not sufficient to support an offense under Section 
922(h), without the showing that the person charged 
had some direct connection with that transportation.

The legislative history of the statute is clearly in 
support of the position that some direct connection 
between the possessor of the weapon and interstate 
commerce is required. The legislators expressed great 
concern over gun trafficking, and thus passed this Act 
to regulate the same. The Act was never intended to 
apply to one who purchased a firearm in an intrastate 
sale.

ARGUMENT

I.

THE SCOPE OF TITLE 18 U.S.C. 922(h) 
DOES NOT EXTEND TO THOSE PERSONS 
WHO ARE MERELY IN POSSESSION OF A 
FIREARM, AND WHO HAVE NOT BEEN 
INVOLVED WITH, OR PARTICIPATED IN, 
THE INTERSTATE TRANSPORTATION OF 
THAT FIREARM.

A. Petitioner’s acquisition of the firearm here in 
question was purely an intrastate transaction.

Petitioner acquired the Smith and Wesson .38 caliber 
pistol, which is the subject matter of this case, in his 
home town of Booneville, Kentucky. He bought it from 
the owner and operator of the Western Auto Store, Mr.

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6

Larry D. Bates, himself a resident of Booneviile, No 
other parties were involved; the gun was sold over the 
counter to Mr. Barrett, and he left the store with it in 
Iris possession. (Unlike many other cases involving 
Section 922, in this transaction the petitioner was never 
asked to read and sign Federal Form #4473, (R, 45, 
46, 47, 67), and so there is not question here of 
swearing to false information).

The facts, as presented, illustrate a sale of a firearm 
by a Kentucky merchant, to a Kentucky resident, 
within the borders of the Commonwealth of Kentucky. 
On its face, this transaction has no apparent connection 
with interstate commerce. The petitioner is not a gun 
dealer, nor is there evidence that he was planning to 
leave the state with it, or that he planned to commit a 
felony while using the weapon. On its face, this sale 
evidences nothing which should bring it within the 
purview of Section 922(h).

It is only when evidence is presented that the seller 
had purchased the gun from a distributing house in 
North Carolina, (R.40), and that the gun had been 
originally manufactured in Massachusetts, (R. 52), that 
interstate commerce enters the transaction. But this 
interstate commerce nexus can only remotely be 
connected to the petitioner. He was never personally 
involved in the interstate transportation of the weapon; 
he did not request that it be shipped from out-of-state; 
nor did he transport it across any state lines. The 
original origin of the gun had no significance to him. 
Evidently he felt he would have no trouble purchasing a 
gun in his home state. This differs greatly from 
instances where a resident of one state realizes the 
difficulties of purchasing a gun in his home state, and

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7

either drives to another state or orders the gun from a 
mail catalog. In those instances, the state of origin of 
the weapon is of primary importance, for the weapon 
will travel across state lines. The buyer is generally 
aware of the ease with which he can purchase a gun in 
an out-of-state transaction, and can readily avail himself 
of the opportunity. In addition, he is usually buying a 
gun from another state to avoid the legal restrictions in 
his home state.

None of these circumstances occurred in Booneville, 
Kentucky. Petitioner went to the local hardware store 
and bought a pistol. The sale was plainly an intrastate 
transaction, and, as such, was not prohibited by Title 
18 U.S.C. Section 922(h).

B. Title 18 U.S.C. Section 922(h) does not apply 
to purely intrastate sales or possessions; 
rather, it deals with interstate transportations 
and trafficking of firearms and dangerous 
weapons.

At the outset, it is admitted that Congress has the 
power to regulate interstate gun trafficking by virtue of 
the Commerce Clause of the United States Constitution. 
The question here deals basically with the scope of this 
legislated coverage, Section 922(h), a statute duly 
passed by Congress. A broad statement as to the extent 
of Title IV was made by the Fifth Circuit in United 
States v. Lehman, 464 F.2d 68, 70 (1972):

“The power of Congress over interstate 
commerce is not confined to the regulation of 
commerce among the states. It extends to those 
activities intrastate which so affect interstate

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8
commerce or the exercise of the power of 
Congress over it as to make regulation of them 
appropriate means to the attainment of a legiti­
mate end, the exercise of the granted power of 
Congress to regulate interstate commerce. See 
M ’Culloch v. Maryland, 4 Wheat. 316, 421 4
L.Ed. 579 (1819).”

Accepting that Congress may regulate interstate gun 
sales, the question then becomes twofold: (l)D id 
petitioner’s possession of this firearm “so affect 
interstate commerce;” and (2) Did Congress intend that 
possessions which had no immediate, direct connection 
with an interstate transportation be covered under this 
statute?

It is difficult to imagine how a single person who 
purchases a weapon in his home town could affect 
interstate commerce in any manner other than quite 
indirectly. Various courts have considered the effect of 
the violations under Title IV, but few of the decisions 
have dealt specifically with mere possessions. The 
Seventh Circuit in the case of United States v. 
Hornbeck, 489 F.2d 1325, 1326 (1973) talked of 
Congress’ power to “impose criminal sanctions for the 
purpose of regulating purely intrastate activities which 
substantially affect interstate commerce.” And the 
Ninth Circuit, in United States v. Petrucci 486 F.2d 
329 (1973) supported this position. But both cases 
were concerned with 922(a)(1) violations which 
proscribed dealing in firearms. Both courts justifiably 
found that the selling of firearms could and did affect 
interstate commerce.

An important decision from the Sixth Circuit, United 
States v. Day, 476 F.2d 562 (1973), explored in some

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9

depth the rationale of regulating the business of selling 
guns:

“In Perez v. United States, 402 U.S, 146 
(1971), the Supreme Court analyzed anew the 
scope of Congressional power to regulate purely 
intrastate activities under the Commerce Clause. As 
the Court stated: ‘The Commerce Clause reaches, 
in the main, three categories of problems. First the 
use of channels of interstate or foreign commerce 
which Congress deems are being misused . . . 
Second, protection of the instrumentalities of 
interstate commerce . . . Third, those activities 
affecting commerce.’ 402 U.S. at 150.” Id. at 566.

The Sixth Circuit had no trouble in finding an 
interrelation between selling guns, with which defendant 
Day was charged, and interstate crime and gun 
trafficking. The effect on interstate commerce was 
clear, and the possible danger to citizens even more 
clear if interstate gun sales were to go unregulated. The 
Commerce Clause unquestionably reached this type of 
activity.

In response to the first question posed above, it is 
difficult to foresee the effect on interstate commerce of 
one man’s possession of a firearm in his own state. At 
the trial, the prosecution presented evidence which 
showed that the gun had been manufactured in 
Massachusetts, (R. 52), and that this, in itself, brought 
the sale in Kentucky within the scope of the statute. If 
this logic is carried only one step further, an interstate 
nexus could be established with any finished product, 
one of the components of which had been produced in 
another state. It is almost impossible to find a product 
manufactured in America which does not have an 
interstate connection, be it with the raw materials,

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labor, shipping, etc. The government could always find 
that nexus if it so desired.

We contend, however, that this obscure “connection” 
with interstate commerce does not “affect” it so as to 
come within the reach of Title IV. The mere 
transferring of money would “affect” interstate 
commerce in that the money would eventually circulate 
into the economy and into other states, and if we are 
to accept that type of reasoning, an intrastate sale 
would clearly be covered also. But neither of these 
contentions can be accurate. The cases cited above, and 
many more not cited here, speak of an actual effect on 
commerce, not an incidental connection thereto. Selling 
guns, interstate shipping, mail order houses-these are 
activities which fly in the face of Title IV, and for 
which it is meant to regulate.

The scope of Title IV, and Section 922 in particular, 
has been discussed in many forums since its enactment. 
Most frequently the Courts have interpreted the statute, 
and almost without exception have held that it is the 
business of selling, shipping, or otherwise trafficking in 
weapons which is the focal point of regulation under 
Section 922.

The language of the Fifth Circuit in United States v. 
Nelson, 458 F.2d 556, 559 (1972) is crystal clear in 
defining the purpose of Section 922:

“If Congress is to effectively prevent the 
interstate use of guns for illegal purposes it must 
control their sources: manufacturers, dealers, and 
importers. That is what is sought to do in Section 
922.”
In a later case, United States v. Lehman, 464 F.2d 

68, 73 (5th Cir., 1972) the Fifth Circuit cited Nelson as

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11

its authority for the interpretation of Section 922, and 
went even further and stated:

“The principle purpose of H.R. 17735 [Section 
922], as amended, is to strengthen Federal 
controls over interstate and foreign commerce in 
firearms and to assist the states effectively to 
regulate firearms traffic within their borders.”
The Fourth Circuit concurred in the stated purpose 

of Title IV in United States v. Colicchio, 470 F.2d 977, 
979 (1972).

“ ‘The purpose of the Gun Control Act of 
1968 . . . was . . .  to strengthen Federal controls 
over interstate . . . commerce in firearms and to 
assist the States effectively to regulate firearms 
traffic within their borders.’ House Report No. 
1577 to H.R. 17735 (P.L. 90-618) U.S. Code 
Cong, and Admin. News, 1968, p. 4411. Con­
gressional purpose was, therefore, to strictly 
control the illegal transfer of firearms. The 
interstate sales are part of a pattern which affects 
the nationwide traffic in firearms.”
Although these cases have dealt with those in­

dividuals charged with selling or dealing firearms in 
interstate commerce, the language points out that the 
business of gun traffic is what the statute pertains to.

The circumstances of petitioner’s case do not involve 
any aspect of gun trafficking. Petitioner’s crime was 
simply that he was found in possession of a firearm, 
which was later shown to have been shipped to the 
seller from another state. United States v. Ruffin , 490 
F.2d 557 (8th Cir., 1974), although it varies somewhat 
in the facts, also deals with a possession offense under 
922(h). The weapon involved had been shipped 
originally from Connecticut to Texas, and had then

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12
been stolen in Illinois some seven weeks prior to the 
time it was found in the defendant’s possession. The 
Court was faced with the exact question as presented 
here: does Section 922(h) extend so far as to prohibit 
possessions which involve no direct connection with 
interstate transportation? The Court held unequivocally 
that it did not:

“Thus we conclude that it is not sufficient 
under 922(h) for the government to prove that the 
firearm had at some remote time previously 
traveled in interstate commerce . . . Title IV is 
primarily concerned with the transportation of 
firearms. Accordingly, for a receipt to be cogniz­
able under 922(h), the government must show that 
at the time the gun was received it was part of an 
interstate transportation.” Id. at 560.
Surprisingly, the Sixth Circuit, prior to its opinion in 

petitioner’s case, held exactly as the Eighth Circuit in 
Ruffin. In the decision handed down in United States v. 
Craven, 478 F.2d 1329, 1336 (1973), the Court stated:

“Therefore, we conclude that 18 U.S.C. Section 
922(h) speaks only of receipt of firearms or 
ammunition in interstate transportations and does 
not concern possessions at all.”
Although the Court ultimately upheld Craven’s 

conviction, it was because the evidence indicated that 
the defendant had been involved in a second and more 
recent transportation, and that this met the require­
ments of 922(h) as to the interstate transportation. But 
the language quoted above appeared to be clear that a 
possession alone was not sufficient to uphold a 
conviction. Yet the Court reversed itself in petitioner’s 
case and stated that once the firearm travelled out of

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13

its state of origin, the ultimate purchaser or possessor 
had best beware, for the reach of 922(h) would extend 
to him. There is little explanation for this departure 
from precedent, and much difficulty in understanding 
its rationale in light of this Court’s language in United 
States v. Bass, 404 U.S. 336, 342 (1971). Justice 
Marshall, in delivering the opinion for the majority, 
stated:

“Title IV apparently does not reach possessions 
or intrastate transactions at all, even those with an 
interstate commerce nexus, but is limited to the 
sending or receiving of firearms as part of an 
interstate transportation.”
This language of Bass was based in part on the prior 

history of the Gun Control Act of 1968, which was a 
modified version of 15 U.S.C. Section 902(e) and (f), 
which in turn had amended the first such statute, 52 
Stat. 1250, 1251 (1938). The original statute contained 
a presumption that mere possession of a firearm was 
sufficient to justify the finding that it was a product of 
interstate commerce. That presumption was struck 
down in Tot v. United States, 319 U.S. 463, 466 
(1943):

“The Act is confined to the receipt of firearms 
or ammunition as a part of interstate transporta­
tion and does not extend to the receipt, in an 
intrastate transaction, of such articles which, at 
some prior time, have been transported interstate.”
As early as 1943 the Court felt that more than 

merely possessing a gun which had been previously 
shipped interstate was required to support a Gun 
Control Act violation. Section 922(h) is part of Title IV 
of the Omnibus Crime Control and Safe Streets Act of

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14

1968, Public Law Number 90-351, and its legislative 
history supports the position taken by petitioner 
throughout his appeals, that being the same as set out 
in Ruffin, Bass, Tot, and Craven: the purpose of the 
Act was to control gun trafficking.

Senate Report #1097, 2 U.S. Code, Congressional 
and Administrative News, pp. 2112-2248 (1968), is a 
lengthy explanation and history of the Act, and 
provides the best source for the purpose and scope of 
the bill. The purpose of the Act was explained as 
follows:

“The existing Federal controls over interstate 
and foreign commerce in firearms are not 
sufficient to enable the States to effectively cope 
with the firearms traffic within their own borders 
through the exercise of their police power. Only 
through adequate Federal control over interstate 
and foreign commerce in firearms, and over all 
persons engaging in the business of importing, 
manufacturing, or dealing in firearms, can this 
problem be dealt with and effective State and local 
regulation of the firearms traffic be made possible.”
Id. at 2114.
The heart of the Act was to deal with businesses, not 

individuals per se. The legislators were most concerned 
with those persons who dealt in firearms, since 
regulation of the source is an easier method to control 
gun use than regulating the users themselves. The 
Committee reported five major problem areas with 
which the Act was to deal: (1) mail order houses; (2) 
any out-of-state, non-resident sources; (3) imported 
firearms; (4) the ease with which anyone could become 
licensed as a dealer in firearms; and (5) the ease with 
which anyone could acquire a destructive device. Id. at

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15

2164-2165. The scope of the coverage was to include: 
(a) interstate traffic in mail order firearms other than 
rifles and shotguns; (b) acquisition of firearms by 
juveniles and minors; (c) out-of-state purchase of 
concealable firearms; (d) importation of nonsporting 
and military surplus firearms; (e) highly destructive 
weapons; (0  licensing of importers, manufacturers, and 
dealers; (g) recordkeeping provisions; and (h) the 
transfer of the Federal Firearms Act from Title 15 to 
Title 18. Id. at 2166-68.

The report then analyzed each section within the 
Act, and for Section 922(h) made this comment:

“This subsection prohibits any person from 
receiving, etc., any stolen firearm or ammunition 
‘moving as,’ etc., in interstate or foreign 
commerce. This prohibition is a modified form of 
the restriction in 15 U.S.C. 902(h) of the present 
Federal Firearms Act but the restriction would go 
to ammunition for destructive devices rather than 
pistol and revolver ammunition.” Id. at 2205
It is obvious from these comments that the Act in 

general, and Section 922(h) specifically were neither 
one aimed at the possessor. A new subject matter, that 
being “stolen weapons” was introduced in the analysis 
of 922(h), but even it cannot apply to petitioner’s case. 
The individual views of the Senators on the committee 
lends more support to the position urged here by 
petitioner. Senator Fong stated that Title IV:

“ . . . prohibits the transportation or receipt in 
interstate commerce of a firearm . . . knowing a 
felony is to be committed with it.” Id. at 2243.
Senator Tydings, were he present at petitioner’s trial, 

could have exonerated Mr. Barrett of all criminal

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16

liability under Title IV. Speaking specifically to the 
issue before this court, Mr. Tydings said:

“Regarding handguns, Title IV provides only 
that handguns must be bought in the purchaser’s 
home state . . . Title IV provides the controls on 
interstate gun traffic which only the federal 
government can apply.” Id. at 2247-48

He went on to say that the Act was most concerned 
with criminals buying guns in other states where gun 
purchase laws were less strict.

Senator Tydings spoke to the heart of the issue 
before this Court, and his comments, along with the 
comments of the Committee in general, provide clear 
information on the purpose of Title IV. It was not 
designed to regulate individual possessions; it was 
enacted to control large-scale gun dealing, and those 
persons directly involved in the business of interstate 
gun sales. Section 922(h) deals with those persons who 
directly receive those firearms in an interstate trans­
action. It is concerned with the person purchasing a gun 
from a mail order catalog, or the individual who drives 
across a state line and himself transports the gun back 
to his home state. But nowhere in the legislative history 
of the Act, or even in the cases which interpreted it, is 
there to be found the language and/or the justification 
for extending the interstate commerce connection to 
one who purchases a firearm which had been previously 
transported through no efforts by the purchaser. This 
extension is not supported by these authorities, and 
petitioner’s conviction must be reversed because the 
statute clearly does not apply to him.

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CONCLUSION

The opinion of the Sixth Circuit Court of Appeals 
upholding petitioner’s conviction under Title 18 U.S.C. 
Section 922(h) must be reversed for the reason that the 
statute does not apply to petitioner, who only 
possessed a firearm, and did not involve himself in the 
interstate transportation of that weapon.

Respectfully submitted,

THOMAS A. SCHAFFER 
3409 Michigan Avenue 
Cincinnati, Ohio 45208 
(513) 871-6126

Attorney for Petitioner

17



No. 74-5566

Jtt tiff $upr?m? (Eaurt at tiff Unit?& States
October T e r m , 1974

P earl  B arrett , pe titio n e r

v .

U n ited  States of A merica

ON W RIT OF CERTIORARI TO THE UNITED S T A T E S  
COURT OF A P P E A L S  FOR THE S IX T H  CIRCUIT

BRIEF FOR THE UNITED STATES

Robert H. Boric,
Solicitor General,

J ohn C. Keeney,
Acting Assistant Attorney General,

Robert B. Reich ,
Assistant to the Solicitor General,

Sidney M. Glazer,
Marc P hilip  R ichman,

Attorneys,
Department of Justice,
Washington, D.C. 20530.

19



I N D E X

Opinion below____________________________
Jurisdiction______________________________
Question presented________________________
Statutes involved _________________________
Statement________________________________
Summary of argum ent____________________
Argument:

I. Section 922(h) of the Gun Control Act 
prohibits the intrastate purchase by a 
convicted felon of a firearm which pre­
viously had been transported to the 
dealer in interstate commerce _______

Page
1
1
2
2
3
4

7
A. The language of Section 922(h)

unambiguously covers the intra­
state purchase of a firearm previ­
ously shipped or transported inter­
state __________________________  7

B. The structure of the Gun Control
Act shows that Congress intended 
Section 922(h) to prohibit the per­
sons there designated from receiv­
ing any firearms that have been 
transported in interstate com­
merce _________________________  13

C. The legislative history of the Gun
Control Act confirms our interpre­
tation of Section 922(h) _______  18

II. This Court should not follow its state­
ments in Tot v. United States and

21



II

Argument—Continued Page

United States v. Bass that Section 2 (f)  
of the Federal Firearms Act of 1938 
and Section 922(h) of the Gun Control 
Act do not apply to the intrastate re­
ceipt of firearms and ammunition that 
previously have moved in interstate 
commerce -----    22

Conclusion _______________________________  28

Appendix ________________________________  la

CITATIONS
Cases:

American Fur Co. v. United States, 2
Pet. 348 ___________________________  12-13

Browder v. United States, 312 U.S. 335- 11
Girouard v. United States, 328 U.S. 61 26
Helvering v. Hallock, 309 U.S. 106 _____ 26
Huddleston v. United States, 415 U.S.

814 __________________________ 13,16,17, 20
Rewis v. United States, 401 U.S. 808___  12
Tot v. United States, 319 U.S. 463—4, 6, 7,18,

22, 24, 25, 26, 27
United States v. Bass, 404 U.S. 336___6,12,13,

23, 25, 27
United States v. Biswell, 406 U.S. 311 17
United States v. Raynor, 302 U.S. 540-.— 26
United States v. Sullivan, 332 U.S. 689_ 11
United States v. Wiltberger, 5 Wheat. 76- 11
Yates v. United States, 354 U.S. 298____ 11
Zuber v. Allen, 396 U.S. 1 6 8 ___   28

22



Ill

Statutes and regulations: Page
Federal Firearms Act of 1938, 52 Stat.

1250, as amended:
Section 2(e) _____________________ 15
Section 2 (f)  ___________ 4 ,7 ,18 ,19 , 22, 25

Federal Food, Drug and Cosmetic Act of 
1938, 52 Stat. 1040, as amended, 21 
U.S.C. 301 et seq

Section 201 (v), 21 U.S.C. (1964 ed.,
Supp. I) 321 ___________________ 8

Section 301 (k), 21 U.S.C. 331 ____ 11
Gun Control Act of 1968, 82 Stat. 1213,

18 U.S.C. 921 et seq.:
Section 922 __________
Section 922(a)(1 ) ___
Section 922(a)(2 ) ____
Section 922(a)(3 ) ___
Section 922(a) (6) ____
Section 922(b )(1) ____
Section 9 2 2 (b )(2 )____
Section 922(b) (5) ____
Section 922(c) _______
Section 922(d) _______
Section 922(f) _______
Section 922(g) _______
Section 9 2 2 (h )_______
Section 9 2 2 (h )(1 )____
Section 922(h) (4 )____
Section 922 (k) _______
Section 923(a) _______
Section 9 2 3 (d )(1 )(A ) . 
Section 9 2 3 (d )(1 )(B )  
Section 925(c) _______

___________  la
_________ 14,16, la
___________  14, la
_______ 9,14, 2a-3a
___________  17,4a
___________  13,4a
___________  17, 5a
___________  17, 6a
___________  17,7a
____5,13 ,15 ,16 , 9a
___________ 1 0 ,10a
__ 6, 1 3 ,1 5 ,1 6 ,10a
____________'passim
___________  9 ,11a
___________  9,11a
___________ 1 0 ,12a
___________  16
___________  13
___________  16
___________  12a

23



IV

Statutes and regulations—Continued Page

Internal Revenue Code of 1954, 26 U.S.C.
(1964 ed.) 4731(a) _______________  8

Omnibus Crime Control and Safe Streets 
Act of 1968, as amended, 18 U.S.C. 921
et seq. ____________________________  15,18

15 U.S.C. 7 7 e _______________________  10
18 U.S.C. 2 _________________________  15
18 U.S.C. 2 ( b )______________________  15
18 U.S.C. 659 _______________________  10
18 U.S.C. 841-848 ___________________  14
18 U.S.C. 1084 ______________________  10
18 U.S.C. 1201______________________  10
18 U.S.C. 1231_______________________ 10
18 U.S.C. 1951_______________________ 10
18 U.S.C. 1952 ______________________  10
18 U.S.C. 2313 ______________________  10
18 U.S.C. 2315 ______________________  10
18 U.S.C. 2421 ______________________  10
18 U.S.C. 4 2 0 8 (a ) (2 )________________  3
18 U.S.C. App. 1201_________________  13a
18 U.S.C. App. 1202(a) _______ 15,23,24,14a
18 U.S.C. App. 1203 _________________  14a
18 U.S.C. 4208(a)(2) ________________ 3
26 C.F.R. 178.124 ___________________  17

Miscellaneous:

114 Gong. Rec. 12303-12304 __________  26
114 Cong. Rec. 13219 (1968) __________  20
114 Cong. Rec. 21784 (1968) ..... _______  21
Hearings on S. Res. 74 before a Subcom­

mittee of the Senate Committee on 
Commerce, 73d Cong., 2d Sess. (1934).. 19

24



V

Miscellaneous-Continued Page
Hearings on S. 885, S. 2258, S. 3680, be­

fore a Subcommittee of the S. Commit­
tee on Commerce, 73d Cong., 2d Sess.
(1934) ------------------------------------------- 19-20

Hearings on S. 3 before a Subcommittee 
of the House Committee on Interstate 
and Foreign Commerce, 75th Cong.,
1st Sess. (1937) ____________________ 19

Hearings on H.R. 5037, H.R. 5038, H.R.
5384, H.R. 5385 and H.R. 5386, before 
Subcommittee No. 5 of the House Com­
mittee on the Judiciary, 90th Cong., 1st
Sess. (1967) _______________________  20,21

S. Rep. No. 1189, 75th Cong., 1st Sess.
(1937) ------------------------------------------- 19

S. Rep. No. 1097, 90th Cong., 2d Sess.
(1968) ------------------------------------------- 21,26

S. Rep. No. 1501, 90th Cong., 2d Sess.
(1968) ------------------------------------------- 20,26

The Challenge of Crime in a Free Society, 
President’s Commission on Law En­
forcement and the Administration of
Justice, published February 1967 ____ 20-21

Webster’s New International Dictionary
(2d ed. unabridged, 1936) _________   g_9

Zimring, Firearms and Federal Law:
The Gun Control Act of 1968, 4 J.
Legal Studies 133 (1975) ____  19

25



In %  J§«|?riOT (Umirt of tiff Itttfrfc §tat?H
Qctober Term, 1974

N o . 74-5566

Pearl Barrett, petitioner 
v .

United S tates of America

ON W RIT  OF CERTIORARI TO THE UNITED S T A T E S  
COURT OF A P P E A L S  FOR THE S IX T H  CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (App. 16-27) 
is reported at 504 E.2d 629.

JURISDICTION

The judgment of the court of appeals was entered 
on October 18, 1974. The petition for a writ of cer­
tiorari was filed on November 18, 1974, and was 
granted on February 18, 1975. The jurisdiction of 
this Court rests upon 28 U.S.C. 1254(1).

( 1 )

27



2

QUESTION PRESENTED

Whether 18 U.S.C. 922(h), which makes it unlaw­
ful for a convicted felon, among others, to receive a 
firearm “which has been shipped or transported” in 
interstate commerce, covers the intrastate purchase 
by a convicted felon of a firearm which previously 
had been transported to the dealer in interstate com­
merce.

STATUTES INVOLVED

18 U.S.C. 922(h) provides:

(h) It shall be unlawful for any person—
(1) who is under indictment for, or who 

has been convicted in any court of, a crime 
punishable by imprisonment for a term ex­
ceeding one year;

(2) who is a fugitive from justice;
(3) who is an unlawful user of or ad­

dicted to marihuana or any depressant or 
stimulant drug (as defined in section 201 
(v) of the Federal Food, Drug, and Cos­
metic Act) or narcotic drug (as defined in 
section 4731(a) of the Internal Revenue 
Code of 1954); or

(4) who has been adjudicated as a men­
tal defective or who has been committed to 
any mental institution;

to receive any firearm or ammunition which has 
been shipped or transported in interstate or for­
eign commerce.

The other pertinent statutes are set forth in the 
Appendix to this brief, infra, pp. la-15a.

28



3

STATEMENT

After a jury trial in the United States District 
Court for the Eastern District of Kentucky, peti­
tioner was convicted of receiving, after having been 
convicted of a felony, a firearm that had been trans­
ported in interstate commerce, in violation of 18 
U.S.C. 922(h) (App. 5). He was sentenced to three 
years’ imprisonment, subject to the immediate parole 
eligibility provisions of 18 U.S.C. 4208(a)(2) (App. 
9-10). The court of appeals affirmed, one judge dis­
senting (App. 16-27; 504 F.2d 629).

On April 1, 1972, petitioner, a resident of Boone- 
ville, Kentucky, who previously had been convicted 
of the crime of housebreaking and sentenced to two 
years’ imprisonment for that offense (Tr. 78-79), 
purchased a .32 caliber Smith & Wesson revolver 
from a federally-licensed firearm dealer in Booneville 
(Tr. 37, 40-41, 77). The revolver had been manu­
factured in Massachusetts and received by the Ken­
tucky dealer from a North Carolina distributor about 
a month before petitioner purchased it. The sale to 
petitioner was the first retail sale of the firearm (Tr. 
39-40, 42, 52). About 45 minutes after he purchased 
the firearm, petitioner was arrested for driving while 
intoxicated. The police thereupon found the fully- 
loaded firearm on the floorboard of the car on the 
driver’s side (Tr. 19-21, 78).

At trial, no evidence was adduced to show that 
petitioner had in any way participated in the inter-

29



4

state shipment of the firearm. The trial court re­
jected petitioner’s contention that such proof was an 
essential element of the crime under 18 U.S.C. 922 
(h), and instructed the jury that the interstate com­
merce requirement would be satisfied if the firearm 
had at some time in the past traveled in interstate 
commerce (Tr. 99).

The court of appeals affirmed, holding that peti­
tioner’s receipt of the revolver violated the plain lan­
guage of Section 922(h) and that it was not neces­
sary for the government to prove that petitioner re­
ceived the firearm from a common carrier in inter­
state commerce (App. 17-19). Judge McCree dis­
sented, on the ground that this Court in Tot v. United 
States, 319 U.S. 463, had authoritatively construed 
Section 2 (f)  of the Federal Firearms Act, the prede­
cessor of Section 922(h), to require that the direct 
interstate receipt of a firearm be shown (App. 24- 
27).

SUMMARY OF ARGUMENT 

I

A. The language of Section 922(h) of the Gun 
Control Act of 1968, making it unlawful for a con­
victed felon “to receive any firearm or ammunition 
which has been shipped or transported in interstate 
or foreign commerce,” unambiguously covers the in­
trastate purchase of a firearm previously shipped or 
transported interstate. The language pertains solely

30



5

to what was done to the firearm or ammunition prior 
to receipt—-that it was shipped or transported inter­
state—and does not require any participation by the 
convicted felon in that shipment or transport. Con­
gress was fully aware of the normal meaning given 
to such language. It used the same present perfect 
tense to describe two of the categories of persons who 
are prohibited in the same statute from acquiring a 
firearm or ammunition because of past events. More­
over, had it wished to confine the provision to the 
direct interstate receipt of a firearm or ammunition 
it would have used the language it employed else­
where in the Act to describe the receipt of a firearm 
“which is moving as, which is a part of, or which 
constitutes” interstate commerce, or to make it ille­
gal “to * * * receive in interstate * * * commerce” 
a firearm.

Since the prohibition in Section 922(h) is clear, 
petitioner received fair warning of the sanctions the 
law placed on his conduct, and there is no ambiguity 
necessitating resolution in favor of lenity.

B. The structure of the Gun Control Act confirms 
the plain meaning of Section 922(h), since virtually 
every section of the Act is designed to keep firearms 
and ammunition out of the hands of certain cate­
gories of potentially irresponsible people, including 
convicted felons, whose possession of them would cre­
ate a serious danger of public injury.

So construed, Section 922(h) complements Section 
922(d), which prohibits licensees from knowingly 
selling or otherwise disposing of firearms in an inter-

31



6

s ta te  o r  in t r a s ta te  t ra n s a c tio n  to  th e  sam e  ca teg o ries  
of p o te n tia lly  irre sp o n s ib le  people. W ere  Section  922 
(h )  lim ited  to  d ire c t in te r s ta te  rece ip ts , th o se  p erso n s 
could o b ta in  a  f ire a rm  w h en ev er a  licensee in a d v e r t­
en tly  sold i t  to  th em  in  an  in t r a s ta te  tra n sa c tio n . 
P e ti t io n e r ’s re a d in g  o f Section  9 2 2 (h )  w ould  also  
re le g a te  i t  to  a  n e a r  re d u n d a n c y  w ith  Section 9 2 2 (g ) ,  
w hich  p ro h ib its  th e  sam e c a teg o rie s  o f p e rso n s  fro m  
sh ip p in g  f ire a rm s  in te r s ta te  o r  c au s in g  th em  to  be 
sh ipped  in te rs ta te .

Section 9 2 2 ( h ) ,  co n s tru ed  to  cover in t r a s ta te  r e ­
ce ip ts  of f ire a rm s  p rev io u s ly  sh ipped  o r  t ra n s p o r te d  
in te r s ta te ,  is  also c o n g ru e n t w ith  th e  A c t’s  s t r ic t  li­
cen sin g  an d  reco rd -k eep in g  req u ire m en ts , a n d  th e  
p ro h ib itio n  upon  th e  g iv in g  o f fa lse  m a te r ia l  in fo r ­
m a tio n  to  licensees. C ongress d id  n o t ex cep t fro m  
th e  d ire c t p ro h ib itio n s  o f th e  A c t t h a t  w h ich  i t  so u g h t 
to  p re v e n t in d ire c tly  in  th e  re m a in d e r  o f th e  A ct 
th ro u g h  a  com plex s e t o f p ro p h y lac tic  m e asu re s  gov­
e rn in g  in t r a s ta te  sa les an d  d isp o sitio n s of f ire a rm s  
an d  am m u n itio n .

C. T h e  leg is la tiv e  h is to ry  o f th e  G un  C on tro l A ct 
show s a  b ro ad  p u rp o se  to  keep f ire a rm s  o u t o f th e  
h an d s  o f c e r ta in  ca teg o ries  o f p o te n tia lly  ir re sp o n s i­
ble people. T h e re  is no  in d ica tio n  in  e i th e r  th e  com­
m itte e  re p o r ts  o r  th e  co n g ressio n al deb a tes  th a t  the  
scope o f th e  s ta tu te  w a s  to  be  in  a n y  w ay  re s tr ic te d .

II

T h is  C o u rt should  n o t fo llow  its  s ta te m e n ts  in  Tot 
v. United States a n d  United States v. Bass t h a t  Sec-

32



7

tion 2 (f)  of the Federal Firearms Act of 1988 and 
Section 922(h) of the Gun Control Act do not apply 
to the intrastate receipt of a firearm that previously 
had moved in interstate commerce, since those state­
ments do not rest upon any analysis of the language, 
statutory design, or legislative history of the provi­
sion. Congress cannot be deemed to have approved 
or adopted the interpretation of Section 922(h) in 
Tot when, a quarter of a century later, it used the 
identical language in enacting a new gun control law 
which reflected an intention broadly to bar the re­
ceipt of firearms and ammunition by certain cate­
gories of potentially irresponsible persons.

A R G U M E N T

I.

S E C T IO N  922(h) O F  T H E  GUN CO N TR O L A C T P R O ­
H IB IT S  T H E  IN T R A S T A T E  P U R C H A S E  BY  A CON­
V IC T E D  F E L O N  O F A F IR E A R M  W H IC H  P R E ­
V IO U SL Y  H A D  B E E N  T R A N S P O R T E D  T O  T H E  
D E A L E R  IN  IN T E R S T A T E  CO M M ERCE

A. T he la n g u a g e  o f S ection  922(h) u n am b ig u o u sly  covers 
th e  in t r a s ta te  p u rc h a se  o f a  f ire a rm  p rev iously  
sh ipped  o r  t ra n s p o r te d  in te rs ta te .

1. Section 922(h) of the Gun Control Act makes 
it unlawful for a convicted felon “to receive any fire­
arm or ammunition which has been shipped or trans­
ported in interstate or foreign commerce.” 1 As the

1 T he p ro h ib itio n  applies to  fo u r  ca tegories o f persons: (1) 
one w ho is u n d e r in d ic tm en t fo r, o r  w ho has been convicted 
in any  co u rt of, a  crim e pun ishab le  by  im p riso n m en t fo r  a

33



8

c o u r t o f ap p ea ls  concluded, “ th e re  is  no a m b ig u ity  in  
Section  9 2 2 (h )  o f th e  A ct. I t  m e an s  ex ac tly  w h a t i t  
s ay s” (A pp . 1 9 ) . I t  b a rs  re c e ip t o f a n y  f ire a rm  th a t  
“ h as  been” sh ipped  o r  tr a n s p o r te d  in  in te r s ta te  com ­
m erce  w ith o u t r e g a rd  to  w h e th e r  th e  re c e ip t itse lf  
w as p a r t  o f th e  in te r s ta te  m ovem ent.

T h e  m e a n in g  is c le a r : a  convicted  felon is p ro ­
h ib ited  fro m  rece iv in g  a n y  f ire a rm  o r  am m u n itio n  
w h ich  a t  som e p a s t  tim e  h a s  been  sh ip p ed  o r  t r a n s ­
p o rted  in  in te r s ta te  com m erce. T h e re  a re  no q u a lify ­
in g  w o rd s  w h ich  w ould  lim it  th e  p ro h ib itio n  to  s i tu ­
a tio n s  w h ere  th e  convicted  fe lon  w as  h im se lf  th e  con­
s ig n o r  o r  consignee o f th e  in te r s ta te  sh ip m en t, o r 
w h ere  in  som e o th e r  w ay  h e  d ire c tly  received  th e  in ­
te r s ta te  sh ip m en t. T h e  la n g u a g e  p e r ta in s  solely to 
w h a t w as  done to  th e  f ire a rm  o r  am m u n itio n  befo re  
th e  rec e ip t ( i t s  sh ip m e n t o r  tr a n s p o r ta t io n  in  in te r ­
s ta te  com m erce) an d  m akes no re fe re n c e  to  a n y  p a r ­
tic ip a tio n  b y  th e  convicted  fe lon  in  th a t  sh ip m e n t o r 
t r a n s p o r t .

U se o f th e  “p re s e n t p e r fe c t” tense , as  in  “has been 
sh ipped  o r  t r a n s p o r te d ” u n a m b ig u o u s ly  denotes an  
“ a c t  o r s ta te  com pleted  a t  th e  tim e  o f sp e a k in g ” 
(W e b s te r’s New International Dictionary (2 d  ed.

term  exceeding one year—a category that would include con­
victed felons; (2) one who is a  fugitive from justice; (3) one 
who is an unlawful user of or addicted to m arijuana or any 
depressant or stimulant drug (as defined in Section 201 (v) 
of the Federal Food, Drug, and Cosmetic Act) or narcotic drug 
(defined in Section 4731(a) of the Internal Revenue Code of 
1954); or (4) one who has been adjudicated as a mental de­
fective or who has been committed to  any mental institution.

34



9

unabridged, 1936). The statute covers receipt of 
a firearm which has already completed its interstate 
journey and has come to rest within the state at the 
time of its purchase. Congress was fully aware of 
the normal meaning of the present perfect tense, 
since it also used that tense to describe two of the 
categories of persons who are prohibited in the same 
statute from acquiring such a firearm or ammunition 
because of past events: a person who “has been con­
victed” of a crime punishable by imprisonment for a 
term exceeding one year (Section 922(h)(1 ) ) ,  and 
a person who “has been adjudicated as a mental de­
fective” or “has been committed to any mental insti­
tution” (Section 922(h) (4))  (emphasis supplied).

By contrast, the prohibited act— “to receive any 
firearm or ammunition”—-is stated in the present 
tense, showing that it relates to an act done after the 
firearm or ammunition has completed its interstate 
movement.

2. Had Congress wished to confine Section 922(h) 
to the direct interstate receipt of a firearm or am­
munition, as petitioner maintains, Congress would 
have said so, as it did in other sections of the Gun 
Control Act. In Section 922(a)(3) ,  for example, 
which prohibits any non-licensee from receiving any 
firearm he previously purchased or obtained outside 
his state of residence,la Congress barred a non-licensee 
from receiving any firearm “purchased or otherwise 
obtained by such person outside that State * * *”

la The A ct req u ires  m a n u fa c tu re rs  of an d  dealers in  fire­
arm s and  am m un ition  to  be licensed by  th e  S ec re ta ry  o f th e  
T reasury . See p. 16, infra.

35



10

(em p h asis  su p p lie d ) . B y  c o n tra s t ,  Section  9 2 2 (h )  
co n ta in s  no la n g u a g e  even su g g e s tin g  th a t  its  p ro ­
h ib itio n  o f rec e ip t b y  a  convicted  fe lon  (am o n g  o th ­
e rs )  ap p lies  on ly  w h en  th e  f ire a rm  o r  am m u n itio n  
w as tra n s p o r te d  o r  rece ived  in  in te r s ta te  com m erce 
by  su ch  person .

S im ila rly , Section 9 2 2 ( j )  p ro h ib its  th e  re c e ip t of 
a  sto len  f ire a rm  “ w hich  is m ov ing  as, w hich  is a 
p a r t  of, o r  w h ich  c o n s ti tu te s” in te r s ta te  com m erce. 
H a d  C ongress in ten d ed  to  im pose a  s im ila r  lim ita ­
tio n  in  Section 9 2 2 (h ) ,  i t  could h av e  u sed  th a t  la n ­
g u a g e  o r  a n o th e r  s im ila r  com m on p h ra se  fo r  lim itin g  
a  s ta tu te  to  d ire c t in te r s ta te  rec e ip t.2 A lte rn a tiv e ly , 
C ongress could hav e  used  la n g u ag e  such a s  th a t  in 
Section  922 ( k ) ,  w hich  m akes i t  u n la w fu l fo r  an y  
p erso n  kn o w in g ly  “ to  * * * receive in  in te r s ta te  * * * 
com m erce” 3 a n y  f ire a rm  w hose s e r ia l n u m b e r has 
been rem oved o r  a lte red .

2 See, e.g., 18 U.S.C. 659 (“ [W]hoever * * * by fraud or de­
ception obtains * * * any goods or chattels moving as or which 
are a part of or which constitute an interstate or foreign ship­
ment of freight * * *” ); 18 U.S.C. 2313 (“ [w]hoever re­
ceives * * * any motor vehicle or aircraft, moving as, or which 
is a part of, or which constitutes interstate or foreign com­
merce, knowing the same to have been stolen * * *” ); 18 
U.S.C. 2315 (“ [w]hoever receives * * * any goods, wares, or 
merchandise * * * moving as, or which are a p art of, or which 
constitute interstate or foreign commerce, knowing the same 
to have been stolen * * *” ).

3 Many other federal statutes—in contrast to Section 922 
(h)-—also prohibit the doing of certain acts “in interstate 
or foreign commerce.” See, e.g., 18 U.S.C. 2421 (transporting 
a woman for the purpose of prostitution); 18 U.S.C. 1952 
(traveling with intent to fu rther or facilitate certain unlaw-

36



11

Indeed, it is difficult to see how Congress could 
have expressed more clearly its intention to prohibit 
convicted felons (among others) from receiving any 
firearm or ammunition which some time previously 
had entered the state where they receive it. “The in­
tention of the legislature is to be collected from the 
words they employ. Where there is no ambiguity in 
the words, there is no room for construction.” United 
States v. Wiltberger, 5 Wheat. 76, 95-96; Yates v. 
United States, 354 U.S. 298, 305; Browder v, United 
States, 312 U.S. 335, 338.

3. United States v. Sullivan, 332 U.S. 689, strong­
ly supports our reading of Section 922(h). There 
respondent had been, charged with violating Section 
301 (k) of the Federal Food, Drug and Cosmetic Act 
of 1938, which prohibits “the doing of any * * * act 
with respect to, a * * * drug * * * if such act is 
done while such article is held for sale after ship­
ment in interstate commerce and results in such ar­
ticle being misbranded” (emphasis supplied). Re­
spondent contended that the provision did not apply 
to him, since he had purchased the drugs in question 
six months after the interstate shipment had been 
completed by their delivery to another consignee (332 
U.S. at 696). This Court held the prohibition covered 
respondent’s conduct. “[T]he language used by Con­
gress broadly and unqualifiedly prohibits misbrand­
ing articles held for sale after shipment in interstate

ful e n te rp r ise s ) ;  18 U .S.C. 1951 (com m itting  robbery  o r  ex­
to rtion ) ; 18 U .S.C. 1231 ( tra n sp o r tin g  p ersons fo r  th e  p u r ­
pose o f s tr ik e b re a k in g ) ; 18 U .S.C. 1201 (k id n a p p in g ) ; 18 
U.S.C. 1084 (g a m b lin g ); 15 U .S.C. 77e (secu ritie s  f r a u d ) .



12

com m erce, w ith o u t r e g a rd  to  * * * how  m a n y  in t r a ­
s ta te  sa les h ad  in te rv en ed , o r w ho h ad  received  the  
a r tic le s  a t  th e  end  o f th e  in te r s ta te  sh ip m e n t” (ibid,).

T h e  sam e re a so n in g  app lies  to  th e  la n g u a g e  in  
Section 9 2 2 (h ) ,  w h ich  b ro a d ly  a n d  u n q u a lified ly  p ro ­
h ib its  p e titio n e r , a  convicted  felon , fro m  rece iv in g  a 
f ire a rm  w hich  h a s  been tra n s p o r te d  in  in te r s ta te  
com m erce, w ith o u t r e g a rd  to in te rv e n in g  in t r a s ta te  
sa les o r  w ho h ad  received  th e  f ire a rm  a t  th e  end  of 
th e  sh ip m en t. Indeed , th e  o p e ra tiv e  la n g u a g e  of Sec­
tio n  9 2 2 (h )  w as o r ig in a lly  en ac ted  a s  p a r t  o f the  
F e d e ra l F ir e a rm s  A c t by th e  sam e C ongress th a t  
en ac ted  th e  F e d e ra l Food, D ru g  a n d  C osm etic A ct, 
an d  w ith  a  s im ila r  p u rp o se : to  p ro te c t th e  public 
fro m  n eg lig en t o r  irre sp o n sib le  h a n d lin g  o f a n  in ­
h e re n tly  d an g e ro u s  p ro d u c t tra v e lin g  in  in te r s ta te  
com m erce, up  to  an d  in c lu d in g  th e  tim e  w hen  i t  is 
p u rch ased  o r  received  in  an  in t r a s ta te  tra n s a c tio n .4

4. S ince th e  p ro h ib itio n  in  Section  9 2 2 (h )  is  u n ­
am biguous, p e titio n e r  received  f a i r  w a rn in g  o f th e  
san c tio n s  th e  law  p laced  on h is  conduct. P e ti tio n e r  
w as  on n o tice  th a t  h is  p u rc h a se  o f a  f ire a rm  w hich 
p rev io u sly  h a d  been sh ipped  o r  tr a n s p o r te d  in to  the  
s ta te  w a s  u n la w fu l. T h u s  th is  is n o t a n  occasion fo r  
ap p lica tio n  o f th e  m ax im  th a t  “ a m b ig u ity  concern­
in g  th e  a m b it o f c r im in a l s ta tu te s  should  be  resolved 
in  fa v o r  o f le n ity .” Rewis v. United States, 401 U .S. 
808, 8 1 2 ; United States v. Bass, 404 U .S. 336, 347. 
A lth o u g h  p en a l law s a r e  to  be s tr ic t ly  co n stru ed , they

4 See our discussion of the Legislative history of the Fed­
eral Firearms Act, in fra , a t 18-19.

38



13

“ought not to be construed so strictly as to defeat 
the obvious intention of the legislature.” American 
Fur Company v. United States, 2 Pet. 348, 367; 
United States v. Bass, supra, 404 U.S. at 351; Hud­
dleston v. United States, 415 U.S. 814, 831.

B. T h e  s tru c tu r e  o f th e  G un C o n tro l A c t show s th a t  
C ongress in ten d ed  S ection  922(h) to  p ro h ib it th e  p e r­
sons th e re  d es ig n a ted  fro m  receiv ing  a n y  firea rm s 
th a t  have been tra n s p o r te d  in  in te r s ta te  com m erce.

The structure of the Gun Control Act confirms 
that Congress meant what it said when in Section 
922 (h) it unequivocally prohibited convicted felons 
(among others) from receiving any firearm which 
has been shipped or transported in interstate com­
merce.

Virtually every section of the Act manifests a 
single goal: to keep firearms and ammunition out of 
the hands of certain categories of people whose pos­
session of them would create a serious danger of 
public injury. Those potentially irresponsible indi­
viduals—-persons under indictment, convicted felons, 
fugitives, those addicted to or unlawfully using nar­
cotics, adjudicated mental defectives or those com­
mitted to a mental institution 5—are comprehensively 
barred by the Act from acquiring firearms or am-

6 Sections 9 2 2 (d ) , (g ) and  (h ) .  See n. 1, supra. L icensees 
are also p ro h ib ited  fro m  selling  o r de livering  any  firearm  
or am m unition  to  a  person  w ho th e  licensee has reasonable  
cause to  believe is u n d e r 18 y ears  o f age (Section  9 2 2 (b ) (1 ) . 
A person u n d e r 21 y ears  o f age canno t receive a  license to  deal 
in firearm s (Section  9 2 3 (d ) (1) ( A ) ) .

39



14

m u n itio n  by  a n y  m eans.* C o n s tru in g  Section  9 2 2 (h )  
to  cover in t r a s ta te  rece ip ts  o f f ire a rm s  a n d  a m m u n i­
tio n  th a t  have  m oved in te r s ta te  is  in  accord  w ith  an d  
f u r th e r s  th is  com prehensive  re g u la to ry  schem e.

1. Section 9 2 2 (d )  p ro h ib its  licensees fro m  know ­
in g ly  se llin g  o r  o th e rw ise  d isp o sin g  o f f ire a rm s , in  
an  in te r s ta te  o r  in t r a s ta te  tra n s a c tio n , to  th e  sam e 
ca teg o rie s  o f p o te n tia lly  irre sp o n s ib le  p e rso n s .1 O u r 
in te rp re ta tio n  o f Section 9 2 2 (h )  com plem ents Sec­
tio n  9 2 2 (d )  b y  b a r r in g  th e se  p o te n tia lly  irre sp o n sib le  
p erso n s fro m  rece iv in g  a n y  f ire a rm  o r a m m u n itio n  
p rev io u s ly  tr a n s p o r te d  in te r s ta te ,  even i f  a n  u n w it­
t in g  o r  n eg lig en t licensee is o th e rw ise  w illin g  to  sell 
i t  to  them . In  th e  in s ta n t  case, f o r  exam ple, th e  
d ea le r  w ho sold p e titio n e r  th e  f ire -a rm  te s tif ied  th a t  
a t  th e  tim e  o f th e  sa le  i t  h a d  n o t o ccu rred  to  h im  to  
a sk  p e titio n e r  i f  he  w as  a  convicted  felon , since th e  
d e a le r  h a d  know n  p e titio n e r  f o r  five y e a rs  d u r in g  
w h ich  tim e  p e titio n e r  f re q u e n tly  p u rch a se d  sp o r tin g  
goods a t  th e  d e a le r’s s to re  (T r .  46, 4 7 ) .

U n d e r  p e titio n e r’s c o n s tru c tio n  o f Section 9 2 2 (h ) ,  
how ever, such  in a d v e rten ce  w ould  g ive those p o ten ­
tia lly  irre sp o n s ib le  p erso n s  an  u n re s tra in e d  o ppor­
tu n i ty  to  o b ta in  a ll th e  f ire a rm s  an d  a m m u n itio n

6 These same persons were comprehensively barred by Con­
gress from acquiring explosive materials. See 18 U.S.C. 841- 
848.

7 Non-licensees are prohibited from  engaging in the business 
of transporting or shipping firearms or ammunition in inter­
state commerce. Section 922(a) (1), (2), and (3).

40



15

they desire.8 Petitioner’s reading of Section 922(h) 
also would create the anomaly that, although licensees 
are prohibited by Section 922(d) from knowingly 
selling firearms or ammunition in an interstate or 
intrastate transaction, the persons to whom the li­
censees cannot sell would be prohibited from receiv­
ing such goods only if the transaction were inter­
state. They could avoid liability altogether by the 
simple expedient of purchasing firearms or ammuni­
tion from their local dealer.

2. Our interpretation of Section 922(h) also com­
ports with Section 922(g), which prohibits the same 
categories of potentially irresponsible persons from 
shipping firearms interstate or causing them to be 
shipped interstate.'9 Petitioner’s reading of Section 
922(h), however, would relegate it to a near redun­
dancy with Section 922(g), since almost every inter-

8 W hile convicted felons w ould be p roh ib ited  by 18 U.S.C. 
App. 1202 (a) fro m  receiv ing  a firearm  in tra s ta te  (see ou r 
discussion o f T itle  V II o f th e  O m nibus C rim e C ontrol and  
Safe S tree ts  A ct, infra, a t  23-24), Section 120 2 (a ) does no t 
p roh ib it such persons fro m  o b ta in in g  am m unition . N or does 
it p ro h ib it indictees, fug itives , o r persons who a re  add icted  
to o r un law fu lly  use na rco tics  fro m  receiv ing  a  firearm  or 
am m unition.

9 Section 9 2 2 (g ) w as derived  fro m  Section 2 (e )  o f th e  
Federal F ire a rm s  A ct o f 1938, w hich m ade  i t  un law fu l fo r  
certain  persons to  sh ip  o r  t r a n s p o r t  o r to  “cause [a  firearm  
or am m unition ] to  be  sh ipped  o r tra n sp o rte d ” in  in te rs ta te  
commerce. T he la t te r  clause becam e unnecessary  w ith  th e  
enactm ent o f 18 U .S.C. 2 ( b ) ,  m ak in g  one w ho “w illfu lly  
causes an  a c t to  be done w hich i f  d irec tly  p e rfo rm ed  by h im  
or an o th e r w ould be an offense a g a in s t th e  U n ited  S ta te s” 
punishable as a  p rin c ip a l. See R ev iser’s N ote to  18 U.S.C. 2.

41



16

s ta te  sh ip m e n t is like ly  to  h av e  been  so lic ited  o r  o th ­
e rw ise  caused  b y  th e  d ire c t re c ip ien t. T h u s  Section  
9 2 2 (h )  w ould  cover th e  id e n tica l a c ts  covered by 
Section 9 2 2 (g ) ,  ex cep t on th e  r a r e  occasion w h e re  
th e  in te r s ta te  sh ip m e n t so received  h a d  n o t been  so­
lic ited  by  th e  rec ip ien t.

P e ti t io n e r ’s c o n s tru c tio n  w ould c re a te  a  f u r th e r  
anom aly . I f  a  p ro h ib ited  p e rso n  a tte m p ts  to  p u r ­
chase  fro m  h is  local d e a le r  a  f ire a rm  th a t  is  n o t c u r ­
re n tly  in  th e  d e a le r’s stock, c au s in g  th e  d e a le r  to  
o rd e r  i t  in te r s ta te ,  th a t  p e rso n  v io la te s  Section  922
( g )  , since  he caused  th e  in te r s ta te  sh ip m e n t to  occur. 
U n d e r  p e titio n e r’s c o n s tru c tio n  o f Section  9 2 2 (h ) ,  
how ever, th e  p erso n  w ould  escape  lia b il ity  a lto g e th e r  
i f  th e  f ire a rm  h a d  a lre a d y  com pleted  i ts  in te r s ta te  
tra v e l an d  h ap p en ed  to  be in  th e  d e a le r’s stock  a t  th e  
tim e  of p u rch ase .

3. T h e  g o v ern m en t’s co n s tru c tio n  o f Section 922
(h )  is a lso  c o n g ru e n t w ith  o th e r  p ro v is io n s  o f the  
A c t w hich  re g u la te  in t r a s ta te  sales. U n d e r  th e  A ct, 
a  m a n u fa c tu re r  o f o r  d e a le r  in  f ire a rm s  o r am m u ­
n itio n  m u s t be licensed by  th e  S e c re ta ry  o f th e  T re a s ­
u r y  (S ec tions 9 2 2 ( a ) ( 1 ) ,  9 2 3 ( a ) ) ,  even i f  h is  b u s i­
n ess  is  t ra n s a c te d  e n tire ly  w ith in  h is  ow n s ta te .  No 
p erso n  b a r re d  fro m  rece iv in g  f ire a rm s  o r  am m u n itio n  
m a y  o b ta in  a  license (S ec tion  9 2 3 ( d ) ( 1 ) ( B ) ) .  L i­
censees m a y  n o t k n o w in g ly  sell o r o th e rw ise  d ispose of 
f ire a rm s  o r  am m u n itio n  to  such  persons, even i f  the  
sa le  o r  d ispo sitio n  is  w holly  in t r a s ta te  (S ec tio n  922 
( d ) ) .  See Huddleston v. United States, 415 U .S . 814, 
833. T h e  s ta tu te  f u r th e r  p rov ides th a t  re c ip ien ts  m u s t

42



17

physica lly  be p re s e n t on th e  licensee’s p rem ises  a t  
th e  tim e  o f p u rc h a se  (u n less  c e r ta in  s t r ic t  re q u ire ­
m en ts a r e  m e t)  (S ec tio n  9 2 2 ( c ) ) ,  a n d  i t  fo rb id s  
rec ip ien ts  f ro m  k n o w in g ly  g iv in g  licensees fa ls e  in ­
fo rm a tio n  a s  to  f a c ts  m a te r ia l  to  th e  la w fu ln e ss  of 
th e  sa le  (S ec tio n  9 2 2 ( a ) ( 6 ) ) .  B o th  of th e se  p ro v i­
sions a lso  cover w holly  in t r a s ta te  tra n sa c tio n s . See 
Huddleston v . United States, supra, 415 U .S . a t  833.

F u r th e r  p ro v is io n s  fo rb id  d ispo sitio n  o f f ire a rm s  to  
anyone w ho  is p ro h ib ited  fro m  po ssessin g  o r p u r ­
ch asin g  a  w eapon  b y  s ta te  o r  local la w  a t  th e  p lace  
of sa le  o r  d e liv e ry  (S ec tion  9 2 2 ( b ) ( 2 ) ) .  T h e  A ct 
also re q u ire s  th a t  a  licensee n o te  th e  n am es, ages an d  
places o f res id en ce  o f a ll p e rso n s  to  w hom  f ire a rm s  
a re  sold o r  o th e rw ise  d isposed  (S ec tio n  9 2 2 (b )  ( 5 ) ) .  
A d d itio n a lly , th e  licensee is  re q u ire d  to  m a in ta in  
such reco rd s in  th e  fo rm  re q u ire d  b y  th e  S e c re ta ry  of 
the T re a s u ry , filin g  su ch  re p o r ts  as  th e  reg u la tio n s  
p resc rib e  (see  26 C .F .R . 1 7 8 .1 2 4 ). T he licensee’s 
place of bu sin ess  is su b je c t to  in sp ec tio n  f o r  th e  p u r ­
pose o f in sp ec tin g  reco rd s  a n d  f ire a rm s  sold on th e  
p rem ises. C f. United States v. Biswell, 406 U .S . 311, 
315-316.

W ere  Section 9 2 2 (h )  confined to  th e  d ire c t in te r ­
s ta te  rec e ip t o f f ire a rm s  o r  am m u n itio n , a s  p e titio n e r  
u rges, th e  G un C ontro l A c t w ould  cover ev ery  a sp ec t 
of in t r a s ta te  tra n s a c tio n s  in  f ire a rm s  o r am m u n itio n  
except th e  m o st c ru c ia l a sp e c t: a c tu a l rece ip t. Con­
g ress d id  n o t excep t fro m  th e  d ire c t p ro h ib itio n s  of 
the  A ct th a t  w hich  i t  so u g h t to  p re v e n t in d ire c tly  
in  th e  re m a in d e r  o f th e  A c t th ro u g h  a  com plex se t

43



18

of p ro p h y lac tic  m e asu re s  g o v e rn in g  in t r a s ta te  sales 
an d  d ispositions.

c . The legislative history of the Gun Control Act con­
firms our interpretation of Section 922(h).

1. T he G un C on tro l A c t (P u b . L . 90-618) w as 
en ac ted  in  1968 as an  am ended  (a n d  id en tica l, b u t 
f o r  a  p ro v is io n  e x ten d in g  coverage to  long  g u n s )  
v e rs io n  o f T itle  IV  o f th e  O m nibus C rim e C ontro l and  
S a fe  S tre e ts  A c t (P u b . L . 9 0 -3 5 1 ), en ac ted  e a r lie r  
th a t  y e a r . B o th  ac ts  en la rg ed  a n d  ex tended  th e  F e d ­
e ra l F ire a rm s  A c t of 1938 (c. 850, 52 S ta t .  1 2 5 0 ). 
W h ile  th e  o p e ra tiv e  p h ra se  of Section  9 2 2 (h )  of the  
G un C on tro l A ct, m a k in g  i t  illega l to  rece ive  “ an y  
f ire a rm  o r  am m u n itio n  w hich  h a s  been  sh ipped  o r 
tr a n s p o r te d  in  in te r s ta te  o r  fo re ig n  com m erce,” re ­
m a in ed  id e n tica l to  th a t  in  Section 2 ( f )  o f th e  F ed ­
e ra l F ire a rm s  A c t,10 Section  9 2 2 (h )  expanded  th e  
ca teg o rie s  o f p e rso n s p ro h ib ited  fro m  such  rece ip t.11

10 Section 2(f) provided:
It shall be unlawful for any person who has been con­

victed of a crime of violence or is a  fugitive from  justice 
to receive any firearm or ammunition which has been 
shipped or transported in interstate or foreign commerce, 
and the possession of a firearm or ammunition by any 
such person shall be presumptive evidence th a t such fire­
arm  or ammunition was shipped or transported or re­
ceived, as the case may be, by such person in violation 
of this Act.

The presumption of receipt from the fact of possession was 
held to violate due process in Tot v. U nited S ta tes , 319 U.S. 
463, discussed in fra , pp. 22-28.

44



19

T he G un  C o n tro l A c t a lso  ad d ed  m a n y  o f th e  o th e r 
p ro p h y lac tic  m e asu re s , g o v e rn in g  in t r a s ta te  a s  well 
as in te r s ta te  tra n s a c tio n s , to  w hich  w e hav e  a lre a d y  
re fe r re d  (supra, pp . 1 6 -1 7 ) .12

T h e  F e d e ra l F ir e a rm s  A c t h a d  a  b ro ad  p u rp o se : 
“to  p re v e n t th e  crook an d  g a n g s te r , ra c k e te e r  an d  
fu g itiv e  fro m  ju s tic e  fro m  b e in g  ab le  to  purchase or 
in any way come in contact w ith  f ire a rm s  o f a n y  
k ind  * * *”  (S . R ep. No. 1189, 7 5 th  Cong., 1 s t Sess., 
p. 33 (1 9 3 7 ) ;  em p h asis  su p p lie d ) . N one o f th e  com­
m ittee  re p o r ts  o r  h e a r in g s  on th a t  le g is la tio n  reflects 
an y  in te n tio n  to  confine Section 2 ( f )  to  d ire c t in te r ­
s ta te  rece ip ts  o f f ire a rm s .13

11 See n. 1, supra, p. 7. Section 922 (h) also substituted per­
sons “convicted in any court of, a crime punishable by im­
prisonment for a term  exceeding one year” for the Section 
2(f) category of persons “convicted of a crime of violence.”

12 The new features in the Gun Control Act included a ban 
on interstate shipments to or from non-licensees, and a pro­
vision making it unlawful for non-licensees to engage in manu­
facturing or dealing in firearms, whether or not such business 
involved interstate commerce. The Act also increased the 
fees for licenses, set minimum standards for licensees, gave 
the Secretary of the Treasury broad regulatory powers, and 
required that dealers obtain identification from would-be 
purchasers. See our discussion, supra, pp. 16-17. See generally 
Zimring, F irearm s and F ederal L aw : The Gun Control A c t of 
1968, 4 J. Legal Studies 133 (1975).

13 See S. Rep. No. 1189, 75th Cong., 1st Sess. (1937); also 
Hearings on S. 3 before a Subcommittee of the House Com­
mittee on In terstate and Foreign Commerce, 75th Cong., 1st 
Sess. (1937); Hearings on S. Res. 74 before a Subcommittee 
of the Senate Committee on Commerce, 73d Cong., 2d Sess. 
(1934); Hearings on S. 885, S. 2258, S. 3680, before a Sub-

45



20

T h e  h is to ry  of th e  1968 G u n  C on tro l A c t in d ica ted  
a  s im ila r  concern  w ith  k eep in g  f ire a rm s  a n d  am m u ­
n itio n  o u t o f th e  h an d s  o f c e r ta in  ca teg o ries  o f po­
te n tia l ly  irre sp o n sib le  p erso n s, in c lu d in g  convicted  
felons. T h e  p r in c ip a l p u rp o se  o f th e  1968 A c t w as 
also  s ta te d  b ro a d ly : to  c u rb  crim e  b y  k eep in g  “ fire ­
a rm s  o u t o f th e  h an d s  of those  n o t leg a lly  en titled  
to  possess th em  because o f age, c r im in a l b ack g ro u n d , 
o r  incom petency .” S. R ep. No. 1501, 9 0 th  Cong., 2d 
Sess., p. 22 (1 9 6 8 ) . See a lso  114 Cong. Rec. 13219 
(1 9 6 8 ) ( re m a rk s  b y  S e n a to r  T y d in g s ) ; Huddleston 
v. United States, supra, 415 U .S . a t  824.

C ongress in  1968 w as  a w a re  o f th e  co n tin u in g  
h a z a rd  posed b y  f ire a rm s  a n d  a m m u n itio n  in  the 
h a n d s  o f c e r ta in  p erso n s, re g a rd le s s  o f how  those 
p e rso n s  o b ta in ed  them . D u r in g  1967, ex ten siv e  h e a r ­
in g s  h ad  been held  on v a rio u s  an ti-c r im e  bills, in ­
c lu d in g  p roposed  g u n  con tro l leg is la tio n , d u r in g  w hich 
f re q u e n t re fe re n c e  w as  m ad e  to  th e  r e p o r t  o f the 
P re s id e n t’s C om m ission on L aw  E n fo rc e m e n t and  
th e  A d m in is tra tio n  of Ju s tic e , pu b lish ed  in  F e b ru a ry  
1967, a s  The Challenge of Crime in a Free Society

committee of the Senate Committee on Commerce, 73d Cong., 
2d Sess. (1934).

“  See Hearings on H.R. 5037, H.R. 5038, H.R. 5384, H.R. 
5385 and H.R. 5386, before Subcommittee No. 5 of the House 
Committee on the Judiciary, 90th Cong., 1st Sess., pp., 213, 
242, 261 (1967) (testimony and statement of form er At­
torney General Ramsey C lark ); pp. 487-488 (table submitted 
by Congressman Casey showing percentage of serious crimes 
committed with firearm s); p. 495 (testimony of James V. Ben­
nett, President, National Council fo r a Responsible Firearms

46



21

A c h a p te r  o f th e  re p o r t  d e a lt  w ith  m o re  effective g u n  
control leg is la tio n , n o tin g  th a t  th e  e x is tin g  F e d e ra l 
F ire a rm s  A c t o f 1938 h a d  n o t been effective in  p re ­
v en tin g  convicted  fe lo n s  fro m  p u rc h a s in g  f ire a rm s  
locally a f t e r  th e y  h a d  been tra n s p o r te d  fro m  a n o th e r  
s ta te  {id. a t  2 4 0 ) . T h e  se rio u sn ess  o f th e  possession  
of f ire a rm s  b y  such  p erso n s  w as  u n d ersco red  b y  s ta ­
tis tic s  sh ow ing  th a t  in  1965, 5,600 m u rd e rs , 34 ,700 
a g g re g a te d  a ssa u lts , an d  th e  v a s t  m a jo r i ty  o f 68,400 
arm ed  ro b b erie s  w e re  com m itted  b y  m e an s  of f ire ­
arm s, a n d  th a t  a ll b u t  10 o f th e  278 law  en fo rcem en t 
officers m u rd e re d  fro m  1960 th ro u g h  1965 w ere  k illed  
w ith  f ire a rm s  {id. a t  2 3 9 ) .

T he G un C o n tro l A c t so u g h t, in  th e  w o rd s o f Con­
g ressm an  C eller, i ts  H ouse M a n a g e r , “ to  m ax im ize  
the  p o ssib ility  of k eep in g  f ire a rm s  o u t o f th e  h an d s  
of [p o ten tia lly  ir re sp o n s ib le ]  p e rso n s .” 114 Cong. 
Rec. 21784 (1 9 6 8 ) . In  lig h t o f th is  p u rp o se , Con-

Policy) . The Crime Commission’s report was also considered 
by the Senate Judiciary Committee in connection with S. 917, 
the bill which was substituted for H.R. 5037 and was event­
ually enacted as the Omnibus Crime Control and Safe Streets 
Act of 1968. S. Rep. No. 1097, 90th Cong., 2d Sess. p. 31 
(1968).

The committee report on S. 917 cited, in a  discussion of 
Title IV of the bill (including the provision tha t was to be­
come Section 922(h) of the Gun Control A ct), fu rther sta­
tistics on the use of firearms in the commission of serious 
crimes, indicating significant increases in 1966 and 1967 over 
the 1965 figures reflected in the Crime Commission’s report. 
Id. at 76. Further statistics and reports on firearms were 
cited in the addiitonal views of Senator Tydings on Title IV, 
which accompanied the commiteee report. Id. a t 190, 193-195, 
203-204.

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g re s s  could n o t have  in ten d ed  th a t  th e  b ro ad  an d  
u n am b ig u o u s  la n g u a g e  o f S ection  9 2 2 ( h ) — p ro h ib it­
in g  such  p erso n s  f ro m  rece iv in g  “ a n y  f ire a rm  o r  am ­
m u n itio n  w hich  h a s  been  sh ipped  o r t r a n s p o r te d  in  
in te r s ta te  * * * com m erce”— be confined to  d ire c t 
in te r s ta te  rece ip ts , a s  p e titio n e r  sugg ests .

U n d e r  p e t i t io n e r ’s re a d in g , Section 9 2 2 (h )  w ould 
n o t cover th e  m o st com m on tra n s a c tio n  in  f ire a rm s  
o r  a m m u n itio n : th e ir  p u rch ase  o r  rec e ip t f ro m  a 
local dea le r. I t  w ould  be confined to  th e  re la tiv e ly  
u n u s u a l s i tu a tio n  w h e re  th e  f ire a rm s  o r  am m u n itio n  
w ere  sh ip p ed  in te r s ta te  d ire c tly  to  th e  p ro h ib ited  re ­
c ip ien t. B u t  g iven  th e  p u rp o se  o f C ongress in  1968 
to  s tre n g th e n  th e  g u n  con tro l law , i t  is im probab le  
t h a t  th e  b ro ad  la n g u a g e  o f th e  p ro v is io n  w as  in ten d ed  
to  be confined to  such  a n  u n u su a l s itu a tio n .

II.

THIS COURT SHOULD NOT FOLLOW ITS STATE­
MENTS IN T O T  v. U N IT E D  S T A T E S  AND U N IT E D  
S T A T E S  v. B A S S  THAT SECTION 2(f) OF THE FED­
ERAL FIREARMS ACT OF 1938 AND SECTION 922(h) 
OF THE GUN CONTROL ACT DO NOT APPLY TO 
THE INTRASTATE RECEIPT OF FIREARMS AND 
AMMUNITION THAT PREVIOUSLY HAVE MOVED 
IN INTERSTATE COMMERCE

In  Tot v. United States, 319 U .S . 463, th is  C o u rt 
held  in v a lid , a s  v io la tin g  d u e  process, th e  p re su m p ­
tio n  in  Section 2 ( f )  of th e  F e d e ra l F ire a rm s  A c t of 
1938 th a t  th e  possession  of a  f ire a rm  o r  am m u n itio n  
by  a  perso n  convicted o f a  c rim e of violence w ould

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ju s t i fy  th e  ju r y  in  in f e r r in g  th a t  th e  f ire a rm  o r 
am m u n itio n  h a d  been sh ip p ed  in  in te r s ta te  com m erce 
an d  h a d  been  rece ived  a f t e r  th e  effective d a te  of the  
A ct. P r io r  to  so ru lin g , how ever, i t  s ta te d  w ith  r e ­
spect to  th e  la n g u a g e  o f th e  s ta tu te  d efin in g  th e  
crim e— “ r e c e iv in g ]  a n y  f ire a rm  o r am m u n itio n  
w hich h as  been  sh ipped  in  in te r s ta te  o r  fo re ig n  com­
m erce”—-(3 1 9  U .S . a t  4 6 6 ) :

B oth  c o u r ts  below  held  th a t  th e  offense c rea ted  
by th e  A c t is confined to  th e  re c e ip t o f f ire a rm s  
o r  a m m u n itio n  as a  p a r t  o f in te r s ta te  t r a n s ­
p o r ta tio n  an d  does n o t ex ten d  to  th e  rece ip t, in  
an  in t r a s ta te  tra n s a c tio n , o f such a r tic le s  w hich, 
a t  som e p r io r  tim e , have  been tra n s p o r te d  in te r ­
s ta te . T he G o v ern m en t a g re e s  th a t  th is  co n s tru c ­
tio n  is co rrec t.

T he C o u rt a lso  tw ice  re fe r re d  in  p a s s in g  to  th e  
acqu isitio n  o f f ire a rm s  o r  am m u n itio n  in  in te r s ta te  
com m erce (pp . 469, 4 7 2 ) .

W hen  C ongress en ac ted  T itle  IV  o f th e  O m nibus 
C rim e C on tro l an d  S afe  S tre e ts  A c t (o f  w hich  th e  
g un  con tro l law , in c lu d in g  Section 9 2 2 ( h ) ,  is a  p a r t ) ,  
i t  also  en ac ted  T itle  V I I  o f th a t  A ct. O ne p rov ision  
of th a t  ti tle , 18 U .S .C . A pp. 1 2 0 2 (a ) ,  p ro h ib its  con­
victed  fe lons (am o n g  o th e rs )  f ro m  “ r e c e iv in g ] ,  pos- 
se ss[ in g ] , o r  t r a n s p o r t[ in g ]  in commerce or affecting 
commerce * * * a n y  f ire a rm ” (em p h asis  su p p lie d ) .

United States v. Bass, 404 U .S. 336, held  th a t  th e  
w ords “ in  com m erce o r a ffec tin g  com m erce” in  T itle  
V II ap p ly  to  “ re c e iv [ in g ]” an d  “p o sse ss [ in g ]”  an d  
not ju s t  to  “ t r a n s p o r t i n g ] , ” as th e  g o v ern m en t con-

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te n d e d ; a n d  acco rd in g ly  th a t  th e  g o v e rn m e n t is  r e ­
q u ired  to  p rove a  “n ex u s  w ith  in te r s ta te  com m erce 
* * * in  in d iv id u a l cases” (p . 3 5 0 ) . T h e  C o u rt th en  
ru led , how ever, t h a t  to  e s tab lish  th e  offense u n d er 
Section  1 2 0 2 (a )  of “ ‘r e c e iv in g ]  * * * in  com m erce 
o r  a ffec tin g  com m erce’ * * * th e  G o v ern m en t m eets 
i ts  b u rd e n  h e re  i f  i t  d e m o n s tra te s  th a t  th e  f ire a rm  
rece ived  h a s  p rev io u s ly  tra v e le d  in  in te r s ta te  com­
m erce” (ibid.; fo o tn o te  o m itte d ) . In  re je c tin g  th e  
g o v e rn m e n t’s co n ten tio n  th a t  re a d in g  th e  s ta tu te  as 
re q u ir in g  a n  in te r s ta te  n ex u s fo r  th e  offense of re ­
ce iv in g  “w ould  m ak e  T itle  V I I  r e d u n d a n t w ith  T itle  
IV ” (p . 3 4 1 ) , th e  C o u rt s ta te d  (p . 342) th a t  T itle  
V II  “ p u n ish  [es] a  b ro a d e r  c lass  of b eh av io r” th a n  

T itle  IV :
E v en  u n d e r  re sp o n d e n t’s v iew , a  T itle  V II  of­
fen se  is  m ad e  o u t i f  th e  f ire a rm  w as  possessed 
o r  received  “ in  com m erce o r  a ffec tin g  com m erce” ; 
how ever, T itle  IV  a p p a re n tly  does n o t reach  
possessions o r  in t r a s ta te  tra n s a c tio n s  a t  a ll, even 
those  w ith  an  in te r s ta te  com m erce nexus, b u t  is 
lim ited  to  th e  sen d in g  o r  rece iv in g  of f ire a rm s  
as  p a r t  of an  in te r s ta te  t r a n s p o r ta tio n .110 [pp. 
342-343 .]

In  fo o tn o te  10 th e  C o u rt s ta te d  (p . 343) th a t ,  in  
s tr ik in g  dow n th e  p re su m p tio n  o f th e  p redecesso r 
s ta tu te  in  Tot, i t  “ th e re  n o ted ” :

“ [T ]h e  A c t is  confined to  th e  rec e ip t of fire ­
a rm s  o r  am m u n itio n  as a  p a r t  of in te r s ta te  
t r a n s p o r ta t io n  a n d  does n o t ex ten d  to  th e  re ­
ceip t, in  an  in t r a s ta te  tra n sa c tio n , o f such  a r t i ­
cles w hich , a t  som e p r io r  tim e, have  been tra n s -

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25

p o rted  in te r s ta te .” Id., a t  4 6 6 .[155 W h ile  th e  
reac h  of T itle  IV  its e lf  is  a  q u es tio n  to  be de­
cided fin a lly  som e o th e r  day , th e  G o v ern m en t 
h a s  p re sen te d  h e re  no le a rn in g  o r  o th e r  evidence 
in d ic a tin g  th a t  th e  1968 A c t ch an g ed  th e  p r io r  
ap p ro ach  to  th e  “ re c e ip t” offense. See, e.g., S. 
R ep. No. 1097, 9 0 th  C ong., 2d Sess., 115 (1 9 6 8 ) .

T h e  s ta te m e n ts  in  Tot a n d  Bass t h a t  Section  2 ( f )  
of th e  1938 A c t a n d  Section 9 2 2 (h )  o f th e  G un  Con­
tro l A c t do n o t ap p ly  to  th e  in t r a s ta te  rec e ip t o f a  
f ire a rm  o r  a m m u n itio n  th a t  p rev io u s ly  h a s  m oved 
in te r s ta te ,  do n o t r e s t  upon  a n y  a n a ly s is  o f  th e  la n ­
guage, th e  leg is la tiv e  h is to ry  o r  th e  b asic  s ta tu to ry  
design. A lth o u g h  th e  g o v e rn m e n t’s b r ie f  in  Tot a r ­
gued  fo r  sev e ra l p ag es  th a t  Section 2 ( f )  ap p lied  only  
to  rece ip ts  th a t  w ere  p a r t  o f in te r s ta te  tra n s a c tio n s  
(B r ie f  f o r  th e  U n ite d  S ta te s , No. 569, O ctober T erm , 
1942, pp. 1 1 -1 7 ), th e  C o u rt a p p a re n tly  t re a te d  th e  
p ro p o sitio n  a s  accep ted  fo r  th e  p u rp o ses  of th e  case, 
an d  w ith o u t a n y  s u b s ta n tia l  d iscussion  o f  th e  p o in t 
w en t on to  co n sid e r a t  len g th  th e  v a lid ity  o f th e  p re ­
sum ption .

A lth o u g h  w hen  C ongress considered  th e  G un  Con­
tro l A c t m ore  th a n  tw e n ty  y e a rs  la te r , i t  p re su m ab ly  
w as a w a re  o f th e  Tot h o ld in g  th a t  th e  p re su m p tio n  
w as in v a lid , since i t  d id  n o t inc lude th e  p re su m p tio n  
in  th e  new  s ta tu te ,  th e re  is  no  in d ica tio n  th a t  i t  w as 
a w a re  of th e  s ta te m e n t in  Tot t h a t  th e  w o rd s “ re ­
ceive a n y  f ire a rm  o r  a m m u n itio n  w hich  h a s  been

15 This statement is broader than the language in Tot, where 
the quoted language was preceded by the words “ [b]oth courts 
below held th a t the offense created by * * *” (319 U.S. a t 466).

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26

sh ipped  o r  tr a n s p o r te d  in  in te r s ta te  o r fo re ig n  com ­
m erce” do n o t m ean  w h a t th e y  sa y  an d  a re  lim ited  
to  rece ip ts  th a t  a re  a  p a r t  of such com m erce. W e 
have fo u n d  no re fe re n c e  to  Tot in  a n y  o f th e  re p o rts  
o r  d eb a tes  on th e  G un C o n tro l A c t (see S. R ep. Nos. 
1501 a n d  1097, 9 0 th  Cong., 2d  Sess. (1 9 6 8 ) ;  114 
Cong. R ec. 12303-12304 ( 1 9 6 8 ) ) ,  an d  th e re  is  n o th ­
in g  in  th a t  leg is la tiv e  h is to ry  show ing  a n y  in te n t  to  
accep t th e  lim ited  in te rp re ta t io n  g iv en  th a t  p h ra se  
in  Tot.

T h u s, C ongress c a n n o t be deem ed to  h av e  approved  
o r  ad o p ted  th e  in te rp re ta t io n  of those  w o rd s in  Tot 
w hen , a  q u a r te r  of a  c e n tu ry  la te r ,  i t  u sed  th e  iden ­
tic a l la n g u a g e  in  e n a c tin g  a  new  g u n  co n tro l law . 
“ To ex p la in  th e  cau se  of n o n -ac tio n  b y  C ongress w hen 
C ongress itse lf  sheds no lig h t is to  v e n tu re  in to  spec­
u la tiv e  u n re a litie s . C ongress m a y  n o t h av e  h a d  its  
a t te n tio n  d irec ted  to  a n  u n d es irab le  decision * * 
Helvering v. Hallock, 309 U .S . 106, 119-120 (foo tno te  
o m i t te d ) ; cf. United States v. Raynor, 302 U .S . 540, 
551-552; Girouard v. United States, 328 U .S. 61, 69- 
70. T o  th e  c o n tra ry , a s  w e have  show n in  p o in t I, the 
e n tire  design  o f th e  s ta tu te  reflects  an  in ten tio n  
b ro ad ly  to  b a r  th e  rec e ip t o f f ire a rm s  an d  am m u n i­
tio n  by  th e  ca teg o rie s  o f p o te n tia lly  irresp o n sib le  
p erso n s  w hom  C ongress p ro h ib ited  fro m  acq u irin g  
those a rtic le s .

T h e  C o u rt’s s ta te m e n ts  in  Bass a b o u t th e  a p p a r­
en tly  lim ited  reac h  o f Section 9 2 2 (h )  su ffe r  f ro m  the 
sam e in f irm ity . T h ey  w ere  a p p a re n tly  based  upon 
th e  C o u rt’s e a r l ie r  in d ica tio n  in  Tot t h a t  th e  prede-

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27

cessor s ta tu te  w as  th u s  re s tr ic te d . T h e  b r ie f s  in  
Bass d id  n o t d iscuss th e  scope o f Section  9 2 2 (h ) .  
The C o u rt’s in te rp re ta t io n  o f th a t  section  w as  de­
signed  to  show  th a t  th e re  w ere  s ig n if ic a n t d ifferences 
in  th e  reach  o f th a t  section  a n d  th e  section  involved 
in  Bass. T h ey  w ere  m ad e  w ith o u t a n y  d iscussion  of 
th e  fa c to rs  n o rm a lly  considered  in  in te rp re t in g  leg­
is la tio n : th e  la n g u ag e , leg is la tiv e  h is to ry  a n d  design  
an d  p u rp o se  o f th e  s ta tu te .  Indeed , th e  sin g le  a u ­
th o r i ty  c ited  in  ad d itio n  to  Tot on th is  issue— the  
S en ate  C onference R e p o rt on th e  G un C o n tro l A c t 
(404  U .S . a t  343, n . 1 0 )— su p p o rts  r a th e r  th a n  u n ­
d e rcu ts  o u r  in te rp re ta t io n  o f Section 9 2 2 ( h ) .  See, 
supra, p. 20.

T he C o u rt’s in te rp re ta t io n  o f T itle s  IV an d  VII 
in  Bass leads to  th is  a n o m a ly : T itle  VII, w hich  cov­
e rs  “ r e c e iv in g ]  * * * in  com m erce o r  a ffec tin g  com ­
m erce * * * a n y  f ire a rm ,” re q u ire s  on ly  a  sh ow ing  
th a t  th e  f ire a rm  received  h a s  p rev io u s ly  trav e led  in  
in te r s ta te  com m erce” (404  U .S. a t  3 5 0 ) ;  b u t  T itle  
IV , w h ich  covers “ r e c e iv in g ] ” a n y  f ire a rm  * * * 
w hich h a s  been sh ipped  o r  tr a n s p o r te d  in  in te r s ta te  
* * * com m erce,” is lim ited  to  “ rece iv in g  o f f ire a rm s  
as p a r t  of a n  in te r s ta te  t r a n s p o r ta t io n ” (p . 3 4 3 ). 
T h ere  is n o  rea so n  to  believe th a t  C ongress in ten d ed  
to  p ro d u ce  th is  to p sy -tu rv y  re s u lt  w hen  i t  en ac ted  
these re la te d  p ro v is io n s  as d iffe re n t ti t le s  o f th e  sam e 
Act.

In  th e se  c ircu m stan ces, w e u rg e  th a t  th is  C o u rt 
should n o t co n sid er its e lf  bound  by  th e  s ta te m e n ts  in  
Tot a n d  Bass r e g a rd in g  th e  lim ited  reach  o f th e  p ro -

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vision . In s te a d , i t  shou ld  reex am in e  th e  question  
a f re s h  on th e  b as is  o f  th e  a rg u m e n ts  m ad e  in  p o in t 
I . T hose a rg u m e n ts  co nv inc ing ly  show  th a t  th e  la n ­
g u a g e  in  S ection  9 2 2 (h )  covers th e  in t r a s ta te  rece ip t 
o f a  f ire a rm  o r  a m m u n itio n  th a t  p rev io u s ly  h ad  
m oved in  in te r s ta te  com m erce. “ T h is  C o u rt h a s  m an y  
tim e s  reco n sid e red  s ta tu to ry  c o n s tru c tio n s  th a t  have 
been p ass iv e ly  ab ided  b y  C o n g ress” (Zuber v. Allen, 
396 U .S . 168, 185, n . 2 1 ) .  I t  should  fo llow  th e  sam e 
co u rse  h e re  a n d  re je c t i ts  p rev io u s v iew s re g a rd in g  
th e  lim ited  reach  o f th e  s ta tu to ry  p ro h ib itio n  upon 
a  convicted  fe lon  rece iv in g  “ a n y  f ire a rm  * * * w hich  
h a s  been  sh ip p ed  o r  tr a n s p o r te d  in  in te r s ta te  o r  fo r ­
e ign  com m erce.”

CONCLUSION

I t  is th e re fo re  re sp e c tfu lly  su b m itted  th a t  the  
ju d g m e n t o f th e  c o u r t o f ap p ea ls  should  be affirm ed.

R o b e r t  H . B o r k ,
S olic itor General.

J o h n  C. K e e n e y ,
A ctin g  A ss is ta n t A tto rn ey  General.

R o b e r t  B . R e i c h ,
A ssis ta n t to th e  S olicitor General.

S i d n e y  M . G l a z e r ,
M a r c  P h i l i p  R i c h m a n ,

A tto rn eys .

June 1975.

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