Supreme Court Gun Case #93:
SMALL v. UNITED STATES (2005)
Argued November 3, 2004
Decided April 26, 2005
Petitioner Small was convicted in a Japanese Court of trying to smuggle
firearms and ammunition into that country. He served five years in prison
and then returned to the United States, where he bought a gun. Federal
authorities subsequently charged Small under 18 U. S. C. §922(g)(1),
which forbids "any person ... convicted in any court ... of a crime
punishable by imprisonment for a term exceeding one year ... to ... possess
... any firearm." (Emphasis added.) Small pleaded guilty while reserving
the right to challenge his conviction on the ground that his earlier conviction,
being foreign, fell outside §922(g)(1)'s scope. The Federal District
Court and the Third Circuit rejected this argument.
Held: Section 922(g)(1)'s phrase "convicted in any court" encompasses
only domestic, not foreign, convictions. Pp. 2-9.
(a) In considering the scope of the phrase "convicted in any court"
it is appropriate to assume that Congress had domestic concerns in mind.
This assumption is similar to the legal presumption that Congress ordinarily
intends its statutes to have domestic, not extraterritorial, application,
see, e.g., Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. The phrase
"convicted in any court" describes one necessary portion of
the "gun possession" activity that is prohibited as a matter
of domestic law. Moreover, because foreign convictions may include convictions
for conduct that domestic laws would permit, e.g., for engaging in economic
conduct that our society might encourage, convictions from a legal system
that are inconsistent with American understanding of fairness, and convictions
for conduct that domestic law punishes far less severely, the key statutory
phrase "convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year" somewhat less reliably identifies
dangerous individuals for the purposes of U. S. law where foreign convictions,
rather than domestic convictions, are at issue. In addition, it is difficult
to read the statute as asking judges or prosecutors to refine its definitional
distinctions where foreign convictions are at issue. To somehow weed out
inappropriate foreign convictions that meet the statutory definition is
not consistent with the statute's language; it is not easy for those not
versed in foreign laws to accomplish; and it would leave those previously
convicted in a foreign court (say of economic crimes) uncertain about
their legal obligations. These considerations provide a convincing basis
for applying the ordinary assumption about the reach of domestically oriented
statutes here. Thus, the Court assumes a congressional intent that the
phrase "convicted in any court" applies domestically, not extraterritorially,
unless the statutory language, context, history, or purpose shows the
contrary. Pp. 2-5.
(b) There is no convincing indication to the contrary here. The statute's
language suggests no intent to reach beyond domestic convictions. To the
contrary, if read to include foreign convictions, the statute's language
creates anomalies. For example, in creating an exception allowing gun
possession despite a conviction for an antitrust or business regulatory
crime, §921(a)(20)(A) speaks of "Federal or State" antitrust
or regulatory offenses. If the phrase "convicted in any court"
generally refers only to domestic convictions, this language causes no
problem. But if the phrase includes foreign convictions, the words "Federal
or State" prevent the exception from applying where a foreign antitrust
or regulatory conviction is at issue. Such illustrative examples suggest
that Congress did not consider whether the generic phrase "convicted
in any court" applies to foreign convictions. Moreover, the statute's
legislative history indicates no intent to reach beyond domestic convictions.
Although the statutory purpose of keeping guns from those likely to become
a threat to society does offer some support for reading §922(g)(1)
to include foreign convictions, the likelihood that Congress, at best,
paid no attention to the matter is reinforced by the empirical fact that,
according to the Government, since 1968, there have fewer than a dozen
instances in which such a foreign conviction has served as a predicate
for a felon-in-possession prosecution. Pp. 5-8.
333 F. 3d 425, reversed and remanded.
Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor,
Souter, and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion,
in which Scalia and Kennedy, JJ., joined. Rehnquist, C. J., took no part
in the decision of the case.
GARY SHERWOOD SMALL, PETITIONER v. UNITED STATES
on writ of certiorari to the United States Court of Appeals for the third
[April 26, 2005]
Justice Breyer delivered the opinion of the Court.
The United States Criminal Code makes it"unlawful for any person
... who has been convicted in any court, of a crime punishable by imprisonment
for a term exceeding one year ... to ... possess ... any firearm."
18 U. S. C. §922(g)(1) (emphasis added).
The question before us focuses upon the words "convicted in any court."
Does this phrase apply only to convictions entered in any domestic court
or to foreign convictions as well? We hold that the phrase encompasses
only domestic, not foreign, convictions.
In 1994 petitioner, Gary Small, was convicted in a Japanese court of having
tried to smuggle several pistols, a rifle, and ammunition into Japan.
Small was sentenced to five years' imprisonment. 183 F. Supp. 2d 755,
757, n. 3 (WD Pa. 2002). After his release, Small returned to the United
States, where he bought a gun from a Pennsylvania gun dealer. Federal
authorities subsequently charged Small under the "unlawful gun possession"
statute here at issue. 333 F. 3d 425, 426 (CA3 2003). Small pleaded guilty
while reserving the right to challenge his conviction on the ground that
his earlier conviction, being a foreign conviction, fell outside the scope
of the illegal gun possession statute. The Federal District Court rejected
Small's argument, as did the Court of Appeals for the Third Circuit. 183
F. Supp. 2d, at 759; 333 F. 3d, at 427, n. 2. Because the Circuits disagree
about the matter, we granted certiorari. Compare United States v. Atkins,
872 F. 2d 94, 96 (CA4 1989) ("convicted in any court" includes
foreign convictions); United States v. Winson, 793 F. 2d 754, 757-759
(CA6 1986) (same), with United States v. Gayle, 342 F. 3d 89, 95 (CA2
2003) ("convicted in any court" does not include foreign convictions);
United States v. Concha, 233 F. 3d 1249, 1256 (CA10 2000) (same).
The question before us is whether the statutory reference "convicted
in any court" includes a conviction entered in a foreign court. The
word "any" considered alone cannot answer this question. In
ordinary life, a speaker who says, "I'll see any film," may
or may not mean to include films shown in another city. In law, a legislature
that uses the statutory phrase " 'any person' " may or may not
mean to include " 'persons' " outside "the jurisdiction
of the state." See, e.g., United States v. Palmer, 3 Wheat. 610,
631 (1818) (Marshall, C. J.) ("[G]eneral words," such as the
word " 'any,' " must "be limited" in their application
"to those objects to which the legislature intended to apply them");
Nixon v. Missouri Municipal League, 541 U. S. 125, 132 (2004) ("
'any' " means "different things depending upon the setting");
United States v. Alvarez-Sanchez, 511 U. S. 350, 357 (1994) ("[R]espondent
errs in placing dispositive weight on the broad statutory reference to
'any' law enforcement officer or agency without considering the rest of
the statute"); Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U. S. 1, 15-16 (1981) (it is doubtful that the phrase
" 'any statute' " includes the very statute in which the words
appear); Flora v. United States, 362 U. S. 145, 149 (1960) ("[A]ny
sum," while a "catchall" phase, does not "define what
it catches"). Thus, even though the word "any" demands
a broad interpretation, see, e.g., United States v. Gonzales, 520 U. S.
1, 5 (1997), we must look beyond that word itself.
In determining the scope of the statutory phrase we find help in the "commonsense
notion that Congress generally legislates with domestic concerns in mind."
Smith v. United States, 507 U. S. 197, 204, n. 5 (1993). This notion has
led the Court to adopt the legal presumption that Congress ordinarily
intends its statutes to have domestic, not extraterritorial, application.
See Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949); see also
Palmer, supra, at 631 ("The words 'any person or persons,' are broad
enough to comprehend every human being" but are "limited to
cases within the jurisdiction of the state"); EEOC v. Arabian American
Oil Co., 499 U. S. 244, 249-251 (1991). That presumption would apply,
for example, were we to consider whether this statute prohibits unlawful
gun possession abroad as well as domestically. And, although the presumption
against extraterritorial application does not apply directly to this case,
we believe a similar assumption is appropriate when we consider the scope
of the phrase "convicted in any court" here.
For one thing, the phrase describes one necessary portion of the "gun
possession" activity that is prohibited as a matter of domestic law.
For another, considered as a group, foreign convictions differ from domestic
convictions in important ways. Past foreign convictions for crimes punishable
by more than one year's imprisonment may include a conviction for conduct
that domestic laws would permit, for example, for engaging in economic
conduct that our society might encourage. See, e.g., Art. 153 of the Criminal
Code of the Russian Soviet Federated Socialist Republic, in Soviet Criminal
Law and Procedure 171 (H. Berman & J. Spindler transls. 2d ed. 1972)
(criminalizing "Private Entrepreneurial Activity"); Art. 153,
id., at 172 (criminalizing "Speculation," which is defined as
"the buying up and reselling of goods or any other articles for the
purpose of making a profit"); cf. e.g., Gaceta Oficial de la Republica
de Cuba, ch. II, Art. 103, p. 68 (Dec. 30, 1987) (forbidding propaganda
that incites against the social order, international solidarity, or the
Communist State). They would include a conviction from a legal system
that is inconsistent with an American understanding of fairness. See,
e.g., U. S. Dept. of State, Country Reports on Human Rights Practices
for 2003, Submitted to the House Committee on International Relations
and the Senate Committee on Foreign Relations, 108th Cong., 2d Sess.,
702-705, 1853, 2023 (Joint Comm. Print 2004) (describing failures of "due
process" and citing examples in which "the testimony of one
man equals that of two women"). And they would include a conviction
for conduct that domestic law punishes far less severely. See, e.g., Singapore
Vandalism Act, ch. 108, §§2, 3, III Statutes of Republic of
Singapore p. 258 (imprisonment for up to three years for an act of vandalism).
Thus, the key statutory phrase "convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year" somewhat
less reliably identifies dangerous individuals for the purposes of U.
S. law where foreign convictions, rather than domestic convictions, are
In addition, it is difficult to read the statute as asking judges or prosecutors
to refine its definitional distinctions where foreign convictions are
at issue. To somehow weed out inappropriate foreign convictions that meet
the statutory definition is not consistent with the statute's language;
it is not easy for those not versed in foreign laws to accomplish; and
it would leave those previously convicted in a foreign court (say of economic
crimes) uncertain about their legal obligations. Cf. 1 United States Sentencing
Commission, Guidelines Manual §4A1.2(h) (Nov. 2004) ("[S]entences
resulting from foreign convictions are not counted" as a "prior
sentence" for criminal history purposes).
These considerations, suggesting significant differences between foreign
and domestic convictions, do not dictate our ultimate conclusion. Nor
do they create a "clear statement" rule, imposing upon Congress
a special burden of specificity. See post, at 5 (Thomas, J., dissenting).
They simply convince us that we should apply an ordinary assumption about
the reach of domestically oriented statutes here--an assumption that helps
us determine Congress' intent where Congress likely did not consider the
matter and where other indicia of intent are in approximate balance. Cf.
ibid. We consequently assume a congressional intent that the phrase "convicted
in any court" applies domestically, not extraterritorially. But,
at the same time, we stand ready to revise this assumption should statutory
language, context, history, or purpose show the contrary.
We have found no convincing indication to the contrary here. The statute's
language does not suggest any intent to reach beyond domestic convictions.
Neither does it mention foreign convictions nor is its subject matter
special, say, immigration or terrorism, where one could argue that foreign
convictions would seem especially relevant. To the contrary, if read to
include foreign convictions, the statute's language creates anomalies.
For example, the statute creates an exception that allows gun possession
despite a prior conviction for an antitrust or business regulatory crime.
18 U. S. C. §921(a)(20)(A). In doing so, the exception speaks of
"Federal or State" antitrust or regulatory offenses. Ibid. If
the phrase "convicted in any court" generally refers only to
domestic convictions, this language causes no problem. But if "convicted
in any court" includes foreign convictions, the words "Federal
or State" prevent the exception from applying where a foreign antitrust
or regulatory conviction is at issue. An individual convicted of, say,
a Canadian antitrust offense could not lawfully possess a gun, Combines
Investigation Act, 2 R. S. C. 1985, ch. C-34, §§61(6), (9) (1985),
but a similar individual convicted of, say, a New York antitrust offense,
could lawfully possess a gun.
For example, the statute specifies that predicate crimes include "a
misdemeanor crime of domestic violence." 18 U. S. C. §922(g)(9).
Again, the language specifies that these predicate crimes include only
crimes that are "misdemeanor[s] under Federal or State law."
§921(a)(33)(A). If "convicted in any court" refers only
to domestic convictions, this language creates no problem. If the phrase
also refers to foreign convictions, the language creates an apparently
senseless distinction between (covered) domestic relations misdemeanors
committed within the United States and (uncovered) domestic relations
misdemeanors committed abroad.
For example, the statute provides an enhanced penalty where unlawful gun
possession rests upon three predicate convictions for a "serious
drug offense." §924(e)(1) (2000 ed., Supp. II). Again the statute
defines the relevant drug crimes through reference to specific federal
crimes and with the words "offense under State law." §§924(e)(2)(A)(i),
(ii) (2000). If "convicted in any court" refers only to domestic
convictions, this language creates no problem. But if the phrase also
refers to foreign convictions, the language creates an apparently senseless
distinction between drug offenses committed within the United States (potentially
producing enhanced punishments) and similar offenses committed abroad
(not producing enhanced punishments).
For example, the statute provides that offenses that are punishable by
a term of imprisonment of up to two years, and characterized under state
law as misdemeanors, are not predicate crimes. §921(20). This exception
is presumably based on the determination that such state crimes are not
sufficiently serious or dangerous so as to preclude an individual from
possessing a firearm. If "convicted in any court" refers only
to domestic convictions, this language creates no problem. But if the
phrase also refers to foreign convictions, the language creates another
apparently senseless distinction between less serious crimes (misdemeanors
punishable by more than one year's imprisonment) committed within the
United States (not predicate crimes) and similar offenses committed abroad
(predicate crimes). These illustrative examples taken together suggest
that Congress did not consider whether the generic phrase "convicted
in any court" applies to domestic as well as foreign convictions.
The statute's lengthy legislative history confirms the fact that Congress
did not consider whether foreign convictions should or should not serve
as a predicate to liability under the provision here at issue. Congress
did consider a Senate bill containing language that would have restricted
predicate offenses to domestic offenses. See S. Rep. No. 1501, 90th Cong.,
2d Sess., p. 31 (1968) (defining predicate crimes in terms of "Federal"
crimes "punishable by a term of imprisonment exceeding one year"
and crimes "determined by the laws of the State to be a felony").
And the Conference Committee ultimately rejected this version in favor
of language that speaks of those "convicted in any court, of a crime
punishable by a term of imprisonment exceeding one year." H. R. Conf.
Rep. No. 1956, 90th Cong., 2d Sess., pp. 28-29 (1968). But the history
does not suggest that this language change reflected a congressional view
on the matter before us. Rather, the enacted version is simpler and it
avoids potential difficulties arising out of the fact that States may
define the term "felony" differently. And as far as the legislative
history is concerned, these latter virtues of the new language fully explain
the change. Thus, those who use legislative history to help discern congressional
intent will see the history here as silent, hence a neutral factor, that
simply confirms the obvious, namely, that Congress did not consider the
issue. Others will not be tempted to use or to discuss the history at
all. But cf. post, at 13 (Thomas, J., dissenting).
The statute's purpose does offer some support for a reading of the phrase
that includes foreign convictions. As the Government points out, Congress
sought 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.' " Brief for United States 16 (quoting Dickerson v. New
Banner Institute, Inc., 460 U. S. 103, 112 (1983)); see also Lewis v.
United States, 445 U. S. 55, 60-62, 66 (1980); Huddleston v. United States,
415 U. S. 814, 824 (1974). And, as the dissent properly notes, post, at
12, one convicted of a serious crime abroad may well be as dangerous as
one convicted of a similar crime in the United States.
The force of this argument is weakened significantly, however, by the
empirical fact that, according to the Government, since 1968, there have
probably been no more than "10 to a dozen" instances in which
such a foreign conviction has served as a predicate for a felon-in-possession
prosecution. Tr. of Oral Arg. 32. This empirical fact reinforces the likelihood
that Congress, at best, paid no attention to the matter.
In sum, we have no reason to believe that Congress considered the added
enforcement advantages flowing from inclusion of foreign crimes, weighing
them against, say, the potential unfairness of preventing those with inapt
foreign convictions from possessing guns. See supra, at 4. The statute
itself and its history offer only congressional silence. Given the reasons
for disfavoring an inference of extraterritorial coverage from a statute's
total silence and our initial assumption against such coverage, see supra,
at 5, we conclude that the phrase "convicted in any court" refers
only to domestic courts, not to foreign courts. Congress, of course, remains
free to change this conclusion through statutory amendment.
For these reasons, the judgment of the Third Circuit is reversed, and
the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The Chief Justice took no part in the decision of this case.
GARY SHERWOOD SMALL, PETITIONER v. UNITED STATES
on writ of certiorari to the United States Court of Appeals for the third
[April 26, 2005]
Justice Thomas, with whom Justice Scalia and Justice Kennedy join, dissenting.
Gary Small, having recently emerged from three years in Japanese prison
for illegally importing weapons into that country, bought a gun in the
United States. This violated 18 U. S. C. §922(g)(1), which makes
it unlawful for any person "who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year"
to possess a firearm in or affecting commerce. Yet the majority decides
that Small's gun possession did not violate the statute, because his prior
convictions occurred in a Japanese court rather than an American court.
In concluding that "any" means not what it says, but rather
"a subset of any," the Court distorts the plain meaning of the
statute and departs from established principles of statutory construction.
I respectfully dissent.
In December 1992, Small shipped a 19-gallon electric water heater from
the United States to Okinawa, Japan, ostensibly as a present for someone
in Okinawa. App. to Brief for Appellant in No. 02-2785 (CA3), pp. 507a-510a,
530a-531a, 534a, 598a (hereinafter Appellant's App.). Small had sent two
other water heaters to Japan that same year. Id., at 523a-527a. Thinking
it unusual for a person to ship a water tank from overseas as a present,
id., at 599a, Japanese customs officials searched the heater and discovered
2 rifles, 8 semiautomatic pistols, and 410 rounds of ammunition. Id.,
at 603a-604a; id., at 262a, 267a, 277a.
The Japanese Government indicted Small on multiple counts of violating
Japan's weapons-control and customs laws. Id., at 261a-262a. Each offense
was punishable by imprisonment for a term exceeding one year. 333 F. 3d
425, 426 (CA3 2003). Small was tried before a three-judge court in Naha,
Japan, Appellant's App. 554a, convicted on all counts on April 14, 1994,
333 F. 3d, at 426, and sentenced to 5 years' imprisonment with credit
for 320 days served, id., at 426, n. 1; Government's Brief in Support
of Detention in Crim. No. 00-160 (WD Pa.), pp. 3-4. He was paroled on
November 22, 1996, and his parole terminated on May 26, 1998. 333 F. 3d,
at 426, n. 1.
A week after completing parole for his Japanese convictions, on June 2,
1998, Small purchased a 9-millimeter SWD Cobray pistol from a firearms
dealer in Pennsylvania. Appellant's App. 48a, 98a. Some time later, a
search of his residence, business premises, and automobile revealed a
.380 caliber Browning pistol and more than 300 rounds of ammunition. Id.,
at 47a-51a, 98a-99a. This prosecution ensued.
The plain terms of §922(g)(1) prohibit Small--a person "convicted
in any court of, a crime punishable by imprisonment for a term exceeding
one year"--from possessing a firearm in the United States. "Read
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 International Dictionary
97 (1976) (hereinafter Webster's 3d)); see also Department of Housing
and Urban Development v. Rucker, 535 U. S. 125, 130-131 (2002) (statute
making "any" drug-related criminal activity cause for termination
of public housing lease precludes requirement that tenant know of the
activity); Brogan v. United States, 522 U. S. 398, 400-401 (1998) (statute
criminalizing "any" false statement within the jurisdiction
of a federal agency allows no exception for the mere denial of wrongdoing);
United States v. Alvarez-Sanchez, 511 U. S. 350, 356, 358 (1994) (statute
referring to "any" law-enforcement officer includes all law
enforcement officers--federal, state, or local--capable of arresting for
a federal crime). No exceptions appear on the face of the statute; "[n]o
modifier is present, and nothing suggests any restriction," Lewis
v. United States, 445 U. S. 55, 60 (1980), on the scope of the term "court."
See Gonzales, supra, at 5 (statute referring to " 'any other term
of imprisonment' " includes no "language limiting the breadth
of that word, and so we must read [the statute] as referring to all 'term[s]
of imprisonment' "). The broad phrase "any court" unambiguously
includes all judicial bodies1 with jurisdiction to impose the requisite
conviction--a conviction for a crime punishable by imprisonment for a
term of more than a year. Indisputably, Small was convicted in a Japanese
court of crimes punishable by a prison term exceeding one year. The clear
terms of the statute prohibit him from possessing a gun in the United
Of course, the phrase "any court," like all other statutory
language, must be read in context. E.g., Deal v. United States, 508 U.
S. 129, 132 (1993). The context of §922(g)(1), however, suggests
that there is no geographic limit on the scope of "any court."2
By contrast to other parts of the firearms-control law that expressly
mention only state or federal law, "any court" is not qualified
by jurisdiction. See 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"); §921(a)(33)(A)(i)
(defining a "misdemeanor crime of domestic violence" by reference
to "Federal or State law").3 Congress' explicit use of "Federal"
and "State" in other provisions shows that it specifies such
restrictions when it wants to do so.
Counting foreign convictions, moreover, implicates no special federalism
concerns or other clear statement rules that have justified construing
"any" narrowly in the past.4 And it is eminently practical to
put foreign convictions to the same use as domestic ones; foreign convictions
indicate dangerousness just as reliably as domestic convictions. See Part
III-B, infra. The expansive phrase "convicted in any court"
straightforwardly encompasses Small's Japanese convictions.
Faced with the inescapably broad text, the Court narrows the statute by
assuming that the text applies only to domestic convictions, ante, at
5; criticizing the accuracy of foreign convictions as a proxy for dangerousness,
ante, at 3-5; finding that the broad, natural reading of the statute "creates
anomalies," ante, at 5; and suggesting that Congress did not consider
whether foreign convictions counted, ante, at 7-8. None of these arguments
The Court first invents a canon of statutory interpretation--what it terms
"an ordinary assumption about the reach of domestically oriented
statutes," ante, at 5--to cabin the statute's reach. This new "assumption"
imposes a clear statement rule on Congress: Absent a clear statement,
a statute refers to nothing outside the United States. The Court's denial
that it has created a clear statement rule is implausible. Ibid. After
today's ruling, the only way for Congress to ensure that courts will construe
a law to refer to foreign facts or entities is to describe those facts
or entities specifically as foreign. If this is not a "special burden
of specificity," ibid., I am not sure what is.
The Court's innovation is baseless. The Court derives its assumption from
the entirely different, and well-recognized, canon against extraterritorial
application of federal statutes: "It is a longstanding principle
of American law that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction of
the United States." EEOC v. Arabian American Oil Co., 499 U. S. 244,
248 (1991) (internal quotation marks omitted). But the majority rightly
concedes that the canon against extraterritoriality itself "does
not apply directly to this case." Ante, at 3. Though foreign as well
as domestic convictions trigger §922(g)(1)'s prohibition, the statute
criminalizes gun possession in this country, not abroad. In prosecuting
Small, the Government is enforcing a domestic criminal statute to punish
domestic criminal conduct. Pasquantino v. United States, ante, at 20-21
(federal wire fraud statute covers a domestic scheme aimed at defrauding
a foreign government of tax revenue).
The extraterritoriality cases cited by the Court, ante, at 3, do not support
its new assumption. They restrict federal statutes from applying outside
the territorial jurisdiction of the United States. See Smith v. United
States, 507 U. S. 197, 203-204 (1993) (Federal Tort Claims Act does not
apply to claims arising in Antarctica); Arabian American Oil Co., supra,
at 249-251 (Title VII of the Civil Rights Act of 1964 does not regulate
the employment practices of American firms employing American citizens
abroad); Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285-286 (1949) (federal
labor statute does not apply to a contract between the United States and
a private contractor for construction work done in a foreign country);
United States v. Palmer, 3 Wheat. 610, 630-634 (1818) (statute punishing
piracy on the high seas does not apply to robbery committed on the high
seas by a noncitizen on board a ship belonging exclusively to subjects
of a foreign state). These straightforward applications of the extraterritoriality
canon, restricting federal statutes from reaching conduct beyond U. S.
borders, lend no support to the Court's unprecedented rule restricting
a federal statute from reaching conduct within U. S. borders.
We have, it is true, recognized that the presumption against extraterritorial
application of federal statutes is rooted in part in the "commonsense
notion that Congress generally legislates with domestic concerns in mind."
Smith, supra, at 204, n. 5. But my reading of §922(g)(1) is entirely
true to that notion: Gun possession in this country is surely a "domestic
concern." We have also consistently grounded the canon in the risk
that extraterritorially applicable U. S. laws could conflict with foreign
laws, for example, by subjecting individuals to conflicting obligations.
Arabian American Oil Co., supra, at 248. That risk is completely absent
in applying §922(g)(1) to Small's conduct. Quite the opposite, §922(g)(1)
takes foreign law as it finds it. Aside from the extraterritoriality canon,
which the Court properly concedes does not apply, I know of no principle
of statutory construction justifying the result the Court reaches. Its
concession that the canon is inapposite should therefore end this case.
Rather than stopping there, the Court introduces its new "assumption
about the reach of domestically oriented statutes" sua sponte, without
briefing or argument on the point,5 and without providing guidance on
what constitutes a "domestically oriented statut[e]." Ante,
at 5. The majority suggests that it means all statutes except those dealing
with subjects like "immigration or terrorism," ibid., apparently
reversing our previous rule that the extraterritoriality canon "has
special force" in statutes "that may involve foreign and military
affairs," Sale v. Haitian Centers Council, Inc., 509 U. S. 155, 188
(1993) (provision of the Immigration and Nationality Act does not apply
extraterritorially); cf. Palmer, supra (statute criminalizing piracy on
the high seas does not apply to robbery by noncitizen on ship belonging
to foreign subjects). The Court's creation threatens to wreak havoc with
the established rules for applying the canon against extraterritoriality.6
In support of its narrow reading of the statute, the majority opines that
the natural reading has inappropriate results. It points to differences
between foreign and domestic convictions, primarily attacking the reliability
of foreign convictions as a proxy for identifying dangerous individuals.
Ante, at 3-5. Citing various foreign laws, the Court observes that, if
interpreted to include foreign convictions, §922(g) would include
convictions for business and speech activities "that [United States]
laws would permit," ante, at 3; convictions "from a legal system
that is inconsistent with an American understanding of fairness,"
ante, at 4; and convictions "for conduct that [United States] law
punishes far less severely," ibid. The Court therefore concludes
that foreign convictions cannot trigger §922(g)(1)'s prohibition
on firearm possession.
The Court's claim that foreign convictions punishable by imprisonment
for more than a year "somewhat less reliably identif[y] dangerous
individuals" than domestic convictions, ibid., is untenable. In compiling
examples of foreign convictions that might trigger §922(g)(1), ibid.,
the Court constructs a parade of horribles. Citing laws of the Russian
Soviet Federated Socialist Republic, Cuba, and Singapore, it cherry-picks
a few egregious examples of convictions unlikely to correlate with dangerousness,
inconsistent with American intuitions of fairness, or punishable more
severely than in this country. Ibid. This ignores countless other foreign
convictions punishable by more than a year that serve as excellent proxies
for dangerousness and culpability.7 Surely a "reasonable human being"
drafting this language would have considered whether foreign convictions
are, on average and as a whole, accurate at gauging dangerousness and
culpability, not whether the worst-of-the-worst are. Breyer, On the Uses
of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845,
854 (1992). The Court also ignores the facts of this very case: A week
after completing his sentence for shipping two rifles, eight semiautomatic
pistols, and hundreds of rounds of ammunition into Japan, Small bought
a gun in this country. It was eminently reasonable for Congress to use
convictions punishable by imprisonment for more than a year--foreign no
less than domestic--as a proxy for dangerousness.
Contrary to the majority's assertion, it makes sense to bar people convicted
overseas from possessing guns in the United States. The Court casually
dismisses this point with the observation that only " '10 to a dozen'
" prosecutions under the statute have involved foreign convictions
as predicate convictions. Ante, at 8 (quoting Tr. of Oral Arg. 32). The
rarity of such prosecutions, however, only refutes the Court's simultaneous
claim, ante, at 3-5, that a parade of horribles will result if foreign
convictions count. Moreover, the Court does not claim that any of these
few prosecutions has been based on a foreign conviction inconsistent with
American law. As far as anyone is aware, the handful of prosecutions thus
far rested on foreign convictions perfectly consonant with American law,
like Small's conviction for international gunrunning. The Court has no
answer for why including foreign convictions is unwise, let alone irrational.
The majority worries that reading §922(g)(1) to include foreign convictions
"creates anomalies" under other firearms control provisions.
Ante, at 5-7. It is true, as the majority notes, that the natural reading
of §922(g)(1) affords domestic offenders more lenient treatment than
foreign ones in some respects: A domestic antitrust or business regulatory
offender could possess a gun, while a similar foreign offender could not;
the perpetrator of a state misdemeanor punishable by two years or less
in prison could possess a gun, while an analogous foreign offender could
not. Ibid. In other respects, domestic offenders would receive harsher
treatment than their foreign counterparts: One who committed a misdemeanor
crime of domestic violence in the United States could not possess a gun,
while a similar foreign offender could; and a domestic drug offender could
receive a 15-year mandatory minimum sentence for unlawful gun possession,
while a foreign drug offender could not. Ante, at 6-7.
These outcomes cause the Court undue concern. They certainly present no
occasion to employ, nor does the Court invoke, the canon against absurdities.
We should employ that canon only "where the result of applying the
plain language would be, in a genuine sense, absurd, i.e., where it is
quite impossible that Congress could have intended the result . . . and
where the alleged absurdity is so clear as to be obvious to most anyone."
Public Citizen v. Department of Justice, 491 U. S. 440, 470-471 (1989)
(Kennedy, J., concurring in judgment); Nixon v. Missouri Municipal League,
541 U. S. 125, 141 (2004) (Scalia, J., concurring in judgment) ("avoidance
of unhappy consequences" is inadequate basis for interpreting a text);
cf. Sturges v. Crowninshield, 4 Wheat. 122, 203 (1819) (before disregarding
the plain meaning of a constitutional provision, the case "must be
one in which the absurdity and injustice of applying the provision to
the case, would be so monstrous, that all mankind would, without hesitation,
unite in rejecting the application").
Here, the "anomalies" to which the Court points are not absurd.
They are, at most, odd; they may even be rational. For example, it is
not senseless to bar a Canadian antitrust offender from possessing a gun
in this country, while exempting a domestic antitrust offender from the
ban. Congress might have decided to proceed incrementally and exempt only
antitrust offenses with which it was familiar, namely, domestic ones.
In any event, the majority abandons the statute's plain meaning based
on results that are at most incongruous and certainly not absurd. As with
the extraterritoriality canon, the Court applies a mutant version of a
recognized canon when the recognized canon is itself inapposite. Whatever
the utility of canons as guides to congressional intent, they are useless
when modified in ways that Congress could never have imagined in enacting
Even assuming that my reading of the statute generates anomalies, the
majority's reading creates ones even more dangerous. As explained above,
the majority's interpretation permits those convicted overseas of murder,
rape, assault, kidnaping, terrorism, and other dangerous crimes to possess
firearms freely in the United States. Supra, at 9, and n. 7. Meanwhile,
a person convicted domestically of tampering with a vehicle identification
number, 18 U. S. C. §511(a)(1), is barred from possessing firearms.
The majority's concern with anomalies provides no principled basis for
choosing its interpretation of the statute over mine.
The Court hypothesizes "that Congress did not consider whether the
generic phrase 'convicted in any court' applies to domestic as well as
foreign convictions," ante, at 7, and takes that as license to restrict
the clear breadth of the text. Whether the Court's empirical assumption
is correct is anyone's guess. Regardless, we have properly rejected this
method of guesswork-as-interpretation. In Beecham v. United States, 511
U. S. 368 (1994), we interpreted other provisions of the federal firearms
laws to mean that a person convicted of a federal crime is not relieved
of the firearms disability unless his civil rights have been restored
under federal (as opposed to state) law. We acknowledged the possibility
"that the phrases on which our reading of the statute turns . . .
were accidents of statutory drafting," id., at 374; and we observed
that some legislators might have read the phrases differently from the
Court's reading, "or, more likely, . . . never considered the matter
at all," ibid. We nonetheless adhered to the unambiguous meaning
of the statute. Ibid.; cf. National Organization for Women, Inc. v. Scheidler,
510 U. S. 249, 262 (1994) ("The fact that [the Racketeer Influenced
and Corrupt Organizations Act] has been applied in situations not expressly
anticipated by Congress does not demonstrate ambiguity. It demonstrates
breadth" (internal quotation marks and brackets omitted)). Here,
as in Beecham, "our task is not the hopeless one of ascertaining
what the legislators who passed the law would have decided had they reconvened
to consider [this] particular cas[e]," 511 U. S., at 374, but the
eminently more manageable one of following the ordinary meaning of the
text they enacted. That meaning includes foreign convictions.
The Court's reliance on the absence of any discussion of foreign convictions
in the legislative history is equally unconvincing. Ante, at 7-8. Reliance
on explicit statements in the history, if they existed, would be problematic
enough. Reliance on silence in the history is a new and even more dangerous
phenomenon. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. ___, ___
(2004) (slip op., at 5) (Scalia, J., dissenting) (criticizing the Court's
novel "Canon of Canine Silence").
I do not even agree, moreover, that the legislative history is silent.
As the Court describes, the Senate bill that formed the basis for this
legislation was amended in Conference, to change the predicate offenses
from " 'Federal' crimes" punishable by more than one year's
imprisonment and "crimes 'determined by the laws of a State to be
a felony' " to conviction " 'in any court, of a crime punishable
by a term of imprisonment exceeding one year.' " Ante, at 7. The
Court seeks to explain this change by saying that "the enacted version
is simpler and . . . avoids potential difficulties arising out of the
fact that States may define the term 'felony' differently." Ante,
at 8. But that does not explain why all limiting reference to "Federal"
and "State" was eliminated. The revised provision would have
been just as simple, and would just as well have avoided the potential
difficulties, if it read "convicted in any Federal or State court
of a crime punishable by a term of imprisonment exceeding one year."
Surely that would have been the natural change if expansion beyond federal
and state convictions were not intended. The elimination of the limiting
references suggests that not only federal and state convictions were meant
to be covered.
Some, of course, do not believe that any statement or text that has not
been approved by both Houses of Congress and the President (if he signed
the bill) is an appropriate source of statutory interpretation. But for
those who do, this committee change ought to be strong confirmation of
the fact that "any" means not "any Federal or State,"
but simply "any."
The Court never convincingly explains its departure from the natural meaning
of §922(g)(1). Instead, it institutes the troubling rule that "any"
does not really mean "any," but may mean "some subset of
'any,' " even if nothing in the context so indicates; it distorts
the established canons against extraterritoriality and absurdity; it faults
without reason Congress' use of foreign convictions to gauge dangerousness
and culpability; and it employs discredited methods of determining congressional
intent. I respectfully dissent.
See, e.g., The Random House Dictionary of the English Language 335 (1966)
(defining "court" as "a place where justice is administered,"
"a judicial tribunal duly constituted for the hearing and determination
of cases," "a session of a judicial assembly"); The Concise
Oxford Dictionary of Current English 282 (5th ed. 1964) (defining "court"
as an"[a]ssembly of judges or other persons acting as tribunal");
Webster's 3d 522 (1961) (defining "court" as "the persons
duly assembled under authority of law for the administration of justice,"
"an official assembly legally met together for the transaction of
judicial business," "a judge or judges sitting for the hearing
or trial of cases").
The Court's observation that "a speaker who says, 'I'll see any film,'
may or may not mean to include films shown in another city," ante,
at 2, therefore adds nothing to the analysis. The context of that statement
implies that such a speaker, despite saying "any," often means
only the subset of films within an accessible distance. Unlike the context
of the film remark, the context of 18 U. S. C. §922(g)(1) implies
no geographic restriction.
See also §921(a)(15) (defining a "fugitive from justice,"
who is banned from possessing firearms under §922(g)(2), as "any
person who has fled from any State to avoid prosecution for a crime or
to avoid giving testimony"); §924(e)(2) (defining a "serious
drug offense," which can trigger an enhanced sentence, by reference
to particular federal laws or "State law").
Nixon v. Missouri Municipal League, 541 U. S. 125 (2004), considered a
federal statute authorizing preemption of state and local laws "prohibiting
the ability of any entity" to provide telecommunications services.
Id., at 128 (internal quotation marks omitted). The Court held that the
statute did not provide the clear statement required for the Federal Government
to limit the States' ability to restrict delivery of such services by
their own political subdivisions. Id., at 140-141; see also id., at 141
(Scalia, J., concurring in judgment); Raygor v. Regents of Univ. of Minn.,
534 U. S. 533, 540-541 (2002) ("any" in federal statute insufficiently
clear statement to abrogate state sovereign immunity); Atascadero State
Hospital v. Scanlon, 473 U. S. 234, 245-246 (1985) (same). No such clear
statement rule is at work here.
Neither party mentions the quasi-extraterritoriality principle that the
Court fashions. The briefs barely discuss the extraterritoriality canon
itself. The only reference to that canon is a footnote in the respondent's
brief pointing out that it is inapposite. Brief for United States 44,
The Court attempts to justify applying its new canon with the claim that
"other indicia of intent are in approximate balance." Ante,
at 5. This claim is false. Other indicia of intent are not in balance,
so long as text counts as an indicium of intent. As I have explained,
Part II, supra, the text of §922(g)(1) encompasses foreign convictions.
Brottsbalk (Swedish Criminal Code), SFS 1962:700, ch. 3, §1 (murder);
Criminal Code of Canada, R. S. C. ch. C-46, §244(b) (1985), as amended
(discharging firearm at a person with intent to endanger life); §102(2)
(making an automatic weapon); Laws of the State of Israel, Penal Law §345(b)(2)
(rape by threat of firearm or cutting weapon); Penal Code of Egypt Art.
143 (giving weapons to a detained person in order to help him escape);
Federal Penal Code of Mexico Art. 139 (terrorism by explosives, toxic
substances, firearms, fire, flooding, or other violent means); Art. 163
(kidnaping); Firearms Offenses Act 1968 (United Kingdom), ch. 27, §18(1)
(carrying firearm with intent to commit an indictable offense or to resist
arrest); 7 L. Rep. of Zambia Cap. 87, ch. 19, §§200-201 (1995)
(murder); ch. 24, §248 (assault occasioning actual bodily harm);
ch. 25, §§251-262 (kidnaping, abduction, and buying or selling