Johnson v. United States , 135 S. Ct. 2551 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JOHNSON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 13–7120. Argued November 5, 2014—Reargued April 20, 2015—
Decided June 26, 2015
After petitioner Johnson pleaded guilty to being a felon in possession of
a firearm, see 18 U.S. C. §922(g), the Government sought an en-
hanced sentence under the Armed Career Criminal Act, which im-
poses an increased prison term upon a defendant with three prior
convictions for a “violent felony,” §924(e)(1), a term defined by
§924(e)(2)(B)’s residual clause to include any felony that “involves
conduct that presents a serious potential risk of physical injury to
another.” The Government argued that Johnson’s prior conviction for
unlawful possession of a short-barreled shotgun met this definition,
making the third conviction of a violent felony. This Court had pre-
viously pronounced upon the meaning of the residual clause in James
v. United States, 550 U.S. 192; Begay v. United States, 553 U.S. 137;
Chambers v. United States, 555 U.S. 122; and Sykes v. United States,
564 U.S. 1, and had rejected suggestions by dissenting Justices in
both James and Sykes that the clause is void for vagueness. Here,
the District Court held that the residual clause does cover unlawful
possession of a short-barreled shotgun, and imposed a 15-year sen-
tence under ACCA. The Eighth Circuit affirmed.
Held: Imposing an increased sentence under ACCA’s residual clause
violates due process. Pp. 3–15.
(a) The Government violates the Due Process Clause when it takes
away someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary enforcement.
Kolender v. Lawson, 461 U.S. 352, 357–358. Courts must use the
“categorical approach” when deciding whether an offense is a violent
felony, looking “only to the fact that the defendant has been convicted
2 JOHNSON v. UNITED STATES
Syllabus
of crimes falling within certain categories, and not to the facts under-
lying the prior convictions.” Taylor v. United States, 495 U.S. 575,
600. Deciding whether the residual clause covers a crime thus re-
quires a court to picture the kind of conduct that the crime involves
in “the ordinary case,” and to judge whether that abstraction pre-
sents a serious potential risk of physical injury. James, supra, at
208. Pp. 3–5.
(b) Two features of the residual clause conspire to make it uncon-
stitutionally vague. By tying the judicial assessment of risk to a judi-
cially imagined “ordinary case” of a crime rather than to real-world
facts or statutory elements, the clause leaves grave uncertainty about
how to estimate the risk posed by a crime. See James, supra, at 211.
At the same time, the residual clause leaves uncertainty about how
much risk it takes for a crime to qualify as a violent felony. Taken
together, these uncertainties produce more unpredictability and arbi-
trariness than the Due Process Clause tolerates. This Court’s re-
peated failure to craft a principled standard out of the residual clause
and the lower courts’ persistent inability to apply the clause in a con-
sistent way confirm its hopeless indeterminacy. Pp. 5–10.
(c) This Court’s cases squarely contradict the theory that the resid-
ual clause is constitutional merely because some underlying crimes
may clearly pose a serious potential risk of physical injury to another.
See, e.g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 89.
Holding the residual clause void for vagueness does not put other
criminal laws that use terms such as “substantial risk” in doubt, be-
cause those laws generally require gauging the riskiness of an indi-
vidual’s conduct on a particular occasion, not the riskiness of an ide-
alized ordinary case of the crime. Pp. 10–13.
(d) The doctrine of stare decisis does not require continued adher-
ence to James and Sykes. Experience leaves no doubt about the una-
voidable uncertainty and arbitrariness of adjudication under the re-
sidual clause. James and Sykes opined about vagueness without full
briefing or argument. And continued adherence to those decisions
would undermine, rather than promote, the goals of evenhandedness,
predictability, and consistency served by stare decisis. Pp. 13–15.
526 Fed. Appx. 708, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY,
J., and THOMAS, J., filed opinions concurring in the judgment. ALITO, J.,
filed a dissenting opinion.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7120
_________________
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE SCALIA delivered the opinion of the Court.
Under the Armed Career Criminal Act of 1984, a de­
fendant convicted of being a felon in possession of a fire­
arm faces more severe punishment if he has three or more
previous convictions for a “violent felony,” a term defined
to include any felony that “involves conduct that presents
a serious potential risk of physical injury to another.” 18
U.S. C. §924(e)(2)(B). We must decide whether this part
of the definition of a violent felony survives the Constitu­
tion’s prohibition of vague criminal laws.
I
Federal law forbids certain people—such as convicted
felons, persons committed to mental institutions, and drug
users—to ship, possess, and receive firearms. §922(g). In
general, the law punishes violation of this ban by up to 10
years’ imprisonment. §924(a)(2). But if the violator has
three or more earlier convictions for a “serious drug of­
fense” or a “violent felony,” the Armed Career Criminal
Act increases his prison term to a minimum of 15 years
and a maximum of life. §924(e)(1); Johnson v. United
States, 559 U.S. 133, 136 (2010). The Act defines “violent
2 JOHNSON v. UNITED STATES
Opinion of the Court
felony” as follows:
“any crime punishable by imprisonment for a term ex­
ceeding one year . . . that—
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.”
§924(e)(2)(B) (emphasis added).
The closing words of this definition, italicized above, have
come to be known as the Act’s residual clause. Since 2007,
this Court has decided four cases attempting to discern its
meaning. We have held that the residual clause (1) covers
Florida’s offense of attempted burglary, James v. United
States, 550 U.S. 192 (2007); (2) does not cover New Mexi­
co’s offense of driving under the influence, Begay v. United
States, 553 U.S. 137 (2008); (3) does not cover Illinois’
offense of failure to report to a penal institution, Cham-
bers v. United States, 555 U.S. 122 (2009); and (4) does
cover Indiana’s offense of vehicular flight from a law-
enforcement officer, Sykes v. United States, 564 U.S. 1
(2011). In both James and Sykes, the Court rejected sug­
gestions by dissenting Justices that the residual clause
violates the Constitution’s prohibition of vague criminal
laws. Compare James, 550 U.S., at 210, n. 6, with id., at
230 (SCALIA, J., dissenting); compare Sykes, 564 U. S., at
___ (slip op., at 13–14), with id., at ___ (SCALIA, J., dissent­
ing) (slip op., at 6–8).
This case involves the application of the residual clause
to another crime, Minnesota’s offense of unlawful posses­
sion of a short-barreled shotgun. Petitioner Samuel John­
son is a felon with a long criminal record. In 2010, the
Federal Bureau of Investigation began to monitor him
because of his involvement in a white-supremacist organi­
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
zation that the Bureau suspected was planning to commit
acts of terrorism. During the investigation, Johnson
disclosed to undercover agents that he had manufactured
explosives and that he planned to attack “the Mexican
consulate” in Minnesota, “progressive bookstores,” and
“ ‘liberals.’ ” Revised Presentence Investigation in No.
0:12CR00104–001 (D. Minn.), p. 15, ¶16. Johnson showed
the agents his AK–47 rifle, several semiautomatic fire­
arms, and over 1,000 rounds of ammunition.
After his eventual arrest, Johnson pleaded guilty to
being a felon in possession of a firearm in violation of
§922(g). The Government requested an enhanced sen­
tence under the Armed Career Criminal Act. It argued
that three of Johnson’s previous offenses—including un­
lawful possession of a short-barreled shotgun, see Minn.
Stat. §609.67 (2006)—qualified as violent felonies. The
District Court agreed and sentenced Johnson to a 15-year
prison term under the Act. The Court of Appeals affirmed.
526 Fed. Appx. 708 (CA8 2013) (per curiam). We granted
certiorari to decide whether Minnesota’s offense of unlaw­
ful possession of a short-barreled shotgun ranks as a
violent felony under the residual clause. 572 U. S. ___
(2014). We later asked the parties to present reargument
addressing the compatibility of the residual clause with
the Constitution’s prohibition of vague criminal laws. 574
U. S. ___ (2015).
II
The Fifth Amendment provides that “[n]o person shall
. . . be deprived of life, liberty, or property, without due
process of law.” Our cases establish that the Government
violates this guarantee by taking away someone’s life,
liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary en­
forcement. Kolender v. Lawson, 461 U.S. 352, 357–358
4 JOHNSON v. UNITED STATES
Opinion of the Court
(1983). The prohibition of vagueness in criminal statutes
“is a well-recognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of law,”
and a statute that flouts it “violates the first essential of
due process.” Connally v. General Constr. Co., 269 U.S.
385, 391 (1926). These principles apply not only to stat­
utes defining elements of crimes, but also to statutes
fixing sentences. United States v. Batchelder, 442 U.S.
114, 123 (1979).
In Taylor v. United States, 495 U.S. 575, 600 (1990),
this Court held that the Armed Career Criminal Act re­
quires courts to use a framework known as the categorical
approach when deciding whether an offense “is burglary,
arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Under the categorical ap­
proach, a court assesses whether a crime qualifies as a
violent felony “in terms of how the law defines the offense
and not in terms of how an individual offender might have
committed it on a particular occasion.” Begay, supra, at
141.
Deciding whether the residual clause covers a crime
thus requires a court to picture the kind of conduct that
the crime involves in “the ordinary case,” and to judge
whether that abstraction presents a serious potential risk
of physical injury. James, supra, at 208. The court’s task
goes beyond deciding whether creation of risk is an ele­
ment of the crime. That is so because, unlike the part of
the definition of a violent felony that asks whether the
crime “has as an element the use . . . of physical force,” the
residual clause asks whether the crime “involves conduct”
that presents too much risk of physical injury. What is
more, the inclusion of burglary and extortion among the
enumerated offenses preceding the residual clause con­
firms that the court’s task also goes beyond evaluating the
chances that the physical acts that make up the crime will
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
injure someone. The act of making an extortionate de­
mand or breaking and entering into someone’s home
does not, in and of itself, normally cause physical injury.
Rather, risk of injury arises because the extortionist might
engage in violence after making his demand or because the
burglar might confront a resident in the home after break­
ing and entering.
We are convinced that the indeterminacy of the wide-
ranging inquiry required by the residual clause both de­
nies fair notice to defendants and invites arbitrary en­
forcement by judges. Increasing a defendant’s sentence
under the clause denies due process of law.
A
Two features of the residual clause conspire to make it
unconstitutionally vague. In the first place, the residual
clause leaves grave uncertainty about how to estimate the
risk posed by a crime. It ties the judicial assessment of
risk to a judicially imagined “ordinary case” of a crime, not
to real-world facts or statutory elements. How does one go
about deciding what kind of conduct the “ordinary case” of
a crime involves? “A statistical analysis of the state re­
porter? A survey? Expert evidence? Google? Gut in­
stinct?” United States v. Mayer, 560 F.3d 948, 952 (CA9
2009) (Kozinski, C. J., dissenting from denial of rehearing
en banc). To take an example, does the ordinary instance
of witness tampering involve offering a witness a bribe?
Or threatening a witness with violence? Critically, pictur­
ing the criminal’s behavior is not enough; as we have
already discussed, assessing “potential risk” seemingly
requires the judge to imagine how the idealized ordinary
case of the crime subsequently plays out. James illus­
trates how speculative (and how detached from statutory
elements) this enterprise can become. Explaining why
attempted burglary poses a serious potential risk of physi­
cal injury, the Court said: “An armed would-be burglar
6 JOHNSON v. UNITED STATES
Opinion of the Court
may be spotted by a police officer, a private security guard,
or a participant in a neighborhood watch program. Or a
homeowner . . . may give chase, and a violent encounter
may ensue.” 550 U.S., at 211. The dissent, by contrast,
asserted that any confrontation that occurs during an
attempted burglary “is likely to consist of nothing more
than the occupant’s yelling ‘Who’s there?’ from his win­
dow, and the burglar’s running away.” Id., at 226 (opinion
of SCALIA, J.). The residual clause offers no reliable way
to choose between these competing accounts of what “ordi­
nary” attempted burglary involves.
At the same time, the residual clause leaves uncertainty
about how much risk it takes for a crime to qualify as a
violent felony. It is one thing to apply an imprecise “seri­
ous potential risk” standard to real-world facts; it is quite
another to apply it to a judge-imagined abstraction. By
asking whether the crime “otherwise involves conduct that
presents a serious potential risk,” moreover, the residual
clause forces courts to interpret “serious potential risk” in
light of the four enumerated crimes—burglary, arson,
extortion, and crimes involving the use of explosives.
These offenses are “far from clear in respect to the degree
of risk each poses.” Begay, 553 U.S., at 143. Does the
ordinary burglar invade an occupied home by night or an
unoccupied home by day? Does the typical extortionist
threaten his victim in person with the use of force, or does
he threaten his victim by mail with the revelation of em­
barrassing personal information? By combining indeter­
minacy about how to measure the risk posed by a crime
with indeterminacy about how much risk it takes for the
crime to qualify as a violent felony, the residual clause
produces more unpredictability and arbitrariness than the
Due Process Clause tolerates.
This Court has acknowledged that the failure of “persis­
tent efforts . . . to establish a standard” can provide evi­
dence of vagueness. United States v. L. Cohen Grocery
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
Co., 255 U.S. 81, 91 (1921). Here, this Court’s repeated
attempts and repeated failures to craft a principled and
objective standard out of the residual clause confirm its
hopeless indeterminacy. Three of the Court’s previous
four decisions about the clause concentrated on the level of
risk posed by the crime in question, though in each case
we found it necessary to resort to a different ad hoc test to
guide our inquiry. In James, we asked whether “the risk
posed by attempted burglary is comparable to that posed
by its closest analog among the enumerated offenses,”
namely completed burglary; we concluded that it was. 550
U.S., at 203. That rule takes care of attempted burglary,
but offers no help at all with respect to the vast majority of
offenses, which have no apparent analog among the enu­
merated crimes. “Is, for example, driving under the influ­
ence of alcohol more analogous to burglary, arson, extor­
tion, or a crime involving use of explosives?” Id., at 215
(SCALIA, J., dissenting).
Chambers, our next case to focus on risk, relied princi­
pally on a statistical report prepared by the Sentencing
Commission to conclude that an offender who fails to
report to prison is not “significantly more likely than
others to attack, or physically to resist, an apprehender,
thereby producing a ‘serious potential risk of physical
injury.’ ” 555 U.S., at 128–129. So much for failure to
report to prison, but what about the tens of thousands of
federal and state crimes for which no comparable reports
exist? And even those studies that are available might
suffer from methodological flaws, be skewed toward rarer
forms of the crime, or paint widely divergent pictures of
the riskiness of the conduct that the crime involves. See
Sykes, 564 U. S., at ___–___ (SCALIA, J., dissenting) (slip
op., at 4–6); id., at ___, n. 4 (KAGAN, J., dissenting) (slip
op., at 6, n. 4).
Our most recent case, Sykes, also relied on statistics,
though only to “confirm the commonsense conclusion that
8 JOHNSON v. UNITED STATES
Opinion of the Court
Indiana’s vehicular flight crime is a violent felony.” Id., at
___ (majority opinion) (slip op., at 8). But common sense is
a much less useful criterion than it sounds—as Sykes itself
illustrates. The Indiana statute involved in that case
covered everything from provoking a high-speed car chase
to merely failing to stop immediately after seeing a police
officer’s signal. See id., at ___ (KAGAN, J., dissenting) (slip
op., at 3–4). How does common sense help a federal court
discern where the “ordinary case” of vehicular flight in
Indiana lies along this spectrum? Common sense has not
even produced a consistent conception of the degree of risk
posed by each of the four enumerated crimes; there is no
reason to expect it to fare any better with respect to thou­
sands of unenumerated crimes. All in all, James, Cham-
bers, and Sykes failed to establish any generally appli­
cable test that prevents the risk comparison required by
the residual clause from devolving into guesswork and
intuition.
The remaining case, Begay, which preceded Chambers
and Sykes, took an entirely different approach. The Court
held that in order to qualify as a violent felony under the
residual clause, a crime must resemble the enumerated
offenses “in kind as well as in degree of risk posed.” 553
U.S., at 143. The Court deemed drunk driving insuffi­
ciently similar to the listed crimes, because it typically
does not involve “purposeful, violent, and aggressive con­
duct.” Id., at 144–145 (internal quotation marks omitted).
Alas, Begay did not succeed in bringing clarity to the
meaning of the residual clause. It did not (and could not)
eliminate the need to imagine the kind of conduct typically
involved in a crime. In addition, the enumerated crimes
are not much more similar to one another in kind than in
degree of risk posed, and the concept of “aggressive con­
duct” is far from clear. Sykes criticized the “purposeful,
violent, and aggressive” test as an “addition to the statu­
tory text,” explained that “levels of risk” would normally be
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
dispositive, and confined Begay to “strict liability, negli­
gence, and recklessness crimes.” 564 U. S., at ___–___
(slip op., at 10–11).
The present case, our fifth about the meaning of the
residual clause, opens a new front of uncertainty. When
deciding whether unlawful possession of a short-barreled
shotgun is a violent felony, do we confine our attention to
the risk that the shotgun will go off by accident while in
someone’s possession? Or do we also consider the possibil­
ity that the person possessing the shotgun will later use it
to commit a crime? The inclusion of burglary and extor­
tion among the enumerated offenses suggests that a crime
may qualify under the residual clause even if the physical
injury is remote from the criminal act. But how remote is
too remote? Once again, the residual clause yields no
answers.
This Court is not the only one that has had trouble
making sense of the residual clause. The clause has “cre­
ated numerous splits among the lower federal courts,”
where it has proved “nearly impossible to apply consistently.”
Chambers, 555 U.S., at 133 (ALITO, J., concurring in
judgment). The most telling feature of the lower courts’
decisions is not division about whether the residual clause
covers this or that crime (even clear laws produce close
cases); it is, rather, pervasive disagreement about the
nature of the inquiry one is supposed to conduct and the
kinds of factors one is supposed to consider. Some judges
have concluded that deciding whether conspiracy is a
violent felony requires evaluating only the dangers posed
by the “simple act of agreeing [to commit a crime],” United
States v. Whitson, 597 F.3d 1218, 1222 (CA11 2010) (per
curiam); others have also considered the probability that
the agreement will be carried out, United States v. White,
571 F.3d 365, 370–371 (CA4 2009). Some judges have
assumed that the battery of a police officer (defined to
include the slightest touching) could “explode into violence
10 JOHNSON v. UNITED STATES
Opinion of the Court
and result in physical injury,” United States v. Williams,
559 F.3d 1143, 1149 (CA10 2009); others have felt that it
“do[es] a great disservice to law enforcement officers” to
assume that they would “explod[e] into violence” rather
than “rely on their training and experience to determine
the best method of responding,” United States v. Cart-
horne, 726 F.3d 503, 514 (CA4 2013). Some judges con­
sidering whether statutory rape qualifies as a violent
felony have concentrated on cases involving a perpetrator
much older than the victim, United States v. Daye, 571
F.3d 225, 230–231 (CA2 2009); others have tried to ac­
count for the possibility that “the perpetrator and the
victim [might be] close in age,” United States v. McDonald,
592 F.3d 808, 815 (CA7 2010). Disagreements like these
go well beyond disputes over matters of degree.
It has been said that the life of the law is experience.
Nine years’ experience trying to derive meaning from the
residual clause convinces us that we have embarked upon
a failed enterprise. Each of the uncertainties in the resid­
ual clause may be tolerable in isolation, but “their sum
makes a task for us which at best could be only guess­
work.” United States v. Evans, 333 U.S. 483, 495 (1948).
Invoking so shapeless a provision to condemn someone to
prison for 15 years to life does not comport with the Con­
stitution’s guarantee of due process.
B
The Government and the dissent claim that there will
be straightforward cases under the residual clause, be­
cause some crimes clearly pose a serious potential risk of
physical injury to another. See post, at 14–15 (opinion of
ALITO, J.). True enough, though we think many of the
cases the Government and the dissent deem easy turn out
not to be so easy after all. Consider just one of the Gov­
ernment’s examples, Connecticut’s offense of “rioting at a
correctional institution.” See United States v. Johnson,
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
616 F.3d 85 (CA2 2010). That certainly sounds like a
violent felony—until one realizes that Connecticut defines
this offense to include taking part in “any disorder, dis­
turbance, strike, riot or other organized disobedience to
the rules and regulations” of the prison. Conn. Gen. Stat.
§53a–179b(a) (2012). Who is to say which the ordinary
“disorder” most closely resembles—a full-fledged prison
riot, a food-fight in the prison cafeteria, or a “passive and
nonviolent [act] such as disregarding an order to move,”
Johnson, 616 F.3d, at 95 (Parker, J., dissenting)?
In all events, although statements in some of our opin­
ions could be read to suggest otherwise, our holdings
squarely contradict the theory that a vague provision is
constitutional merely because there is some conduct that
clearly falls within the provision’s grasp. For instance, we
have deemed a law prohibiting grocers from charging an
“unjust or unreasonable rate” void for vagueness—even
though charging someone a thousand dollars for a pound
of sugar would surely be unjust and unreasonable. L.
Cohen Grocery Co., 255 U.S., at 89. We have similarly
deemed void for vagueness a law prohibiting people on
sidewalks from “conduct[ing] themselves in a manner
annoying to persons passing by”—even though spitting in
someone’s face would surely be annoying. Coates v. Cin-
cinnati, 402 U.S. 611 (1971). These decisions refute any
suggestion that the existence of some obviously risky
crimes establishes the residual clause’s constitutionality.
Resisting the force of these decisions, the dissent insists
that “a statute is void for vagueness only if it is vague in
all its applications.” Post, at 1. It claims that the prohibi­
tion of unjust or unreasonable rates in L. Cohen Grocery
was “vague in all applications,” even though one can easily
envision rates so high that they are unreasonable by any
measure. Post, at 16. It seems to us that the dissent’s
supposed requirement of vagueness in all applications is
not a requirement at all, but a tautology: If we hold a
12 JOHNSON v. UNITED STATES
Opinion of the Court
statute to be vague, it is vague in all its applications (and
never mind the reality). If the existence of some clearly
unreasonable rates would not save the law in L. Cohen
Grocery, why should the existence of some clearly risky
crimes save the residual clause?
The Government and the dissent next point out that
dozens of federal and state criminal laws use terms like
“substantial risk,” “grave risk,” and “unreasonable risk,”
suggesting that to hold the residual clause unconstitutional
is to place these provisions in constitutional doubt. See
post, at 7–8. Not at all. Almost none of the cited laws
links a phrase such as “substantial risk” to a confusing list
of examples. “The phrase ‘shades of red,’ standing alone,
does not generate confusion or unpredictability; but the
phrase ‘fire-engine red, light pink, maroon, navy blue, or
colors that otherwise involve shades of red’ assuredly does
so.” James, 550 U.S., at 230, n. 7 (SCALIA, J., dissenting).
More importantly, almost all of the cited laws require
gauging the riskiness of conduct in which an individual
defendant engages on a particular occasion. As a general
matter, we do not doubt the constitutionality of laws that
call for the application of a qualitative standard such as
“substantial risk” to real-world conduct; “the law is full of
instances where a man’s fate depends on his estimating
rightly . . . some matter of degree,” Nash v. United States,
229 U.S. 373, 377 (1913). The residual clause, however,
requires application of the “serious potential risk” stand­
ard to an idealized ordinary case of the crime. Because
“the elements necessary to determine the imaginary ideal
are uncertain both in nature and degree of effect,” this
abstract inquiry offers significantly less predictability
than one “[t]hat deals with the actual, not with an imagi­
nary condition other than the facts.” International Har-
vester Co. of America v. Kentucky, 234 U.S. 216, 223
(1914).
Finally, the dissent urges us to save the residual clause
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
from vagueness by interpreting it to refer to the risk posed
by the particular conduct in which the defendant engaged,
not the risk posed by the ordinary case of the defendant’s
crime. See post, at 9–13. In other words, the dissent
suggests that we jettison for the residual clause (though
not for the enumerated crimes) the categorical approach
adopted in Taylor, see 495 U.S., at 599–602, and reaf­
firmed in each of our four residual-clause cases, see
James, 550 U.S., at 202; Begay, 553 U.S., at 141; Cham-
bers, 555 U.S., at 125; Sykes, 564 U. S., ___ (slip op., at 5).
We decline the dissent’s invitation. In the first place, the
Government has not asked us to abandon the categorical
approach in residual-clause cases. In addition, Taylor had
good reasons to adopt the categorical approach, reasons
that apply no less to the residual clause than to the enu­
merated crimes. Taylor explained that the relevant part
of the Armed Career Criminal Act “refers to ‘a person who
. . . has three previous convictions’ for—not a person who
has committed—three previous violent felonies or drug
offenses.” 495 U.S., at 600. This emphasis on convictions
indicates that “Congress intended the sentencing court to
look only to the fact that the defendant had been convicted
of crimes falling within certain categories, and not to the
facts underlying the prior convictions.” Ibid. Taylor also
pointed out the utter impracticability of requiring a sen­
tencing court to reconstruct, long after the original convic­
tion, the conduct underlying that conviction. For example,
if the original conviction rested on a guilty plea, no record
of the underlying facts may be available. “[T]he only
plausible interpretation” of the law, therefore, requires
use of the categorical approach. Id., at 602.
C
That brings us to stare decisis. This is the first case in
which the Court has received briefing and heard argument
from the parties about whether the residual clause is void
14 JOHNSON v. UNITED STATES
Opinion of the Court
for vagueness. In James, however, the Court stated in a
footnote that it was “not persuaded by [the principal dis­
sent’s] suggestion . . . that the residual provision is uncon­
stitutionally vague.” 550 U.S., at 210, n. 6. In Sykes, the
Court again rejected a dissenting opinion’s claim of
vagueness. 564 U. S., at ___–___ (slip op., at 13–14).
The doctrine of stare decisis allows us to revisit an ear­
lier decision where experience with its application reveals
that it is unworkable. Payne v. Tennessee, 501 U.S. 808,
827 (1991). Experience is all the more instructive when
the decision in question rejected a claim of unconstitu­
tional vagueness. Unlike other judicial mistakes that need
correction, the error of having rejected a vagueness chal­
lenge manifests itself precisely in subsequent judicial
decisions: the inability of later opinions to impart the
predictability that the earlier opinion forecast. Here, the
experience of the federal courts leaves no doubt about the
unavoidable uncertainty and arbitrariness of adjudication
under the residual clause. Even after Sykes tried to clarify
the residual clause’s meaning, the provision remains a
“judicial morass that defies systemic solution,” “a black
hole of confusion and uncertainty” that frustrates any
effort to impart “some sense of order and direction.” United
States v. Vann, 660 F.3d 771, 787 (CA4 2011) (Agee, J.,
concurring).
This Court’s cases make plain that even decisions ren­
dered after full adversarial presentation may have to yield
to the lessons of subsequent experience. See, e.g., United
States v. Dixon, 509 U.S. 688, 711 (1993); Payne, 501
U.S., at 828–830 (1991). But James and Sykes opined
about vagueness without full briefing or argument on that
issue—a circumstance that leaves us “less constrained to
follow precedent,” Hohn v. United States, 524 U.S. 236,
251 (1998). The brief discussions of vagueness in James
and Sykes homed in on the imprecision of the phrase
“serious potential risk”; neither opinion evaluated the
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
uncertainty introduced by the need to evaluate the riski­
ness of an abstract ordinary case of a crime. 550 U.S., at
210, n. 6; 564 U. S., at ___ (slip op., at 13–14). And depart­
ing from those decisions does not raise any concerns about
upsetting private reliance interests.
Although it is a vital rule of judicial self-government,
stare decisis does not matter for its own sake. It matters
because it “promotes the evenhanded, predictable, and
consistent development of legal principles.” Payne, supra,
at 827. Decisions under the residual clause have proved to
be anything but evenhanded, predictable, or consistent.
Standing by James and Sykes would undermine, rather
than promote, the goals that stare decisis is meant to
serve.
* * *
We hold that imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates
the Constitution’s guarantee of due process. Our contrary
holdings in James and Sykes are overruled. Today’s deci­
sion does not call into question application of the Act to
the four enumerated offenses, or the remainder of the
Act’s definition of a violent felony.
We reverse the judgment of the Court of Appeals for the
Eighth Circuit and remand the case for further proceed­
ings consistent with this opinion.
It is so ordered.
Cite as: 576 U. S. ____ (2015) 1
KENNEDY, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7120
_________________
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE KENNEDY, concurring in the judgment.
In my view, and for the reasons well stated by JUSTICE
ALITO in dissent, the residual clause of the Armed Career
Criminal Act is not unconstitutionally vague under the
categorical approach or a record-based approach. On the
assumption that the categorical approach ought to still
control, and for the reasons given by JUSTICE THOMAS in
Part I of his opinion concurring in the judgment, Johnson’s
conviction for possession of a short-barreled shotgun does
not qualify as a violent felony.
For these reasons, I concur in the judgment.
Cite as: 576 U. S. ____ (2015) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7120
_________________
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE THOMAS, concurring in the judgment.
I agree with the Court that Johnson’s sentence cannot
stand. But rather than use the Fifth Amendment’s Due
Process Clause to nullify an Act of Congress, I would
resolve this case on more ordinary grounds. Under con-
ventional principles of interpretation and our precedents,
the offense of unlawfully possessing a short-barreled
shotgun does not constitute a “violent felony” under the
residual clause of the Armed Career Criminal Act (ACCA).
The majority wants more. Not content to engage in the
usual business of interpreting statutes, it holds this clause
to be unconstitutionally vague, notwithstanding the fact
that on four previous occasions we found it determinate
enough for judicial application. As JUSTICE ALITO ex-
plains, that decision cannot be reconciled with our prece-
dents concerning the vagueness doctrine. See post, at 13–
17 (dissenting opinion). But even if it were a closer case
under those decisions, I would be wary of holding the
residual clause to be unconstitutionally vague. Although I
have joined the Court in applying our modern vagueness
doctrine in the past, see FCC v. Fox Television Stations,
Inc., 567 U. S. ___, ___–___ (2012) (slip op., at 16–17), I
have become increasingly concerned about its origins and
application. Simply put, our vagueness doctrine shares an
uncomfortably similar history with substantive due pro-
2 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
cess, a judicially created doctrine lacking any basis in the
Constitution.
I
We could have easily disposed of this case without nulli-
fying ACCA’s residual clause. Under ordinary principles
of statutory interpretation, the crime of unlawfully pos-
sessing a short-barreled shotgun does not constitute a
“violent felony” under ACCA. In relevant part, that Act
defines a “violent felony” as a “crime punishable by im-
prisonment for a term exceeding one year” that either
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that pre-
sents a serious potential risk of physical injury to an-
other.” 18 U.S. C. §924(e)(2)(B).
The offense of unlawfully possessing a short-barreled
shotgun neither satisfies the first clause of this definition
nor falls within the enumerated offenses in the second. It
therefore can constitute a violent felony only if it falls
within ACCA’s so-called “residual clause”—i.e., if it “in-
volves conduct that presents a serious potential risk of
physical injury to another.” §924(e)(2)(B)(ii).
To determine whether an offense falls within the resid-
ual clause, we consider “whether the conduct encompassed
by the elements of the offense, in the ordinary case, pre-
sents a serious potential risk of injury to another.” James
v. United States, 550 U.S. 192, 208 (2007). The specific
crimes listed in §924(e)(2)(B)(ii)—arson, extortion, bur-
glary, and an offense involving the use of explosives—offer
a “baseline against which to measure the degree of risk” a
crime must present to fall within that clause. Id., at 208.
Those offenses do not provide a high threshold, see id., at
Cite as: 576 U. S. ____ (2015) 3
THOMAS, J., concurring in judgment
203, 207–208, but the crime in question must still present
a “ ‘serious’ ”—a “ ‘significant’ or ‘important’ ”—risk of
physical injury to be deemed a violent felony, Begay v.
United States, 553 U.S. 137, 156 (2008) (ALITO, J., dis-
senting); accord, Chambers v. United States, 555 U.S. 122,
128 (2009).
To qualify as serious, the risk of injury generally must
be closely related to the offense itself. Our precedents
provide useful examples of the close relationship that
must exist between the conduct of the offense and the risk
presented. In Sykes v. United States, 564 U.S. 1 (2011),
for instance, we held that the offense of intentional vehicu-
lar flight constitutes a violent felony because that conduct
always triggers a dangerous confrontation, id., at ___ (slip
op., at 8). As we explained, vehicular flights “by defini-
tional necessity occur when police are present” and are
done “in defiance of their instructions . . . with a vehicle
that can be used in a way to cause serious potential risk of
physical injury to another.” Ibid. In James, we likewise
held that attempted burglary offenses “requir[ing] an
overt act directed toward the entry of a structure” are
violent felonies because the underlying conduct often
results in a dangerous confrontation. 550 U.S., at 204,
206. But we distinguished those crimes from “the more
attenuated conduct encompassed by” attempt offenses
“that c[an] be satisfied by preparatory conduct that does
not pose the same risk of violent confrontation,” such as
“ ‘possessing burglary tools.’ ” Id., at 205, 206, and n. 4. At
some point, in other words, the risk of injury from the
crime may be too attenuated for the conviction to fall
within the residual clause, such as when an additional,
voluntary act (e.g., the use of burglary tools to enter a
structure) is necessary to bring about the risk of physical
injury to another.
In light of the elements of and reported convictions for
the unlawful possession of a short-barreled shotgun, this
4 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
crime does not “involv[e] conduct that presents a serious
potential risk of physical injury to another,” §924(e)
(2)(B)(ii). The acts that form the basis of this offense are
simply too remote from a risk of physical injury to fall
within the residual clause.
Standing alone, the elements of this offense—(1) unlaw-
fully (2) possessing (3) a short-barreled shotgun—do not
describe inherently dangerous conduct. As a conceptual
matter, “simple possession [of a firearm], even by a felon,
takes place in a variety of ways (e.g., in a closet, in a store-
room, in a car, in a pocket) many, perhaps most, of which
do not involve likely accompanying violence.” United
States v. Doe, 960 F.2d 221, 225 (CA1 1992). These weap-
ons also can be stored in a manner posing a danger to no
one, such as unloaded, disassembled, or locked away. By
themselves, the elements of this offense indicate that the
ordinary commission of this crime is far less risky than
ACCA’s enumerated offenses.
Reported convictions support the conclusion that mere
possession of a short-barreled shotgun does not, in the
ordinary case, pose a serious risk of injury to others. A
few examples suffice. In one case, officers found the
sawed-off shotgun locked inside a gun cabinet in an empty
home. State v. Salyers, 858 N.W.2d 156, 157–158 (Minn.
2015). In another, the firearm was retrieved from the
trunk of the defendant’s car. State v. Ellenberger, 543 N.
W. 2d 673, 674 (Minn. App. 1996). In still another, the
weapon was found missing a firing pin. State v. Johnson,
171 Wis. 2d 175, 178, 491 N.W.2d 110, 111 (App. 1992).
In these instances and others, the offense threatened no
one.
The Government’s theory for why this crime should
nonetheless qualify as a “violent felony” is unpersuasive.
Although it does not dispute that the unlawful possession
of a short-barreled shotgun can occur in a nondangerous
manner, the Government contends that this offense poses
Cite as: 576 U. S. ____ (2015) 5
THOMAS, J., concurring in judgment
a serious risk of physical injury due to the connection
between short-barreled shotguns and other serious crimes.
As the Government explains, these firearms are “weapons
not typically possessed by law-abiding citizens for lawful
purposes,” District of Columbia v. Heller, 554 U.S. 570,
625 (2008), but are instead primarily intended for use in
criminal activity. In light of that intended use, the Gov-
ernment reasons that the ordinary case of this possession
offense will involve the use of a short-barreled shotgun in
a serious crime, a scenario obviously posing a serious risk
of physical injury.
But even assuming that those who unlawfully possess
these weapons typically intend to use them in a serious
crime, the risk that the Government identifies arises not
from the act of possessing the weapon, but from the act of
using it. Unlike attempted burglary (at least of the type
at issue in James) or intentional vehicular flight—conduct
that by itself often or always invites a dangerous confron-
tation—possession of a short-barreled shotgun poses a
threat only when an offender decides to engage in addi-
tional, voluntary conduct that is not included in the ele-
ments of the crime. Until this weapon is assembled, load-
ed, or used, for example, it poses no risk of injury to others
in and of itself. The risk of injury to others from mere
possession of this firearm is too attenuated to treat this
offense as a violent felony. I would reverse the Court of
Appeals on that basis.
II
As the foregoing analysis demonstrates, ACCA’s resid-
ual clause can be applied in a principled manner. One
would have thought this proposition well established given
that we have already decided four cases addressing this
clause. The majority nonetheless concludes that the oper-
ation of this provision violates the Fifth Amendment’s Due
Process Clause.
6 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
JUSTICE ALITO shows why that analysis is wrong under
our precedents. See post, at 13–17 (dissenting opinion).
But I have some concerns about our modern vagueness
doctrine itself. Whether that doctrine is defensible under
the original meaning of “due process of law” is a difficult
question I leave for the another day, but the doctrine’s
history should prompt us at least to examine its constitu-
tional underpinnings more closely before we use it to
nullify yet another duly enacted law.
A
We have become accustomed to using the Due Process
Clauses to invalidate laws on the ground of “vagueness.”
The doctrine we have developed is quite sweeping: “A
statute can be impermissibly vague . . . if it fails to provide
people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits” or “if it authorizes
or even encourages arbitrary and discriminatory enforce-
ment.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Using
this framework, we have nullified a wide range of enact-
ments. We have struck down laws ranging from city
ordinances, Papachristou v. Jacksonville, 405 U.S. 156,
165–171 (1972), to Acts of Congress, United States v. L.
Cohen Grocery Co., 255 U.S. 81, 89–93 (1921). We have
struck down laws whether they are penal, Lanzetta v. New
Jersey, 306 U.S. 451, 452, 458 (1939), or not, Keyishian v.
Board of Regents of Univ. of State of N. Y., 385 U.S. 589,
597–604 (1967).1 We have struck down laws addressing
——————
1 By “penal,” I mean laws “authoriz[ing] criminal punishment” as well
as those “authorizing fines or forfeitures . . . [that] are enforced through
civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta-
tion 108 (2011) (discussing definition of “penal” for purposes of rule of
lenity). A law requiring termination of employment from public insti-
tutions, for instance, is not penal. See Keyishian, 385 U.S., at 597–
604. Nor is a law creating an “obligation to pay taxes.” Milwaukee
County v. M. E. White Co., 296 U.S. 268, 271 (1935). Conversely, a law
imposing a monetary exaction as a punishment for noncompliance with
Cite as: 576 U. S. ____ (2015) 7
THOMAS, J., concurring in judgment
subjects ranging from abortion, Colautti v. Franklin, 439
U.S. 379, 390 (1979), and obscenity, Winters v. New York,
333 U.S. 507, 517–520 (1948), to the minimum wage,
Connally v. General Constr. Co., 269 U.S. 385, 390–395
(1926), and antitrust, Cline v. Frink Dairy Co., 274 U.S.
445, 453–465 (1927). We have even struck down a law
using a term that has been used to describe criminal
conduct in this country since before the Constitution was
ratified. Chicago v. Morales, 527 U.S. 41, 51 (1999) (in-
validating a “loitering” law); see id., at 113, and n. 10
(THOMAS, J., dissenting) (discussing a 1764 Georgia law
requiring the apprehension of “all able bodied persons . . .
who shall be found loitering”).
That we have repeatedly used a doctrine to invalidate
laws does not make it legitimate. Cf., e.g., Dred Scott v.
Sandford, 19 How. 393, 450–452 (1857) (stating that an
Act of Congress prohibiting slavery in certain Federal
Territories violated the substantive due process rights of
slaveowners and was therefore void). This Court has a
history of wielding doctrines purportedly rooted in “due
process of law” to achieve its own policy goals, substantive
due process being the poster child. See McDonald v.
Chicago, 561 U.S. 742, 811 (2010) (THOMAS, J., concurring
in part and concurring in judgment) (“The one theme that
links the Court’s substantive due process precedents
together is their lack of a guiding principle to distinguish
‘fundamental’ rights that warrant protection from nonfun-
damental rights that do not”). Although our vagueness
doctrine is distinct from substantive due process, their
histories have disquieting parallels.
1
The problem of vague penal statutes is nothing new.
——————
a regulatory mandate is penal. See National Federation of Independent
Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY,
THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26).
8 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
The notion that such laws may be void under the Consti-
tution’s Due Process Clauses, however, is a more recent
development.
Before the end of the 19th century, courts addressed
vagueness through a rule of strict construction of penal
statutes, not a rule of constitutional law. This rule of
construction—better known today as the rule of lenity—
first emerged in 16th-century England in reaction to
Parliament’s practice of making large swaths of crimes
capital offenses, though it did not gain broad acceptance
until the following century. See Hall, Strict or Liberal
Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749–
751 (1935); see also 1 L. Radzinowicz, A History of English
Criminal Law and Its Administration From 1750, pp. 10–
11 (1948) (noting that some of the following crimes trig-
gered the death penalty: “marking the edges of any
current coin of the kingdom,” “maliciously cutting any hop-
binds growing on poles in any plantation of hops,” and
“being in the company of gypsies”). Courts relied on this
rule of construction in refusing to apply vague capital-
offense statutes to prosecutions before them. As an exam-
ple of this rule, William Blackstone described a notable
instance in which an English statute imposing the death
penalty on anyone convicted of “stealing sheep, or other
cattle” was “held to extend to nothing but mere sheep” as
“th[e] general words, ‘or other cattle,’ [were] looked upon
as much too loose to create a capital offence.” 1 Commen-
taries on the Laws of England 88 (1765).2
——————
2 At
the time, the ordinary meaning of the word “cattle” was not lim-
ited to cows, but instead encompassed all “[b]easts of pasture; not wild
nor domestick.” 1 S. Johnson, A Dictionary of the English Language
(4th ed. 1773). Parliament responded to the judicial refusal to apply
the provision to “cattle” by passing “another statute, 15 Geo. II. c. 34,
extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves,
and lambs, by name.” 1 Blackstone, Commentaries on the Laws of
England, at 88.
Cite as: 576 U. S. ____ (2015) 9
THOMAS, J., concurring in judgment
Vague statutes surfaced on this side of the Atlantic as
well. Shortly after the First Congress proposed the Bill of
Rights, for instance, it passed a law providing “[t]hat every
person who shall attempt to trade with the Indian tribes,
or be found in the Indian country with such merchandise
in his possession as are usually vended to the Indians,
without a license,” must forfeit the offending goods. Act of
July 22, 1790, ch. 33, §3, 1 Stat. 137–138. At first glance,
punishing the unlicensed possession of “merchandise . . .
usually vended to the Indians,” ibid., would seem far more
likely to “invit[e] arbitrary enforcement,” ante, at 5, than
does the residual clause.
But rather than strike down arguably vague laws under
the Fifth Amendment Due Process Clause, antebellum
American courts—like their English predecessors—simply
refused to apply them in individual cases under the rule
that penal statutes should be construed strictly. See, e.g.,
United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CC
Pa. 1815) (Washington, J.). In Sharp, for instance, several
defendants charged with violating an Act rendering it a
capital offense for “any seaman” to “make a revolt in [a]
ship,” Act of Apr. 30, 1790, §8, 1 Stat. 114, objected that
“the offence of making a revolt, [wa]s not sufficiently
defined by this law, or by any other standard, to which
reference could be safely made; to warrant the court in
passing a sentence upon [them].” 27 F. Cas., at 1043.
Justice Washington, riding circuit, apparently agreed,
observing that the common definitions for the phrase
“make a revolt” were “so multifarious, and so different”
that he could not “avoid feeling a natural repugnance, to
selecting from this mass of definitions, one, which may fix
a crime upon these men, and that too of a capital nature.”
Ibid. Remarking that “[l]aws which create crimes, ought
to be so explicit in themselves, or by reference to some
other standard, that all men, subject to their penalties,
may know what acts it is their duty to avoid,” he refused
10 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
to “recommend to the jury, to find the prisoners guilty of
making, or endeavouring to make a revolt, however strong
the evidence may be.” Ibid.
Such analysis does not mean that federal courts be-
lieved they had the power to invalidate vague penal laws
as unconstitutional. Indeed, there is good evidence that
courts at the time understood judicial review to consist “of
a refusal to give a statute effect as operative law in resolv-
ing a case,” a notion quite distinct from our modern prac-
tice of “ ‘strik[ing] down’ legislation.” Walsh, Partial Un-
constitutionality, 85 N. Y. U. L. Rev. 738, 756 (2010). The
process of refusing to apply such laws appeared to occur on
a case-by-case basis. For instance, notwithstanding his
doubts expressed in Sharp, Justice Washington, writing
for this Court, later rejected the argument that lower
courts could arrest a judgment under the same ship-revolt
statute because it “does not define the offence of endeav-
ouring to make a revolt.” United States v. Kelly, 11
Wheat. 417, 418 (1826). The Court explained that “it is
. . . competent to the Court to give a judicial definition” of
“the offence of endeavouring to make a revolt,” and that
such definition “consists in the endeavour of the crew of a
vessel, or any one or more of them, to overthrow the legit-
imate authority of her commander, with intent to remove
him from his command, or against his will to take posses-
sion of the vessel by assuming the government and navi-
gation of her, or by transferring their obedience from the
lawful commander to some other person.” Id., at 418–419.
In dealing with statutory indeterminacy, federal courts
saw themselves engaged in construction, not judicial
review as it is now understood. 3
——————
3 Early American state courts also sometimes refused to apply a law
they found completely unintelligible, even outside of the penal context.
In one antebellum decision, the Pennsylvania Supreme Court did not
even attempt to apply a statute that gave the Pennsylvania state
treasurer “ ‘as many votes’ ” in state bank elections as “ ‘were held by
Cite as: 576 U. S. ____ (2015) 11
THOMAS, J., concurring in judgment
2
Although vagueness concerns played a role in the strict
construction of penal statutes from early on, there is little
indication that anyone before the late 19th century be-
lieved that courts had the power under the Due Process
Clauses to nullify statutes on that ground. Instead, our
modern vagueness doctrine materialized after the rise of
substantive due process. Following the ratification of the
Fourteenth Amendment, corporations began to use that
Amendment’s Due Process Clause to challenge state laws
that attached penalties to unauthorized commercial con-
duct. In addition to claiming that these laws violated
their substantive due process rights, these litigants be-
gan—with some success—to contend that such laws were
unconstitutionally indefinite. In one case, a railroad
company challenged a Tennessee law authorizing penal-
ties against any railroad that demanded “more than a just
and reasonable compensation” or engaged in “unjust and
unreasonable discrimination” in setting its rates. Louis-
ville & Nashville R. Co. v. Railroad Comm’n of Tenn., 19
F. 679, 690 (CC MD Tenn. 1884) (internal quotation
marks deleted). Without specifying the constitutional
authority for its holding, the Circuit Court concluded that
“[n]o citizen . . . can be constitutionally subjected to penal-
ties and despoiled of his property, in a criminal or quasi
criminal proceeding, under and by force of such indefinite
——————
individuals’ ” without providing guidance as to which individuals it was
referring. Commonwealth v. Bank of Pennsylvania, 3 Watts & Serg.
173, 177 (1842). Concluding that it had “seldom, if ever, found the
language of legislation so devoid of certainty,” the court withdrew the
case. Ibid.; see also Drake v. Drake, 15 N. C. 110, 115 (1833) (“Whether
a statute be a public or a private one, if the terms in which it is couched
be so vague as to convey no definite meaning to those whose duty it is
to execute it, either ministerially or judicially, it is necessarily inopera-
tive”). This practice is distinct from our modern vagueness doctrine,
which applies to laws that are intelligible but vague.
12 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
legislation.” Id., at 693 (emphasis deleted).
Justice Brewer—widely recognized as “a leading
spokesman for ‘substantized’ due process,” Gamer, Justice
Brewer and Substantive Due Process: A Conservative
Court Revisited, 18 Vand. L. Rev. 615, 627 (1965)—
employed similar reasoning while riding circuit, though he
did not identify the constitutional source of judicial au-
thority to nullify vague laws. In reviewing an Iowa law
authorizing fines against railroads for charging more than
a “reasonable and just” rate, Justice Brewer mentioned in
dictum that “no penal law can be sustained unless its
mandates are so clearly expressed that any ordinary
person can determine in advance what he may and what
he may not do under it.” Chicago & N. W. R. Co. v. Dey,
35 F. 866, 876 (CC SD Iowa 1888).
Constitutional vagueness challenges in this Court ini-
tially met with some resistance. Although the Court
appeared to acknowledge the possibility of unconstitution-
ally indefinite enactments, it repeatedly rejected vague-
ness challenges to penal laws addressing railroad rates,
Railroad Comm’n Cases, 116 U.S. 307, 336–337 (1886),
liquor sales, Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445,
450–451 (1904), and anticompetitive conduct, Nash v.
United States, 229 U.S. 373, 376–378 (1913); Waters-
Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 108–111
(1909).
In 1914, however, the Court nullified a law on vague-
ness grounds under the Due Process Clause for the first
time. In International Harvester Co. of America v. Ken-
tucky, 234 U.S. 216 (1914), a tobacco company brought a
Fourteenth Amendment challenge against several Ken-
tucky antitrust laws that had been construed to render
unlawful “any combination [made] . . . for the purpose or
with the effect of fixing a price that was greater or less
than the real value of the article,” id., at 221. The com-
pany argued that by referring to “real value,” the laws pro-
Cite as: 576 U. S. ____ (2015) 13
THOMAS, J., concurring in judgment
vided “no standard of conduct that it is possible to know.”
Ibid. The Court agreed. Id., at 223–224. Although it did
not specify in that case which portion of the Fourteenth
Amendment served as the basis for its holding, ibid., it
explained in a related case that the lack of a knowable
standard of conduct in the Kentucky statutes “violated the
fundamental principles of justice embraced in the concep-
tion of due process of law.” Collins v. Kentucky, 234 U.S.
634, 638 (1914).
3
Since that time, the Court’s application of its vagueness
doctrine has largely mirrored its application of substantive
due process. During the Lochner era, a period marked by
the use of substantive due process to strike down economic
regulations, e.g., Lochner v. New York, 198 U.S. 45, 57
(1905), the Court frequently used the vagueness doctrine
to invalidate economic regulations penalizing commercial
activity.4 Among the penal laws it found to be impermis-
sibly vague were a state law regulating the production of
crude oil, Champlin Refining Co. v. Corporation Comm’n
——————
4 During this time, the Court would apply its new vagueness doctrine
outside of the penal context as well. In A. B. Small Co. v. American
Sugar Refining Co., 267 U.S. 233 (1925), a sugar dealer raised a
defense to a breach-of-contract suit that the contracts themselves were
unlawful under several provisions of the Lever Act, including one
making it “ ‘unlawful for any person . . . to make any unjust or unrea-
sonable . . . charge in . . . dealing in or with any necessaries,’ or to agree
with another ‘to exact excessive prices for any necessaries,’ ” id., at 238.
Applying United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921),
which had held that provision to be unconstitutionally vague, the Court
rejected the dealer’s argument. 267 U.S., at 238–239. The Court
explained that “[i]t was not the criminal penalty that was held invalid,
but the exaction of obedience to a rule or standard which was so vague
and indefinite as really to be no rule or standard at all.” Id., at 239.
That doctrine thus applied to penalties as well as “[a]ny other means of
exaction, such as declaring the transaction unlawful or stripping a
participant of his rights under it.” Ibid.
14 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
of Okla., 286 U.S. 210, 242–243 (1932), a state antitrust
law, Cline, 274 U.S., at 453–465, a state minimum-wage
law, Connally, 269 U.S., at 390–395, and a federal price-
control statute, L. Cohen Grocery Co., 255 U.S., at 89–93.5
Around the time the Court began shifting the focus of its
substantive due process (and equal protection) jurispru-
dence from economic interests to “discrete and insular
minorities,” see United States v. Carolene Products Co.,
304 U.S. 144, 153, n. 4 (1938), the target of its vagueness
doctrine changed as well. The Court began to use the
vagueness doctrine to invalidate noneconomic regulations,
such as state statutes penalizing obscenity, Winters, 333
U.S., at 517–520, and membership in a gang, Lanzetta,
306 U.S., at 458.
Successful vagueness challenges to regulations penaliz-
ing commercial conduct, by contrast, largely fell by the
wayside. The Court, for instance, upheld a federal regula-
tion punishing the knowing violation of an order instruct-
ing drivers transporting dangerous chemicals to “ ‘avoid, so
far as practicable . . . driving into or through congested
thoroughfares, places where crowds are assembled, street
car tracks, tunnels, viaducts, and dangerous crossings,’ ”
Boyce Motor Lines, Inc. v. United States, 342 U.S. 337,
——————
5 Vagueness challenges to laws regulating speech during this period
were less successful. Among the laws the Court found to be sufficiently
definite included a state law making it a misdemeanor to publish,
among other things, materials “ ‘which shall tend to encourage or
advocate disrespect for law or for any court or courts of justice,’ ” Fox v.
Washington, 236 U.S. 273, 275–277 (1915), a federal statute criminal-
izing candidate solicitation of contributions for “ ‘any political purpose
whatever,’ ” United States v. Wurzbach, 280 U.S. 396, 398–399 (1930),
and a state prohibition on becoming a member of any organization that
advocates using unlawful violence to effect “ ‘any political change,’ ”
Whitney v. California, 274 U.S. 357, 359–360, 368–369 (1927). But see
Stromberg v. California, 283 U.S. 359, 369–370 (1931) (holding state
statute punishing the use of any symbol “ ‘of opposition to organized
government’ ” to be impermissibly vague).
Cite as: 576 U. S. ____ (2015) 15
THOMAS, J., concurring in judgment
338–339, 343 (1952). And notwithstanding its earlier
conclusion that an Oklahoma law requiring state employ-
ees and contractors to be paid “ ‘not less than the current
rate of per diem wages in the locality where the work is
performed’ ” was unconstitutionally vague, Connally,
supra, at 393, the Court found sufficiently definite a fed-
eral law forbidding radio broadcasting companies from
attempting to compel by threat or duress a licensee to hire
“ ‘persons in excess of the number of employees needed by
such licensee to perform actual services,’ ” United States v.
Petrillo, 332 U.S. 1, 3, 6–7 (1947).
In more recent times, the Court’s substantive due pro-
cess jurisprudence has focused on abortions, and our
vagueness doctrine has played a correspondingly signifi-
cant role. In fact, our vagueness doctrine served as the
basis for the first draft of the majority opinion in Roe v.
Wade, 410 U.S. 113 (1973), on the theory that laws pro-
hibiting all abortions save for those done “for the purpose
of saving the life of the mother” forced abortionists to
guess when this exception would apply on penalty of con-
viction. See B. Schwartz, The Unpublished Opinions of
the Burger Court 116–118 (1988) (reprinting first draft of
Roe). Roe, of course, turned out as a substantive due
process opinion. See 410 U.S., at 164. But since then, the
Court has repeatedly deployed the vagueness doctrine to
nullify even mild regulations of the abortion industry. See
Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 451–452 (1983) (nullifying law requiring “ ‘that
the remains of the unborn child [be] disposed of in a hu-
mane and sanitary manner’ ”); Colautti, 439 U.S., at 381
(nullifying law mandating abortionists adhere to a pre-
scribed standard of care if “ there is ‘sufficient reason to
believe that the fetus may be viable’ ”).6
——————
6 All the while, however, the Court has rejected vagueness challenges
to laws punishing those on the other side of the abortion debate. When
16 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
In one of our most recent decisions nullifying a law on
vagueness grounds, substantive due process was again
lurking in the background. In Morales, a plurality of this
Court insisted that “the freedom to loiter for innocent
purposes is part of the ‘liberty’ protected by the Due Pro-
cess Clause of the Fourteenth Amendment,” 527 U.S., at
53, a conclusion that colored its analysis that an ordinance
prohibiting loitering was unconstitutionally indetermi-
nate, see id., at 55 (“When vagueness permeates the text
of ” a penal law “infring[ing] on constitutionally protected
rights,” “it is subject to facial attack”).
I find this history unsettling. It has long been under-
stood that one of the problems with holding a statute “void
for ‘indefiniteness’ ” is that “ ‘indefiniteness’ . . . is itself an
indefinite concept,” Winters, supra, at 524 (Frankfurter, J.,
dissenting), and we as a Court have a bad habit of using
indefinite concepts—especially ones rooted in “due pro-
cess”—to invalidate democratically enacted laws.
B
It is also not clear that our vagueness doctrine can be
reconciled with the original understanding of the term
“due process of law.” Our traditional justification for this
doctrine has been the need for notice: “A conviction fails to
comport with due process if the statute under which it is
obtained fails to provide a person of ordinary intelligence
fair notice of what is prohibited.” United States v. Wil-
liams, 553 U.S. 285, 304 (2008); accord, ante, at 3. Pre-
sumably, that justification rests on the view expressed in
——————
it comes to restricting the speech of abortion opponents, the Court has
dismissed concerns about vagueness with the observation that “ ‘we can
never expect mathematical certainty from our language,’ ” Hill v.
Colorado, 530 U.S. 703, 733 (2000), even though such restrictions are
arguably “at least as imprecise as criminal prohibitions on speech the
Court has declared void for vagueness in past decades,” id., at 774
(KENNEDY, J., dissenting).
Cite as: 576 U. S. ____ (2015) 17
THOMAS, J., concurring in judgment
Murray’s Lessee v. Hoboken Land & Improvement Co., 18
How. 272 (1856), that “due process of law” constrains the
legislative branch by guaranteeing “usages and modes of
proceeding existing in the common and statute law of
England, before the emigration of our ancestors, and
which are shown not to have been unsuited to their civil
and political condition by having been acted on by them
after the settlement of this country,” id., at 277. That
justification assumes further that providing “a person of
ordinary intelligence [with] fair notice of what is prohib-
ited,” Williams, supra, at 304, is one such usage or mode.7
To accept the vagueness doctrine as founded in our
Constitution, then, one must reject the possibility “that
the Due Process Clause requires only that our Govern-
ment must proceed according to the ‘law of the land’—that
is, according to written constitutional and statutory provi-
sions,” which may be all that the original meaning of this
provision demands. Hamdi v. Rumsfeld, 542 U.S. 507,
589 (2004) (THOMAS, J., dissenting) (some internal quota-
tion marks omitted); accord, Turner v. Rogers, 564 U. S.
——————
7 As a general matter, we should be cautious about relying on general
theories of “fair notice” in our due process jurisprudence, as they have
been exploited to achieve particular ends. In BMW of North America,
Inc. v. Gore, 517 U.S. 559 (1996), for instance, the Court held that the
Due Process Clause imposed limits on punitive damages because the
Clause guaranteed “that a person receive fair notice not only of the
conduct that will subject him to punishment, but also of the severity of
the penalty that a State may impose,” id., at 574. That was true even
though “when the Fourteenth Amendment was adopted, punitive
damages were undoubtedly an established part of the American com-
mon law of torts,” and “no particular procedures were deemed neces-
sary to circumscribe a jury’s discretion regarding the award of such
damages, or their amount.” Pacific Mut. Life Ins. Co. v. Haslip, 499
U.S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment). Even under
the view of the Due Process Clause articulated in Murray’s Lessee,
then, we should not allow nebulous principles to supplant more specific,
historically grounded rules. See 499 U.S., at 37–38 (opinion of SCALIA,
J.).
18 JOHNSON v. UNITED STATES
THOMAS, J., concurring in judgment
___, ___ (2011) (THOMAS, J., dissenting) (slip op., at 2).
Although Murray’s Lessee stated the contrary, 18 How., at
276, a number of scholars and jurists have concluded that
“considerable historical evidence supports the position
that ‘due process of law’ was a separation-of-powers con-
cept designed as a safeguard against unlicensed executive
action, forbidding only deprivations not authorized by
legislation or common law.” D. Currie, The Constitution
in the Supreme Court: The First Hundred Years 1789–
1888, p. 272 (1985); see also, e.g., In re Winship, 397 U.S.
358, 378–382 (1970) (Black, J., dissenting). Others have
disagreed. See, e.g., Chapman & McConnell, Due Process
as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012)
(arguing that, as originally understood, “the principle of
due process” required, among other things, that “statutes
that purported to empower the other branches to deprive
persons of rights without adequate procedural guarantees
[be] subject to judicial review”).
I need not choose between these two understandings of
“due process of law” in this case. JUSTICE ALITO explains
why the majority’s decision is wrong even under our prec-
edents. See post, at 13–17 (dissenting opinion). And more
generally, I adhere to the view that “ ‘[i]f any fool would
know that a particular category of conduct would be with-
in the reach of the statute, if there is an unmistakable core
that a reasonable person would know is forbidden by the
law, the enactment is not unconstitutional on its face,’ ”
Morales, supra, at 112 (THOMAS, J., dissenting), and there
is no question that ACCA’s residual clause meets that
description, see ante, at 10 (agreeing with the Government
that “there will be straightforward cases under the resid-
ual clause”).
* * *
I have no love for our residual clause jurisprudence: As I
observed when we first got into this business, the Sixth
Cite as: 576 U. S. ____ (2015) 19
THOMAS, J., concurring in judgment
Amendment problem with allowing district courts to
conduct factfinding to determine whether an offense is a
“violent felony” made our attempt to construe the residual
clause “ ‘an unnecessary exercise.’ ” James, 550 U.S., at
231 (THOMAS, J., dissenting). But the Court rejected my
argument, choosing instead to begin that unnecessary
exercise. I see no principled way that, four cases later, the
Court can now declare that the residual clause has become
too indeterminate to apply. Having damaged the residual
clause through our misguided jurisprudence, we have no
right to send this provision back to Congress and ask for a
new one. I cannot join the Court in using the Due Process
Clause to nullify an Act of Congress that contains an
unmistakable core of forbidden conduct, and I concur only
in its judgment.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–7120
_________________
SAMUEL JAMES JOHNSON, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2015]
JUSTICE ALITO, dissenting.
The Court is tired of the Armed Career Criminal Act of
1984 (ACCA) and in particular its residual clause. Anx­
ious to rid our docket of bothersome residual clause cases,
the Court is willing to do what it takes to get the job done.
So brushing aside stare decisis, the Court holds that the
residual clause is unconstitutionally vague even though
we have twice rejected that very argument within the last
eight years. The canons of interpretation get no greater
respect. Inverting the canon that a statute should be
construed if possible to avoid unconstitutionality, the
Court rejects a reasonable construction of the residual
clause that would avoid any vagueness problems, prefer­
ring an alternative that the Court finds to be unconstitu­
tionally vague. And the Court is not stopped by the well-
established rule that a statute is void for vagueness only if
it is vague in all its applications. While conceding that
some applications of the residual clause are straightfor­
ward, the Court holds that the clause is now void in its
entirety. The Court’s determination to be done with re­
sidual clause cases, if not its fidelity to legal principles, is
impressive.
2 JOHNSON v. UNITED STATES
ALITO, J., dissenting
I
A
Petitioner Samuel Johnson (unlike his famous name­
sake) has led a life of crime and violence. His presentence
investigation report sets out a résumé of petty and serious
crimes, beginning when he was 12 years old. Johnson’s
adult record includes convictions for, among other things,
robbery, attempted robbery, illegal possession of a sawed-
off shotgun, and a drug offense.
In 2010, the Federal Bureau of Investigation (FBI)
began monitoring Johnson because of his involvement
with the National Socialist Movement, a white-
supremacist organization suspected of plotting acts of
terrorism. In June of that year, Johnson left the group
and formed his own radical organization, the Aryan Liber­
ation Movement, which he planned to finance by counter­
feiting United States currency. In the course of the Gov­
ernment’s investigation, Johnson “disclosed to undercover
FBI agents that he manufactured napalm, silencers, and
other explosives for” his new organization. 526 Fed. Appx.
708, 709 (CA8 2013) (per curiam). He also showed the
agents an AK–47 rifle, a semiautomatic rifle, a semiauto­
matic pistol, and a cache of approximately 1,100 rounds of
ammunition. Later, Johnson told an undercover agent:
“You know I’d love to assassinate some . . . hoodrats as
much as the next guy, but I think we really got to stick
with high priority targets.” Revised Presentence Investi­
gation Report (PSR) ¶15. Among the top targets that he
mentioned were “the Mexican consulate,” “progressive
bookstores,” and individuals he viewed as “liberals.”
PSR ¶16.
In April 2012, Johnson was arrested, and he was subse­
quently indicted on four counts of possession of a firearm
by a felon and two counts of possession of ammunition by
a felon, in violation of 18 U.S. C. §§922(g) and §924(e). He
pleaded guilty to one of the firearms counts, and the Dis­
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
trict Court sentenced him to the statutory minimum of 15
years’ imprisonment under ACCA, based on his prior
felony convictions for robbery, attempted robbery, and
illegal possession of a sawed-off shotgun.
B
ACCA provides a mandatory minimum sentence for
certain violations of §922(g), which prohibits the ship­
ment, transportation, or possession of firearms or ammu­
nition by convicted felons, persons previously committed to
a mental institution, and certain others. Federal law
normally provides a maximum sentence of 10 years’ im­
prisonment for such crimes. See §924(a)(2). Under ACCA,
however, if a defendant convicted under §922(g) has three
prior convictions “for a violent felony or a serious drug
offense,” the sentencing court must impose a sentence of at
least 15 years’ imprisonment. §924(e)(1).
ACCA’s definition of a “violent felony” has three parts.
First, a felony qualifies if it “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” §924(e)(2)(B)(i). Second, the Act
specifically names four categories of qualifying felonies:
burglary, arson, extortion, and offenses involving the use
of explosives. See §924(e)(2)(B)(ii). Third, the Act con­
tains what we have called a “residual clause,” which
reaches any felony that “otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” Ibid.
The present case concerns the residual clause. The sole
question raised in Johnson’s certiorari petition was
whether possession of a sawed-off shotgun under Minne-
sota law qualifies as a violent felony under that clause.
Although Johnson argued in the lower courts that the
residual clause is unconstitutionally vague, he did not
renew that argument here. Nevertheless, after oral ar­
gument, the Court raised the question of vagueness on its
4 JOHNSON v. UNITED STATES
ALITO, J., dissenting
own. The Court now holds that the residual clause is
unconstitutionally vague in all its applications. I cannot
agree.
II
I begin with stare decisis. Eight years ago in James v.
United States, 550 U.S. 192 (2007), JUSTICE SCALIA, the
author of today’s opinion for the Court, fired an opening
shot at the residual clause. In dissent, he suggested that
the residual clause is void for vagueness. Id., at 230. The
Court held otherwise, explaining that the standard in the
residual clause “is not so indefinite as to prevent an ordi­
nary person from understanding” its scope. Id., at 210,
n. 6.
Four years later, in Sykes v. United States, 564 U.S. 1
(2011), JUSTICE SCALIA fired another round. Dissenting
once again, he argued that the residual clause is void for
vagueness and rehearsed the same basic arguments that
the Court now adopts. See id., at ___–___ (slip op., at 7–8);
see also Derby v. United States, 564 U. S. ___, ___–___
(2011) (SCALIA, J., dissenting from denial of certiorari)
(slip op., at 4–5). As in James, the Court rejected his
arguments. See Sykes, 564 U. S., at ___ (slip op., at 13–
14). In fact, JUSTICE SCALIA was the only Member of the
Sykes Court who took the position that the residual clause
could not be intelligibly applied to the offense at issue.
The opinion of the Court, which five Justices joined, ex­
pressly held that the residual clause “states an intelligible
principle and provides guidance that allows a person to
‘conform his or her conduct to the law.’ ” Id., at ___–___
(slip op., at 13–14) (quoting Chicago v. Morales, 527 U.S.
41, 58 (1999) (plurality opinion)). JUSTICE THOMAS’s
concurrence, while disagreeing in part with the Court’s
interpretation of the residual clause, did not question its
constitutionality. See Sykes, 564 U. S., at ___ (opinion
concurring in judgment). And JUSTICE KAGAN’s dissent,
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
which JUSTICE GINSBURG joined, argued that a proper
application of the provision required a different result.
See id., at ___. Thus, eight Members of the Court found
the statute capable of principled application.
It is, of course, true that “[s]tare decisis is not an inexo­
rable command.” Payne v. Tennessee, 501 U.S. 808, 828
(1991). But neither is it an empty Latin phrase. There
must be good reasons for overruling a precedent, and there
is none here. Nothing has changed since our decisions in
James and Sykes—nothing, that is, except the Court’s
weariness with ACCA cases.
Reprising an argument that JUSTICE SCALIA made to no
avail in Sykes, supra, at ___ (dissenting opinion) (slip op.,
at 7), the Court reasons that the residual clause must be
unconstitutionally vague because we have had trouble
settling on an interpretation. See ante, at 7. But disa­
greement about the meaning and application of the clause
is not new. We were divided in James and in Sykes and in
our intervening decisions in Begay v. United States, 553
U.S. 137 (2008), and Chambers v. United States, 555 U.S.
122 (2009). And that pattern is not unique to ACCA; we
have been unable to come to an agreement on many recur­
ring legal questions. The Confrontation Clause is one
example that comes readily to mind. See, e.g., Williams v.
Illinois, 567 U. S. ___ (2012); Bullcoming v. New Mexico,
564 U. S. ___ (2011); Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009). Our disagreements about the meaning of
that provision do not prove that the Confrontation Clause
has no ascertainable meaning. Likewise, our disagree­
ments on the residual clause do not prove that it is uncon­
stitutionally vague.
The Court also points to conflicts in the decisions of the
lower courts as proof that the statute is unconstitutional.
See ante, at 9–10. The Court overstates the degree of
disagreement below. For many crimes, there is no dispute
that the residual clause applies. And our certiorari docket
6 JOHNSON v. UNITED STATES
ALITO, J., dissenting
provides a skewed picture because the decisions that we
are asked to review are usually those involving issues on
which there is at least an arguable circuit conflict. But in
any event, it has never been thought that conflicting
interpretations of a statute justify judicial elimination of
the statute. One of our chief responsibilities is to resolve
those disagreements, see Supreme Court Rule 10, not to
strike down the laws that create this work.
The Court may not relish the task of resolving residual
clause questions on which the Circuits disagree, but the
provision has not placed a crushing burden on our docket.
In the eight years since James, we have decided all of
three cases involving the residual clause. See Begay,
supra; Chambers, supra; Sykes, supra. Nevertheless,
faced with the unappealing prospect of resolving more
circuit splits on various residual clause issues, see ante, at
9, six Members of the Court have thrown in the towel.
That is not responsible.
III
Even if we put stare decisis aside, the Court’s decision
remains indefensible. The residual clause is not unconsti­
tutionally vague.
A
The Fifth Amendment prohibits the enforcement of
vague criminal laws, but the threshold for declaring a law
void for vagueness is high. “The strong presumptive
validity that attaches to an Act of Congress has led this
Court to hold many times that statutes are not automati­
cally invalidated as vague simply because difficulty is
found in determining whether certain marginal offenses
fall within their language.” United States v. National
Dairy Products Corp., 372 U.S. 29, 32 (1963). Rather, it is
sufficient if a statute sets out an “ascertainable standard.”
United States v. L. Cohen Grocery Co., 255 U.S. 81, 89
Cite as: 576 U. S. ____ (2015) 7
ALITO, J., dissenting
(1921). A statute is thus void for vagueness only if it
wholly “fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that
it authorizes or encourages seriously discriminatory en­
forcement.” United States v. Williams, 553 U.S. 285, 304
(2008).
The bar is even higher for sentencing provisions. The
fair notice concerns that inform our vagueness doctrine
are aimed at ensuring that a “ ‘person of ordinary intelli­
gence [has] a reasonable opportunity to know what is
prohibited, so that he may act accordingly.’ ” Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498 (1982) (quoting Grayned v. City of Rockford, 408 U.S.
104, 108 (1972)). The fear is that vague laws will “ ‘trap
the innocent.’ ” 455 U.S., at 498. These concerns have
less force when it comes to sentencing provisions, which
come into play only after the defendant has been found
guilty of the crime in question. Due process does not
require, as Johnson oddly suggests, that a “prospective
criminal” be able to calculate the precise penalty that a
conviction would bring. Supp. Brief for Petitioner 5; see
Chapman v. United States, 500 U.S. 453, 467–468 (1991)
(concluding that a vagueness challenge was “particularly”
weak “since whatever debate there is would center around
the appropriate sentence and not the criminality of the
conduct”).
B
ACCA’s residual clause unquestionably provides an
ascertainable standard. It defines “violent felony” to
include any offense that “involves conduct that presents a
serious potential risk of physical injury to another.” 18
U.S. C. §924(e)(2)(B)(ii). That language is by no means
incomprehensible. Nor is it unusual. There are scores of
federal and state laws that employ similar standards. The
Solicitor General’s brief contains a 99-page appendix
8 JOHNSON v. UNITED STATES
ALITO, J., dissenting
setting out some of these laws. See App. to Supp. Brief for
United States; see also James, supra, at 210, n. 6. If all
these laws are unconstitutionally vague, today’s decision
is not a blast from a sawed-off shotgun; it is a nuclear
explosion.
Attempting to avoid such devastation, the Court distin­
guishes these laws primarily on the ground that almost all
of them “require gauging the riskiness of conduct in which
an individual defendant engages on a particular occasion.”
Ante, at 12 (emphasis in original). The Court thus admits
that, “[a]s a general matter, we do not doubt the constitu­
tionality of laws that call for the application of a qualita­
tive standard such as ‘substantial risk’ to real-world con­
duct.” Ibid. Its complaint is that the residual clause
“requires application of the ‘serious potential risk’ stand­
ard to an idealized ordinary case of the crime.” Ibid. (em­
phasis added). Thus, according to the Court, ACCA’s
residual clause is unconstitutionally vague because its
standard must be applied to “an idealized ordinary case of
the crime” and not, like the vast majority of the laws in
the Solicitor General’s appendix, to “real-world conduct.”
ACCA, however, makes no reference to “an idealized
ordinary case of the crime.” That requirement was the
handiwork of this Court in Taylor v. United States, 495
U.S. 575 (1990). And as I will show, the residual clause
can reasonably be interpreted to refer to “real-world
conduct.”1
——————
1 The Court also says that the residual clause’s reference to the enu­
merated offenses is “confusing.” Ante, at 12. But this is another
argument we rejected in James v. United States, 550 U.S. 192 (2007),
and Sykes v. United States, 564 U.S. 1 (2011), and it is no more per­
suasive now. Although the risk level varies among the enumerated
offenses, all four categories of offenses involve conduct that presents a
serious potential risk of harm to others. If the Court’s concern is that
some of the enumerated offenses do not seem especially risky, all that
means is that the statute “sets a low baseline level for risk.” Id., at ___
(THOMAS, J., concurring in judgment) (slip op., at 2).
Cite as: 576 U. S. ____ (2015) 9
ALITO, J., dissenting
C
When a statute’s constitutionality is in doubt, we have
an obligation to interpret the law, if possible, to avoid the
constitutional problem. See, e.g., Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U.S. 568, 575 (1988). As one treatise puts it,
“[a] statute should be interpreted in a way that avoids
placing its constitutionality in doubt.” A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts
§38, p. 247 (2012). This canon applies fully when consider­
ing vagueness challenges. In cases like this one, “our task
is not to destroy the Act if we can, but to construe it, if
consistent with the will of Congress, so as to comport with
constitutional limitations.” Civil Service Comm’n v. Letter
Carriers, 413 U.S. 548, 571 (1973); see also Skilling v.
United States, 561 U.S. 358, 403 (2010). Indeed, “ ‘[t]he
elementary rule is that every reasonable construction
must be resorted to, in order to save a statute from uncon­
stitutionality.’ ” Id., at 406 (quoting Hooper v. California,
155 U.S. 648, 657 (1895); emphasis deleted); see also
Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC
Va. 1833) (Marshall, C. J.).
The Court all but concedes that the residual clause
would be constitutional if it applied to “real-world con­
duct.” Whether that is the best interpretation of the re­
sidual clause is beside the point. What matters is whether
it is a reasonable interpretation of the statute. And it
surely is that.
First, this interpretation heeds the pointed distinction
that ACCA draws between the “element[s]” of an offense
and “conduct.” Under §924(e)(2)(B)(i), a crime qualifies as
a “violent felony” if one of its “element[s]” involves “the
use, attempted use, or threatened use of physical force
against the person of another.” But the residual clause,
which appears in the very next subsection,
§924(e)(2)(B)(ii), focuses on “conduct”—specifically, “con­
10 JOHNSON v. UNITED STATES
ALITO, J., dissenting
duct that presents a serious potential risk of physical
injury to another.” The use of these two different terms in
§924(e) indicates that “conduct” refers to things done
during the commission of an offense that are not part of
the elements needed for conviction. Because those extra
actions vary from case to case, it is natural to interpret
“conduct” to mean real-world conduct, not the conduct
involved in some Platonic ideal of the offense.
Second, as the Court points out, standards like the one
in the residual clause almost always appear in laws that
call for application by a trier of fact. This strongly sug­
gests that the residual clause calls for the same sort of
application.
Third, if the Court is correct that the residual clause is
nearly incomprehensible when interpreted as applying to
an “idealized ordinary case of the crime,” then that is
telling evidence that this is not what Congress intended.
When another interpretation is ready at hand, why should
we assume that Congress gave the clause a meaning that
is impossible—or even, exceedingly difficult—to apply?
D
Not only does the “real-world conduct” interpretation fit
the terms of the residual clause, but the reasons that
persuaded the Court to adopt the categorical approach in
Taylor either do not apply or have much less force in
residual clause cases.
In Taylor, the question before the Court concerned the
meaning of “burglary,” one of ACCA’s enumerated of-
fenses. The Court gave three reasons for holding that a
judge making an ACCA determination should generally look
only at the elements of the offense of conviction and not to
other things that the defendant did during the commission
of the offense. First, the Court thought that ACCA’s use of
the term “convictions” pointed to the categorical approach.
The Court wrote: “Section 924(e)(1) refers to ‘a person who
Cite as: 576 U. S. ____ (2015) 11
ALITO, J., dissenting
. . . has three previous convictions’ for—not a person who
has committed—three previous violent felonies or drug
offenses.” 495 U.S., at 600. Second, the Court relied on
legislative history, noting that ACCA had previously
contained a generic definition of burglary and that “the
deletion of [this] definition . . . may have been an inad­
vertent casualty of a complex drafting process.” Id., at
589–590, 601. Third, the Court felt that “the practical
difficulties and potential unfairness of a factual approach
[were] daunting.” Id., at 601.
None of these three grounds dictates that the categorical
approach must be used in residual clause cases. The
second ground, which concerned the deletion of a generic
definition of burglary, obviously has no application to the
residual clause. And the first ground has much less force
in residual clause cases. In Taylor, the Court reasoned
that a defendant has a “conviction” for burglary only if
burglary is the offense set out in the judgment of convic­
tion. For instance, if a defendant commits a burglary but
pleads guilty, under a plea bargain, to possession of bur­
glar’s tools, the Taylor Court thought that it would be
unnatural to say that the defendant had a conviction for
burglary. Now consider a case in which a gang member is
convicted of illegal possession of a sawed-off shotgun and
the evidence shows that he concealed the weapon under
his coat, while searching for a rival gang member who had
just killed his brother. In that situation, it is not at all
unnatural to say that the defendant had a conviction for a
crime that “involve[d] conduct that present[ed] a seri-
ous potential risk of physical injury to another.”
§924(e)(2)(B)(ii) (emphasis added). At the very least, it
would be a reasonable way to describe the defendant’s
conviction.
The Taylor Court’s remaining reasons for adopting the
categorical approach cannot justify an interpretation that
renders the residual clause unconstitutional. While the
12 JOHNSON v. UNITED STATES
ALITO, J., dissenting
Taylor Court feared that a conduct-specific approach
would unduly burden the courts, experience has shown
that application of the categorical approach has not al­
ways been easy. Indeed, the Court’s main argument for
overturning the statute is that this approach is unman­
ageable in residual clause cases.
As for the notion that the categorical approach is more
forgiving to defendants, there is a strong argument that
the opposite is true, at least with respect to the residual
clause. Consider two criminal laws: Injury occurs in 10%
of cases involving the violation of statute A, but in 90% of
cases involving the violation of statute B. Under the
categorical approach, a truly dangerous crime under stat­
ute A might not qualify as a violent felony, while a crime
with no measurable risk of harm under statute B would
count against the defendant. Under a conduct-specific
inquiry, on the other hand, a defendant’s actual conduct
would determine whether ACCA’s mandatory penalty
applies.
It is also significant that the allocation of the burden of
proof protects defendants. The prosecution bears the
burden of proving that a defendant has convictions that
qualify for sentencing under ACCA. If evidentiary defi­
ciencies, poor recordkeeping, or anything else prevents
the prosecution from discharging that burden under the
conduct-specific approach, a defendant would not receive
an ACCA sentence.
Nor would a conduct-specific inquiry raise constitutional
problems of its own. It is questionable whether the Sixth
Amendment creates a right to a jury trial in this situation.
See Almendarez-Torres v. United States, 523 U.S. 224
(1998). But if it does, the issue could be tried to a jury,
and the prosecution could bear the burden of proving
beyond a reasonable doubt that a defendant’s prior crimes
involved conduct that presented a serious potential risk of
injury to another. I would adopt this alternative interpre­
Cite as: 576 U. S. ____ (2015) 13
ALITO, J., dissenting
tation and hold that the residual clause requires an exam­
ination of real-world conduct.
The Court’s only reason for refusing to consider this
interpretation is that “the Government has not asked us to
abandon the categorical approach in residual-clause cases.”
Ante, at 13. But the Court cites no case in which we
have suggested that a saving interpretation may be adopted
only if it is proposed by one of the parties. Nor does the
Court cite any secondary authorities advocating this rule.
Cf. Scalia, Reading Law §38 (stating the canon with no
such limitation). On the contrary, we have long recog­
nized that it is “our plain duty to adopt that construction
which will save [a] statute from constitutional infirmity,”
where fairly possible. United States ex rel. Attorney Gen-
eral v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909).
It would be strange if we could fulfill that “plain duty”
only when a party asks us to do so. And the Court’s re­
fusal to consider a saving interpretation not advocated by
the Government is hard to square with the Court’s adop­
tion of an argument that petitioner chose not to raise. As
noted, Johnson did not ask us to hold that the residual
clause is unconstitutionally vague, but the Court inter­
jected that issue into the case, requested supplemental
briefing on the question, and heard reargument. The
Court’s refusal to look beyond the arguments of the parties
apparently applies only to arguments that the Court does
not want to hear.
E
Even if the categorical approach is used in residual
clause cases, however, the clause is still not void for
vagueness. “It is well established that vagueness chal­
lenges to statutes which do not involve First Amendment
freedoms must be examined” on an as-applied basis.
United States v. Mazurie, 419 U.S. 544, 550 (1975). “Ob­
jections to vagueness under the Due Process Clause rest
14 JOHNSON v. UNITED STATES
ALITO, J., dissenting
on the lack of notice, and hence may be overcome in any
specific case where reasonable persons would know that
their conduct is at risk.” Maynard v. Cartwright, 486
U.S. 356, 361 (1988). Thus, in a due process vagueness
case, we will hold that a law is facially invalid “only if the
enactment is impermissibly vague in all of its applica­
tions.” Hoffman Estates, 455 U.S., at 494–495 (emphasis
added); see also Chapman, 500 U.S., at 467.2
In concluding that the residual clause is facially void for
vagueness, the Court flatly contravenes this rule. The
Court admits “that there will be straightforward cases
under the residual clause.” Ante, at 10. But rather than
exercising the restraint that our vagueness cases pre­
scribe, the Court holds that the residual clause is uncon­
stitutionally vague even when its application is clear.
The Court’s treatment of this issue is startling. Its
facial invalidation precludes a sentencing court that is
applying ACCA from counting convictions for even those
specific offenses that this Court previously found to fall
within the residual clause. See James, 550 U.S., at 203–
209 (attempted burglary); Sykes, 564 U. S., at ___–___ (slip
op., at 5–9) (flight from law enforcement in a vehicle).
——————
2 This rule is simply an application of the broader rule that, except in
First Amendment cases, we will hold that a statute is facially unconsti­
tutional only if “no set of circumstances exists under which the Act
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). A
void-for-vagueness challenge is a facial challenge. See Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–495, and nn. 5, 6,
7 (1982); Chicago v. Morales, 527 U.S. 41, 79 (1999) (SCALIA, J., dis­
senting). Consequently, there is no reason why the no-set-of­
circumstances rule should not apply in this context. I assume that the
Court does not mean to abrogate the no-set-of-circumstances rule in its
entirety, but the Court provides no justification for its refusal to apply
that rule here. Perhaps the Court has concluded, for some undisclosed
reason, that void-for-vagueness claims are different from all other facial
challenges not based on the First Amendment. Or perhaps the Court
has simply created an ACCA exception.
Cite as: 576 U. S. ____ (2015) 15
ALITO, J., dissenting
Still worse, the Court holds that vagueness bars the use of
the residual clause in other cases in which its applicability
can hardly be questioned. Attempted rape is an example.
See, e.g., Dawson v. United States, 702 F.3d 347, 351–352
(CA6 2012). Can there be any doubt that “an idealized
ordinary case of th[is] crime” “involves conduct that pre­
sents a serious potential risk of physical injury to anoth­
er”? How about attempted arson,3 attempted kidnapping,4
solicitation to commit aggravated assault,5 possession of a
loaded weapon with the intent to use it unlawfully against
another person,6 possession of a weapon in prison,7 or
compelling a person to act as a prostitute?8 Is there much
doubt that those offenses “involve conduct that presents a
serious potential risk of physical injury to another”?
Transforming vagueness doctrine, the Court claims that
we have never actually held that a statue may be voided
for vagueness only when it is vague in all its applications.
But that is simply wrong. In Hoffman Estates, we re­
versed a Seventh Circuit decision that voided an ordinance
prohibiting the sale of certain items. See 455 U.S., at
491. The Seventh Circuit struck down the ordinance
because it was “unclear in some of its applications,” but we
reversed and emphasized that a law is void for vagueness
“only if [it] is impermissibly vague in all of its applica­
tions.” Id., at 494–495; see also id., at 495, n. 7 (collecting
cases). Applying that principle, we held that the “facial
——————
3 United States v. Rainey, 362 F.3d 733, 735–736 (CA11) (per curi-
am), cert. denied, 541 U.S. 1081 (2004).
4 United States v. Kaplansky, 42 F.3d 320, 323–324 (CA6 1994) (en
banc).
5 United States v. Benton, 639 F.3d 723, 731–732 (CA6), cert. denied,
565 U. S. ___ (2011).
6 United States v. Lynch, 518 F.3d 164, 172–173 (CA2 2008), cert.
denied, 555 U.S. 1177 (2009).
7 United States v. Boyce, 633 F.3d 708, 711–712 (CA8 2011), cert.
denied, 565 U. S. ___ (2012).
8 United States v. Brown, 273 F.3d 747, 749–751 (CA7 2001).
16 JOHNSON v. UNITED STATES
ALITO, J., dissenting
challenge [wa]s unavailing” because “at least some of the
items sold . . . [we]re covered” by the ordinance. Id., at
500. These statements were not dicta. They were the
holding of the case. Yet the Court does not even mention
this binding precedent.
Instead, the Court says that the facts of two earlier
cases support a broader application of the vagueness
doctrine. See ante, at 11. That, too, is incorrect. Neither
case remotely suggested that mere overbreadth is enough
for facial invalidation under the Fifth Amendment.
In Coates v. Cincinnati, 402 U.S. 611, 612 (1971), we
addressed an ordinance that restricted free assembly and
association rights by prohibiting “annoying” conduct. Our
analysis turned in large part on those First Amendment
concerns. In fact, we specifically explained that the “vice
of the ordinance lies not alone in its violation of the due
process standard of vagueness.” Id., at 615. In the pre­
sent case, by contrast, no First Amendment rights are at
issue. Thus, Coates cannot support the Court’s rejection of
our repeated statements that “vagueness challenges to
statutes which do not involve First Amendment freedoms
must be examined in light of the facts . . . at hand.” Ma-
zurie, supra, at 550 (emphasis added).
Likewise, L. Cohen Grocery Co., 255 U.S. 81, proves
precisely the opposite of what the Court claims. In that
case, we struck down a statute prohibiting “ ‘unjust or
unreasonable rate[s]’ ” because it provided no “ascertain­
able standard of guilt” and left open “the widest conceivable
inquiry, the scope of which no one can foresee and the
result of which no one can foreshadow or adequately guard
against.” Id., at 89. The clear import of this language is
that the law at issue was impermissibly vague in all appli­
cations. And in the years since, we have never adopted
the majority’s contradictory interpretation. On the con­
trary, we have characterized the case as involving a stat­
ute that could “not constitutionally be applied to any set of
Cite as: 576 U. S. ____ (2015) 17
ALITO, J., dissenting
facts.” United States v. Powell, 423 U.S. 87, 92 (1975).
Thus, our holdings and our dicta prohibit the Court’s
expansion of the vagueness doctrine. The Constitution
does not allow us to hold a statute void for vagueness
unless it is vague in all its applications.
IV
Because I would not strike down ACCA’s residual
clause, it is necessary for me to address whether Johnson’s
conviction for possessing a sawed-off shotgun qualifies as
a violent felony. Under either the categorical approach or
a conduct-specific inquiry, it does.
A
The categorical approach requires us to determine
whether “the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential
risk of injury to another.” James, 550 U.S., at 208. This
is an “inherently probabilistic” determination that consid­
ers the circumstances and conduct that ordinarily attend
the offense. Id., at 207. The mere fact that a crime could
be committed without a risk of physical harm does not
exclude it from the statute’s reach. See id., at 207–208.
Instead, the residual clause speaks of “potential risk[s],”
§924(e)(2)(B)(ii), a term suggesting “that Congress in-
tended to encompass possibilities even more contingent or
remote than a simple ‘risk,’ much less a certainty.” James,
supra, at 207–208.
Under these principles, unlawful possession of a sawed-
off shotgun qualifies as a violent felony. As we recognized
in District of Columbia v. Heller, 554 U.S. 570, 625 (2008),
sawed-off shotguns are “not typically possessed by law-
abiding citizens for lawful purposes.” Instead, they are
uniquely attractive to violent criminals. Much easier to
conceal than long-barreled shotguns used for hunting and
other lawful purposes, short-barreled shotguns can be
18 JOHNSON v. UNITED STATES
ALITO, J., dissenting
hidden under a coat, tucked into a bag, or stowed under a
car seat. And like a handgun, they can be fired with one
hand—except to more lethal effect. These weapons thus
combine the deadly characteristics of conventional shot­
guns with the more convenient handling of handguns.
Unlike those common firearms, however, they are not
typically possessed for lawful purposes. And when a
person illegally possesses a sawed-off shotgun during the
commission of a crime, the risk of violence is seriously
increased. The ordinary case of unlawful possession of a
sawed-off shotgun therefore “presents a serious potential
risk of physical injury to another.” §922(e)(2)(B)(ii).
Congress’ treatment of sawed-off shotguns confirms this
judgment. As the Government’s initial brief colorfully
recounts, sawed-off shotguns were a weapon of choice for
gangsters and bank robbers during the Prohibition Era.
See Brief for United States 4.9 In response, Congress
enacted the National Firearms Act of 1934, which required
individuals possessing certain especially dangerous weap­
ons—including sawed-off shotguns—to register with the
Federal Government and pay a special tax. 26 U.S. C.
§§5845(a)(1)–(2). The Act was passed on the understand­
ing that “while there is justification for permitting the
citizen to keep a pistol or revolver for his own protection
without any restriction, there is no reason why anyone
——————
9 Al Capone’s south-side Chicago henchmen used sawed-off shotguns
when they executed their rivals from Bugs Moran’s north-side gang
during the infamous Saint Valentine’s Day Massacre of 1929. See 7
Chicago Gangsters Slain by Firing Squad of Rivals, Some in Police
Uniforms, N. Y. Times, Feb. 15, 1929, p. A1. Wild Bill Rooney was
gunned down in Chicago by a “sawed-off shotgun [that] was pointed
through a rear window” of a passing automobile. Union Boss Slain by
Gang in Chicago, N. Y. Times, Mar. 20, 1931, p. 52. And when the
infamous outlaws Bonnie and Clyde were killed by the police in 1934,
Clyde was found “clutching a sawed-off shotgun in one hand.” Barrow
and Woman are Slain by Police in Louisiana Trap, N. Y. Times, May
24, 1934, p. A1.
Cite as: 576 U. S. ____ (2015) 19
ALITO, J., dissenting
except a law officer should have a . . . sawed-off shotgun.”
H. R. Rep. No. 1780, 73d Cong., 2d Sess., 1 (1934). As
amended, the Act imposes strict registration requirements
for any individual wishing to possess a covered shotgun,
see, e.g., §§5822, 5841(b), and illegal possession of such a
weapon is punishable by imprisonment for up to 10 years.
See §§5861(b)–(d), 5871. It is telling that this penalty
exceeds that prescribed by federal law for quintessential
violent felonies.10 It thus seems perfectly clear that Con­
gress has long regarded the illegal possession of a sawed-
off shotgun as a crime that poses a serious risk of harm to
others.
The majority of States agree. The Government informs
the Court, and Johnson does not dispute, that 28 States
have followed Congress’ lead by making it a crime to
possess an unregistered sawed-off shotgun, and 11 other
States and the District of Columbia prohibit private pos­
session of sawed-off shotguns entirely. See Brief for
United States 8–9 (collecting statutes). Minnesota, where
petitioner was convicted, has adopted a blanket ban, based
on its judgment that “[t]he sawed-off shotgun has no
legitimate use in the society whatsoever.” State v. Ellen-
berger, 543 N.W.2d 673, 676 (Minn. App. 1996) (internal
quotation marks and citation omitted). Possession of a
sawed-off shotgun in Minnesota is thus an inherently
criminal act. It is fanciful to assume that a person who
chooses to break the law and risk the heavy criminal
penalty incurred by possessing a notoriously dangerous
——————
10 See, e.g., 18 U.S. C. §111(a) (physical assault on federal officer
punishable by not more than eight years’ imprisonment); §113(a)(7)
(assault within maritime or territorial jurisdiction resulting in substan­
tial bodily injury to an individual under the age of 16 punishable by up
to five years’ imprisonment); §117(a) (“assault, sexual abuse, or serious
violent felony against a spouse or intimate partner” by a habitual
offender within maritime or territorial jurisdiction punishable by up to
five years’ imprisonment, except in cases of “substantial bodily injury”).
20 JOHNSON v. UNITED STATES
ALITO, J., dissenting
weapon is unlikely to use that weapon in violent ways.
B
If we were to abandon the categorical approach, the
facts of Johnson’s offense would satisfy the residual clause
as well. According to the record in this case, Johnson
possessed his sawed-off shotgun while dealing drugs.
When police responded to reports of drug activity in a
parking lot, they were told by two people that “Johnson
and another individual had approached them and offered
to sell drugs.” PSR ¶45. The police then searched the
vehicle where Johnson was seated as a passenger, and
they found a sawed-off shotgun and five bags of mari-
juana. Johnson admitted that the gun was his.
Understood in this context, Johnson’s conduct posed an
acute risk of physical injury to another. Drugs and guns
are never a safe combination. If one of his drug deals had
gone bad or if a rival dealer had arrived on the scene,
Johnson’s deadly weapon was close at hand. The sawed-
off nature of the gun elevated the risk of collateral damage
beyond any intended targets. And the location of the
crime—a public parking lot—significantly increased the
chance that innocent bystanders might be caught up in
the carnage. This is not a case of “mere possession” as
Johnson suggests. Brief for Petitioner i. He was not
storing the gun in a safe, nor was it a family heirloom or
collector’s item. He illegally possessed the weapon in case
he needed to use it during another crime. A judge or jury
could thus conclude that Johnson’s offense qualified as a
violent felony.
There should be no doubt that Samuel Johnson was an
armed career criminal. His record includes a number of
serious felonies. And he has been caught with dangerous
weapons on numerous occasions. That this case has led to
the residual clause’s demise is confounding. I only hope
that Congress can take the Court at its word that either
Cite as: 576 U. S. ____ (2015) 21
ALITO, J., dissenting
amending the list of enumerated offenses or abandoning
the categorical approach would solve the problem that the
Court perceives.