Staples v. United States, 511 U.S. 600 (1994)
Commentary by Jon Roland
Although the order in this case is correct, the reasoning of the
opinions, including that of J. Thomas, does not go far enough regarding the
constitutional principles that apply to this case.
The opinion implies that if Congress had expressed the intent to
dispense with mens rea, it would be constitutional, and only finds it
did not express that intent, and that such intent cannot be inferred. This
position fails to address the more fundamental question of whether Congress has
power under the Constitution to impose criminal penalties for this kind of
activity, and whether it has constitutional authority to dispense with mens
rea even for those offenses for which it does have authority to impose
I have argued in my article, Original Understanding of the Commerce
Clause, that the Constitution does not
confer that authority under the Commerce Clause, which is the authority claimed
by the government in this case. Their chain of reasoning was originally based
on the power to tax, the imposition of an excise ("transfer") tax on certain
classes of "firearm", the inference that the power to tax implies the power to
require registration of taxed items, and the further inference of a power to
impose criminal penalties for either failing to register or to possess an
unregistered item. Then Congress repealed the tax, but extended the
prohibitions that had originally been based on it. Both the premise and the
inferences fail, however. Outside the territory of "federal enclaves"
established under U.S. Const. Art. I Sec. 8 Cl. 17, there is no authority to prohibit the possession of
anything, or to impose criminal penalties for violations of a regulation, or
for failure to pay a tax. Furthermore, as implied in the opinion in United
States v. Miller, 307 U.S. 174 (1939), if
an item is suitable for militia use, it is exempt from taxation, and any
firearm that is useful for cambat and not unduly dangerous to persons not its
intended targets would qualify.
As I have argued in my Introduction to Conflict of Criminal Laws, Edward S. Stimson
(1936), the elements of proof of a crime are:
1. Actus reus — The voluntary act of the accused,
irreversible in its effects.
2. Mens rea — Criminal intent, including reasonable
presumption of knowledge of the law.
3. Concurrence — The union of actus reus and mens rea as a
4. Causation — The act must have actual effect, or be
capable of producing an effect.
5. Harm — The effect must constitute actual harm,
unmitigated by consent of the victim.
The argument is that there can be no mens rea without
scienter, or knowledge by the alleged
1. That a certain type of item or activity was regulated or prohibited
by law; and
2. That an item or activity had the attributes that made it subject to
the regulation or prohibition.
This would require the prosecution to prove beyond a reasonable doubt
that the accused could be reasonably expected to know there is a law, as well
as that the item or activity had the attributes that made it subject to the
law. It can no longer be presumed that a person knows the law, and this opinion
reflects that. But it also raises the key question of what can a reasonable
person be expected to know about the attributes of items or activities.
Scienter goes beyond mens rea. It also goes to causation
and harm. The prosecution must prove, by common-law standards, that the accused
can be reasonably expected to know that the item or activity would cause harm,
which goes to whether he might be reasonably expected to know it might be
subject to regulation, and had the attributes making it subject to such
regulation. By those standards, criminal penalties, that is, deprivations of
life, limb, or liberty, are not authorized for any mala prohibita. Only
for mala in se. The Constitution does not delegate general police powers
to Congress to impose criminal penalties for "public safety" or "public
Also unaddressed is the due process requirement that all issues of law
be argued in the presence of the jury. It
should not be about jury instructions, but about presenting the jury with
opposing arguments on the elements of proof, which are necessary for them to
render a general verdict.
These principles extend to the states and under the 14th Amendment
federal courts have jurisdiction over cases between a state and a resident
thereof involving a constitutional right of individuals against the actions of
government officials. See my article Intent of the Fourteenth Amendment was
to Protect All Rights, in which I argue
that these include the unenumerated rights of the Ninth Amendment, which
include the rights recognized under the common law writs and practices of
Anglo-American law at the time of the Founding. See the page on Common Law
5. Several interesting cases provide light on the
thinking of the courts on questions of scienter:
Also see discussions and cases on the liabilities of common carriers,
and the following:
6. Law Must be Argued Before Jury, Jon Roland.
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