LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
MR. JUSTICE BLACKMUN delivered the opinion of the
This case presents the question whether a defendant's extant prior
conviction, flawed because he was without counsel, as required by Gideon v.
Wainwright, 372 U.S. 335 (1963), may constitute the predicate for a subsequent
conviction under 1202 (a) (1), as amended, of Title VII of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. App. 1202 (a) (1). 
In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was
convicted in a Florida state court of a felony [445 U.S. 55, 57] for breaking and entering with
intent to commit a misdemeanor. See Fla. Stat. 810.05 (1961). He served a term
of imprisonment. That conviction has never been overturned, nor has petitioner
ever received a qualifying pardon or permission from the Secretary of the
Treasury to possess a firearm. See 18 U.S.C. App. 1203 (2) and 18 U.S.C. 925
In January 1977, Lewis, on probable cause, was arrested in Virginia, and
later was charged by indictment with having knowingly received and possessed at
that time a specified firearm, in violation of 18 U.S.C. App. 1202 (a) (1).
 He waived a jury and was given a bench
trial. It was stipulated that the weapon in question had been shipped in
interstate commerce. The Government introduced in evidence an exemplified copy
of the judgment and sentence in the 1961 Florida felony proceeding. App. 10.
Shortly before the trial, petitioner's counsel informed the court that he
had been advised that Lewis was not represented by counsel in the 1961 Florida
proceeding. He claimed that under
Gideon v. Wainwright, supra, a violation of 1202 [445 U.S. 55, 58] (a) (1) could not be predicated
on a prior conviction obtained in violation of petitioner's Sixth and
Fourteenth Amendment rights. The court rejected that claim, ruling that the
constitutionality of the outstanding Florida conviction was immaterial with
respect to petitioner's status under 1202 (a) (1) as a previously convicted
felon at the time of his arrest. Petitioner, accordingly, offered no evidence
as to whether in fact he had been convicted in 1961 without the aid of counsel.
We therefore assume, for present purposes, that he was without counsel at that
On appeal, the United States Court of Appeals for the Fourth Circuit, by a
divided vote, affirmed. 591 F.2d 978 (1979). It held that a defendant, purely
as a defense to a prosecution under 1202 (a) (1), could not attack collaterally
an outstanding prior felony conviction, and that the statutory prohibition
applied irrespective of whether that prior conviction was subject to collateral
attack. The Court of Appeals also rejected Lewis' constitutional argument to
the effect that the use of the prior conviction as a predicate for his
prosecution under 1202 (a) (1) violated his rights under the Fifth and Sixth
Because of conflict among the Courts of Appeals, we granted certiorari. 442 U.S. 939
(1979). [445 U.S. 55, 59]
Four cases decided by this Court provide the focus for petitioner's attack
upon his conviction. The first, and pivotal one, is Gideon v. Wainwright,
supra, where the Court held that a state felony conviction without counsel, and
without a valid waiver of counsel, was unconstitutional under the Sixth and
Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401
U.S. 847 (1971). [445 U.S. 55,
The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court
held that a conviction invalid under Gideon could not be used for enhancement
of punishment under a State's recidivist statute. The third is United States v.
Tucker, 404 U.S. 443 (1972), where it was held that such a conviction could not
be considered by a court in sentencing a defendant after a subsequent
conviction. And the fourth is Loper v. Beto, 405 U.S. 473 (1972), where the
Court disallowed the use of the conviction to impeach the general credibility
of the defendant. The prior conviction, the plurality opinion said,
"lacked reliability." Id., at 484, quoting Linkletter v. Walker, 381
U.S. 618, 639 , and n. 20 (1965).
We, of course, accept these rulings for purposes of the present case.
Petitioner's position, however, is that the four cases require a reversal of
his conviction under 1202 (a) (1) on both statutory and constitutional grounds.
The Court has stated repeatedly of late that in any case concerning the
interpretation of a statute the "starting point" must be the language
of the statute itself. Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979). See
also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Southeastern
Community College v. Davis, 442 U.S. 397, 405 (1979). An examination of 1202
(a) (1) reveals that its proscription is directed unambiguously at any person
who "has been convicted by a court of the United States or of a State . .
. of a felony." No modifier is present, and nothing suggests any
restriction on the scope of the term "convicted." "Nothing on
the face of the statute suggests a congressional intent to limit its coverage
to persons [whose convictions are not subject to collateral attack]."
United States v. Culbert, 435 U.S. 371, 373 (1978); see United States v.
Naftalin, 441 U.S. 768, 772 (1979). The statutory language is sweeping, and its
plain meaning is that the fact of a felony conviction imposes a firearm
disability until the conviction is vacated or the felon is [445 U.S. 55, 61] relieved of his disability by
some affirmative action, such as a qualifying pardon or a consent from the
Secretary of the Treasury. The obvious
breadth of the language may well reflect the expansive legislative approach
revealed by Congress' express findings and declarations, in 18 U.S.C. App.
1201, concerning the problem of firearm
abuse by felons and certain specifically described persons.
Other provisions of the statute demonstrate and reinforce its broad sweep.
Section 1203 enumerates exceptions to [445 U.S.
55, 62] 1202 (a) (1) (a prison inmate who by reason of his
duties has expressly been entrusted with a firearm by prison authority; a
person who has been pardoned and who has expressly been authorized to receive,
possess, or transport a firearm). In addition, 1202 (c) (2) defines
"felony" to exclude certain state crimes punishable by no more than
two years' imprisonment. No exception, however, is made for a person whose
outstanding felony conviction ultimately might turn out to be invalid for any
reason. On its face, therefore, 1202 (a) (1) contains nothing by way of
restrictive language. It thus stands in contrast with other federal statutes
that explicitly permit a defendant to challenge, by way of defense, the
validity or constitutionality of the predicate felony. See, e. g., 18 U.S.C.
3575 (e) (dangerous special offender) and 21 U.S.C. 851 (c) (2) (recidivism
under the Comprehensive Drug Abuse Prevention and Control Act of 1970).
When we turn to the legislative history of 1202 (a) (1), we find nothing to
suggest that Congress was willing to allow a defendant to question the validity
of his prior conviction as a defense to a charge under 1202 (a) (1). The
section was enacted as part of Title VII of the Omnibus Crime Control and Safe
Streets Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to
the Act and thus was not a subject of discussion in the legislative reports.
See United States v. Batchelder, 442 U.S. 114, 120 (1979); Scarborough v.
United States, 431 U.S. 563, 569-570 (1977); United States v. Bass, 404 U.S.
336, 344 , and n. 11 (1971). What little legislative history there is that is
relevant reflects an intent to impose a firearms disability on any felon based
on the fact of conviction. Senator Long, who introduced and directed the
passage of Title VII, repeatedly stressed conviction, not a "valid"
conviction, and not a conviction not subject to constitutional challenge, as
the criterion. For example, the Senator observed:
"So, under Title VII, every citizen could possess a gun
[445 U.S. 55, 63] until the
commission of his first felony. Upon his conviction, however, Title VII would
deny every assassin, murderer, thief and burglar of the right to possess a
firearm in the future except where he has been pardoned by the President or a
State Governor and had been expressedly authorized by his pardon to possess a
firearm." 114 Cong. Rec. 14773 (1968).
See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and
floor manager of the bill, his statements are entitled to weight. Simpson v.
United States, 435 U.S. 6, 13 (1978).
It is not without significance, furthermore, that Title VII, as well as
Title IV of the Omnibus Act, was enacted in response to the precipitous rise in
political assassinations, riots, and other violent crimes involving firearms,
that occurred in this country in the 1960's. See e. g., S. Rep. No. 1097, 90th
Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7
(1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court,
accordingly, has observed:
"The legislative history [of Title VII] in its entirety,
while brief, further supports the view that Congress sought to rule broadly
— to keep guns out of the hands of those who have demonstrated that `they
may not be trusted to possess a firearm without becoming a threat to
society.'" Scarborough v. United States, 431 U.S., at 572 .
The legislative history, therefore, affords no basis for a loophole, by way
of a collateral constitutional challenge, to the broad statutory scheme enacted
by Congress. Section 1202 (a) was a sweeping prophylaxis, in simple terms,
against misuse of firearms. There is no indication of any intent to require the
Government to prove the validity of the predicate conviction.
The very structure of the Omnibus Act's Title IV, enacted [445 U.S. 55, 64] simultaneously with Title VII,
reinforces this conclusion. Each Title prohibits categories of presumptively
dangerous persons from transporting or receiving firearms. See 18 U.S.C. 922
(g) and (h). Actually, with regard to the statutory question at issue here, we
detect little significant difference between Title IV and Title VII. Each seeks
to keep a firearm away from "any person . . . who has been convicted"
of a felony, although the definition of "felony" differs somewhat in
the respective statutes. But to limit the scope of 922 (g) (1) and (h) (1) to a
validly convicted felon would be at odds with the statutory scheme as a whole.
Those sections impose a disability not only on a convicted felon but also on a
person under a felony indictment, even if that person subsequently is acquitted
of the felony charge. Since the fact of mere indictment is a disabling
circumstance, a fortiori the much more significant fact of conviction must
deprive the person of a right to a firearm.
Finally, it is important to note that a convicted felon is not without
relief. As has been observed above, the Omnibus Act, in 1203 (2) and 925 (c),
states that the disability may be removed by a qualifying pardon or the
Secretary's consent. Also, petitioner, before obtaining his firearm, could have
challenged his prior conviction in an appropriate proceeding in the Florida
state courts. See Fla. Const., Art. 5, 5 (3); L'Hommedieu v. State, 362 So.2d
72 (Fla. App. 1978); Weir v. State, 319 So.2d 80 (Fla. App. 1975). See also
United States v. Morgan, 346 U.S. 502 (1954).
It seems fully apparent to us that the existence of these remedies, two of
which are expressly contained in the Omnibus Act itself, suggests that Congress
clearly intended that the defendant clear his status before obtaining a
firearm, thereby fulfilling Congress' purpose "broadly to keep firearms
away [445 U.S. 55, 65] from the
persons Congress classified as potentially irresponsible and dangerous."
Barrett v. United States, 423 U.S. 212, 218 (1976).
With the face of the statute and the legislative history so clear,
petitioner's argument that the statute nevertheless should be construed so as
to avoid a constitutional issue is inapposite. That course is appropriate only
when the statute provides a fair alternative construction. This statute could
not be more plain. Swain v. Pressley, 430 U.S. 372, 378 , and n. 11 (1977);
United States v. Batchelder, 442 U.S., at 122 -123. Similarly, any principle of
lenity, see Rewis v. United States, 401 U.S. 808, 812 (1971), has no
application. The touchstone of that principle is statutory ambiguity.
Huddleston v. United States, 415 U.S. 814, 832 (1974); United States v.
Batchelder, 442 U.S., at 121 -122. There is no ambiguity here.
We therefore hold that 1202 (a) (1) prohibits a felon from possessing a
firearm despite the fact that the predicate felony may be subject to collateral
attack on constitutional grounds.
The firearm regulatory scheme at issue here is consonant with the concept of
equal protection embodied in the Due Process Clause of the Fifth Amendment if
there is "some `rational basis' for the statutory distinctions made . . .
or . . . they `have some relevance to the purpose for which the classification
is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting
from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383
U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979). [445 U.S. 55, 66]
Section 1202 (a) (1) clearly meets that test. Congress, as its expressed
purpose in enacting Title VII reveals, 18 U.S.C. App. 1201, was concerned that
the receipt and possession of a firearm by a felon constitutes a threat, among
other things, to the continued and effective operation of the Government of the
United States. The legislative history of the gun control laws discloses
Congress' worry about the easy availability of firearms, especially to those
persons who pose a threat to community peace. And Congress focused on the nexus
between violent crime and the possession of a firearm by any person with a
criminal record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at
16298 (remarks of Rep. Pollock). Congress could rationally conclude that any
felony conviction, even an allegedly invalid one, is a sufficient basis on
which to prohibit the possession of a firearm. See, e. g., United States v.
Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied, 424 U.S. 944 (1976).
This Court has recognized repeatedly that a legislature constitutionally may
prohibit a convicted felon from engaging in activities far more fundamental
than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974)
(disenfranchisement); De Veau v. Braisted, 363 U.S. 144 (1960) (proscription
against holding office in a waterfront labor organization); Hawker v. New York,
170 U.S. 189 (1898) (prohibition against the practice of medicine).
We recognize, of course, that under the Sixth Amendment an uncounseled
felony conviction cannot be used for certain purposes. See Burgett, Tucker, and
Loper, all supra. The Court, however, has never suggested that an uncounseled
conviction [445 U.S. 55, 67] is
invalid for all purposes. See Scott v. Illinois, 440 U.S. 367 (1979); Loper v.
Beto, 405 U.S., at 482 . n. 11 (plurality opinion).
Use of an uncounseled felony conviction as the basis for imposing a civil
firearms disability, enforceable by a criminal sanction, is not inconsistent
with Burgett, Tucker, and Loper. In each of those cases, this Court found that
the subsequent conviction of sentence violated the Sixth Amendment because it
depended upon the reliability of a past uncounseled conviction. The federal gun
laws, however, focus not on reliability, but on the mere fact of conviction, or
even indictment, in order to keep firearms away from potentially dangerous
persons. Congress' judgment that a convicted felon. even one whose conviction
was allegedly uncounseled, is among the class of persons who should be disabled
from dealing in or possessing firearms because of potential dangerousness is
rational. Enforcement of that
essentially civil disability through a criminal sanction does not "support
guilt or enhance punishment." see Burgett, 389 U.S., at 115 , on the basis
of a conviction that is unreliable when one considers Congress' broad purpose.
Moreover, unlike the situation in Burgett, the sanction imposed by 1202 (a) (1)
attaches immediately upon the defendant's first conviction.
Again, it is important to note that a convicted felon may challenge the
validity of a prior conviction. or otherwise remove his disability, before
obtaining a firearm. We simply hold today that the firearms prosecution does
not open the predicate conviction to a new form of collateral attack. See Note,
Prior Convictions and the Gun Control Act of 1968. [445 U.S. 55, 68] 76 Colum. L. Rev. 326, 338-339
(1976). Cf. Walker v. City of Birmingham, 388 U.S. 307 (1967).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[Footnote 1] Section 1202 (a) reads in full:
- "Any person who —
- "(1) has been convicted by a court of the United States or of a State
or any political subdivision thereof of a felony, or
- "(2) has been discharged from the Armed Forces under dishonorable
- "(3) has been adjudged by a court of the United States or of a State
or any political subdivision thereof of being mentally incompetent, or
- "(4) having been a citizen of the United States has renounced his
- "(5) being an alien is illegally or unlawfully in the United States,
"and who receives, possesses, or transports in commerce or affecting
commerce, after the date of enactment of this Act, any firearm shall be fined
not more than $10,000 or imprisoned for not more than two years, or both."
[Footnote 2] The indictment also charged petitioner with a
violation of 18 U.S.C. 922 (h) (1). That statute reads in pertinent part:
- "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;
- . . . . .
- "to receive any firearm . . . which has been shipped or transported in
interstate . . . commerce."
Petitioner was acquitted on the 922 (h) (1) charge and it is not before us
[Footnote 3] Petitioner's counsel stated that a Florida
attorney had advised him that the court records in that State showed
affirmatively that Lewis had no lawyer. He noted also that Lewis had been
charged with the same offense as had the defendant in Gideon v. Wainwright, 372
U.S. 335 (1963), and that petitioner had been tried in the same State about six
months before Gideon was tried. App. 2-3.
[Footnote 4] Compare United States v. Lufman, 457 F.2d 165
(CA7 1972) (use of an underlying felony conviction unconstitutionally obtained
to support a conviction under 1202 (a) (1) is reversible error), with the
Fourth Circuit's ruling in the present case, and with United States v. Maggard,
573 F.2d 926 (CA6 1978); and United States v. Graves, 554 F.2d 65 (CA3 1977)
(en banc) (claim of constitutional error in the underlying conviction may not
be raised). The Ninth Circuit has distinguished between a claim of
constitutional invalidity in the underlying conviction, which it has held may
be raised, and a claim that the underlying conviction has been, or should be,
reversed on other grounds. Compare United States v. O'Neal, 545 F.2d 85 (1976),
and United States v. Pricepaul, 540 F.2d 417 (1976), with United States v.
Liles, 432 F.2d 18 (1970). See also United States v. Herrell, 588 F.2d 711 (CA9
1978), cert. denied, 440 U.S. 964 [445
U.S. 55, 59] (1979) (underlying conviction in a prosecution
under 18 U.S.C. 922 (h) (1) may not be challenged on nonconstitutional
The identical issue that is presented in this case has also arisen in the
context of challenges to convictions under 18 U.S.C. 922 (g) (1) (proscribing
shipping or transport of a firearm in interstate or foreign commerce by a
person under indictment for, or convicted of, a felony) and 922 (h) (1)
(proscribing receipt of a firearm shipped in interstate or foreign commerce by
such a person). Compare United States v. Scales, 599 F.2d 78 (CA5 1979);
Dameron v. United States, 488 F.2d 724 (CA5 1974); Pasterchik v. United States,
466 F.2d 1367 (CA9 1972); and United States v. DuShane, 435 F.2d 187 (CA2 1970)
(underlying conviction may be attacked as unconstitutional), with Barker v.
United States, 579 F.2d 1219, 1226 (CA10 1978) (underlying conviction may not
be so challenged in prosecution under 922 (h) (1)).
The Courts of Appeals have treated the issue somewhat differently in
prosecutions under 18 U.S.C. 922 (a) (6) (prohibiting the falsification of
one's status as a convicted felon in purchasing a firearm). Nonuniformity has
prevailed nonetheless on the question whether a defendant charged with
violating that statute may challenge the constitutionality of the underlying
felony conviction. Compare United States v. O'Neal, supra, and United States v.
Pricepaul, supra (permitting the challenge), with United States v. Allen, 556
F.2d 720 (CA4 1977); United States v. Graves, supra; and Cassity v. United
States, 521 F.2d 1320 (CA6 1975) (holding that the challenge may not be made).
The Eighth Circuit has stated that it will not permit a challenge to the
constitutionality of the underlying conviction where the defendant is charged
under 922 (a) (6), while reserving the question under 1202 (a) (1) and 922 (g)
(1) and (h) (1). United States v. Edwards, 568 F.2d 68, 70-72, and n.3 (1977).
See also United States v. Graves, 554 F.2d, at 83-88 (Garth, J., and Seitz, C.
J., concurring in part and dissenting in part) (the Government need not prove
the validity of the underlying conviction in a prosecution brought under 922
(a) (6), but it must do so in a prosecution under 1202 (a) (1)).
[Footnote 5] One might argue, of course, that the language
is so sweeping that it includes in its proscription even a person whose
predicate conviction in the interim had been finally reversed on appeal and
thus no longer was outstanding. The Government, however, does not go so far,
Tr. of Oral Arg. 29-30, 37-40, and though we have no need to pursue that
extreme argument in this case, we reject it. We are not persuaded that the mere
possibility of making that argument renders the statute, as petitioner
suggests, unconstitutionally vague. And unlike the dissent, post, at 69, we
view the language Congress chose as consistent with the common-sense notion
that a disability based upon one's status as a convicted felon should cease
only when the conviction upon which that status depends has been vacated.
We note, nonetheless, that the disability effected by 1202 (a) (1) would
apply while a felony conviction was pending on appeal. See Note, Prior
Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, and n.
[Footnote 6] "The Congress hereby finds and declares
that the receipt, possession, or transportation of a firearm by felons,
veterans who are discharged under dishonorable conditions, mental incompetents,
aliens who are illegally in the country, and former citizens who have renounced
their citizenship, constitutes —
"(1) a burden on commerce or threat affecting the free flow
"(2) a threat to the safety of the President of the United States and
Vice President of the United States,
"(3) an impediment or a threat to the exercise of free speech and the
free exercise of a religion guaranteed by the first amendment to the
Constitution of the United States, and
"(4) a threat to the continued and effective operation of the
Government of the United States and of the government of each State guaranteed
by article IV of the Constitution."
[Footnote 7] This being so, 1202 (a) (1) does not attach
"what may amount to lifelong sanctions to a mere finding of probable
cause," as has been argued by one commentator. See Comment, 92 Harv. L.
Rev. 1790, 1795 (1979).
[Footnote 8] These legislative restrictions on the use of
firearms are neither based upon constitutionally suspect criteria, nor do they
trench upon any constitutionally protected liberties. See United States v.
Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to
keep and bear a firearm that does not have "some reasonable relationship
to [445 U.S. 55, 66] the
preservation or efficiency of a well regulated militia"); United States v.
Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5
(CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United
States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three
cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not
violate the Second Amendment).
[Footnote 9] The dissent's assertion that Congress'
judgment in this regard cannot rationally be supported, post, at 72, is one we
do not share. Moreover, such an assertion seems plainly inconsistent with the
deference that a reviewing court should give to a legislative determination
that, in essence, predicts a potential for future criminal behavior.
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