Rehaif v. United States ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 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
REHAIF v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–9560. Argued April 23, 2019—Decided June 21, 2019
Petitioner Rehaif entered the United States on a nonimmigrant student
visa to attend university but was dismissed for poor grades. He sub-
sequently shot two firearms at a firing range. The Government pros-
ecuted him under 18 U.S. C. §922(g), which makes it unlawful for
certain persons, including aliens illegally in the country, to possess
firearms, and §924(a)(2), which provides that anyone who “knowingly
violates” the first provision can be imprisoned for up to 10 years. The
jury at Rehaif’s trial was instructed that the Government was not re-
quired to prove that he knew that he was unlawfully in the country.
It returned a guilty verdict. The Eleventh Circuit affirmed.
Held: In a prosecution under §922(g) and §924(a)(2), the Government
must prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred
from possessing a firearm. Pp. 3–12.
(a) Whether a criminal statute requires the Government to prove
that the defendant acted knowingly is a question of congressional in-
tent. This inquiry starts from a longstanding presumption that Con-
gress intends to require a defendant to possess a culpable mental
state regarding “each of the statutory elements that criminalize oth-
erwise innocent conduct,” United States v. X-Citement Video, Inc., 513
U.S. 64, 72, normally characterized as a presumption in favor of “sci-
enter.” There is no convincing reason to depart from this presump-
tion here.
The statutory text supports the presumption. It specifies that a de-
fendant commits a crime if he “knowingly” violates §922(g), which
makes possession of a firearm unlawful when the following elements
are satisfied: (1) a status element (here “being an alien . . . illegally or
unlawfully in the United States”); (2) a possession element (to “pos-
2 REHAIF v. UNITED STATES
Syllabus
sess”); (3) a jurisdictional element (“in or affecting commerce”); and
(4) a firearm element (a “firearm or ammunition”). Aside from the ju-
risdictional element, which is not subject to the presumption in favor
of scienter, §922(g)’s text simply lists the elements that make a de-
fendant’s behavior criminal. The term “knowingly” is normally read
“as applying to all the subsequently listed elements of the crime.”
Flores-Figueroa v. United States, 556 U.S. 646, 650. And the “know-
ingly” requirement clearly applies to §922(g)’s possession element,
which follows the status element in the statutory text. There is no
basis for interpreting “knowingly” as applying to the second §922(g)
element but not the first.
This reading of the statute is also consistent with a basic principle
underlying the criminal law: the importance of showing what Black-
stone called “a vicious will.” Scienter requirements advance this
principle by helping to separate wrongful from innocent acts. That is
the case here. Possessing a gun can be entirely innocent. It is the de-
fendant’s status, not his conduct alone, that makes the difference.
Without knowledge of that status, a defendant may lack the intent
needed to make his behavior wrongful. Pp. 3–7.
(b) The Government’s arguments to the contrary are unpersuasive.
In claiming that Congress does not normally require defendants to
know their own status, it points to statutes where the defendant’s
status is the “crucial element” separating innocent from wrongful
conduct. X-Citement Video, supra, at 73. Those statutes are quite
different from the provisions at issue here, where the defendant’s sta-
tus separates innocent from wrongful conduct. The Government also
argues that whether an alien is “illegally or unlawfully in the United
States” is a question of law, not fact, and thus appeals to the maxim
that “ignorance of the law” is no excuse. But that maxim normally
applies where a defendant possesses the requisite mental state in re-
spect to the elements of the crime but claims to be unaware of a law
forbidding his conduct. That maxim does not normally apply where a
defendant’s mistaken impression about a collateral legal question
causes him to misunderstand his conduct’s significance, thereby ne-
gating an element of the offense. Rehaif’s status as an alien “illegally
or unlawfully in the United States” refers to what commentators call
a “collateral” question of law, and a mistake regarding that status
negates an element of the offense. Finally, the statutory and legisla-
tive history on which the Government relies is at best inclusive.
Pp. 7–11.
888 F.3d 1138, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH,
Cite as: 588 U. S. ____ (2019) 3
Syllabus
JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J.,
joined.
Cite as: 588 U. S. ____ (2019) 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. 17–9560
_________________
HAMID MOHAMED AHMED ALI REHAIF,
PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 21, 2019]
JUSTICE BREYER delivered the opinion of the Court.
A federal statute, 18 U.S. C. §922(g), provides that “[i]t
shall be unlawful” for certain individuals to possess fire-
arms. The provision lists nine categories of individuals
subject to the prohibition, including felons and aliens who
are “illegally or unlawfully in the United States.” Ibid. A
separate provision, §924(a)(2), adds that anyone who
“knowingly violates” the first provision shall be fined or
imprisoned for up to 10 years. (Emphasis added.)
The question here concerns the scope of the word “know-
ingly.” Does it mean that the Government must prove
that a defendant knew both that he engaged in the rele-
vant conduct (that he possessed a firearm) and also that
he fell within the relevant status (that he was a felon, an
alien unlawfully in this country, or the like)? We hold that
the word “knowingly” applies both to the defendant’s
conduct and to the defendant’s status. To convict a de-
fendant, the Government therefore must show that the
defendant knew he possessed a firearm and also that he
knew he had the relevant status when he possessed it.
2 REHAIF v. UNITED STATES
Opinion of the Court
I
Petitioner Hamid Rehaif entered the United States on a
nonimmigrant student visa to attend university. After he
received poor grades, the university dismissed him and
told him that his “ ‘immigration status’ ” would be termi-
nated unless he transferred to a different university or left
the country. App. to Pet. for Cert. 3a. Rehaif did neither.
Rehaif subsequently visited a firing range, where he
shot two firearms. The Government learned about his
target practice and prosecuted him for possessing firearms
as an alien unlawfully in the United States, in violation of
§922(g) and §924(a)(2). At the close of Rehaif ’s trial, the
judge instructed the jury (over Rehaif ’s objection) that the
“United States is not required to prove” that Rehaif “knew
that he was illegally or unlawfully in the United States.”
App. to Pet. for Cert. 4a (internal quotation marks omit-
ted). The jury returned a guilty verdict, and Rehaif was
sentenced to 18 months’ imprisonment.
Rehaif appealed. He argued that the judge erred in
instructing the jury that it did not need to find that he
knew he was in the country unlawfully. The Court of
Appeals for the Eleventh Circuit, however, concluded that
the jury instruction was correct, and it affirmed Rehaif ’s
conviction. See 888 F.3d 1138, 1148 (2018). The Court of
Appeals believed that the criminal law generally does not
require a defendant to know his own status, and further
observed that no court of appeals had required the Gov-
ernment to establish a defendant’s knowledge of his status
in the analogous context of felon-in-possession prosecu-
tions. Id., at 1145–1146.
We granted certiorari to consider whether, in prosecu-
tions under §922(g) and §924(a)(2), the Government must
prove that a defendant knows of his status as a person
barred from possessing a firearm. We now reverse.
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
II
Whether a criminal statute requires the Government to
prove that the defendant acted knowingly is a question of
congressional intent. See Staples v. United States, 511
U.S. 600, 605 (1994). In determining Congress’ intent, we
start from a longstanding presumption, traceable to the
common law, that Congress intends to require a defendant
to possess a culpable mental state regarding “each of the
statutory elements that criminalize otherwise innocent
conduct.” United States v. X-Citement Video, Inc., 513
U.S. 64, 72 (1994); see also Morissette v. United States,
342 U.S. 246, 256–258 (1952). We normally characterize
this interpretive maxim as a presumption in favor of
“scienter,” by which we mean a presumption that criminal
statutes require the degree of knowledge sufficient to
“mak[e] a person legally responsible for the consequences
of his or her act or omission.” Black’s Law Dictionary
1547 (10th ed. 2014).
We apply the presumption in favor of scienter even
when Congress does not specify any scienter in the statu-
tory text. See Staples, 511 U.S., at 606. But the pre-
sumption applies with equal or greater force when Con-
gress includes a general scienter provision in the statute
itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985)
(when a statute “prescribes the kind of culpability that is
sufficient for the commission of an offense, without distin-
guishing among the material elements thereof, such provi-
sion shall apply to all the material elements of the offense,
unless a contrary purpose plainly appears”).
A
Here we can find no convincing reason to depart from
the ordinary presumption in favor of scienter. The statu-
tory text supports the presumption. The text of §924(a)(2)
says that “[w]hoever knowingly violates” certain subsec-
tions of §922, including §922(g), “shall be” subject to penal-
4 REHAIF v. UNITED STATES
Opinion of the Court
ties of up to 10 years’ imprisonment. The text of §922(g) in
turn provides that it “shall be unlawful for any person
. . . , being an alien . . . illegally or unlawfully in the United
States,” to “possess in or affecting commerce, any firearm
or ammunition.”
The term “knowingly” in §924(a)(2) modifies the verb
“violates” and its direct object, which in this case is
§922(g). The proper interpretation of the statute thus
turns on what it means for a defendant to know that he
has “violate[d]” §922(g). With some here-irrelevant omis-
sions, §922(g) makes possession of a firearm or ammuni-
tion unlawful when the following elements are satisfied:
(1) a status element (in this case, “being an alien . . . ille-
gally or unlawfully in the United States”); (2) a possession
element (to “possess”); (3) a jurisdictional element (“in or
affecting commerce”); and (4) a firearm element (a “fire-
arm or ammunition”).
No one here claims that the word “knowingly” modifies
the statute’s jurisdictional element. Jurisdictional ele-
ments do not describe the “evil Congress seeks to prevent,”
but instead simply ensure that the Federal Government
has the constitutional authority to regulate the defend-
ant’s conduct (normally, as here, through its Commerce
Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___–
___ (2016) (slip op., at 15–16). Because jurisdictional
elements normally have nothing to do with the wrongful-
ness of the defendant’s conduct, such elements are not
subject to the presumption in favor of scienter. See id., at
___ (slip op., at 16).
Jurisdictional element aside, however, the text of
§922(g) simply lists the elements that make a defendant’s
behavior criminal. As “a matter of ordinary English
grammar,” we normally read the statutory term “ ‘know-
ingly’ as applying to all the subsequently listed elements
of the crime.” Flores-Figueroa v. United States, 556 U.S.
646, 650 (2009); see also id., at 652 (we “ordinarily read a
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Opinion of the Court
phrase in a criminal statute that introduces the elements
of a crime with the word ‘knowingly’ as applying that word
to each element”). This is notably not a case where the
modifier “knowingly” introduces a long statutory phrase,
such that questions may reasonably arise about how far
into the statute the modifier extends. See id., at 659
(ALITO, J., concurring in part). And everyone agrees that
the word “knowingly” applies to §922(g)’s possession ele-
ment, which is situated after the status element. We see
no basis to interpret “knowingly” as applying to the second
§922(g) element but not the first. See United States v.
Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch,
J., concurring). To the contrary, we think that by specify-
ing that a defendant may be convicted only if he “knowingly
violates” §922(g), Congress intended to require the
Government to establish that the defendant knew he
violated the material elements of §922(g).
B
Beyond the text, our reading of §922(g) and §924(a)(2) is
consistent with a basic principle that underlies the crimi-
nal law, namely, the importance of showing what Black-
stone called “a vicious will.” 4 W. Blackstone, Commen-
taries on the Laws of England 21 (1769). As this Court
has explained, the understanding that an injury is crimi-
nal only if inflicted knowingly “is as universal and persis-
tent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the nor-
mal individual to choose between good and evil.” Moris-
sette, 342 U.S., at 250. Scienter requirements advance
this basic principle of criminal law by helping to “separate
those who understand the wrongful nature of their act
from those who do not.” X-Citement Video, 513 U.S., at
72–73, n. 3.
The cases in which we have emphasized scienter’s im-
portance in separating wrongful from innocent acts are
6 REHAIF v. UNITED STATES
Opinion of the Court
legion. See, e.g., id., at 70; Staples, 511 U.S., at 610;
Liparota v. United States, 471 U.S. 419, 425 (1985); United
States v. Bailey, 444 U.S. 394, 406, n. 6 (1980); United
States v. United States Gypsum Co., 438 U.S. 422, 436
(1978); Morissette, 342 U.S., at 250–251. We have inter-
preted statutes to include a scienter requirement even
where the statutory text is silent on the question. See
Staples, 511 U.S., at 605. And we have interpreted stat-
utes to include a scienter requirement even where “the
most grammatical reading of the statute” does not support
one. X-Citement Video, 513 U.S., at 70.
Applying the word “knowingly” to the defendant’s status
in §922(g) helps advance the purpose of scienter, for it
helps to separate wrongful from innocent acts. Assuming
compliance with ordinary licensing requirements, the
possession of a gun can be entirely innocent. See Staples,
511 U.S., at 611. It is therefore the defendant’s status,
and not his conduct alone, that makes the difference.
Without knowledge of that status, the defendant may well
lack the intent needed to make his behavior wrongful. His
behavior may instead be an innocent mistake to which
criminal sanctions normally do not attach. Cf. O. Holmes,
The Common Law 3 (1881) (“even a dog distinguishes
between being stumbled over and being kicked”).
We have sometimes declined to read a scienter require-
ment into criminal statutes. See United States v. Balint,
258 U.S. 250, 254 (1922). But we have typically declined
to apply the presumption in favor of scienter in cases
involving statutory provisions that form part of a “regula-
tory” or “public welfare” program and carry only minor
penalties. See Staples, 511 U.S., at 606; Morissette, 342
U.S., at 255–259. The firearms provisions before us are
not part of a regulatory or public welfare program, and
they carry a potential penalty of 10 years in prison that we
have previously described as “harsh.” X-Citement Video,
513 U.S., at 72. Hence, this exception to the presumption
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Opinion of the Court
in favor of scienter does not apply.
III
The Government’s arguments to the contrary do not
convince us that Congress sought to depart from the nor-
mal presumption in favor of scienter.
The Government argues that Congress does not normally
require defendants to know their own status. But the
Government supports this claim primarily by referring to
statutes that differ significantly from the provisions at
issue here. One of these statutes prohibits “an officer,
employee, contractor, or consultant of the United States”
from misappropriating classified information. 18 U.S. C.
§1924(a). Another statute applies to anyone “at least
eighteen years of age” who solicits a minor to help avoid
detection for certain federal crimes. 21 U.S. C. §861(a)(2).
A third applies to a “parent [or] legal guardian” who al-
lows his child to be used for child pornography. 18 U.S. C.
§2251(b).
We need not decide whether we agree or disagree with
the Government’s interpretation of these statutes. In the
provisions at issue here, the defendant’s status is the
“crucial element” separating innocent from wrongful con-
duct. X-Citement Video, 513 U.S., at 73. But in the stat-
utes cited by the Government, the conduct prohibited—
misappropriating classified information, seeking to evade
detection for certain federal crimes, and facilitating child
pornography—would be wrongful irrespective of the de-
fendant’s status. This difference assures us that the
presumption in favor of scienter applies here even assum-
ing the Government is right that these other statutes do
not require knowledge of status.
Nor do we believe that Congress would have expected
defendants under §922(g) and §924(a)(2) to know their
own statuses. If the provisions before us were construed
to require no knowledge of status, they might well apply to
8 REHAIF v. UNITED STATES
Opinion of the Court
an alien who was brought into the United States unlawfully
as a small child and was therefore unaware of his un-
lawful status. Or these provisions might apply to a person
who was convicted of a prior crime but sentenced only to
probation, who does not know that the crime is “punish-
able by imprisonment for a term exceeding one year.”
§922(g)(1) (emphasis added); see also Games-Perez, 667
F.3d, at 1138 (defendant held strictly liable regarding his
status as a felon even though the trial judge had told him
repeatedly—but incorrectly—that he would “leave this
courtroom not convicted of a felony”). As we have said, we
normally presume that Congress did not intend to impose
criminal liability on persons who, due to lack of
knowledge, did not have a wrongful mental state. And we
doubt that the obligation to prove a defendant’s knowledge
of his status will be as burdensome as the Government
suggests. See Staples, 511 U.S., at 615, n. 11 (“knowledge
can be inferred from circumstantial evidence”).
The Government also argues that whether an alien is
“illegally or unlawfully in the United States” is a question
of law, not fact, and thus appeals to the well-known
maxim that “ignorance of the law” (or a “mistake of law”) is no
excuse. Cheek v. United States, 498 U.S. 192, 199 (1991).
This maxim, however, normally applies where a defend-
ant has the requisite mental state in respect to the ele-
ments of the crime but claims to be “unaware of the exist-
ence of a statute proscribing his conduct.” 1 W. LaFave &
A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986).
In contrast, the maxim does not normally apply where a
defendant “has a mistaken impression concerning the
legal effect of some collateral matter and that mistake
results in his misunderstanding the full significance of his
conduct,” thereby negating an element of the offense.
Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of
law is a defense if the mistake negates the “knowledge . . .
required to establish a material element of the offense”).
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Opinion of the Court
Much of the confusion surrounding the ignorance-of-the-
law maxim stems from “the failure to distinguish [these]
two quite different situations.” LaFave, Substantive
Criminal Law §5.1(d), at 585.
We applied this distinction in Liparota, where we con-
sidered a statute that imposed criminal liability on “who-
ever knowingly uses, transfers, acquires, alters, or pos-
sesses” food stamps “in any manner not authorized by the
statute or the regulations.” 471 U.S., at 420 (quotation
altered). We held that the statute required scienter not
only in respect to the defendant’s use of food stamps, but
also in respect to whether the food stamps were used in a
“manner not authorized by the statute or regulations.”
Id., at 425, n. 9. We therefore required the Government to
prove that the defendant knew that his use of food stamps
was unlawful—even though that was a question of law.
See ibid.
This case is similar. The defendant’s status as an alien
“illegally or unlawfully in the United States” refers to a
legal matter, but this legal matter is what the commenta-
tors refer to as a “collateral” question of law. A defendant
who does not know that he is an alien “illegally or unlaw-
fully in the United States” does not have the guilty state of
mind that the statute’s language and purposes require.
The Government finally turns for support to the statu-
tory and legislative history. Congress first enacted a crimi-
nal statute prohibiting particular categories of persons
from possessing firearms in 1938. See Federal Firearms
Act, 52 Stat. 1250. In 1968, Congress added new cate-
gories of persons subject to the prohibition. See Omnibus
Crime Control and Safe Streets Act, 82 Stat. 197. Then, in
1986, Congress passed the statute at issue here, the Fire-
arms Owners’ Protection Act, 100 Stat. 449, note following
18 U.S. C. §921, which reorganized the prohibition on
firearm possession and added the language providing that
only those who violate the prohibition “knowingly” may be
10 REHAIF v. UNITED STATES
Opinion of the Court
held criminally liable.
The Government says that, prior to 1986, the courts had
reached a consensus that the law did not require the
Government to prove scienter regarding a defendant’s
status. And the Government relies on the interpretive
canon providing that when particular statutory language
has received a settled judicial construction, and Congress
subsequently reenacts that “same language,” courts
should presume that Congress intended to ratify the judi-
cial consensus. Helsinn Healthcare S. A. v. Teva Pharma-
ceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op.,
at 7).
Prior to 1986, however, there was no definitive judicial
consensus that knowledge of status was not needed. This
Court had not considered the matter. As the Government
says, most lower courts had concluded that the statute did
not require knowledge of status. See, e.g., United States v.
Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth
Circuit had held to the contrary, specifically citing the risk
that a defendant “may not be aware of the fact” that
barred him from possessing a firearm. United States v.
Renner, 496 F.2d 922, 926 (1974). And the Fourth Circuit
had found that knowledge of a defendant’s status was not
needed because the statute “[b]y its terms” did not require
knowledge of status. United States v. Williams, 588 F.2d
92 (1978) (per curiam).
This last-mentioned circumstance is important. Any
pre-1986 consensus involved the statute as it read prior to
1986—without any explicit scienter provision. But Con-
gress in 1986 added a provision clarifying that a defendant
could be convicted only if he violated the prohibition on
firearm possession “knowingly.” This addition, which
would serve no apparent purpose under the Government’s
view, makes it all but impossible to draw any inference
that Congress intended to ratify a pre-existing consensus
when, in 1986, it amended the statute.
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Opinion of the Court
The Government points to the House Report on the
legislation, which says that the 1986 statute would require
the Government to prove “that the defendant’s conduct
was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em-
phasis added). Although this statement speaks of “con-
duct” rather than “status,” context suggests that the Re-
port may have meant the former to include the latter. In
any event, other statements suggest that the word “know-
ingly” was intended to apply to both conduct and status.
The Senate Report, for example, says that the proposed
amendments sought to exclude “individuals who lack all
criminal intent and knowledge,” without distinguishing
between conduct and status. S. Rep. No. 97–476, p. 15
(1982). And one Senate sponsor of the bill pointed out that
the absence of a scienter requirement in the prior statutes
had resulted in “severe penalties for unintentional mis-
steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen.
Hatch).
Thus, assuming without deciding that statutory or
legislative history could overcome the longstanding pre-
sumption in favor of scienter, that history here is at best
inconclusive.
* * *
The Government asks us to hold that any error in the
jury instructions in this case was harmless. But the lower
courts did not address that question. We therefore leave
the question for those courts to decide on remand. See
Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10)
(citing Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)).
We conclude that in a prosecution under 18 U.S. C.
§922(g) and §924(a)(2), the Government must prove both
that the defendant knew he possessed a firearm and that
he knew he belonged to the relevant category of persons
barred from possessing a firearm. We express no view,
however, about what precisely the Government must
12 REHAIF v. UNITED STATES
Opinion of the Court
prove to establish a defendant’s knowledge of status in
respect to other §922(g) provisions not at issue here. See
post, at 13–15 (ALITO, J., dissenting) (discussing other
statuses listed in §922(g) not at issue here). We accordingly
reverse the judgment of the Court of Appeals and re-
mand the case for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 588 U. S. ____ (2019) 13
Opinion
Appendix of the of
to opinion Court
the Court
APPENDIX
18 U.S. C. §924(a)(2)
“Whoever knowingly violates subsection (a)(6), (d), (g),
(h), (i), (j), or (o) of section 922 shall be fined as provided in
this title, imprisoned not more than 10 years, or both.”
18 U.S. C. §922(g)
“It shall be unlawful for any person—
“(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one
year;
“(2) who is a fugitive from justice;
“(3) who is an unlawful user of or addicted to any con-
trolled substance . . . ;
“(4) who has been adjudicated as a mental defective or
who has been committed to a mental institution;
“(5) who, being an alien—(A) is illegally or unlawfully in
the United States; or (B) . . . has been admitted to the
United States under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the Immigration and Na-
tionality Act (8 U.S.C. 1101(a)(26)));
“(6) who has been discharged from the Armed Forces
under dishonorable conditions;
“(7) who, having been a citizen of the United States, has
renounced his citizenship;
“(8) who is subject to a court order that—(A) was issued
after a hearing of which such person received actual no-
tice, and at which such person had an opportunity to
participate; (B) restrains such person from harassing,
stalking, or threatening an intimate partner of such per-
son or child of such intimate partner or person, or engag-
ing in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or child;
and (C)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
14 REHAIF v. UNITED STATES
Appendix to opinion of the Court
partner or child; or (ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of physical force
against such intimate partner or child that would reason-
ably be expected to cause bodily injury; or
“(9) who has been convicted in any court of a misde-
meanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammuni-
tion; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.”
Cite as: 588 U. S. ____ (2019) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–9560
_________________
HAMID MOHAMED AHMED ALI REHAIF,
PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 21, 2019]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
The Court casually overturns the long-established in-
terpretation of an important criminal statute, 18 U.S. C.
§922(g), an interpretation that has been adopted by every
single Court of Appeals to address the question. That
interpretation has been used in thousands of cases for
more than 30 years. According to the majority, every one
of those cases was flawed. So today’s decision is no minor
matter. And §922(g) is no minor provision. It probably
does more to combat gun violence than any other federal
law. It prohibits the possession of firearms by, among
others, convicted felons, mentally ill persons found by a
court to present a danger to the community, stalkers,
harassers, perpetrators of domestic violence, and illegal
aliens.
Today’s decision will make it significantly harder to
convict persons falling into some of these categories, and
the decision will create a mountain of problems with re-
spect to the thousands of prisoners currently serving
terms for §922(g) convictions. Applications for relief by
federal prisoners sentenced under §922(g) will swamp the
lower courts. A great many convictions will be subject to
challenge, threatening the release or retrial of dangerous
individuals whose cases fall outside the bounds of
2 REHAIF v. UNITED STATES
ALITO, J., dissenting
harmless-error review. See ante, at 11.
If today’s decision were compelled by the text of §922(g)
or by some other clear indication of congressional intent,
what the majority has done would be understandable. We
must enforce the laws enacted by Congress even if we
think that doing so will bring about unfortunate results.
But that is not the situation in this case. There is no
sound basis for today’s decision. Indeed, there was no
good reason for us to take this case in the first place. No
conflict existed in the decisions of the lower courts, and
there is no evidence that the established interpretation of
§922(g) had worked any serious injustice.
The push for us to grant review was based on the super-
ficially appealing but ultimately fallacious argument that
the text of §922(g) dictates the interpretation that the
majority now reaches. See Pet. for Cert. 8. Ironically,
today’s decision, while casting aside the established inter-
pretation of §922(g), does not claim that the text of that
provision is itself dispositive. Instead, what the majority
relies on, in the end, is its own guess about congressional
intent. And the intent that the majority attributes to
Congress is one that Congress almost certainly did not
harbor.
I
The majority provides a bowdlerized version of the facts
of this case and thus obscures the triviality of this peti-
tioner’s claim. The majority wants readers to have in
mind an entirely imaginary case, a heartless prosecution
of “an alien who was brought into the United States un-
lawfully as a small child and was therefore unaware of his
unlawful status.” Ante, at 8. Such a defendant would
indeed warrant sympathy, but that is not petitioner, and
no one has called to our attention any real case like the
one the majority conjures up.
Here is what really happened. Petitioner, a citizen of
Cite as: 588 U. S. ____ (2019) 3
ALITO, J., dissenting
the United Arab Emirates, entered this country on a visa
that allowed him to stay here lawfully only so long as he
remained a full-time student. 888 F.3d 1138, 1140 (CA11
2018). He enrolled at the Florida Institute of Technology,
but he withdrew from or failed all of his classes and was
dismissed. Brief for Petitioner 4–5. After he was condi-
tionally readmitted, he failed all but one of his courses.
His enrollment was then terminated, and he did not ap-
peal. The school sent him e-mails informing him that he
was no longer enrolled and that, unless he was admitted
elsewhere, his status as a lawful alien would be termi-
nated. 888 F.3d, at 1140–1141. Petitioner’s response was to
move to a hotel and frequent a firing range. Each evening
he checked into the hotel and always demanded a room on
the eighth floor facing the airport. Each morning he
checked out and paid his bill with cash, spending a total of
more than $11,000. This went on for 53 days. Brief for
United States 4. A hotel employee told the FBI that peti-
tioner claimed to have weapons in his room. Arrested and
charged under §922(g) for possession of a firearm by an
illegal alien, petitioner claimed at trial that the Govern-
ment had to prove beyond a reasonable doubt that he
actually knew that his lawful status had been terminated.
Following what was then the universal and long-
established interpretation of §922(g), the District Court
rejected this argument, and a jury found him guilty. 888
F.3d, at 1141. The Eleventh Circuit affirmed. Id., at
1140. Out of the more than 8,000 petitions for a writ of
certiorari that we expected to receive this Term, we chose
to grant this one to see if petitioner had been deprived of
the right to have a jury decide whether, in his heart of
hearts, he really knew that he could not lawfully remain
in the United States on a student visa when he most
certainly was no longer a student.
4 REHAIF v. UNITED STATES
ALITO, J., dissenting
II
A
Petitioner claims that the texts of §922(g) and a com-
panion provision, 18 U.S. C. §924(a)(2), dictate a decision
in his favor, and I therefore begin with the text of those
two provisions. Section 924(a)(2) provides in relevant part
as follows:
“Whoever knowingly violates subsection . . . (g) of sec-
tion 922 shall be fined as provided in this title,
imprisoned for not more than 10 years, or both.”
(Emphasis added.)
Section 922(g), in turn, makes it unlawful for nine cate-
gories of persons to engage in certain interstate-
commerce-related conduct involving firearms. These
categories consist of: (1) convicted felons; (2) fugitives from
justice; (3) users of illegal drugs or addicts; (4) persons
found to have very serious mental problems; (5) illegal
aliens; (6) individuals who were dishonorably discharged
from the Armed Forces; (7) persons who renounced U. S.
citizenship; (8) stalkers, harassers, and abusers subject to
restraining orders; and (9) persons convicted of a misde-
meanor crime of domestic violence.1 Persons falling into
——————
1 Title
18 U.S. C. §922(g) provides as follows:
“It shall be unlawful for any person—
“(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
“(2) who is a fugitive from justice;
“(3) who is an unlawful user of or addicted to any controlled sub-
stance (as defined in section 102 of the Controlled Substances Act (21
U.S. C. §802));
“(4) who has been adjudicated as a mental defective or who has been
committed to a mental institution;
“(5) who, being an alien—
“(A) is illegally or unlawfully in the United States; or
“(B) except as provided in subsection (y)(2), has been admitted to the
United States under a nonimmigrant visa (as that term is defined in
Cite as: 588 U. S. ____ (2019) 5
ALITO, J., dissenting
these categories are forbidden, as relevant here, to “pos-
sess in or affecting commerce, any firearm.”
Petitioner argues that, when §924(a)(2) and §922(g) are
put together, they unambiguously show that a defendant
must actually know that he falls into one of the nine enu-
merated categories. But this purportedly textual argu-
ment requires some moves that cannot be justified on the
basis of the statutory text. Petitioner’s argument tries to
hide those moves in the manner of a sleight-of-hand artist
at a carnival.
Petitioner begins by extracting the term “knowingly”
from §924(a)(2). He then transplants it into the beginning
of §922(g), ignores the extraordinarily awkward prose that
this surgery produces, and proclaims that because “know-
ingly” appears at the beginning of the enumeration of the
——————
section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C.
§1101(a)(26)));
“(6) who has been discharged from the Armed Forces under dishonor-
able conditions;
“(7) who, having been a citizen of the United States, has renounced
his citizenship;
“(8) who is subject to a court order that—
“(A) was issued after a hearing of which such person received actual
notice, and at which such person had an opportunity to participate;
“(B) restrains such person from harassing, stalking, or threatening
an intimate partner of such person or child of such intimate partner or
person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child; and
“(C)(i) includes a finding that such person represents a credible
threat to the physical safety of such intimate partner or child; or
“(ii) by its terms explicitly prohibits the use, attempted use, or
threatened use of physical force against such intimate partner or child
that would reasonably be expected to cause bodily injury; or
“(9) who has been convicted in any court of a misdemeanor crime of
domestic violence,
“to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.”
6 REHAIF v. UNITED STATES
ALITO, J., dissenting
elements of the §922(g) offense, we must assume that it
modifies the first of those elements, i.e., being a convicted
felon, illegal alien, etc. To conclude otherwise, he con-
tends, is to commit the sin of having the term “knowingly”
leap over that element and then land conveniently in front
of the second. Pet. for Cert. 8.
But petitioner’s reading is guilty of the very sort of
leaping that it condemns—and then some. It has “know-
ingly” performed a jump of Olympian proportions, taking
off from §924(a)(2), sailing backward over more than 9,000
words in the U. S. Code, and then landing—conveniently—
at the beginning of the enumeration of the elements of the
§922(g) offense. Of course, there is no logical reason why
this jump has to land at that particular point in §922(g).
That is petitioner’s first sleight of hand. But there is
another.
What petitioner and those who have pressed this leap-
ing argument want §922(g) to say is essentially this: Who-
ever knowingly is an illegal alien and possesses a firearm
shall be fined and/or imprisoned if his possession of the
gun was in or affecting interstate commerce. If we had
before us a provision that reads like that, there would be a
strong textual argument that a defendant’s status as an
illegal alien must actually be known to him. That is es-
sentially what we held in Flores-Figueroa v. United States,
556 U.S. 646, 652 (2009). But when the term “knowingly”
is excised from §924(a)(2) and inserted at the beginning of
§922(g), what we get is something quite different:
Whoever knowingly . . . It is unlawful for any per-
son . . . who, being an alien—is illegally or unlawfully
in the United States . . . to possess in or affecting
commerce, any firearm or ammunition . . . .
Congress did not—and certainly would not—enact a
statute that reads like that. To convert this garbled con-
glomeration into intelligible prose, editing is obviously
Cite as: 588 U. S. ____ (2019) 7
ALITO, J., dissenting
needed, and the editing process would compel the editor to
make decisions with substantive implications that could
hardly go unnoticed. Here is a way of amalgamating
§924(a)(1) and §922(g) that minimizes the changes in the
language of the two provisions:
Whoever knowingly . . . It is unlawful for any per-
son . . . who, being an alien—is illegally or unlawfully
in the United States . . . and possesses in or affecting
commerce, any firearm or ammunition . . . [commits a
crime punishable by . . . .]
The most natural reading of this version is that the de-
fendant must know only that he is an alien, not that his
presence in the country is illegal or unlawful. And under
this version, it is not even clear that the alien’s possession
of the firearm or ammunition must be knowing—even
though everyone agrees that this is required.
Here are two other possibilities that require more
changes. The first is this:
Whoever knowingly . . . It is unlawful for any per-
son . . . who, being an alien who—is illegally or un-
lawfully in the United States . . . to possesses in or af-
fecting commerce, any firearm or ammunition . . .
[commits a crime punishable by . . . .]
The second, which differs from the first only in that the
clause “who is illegally or unlawfully in the United States”
is set off by commas, is this:
Whoever knowingly . . . It is unlawful for any per-
son . . . who, being an alien, who—is illegally or un-
lawfully in the United States, . . . to possesses in or
affecting commerce, any firearm or ammunition . . .
[commits a crime punishable by . . . .]
A strict grammarian, noting that the clause “who is legally
or unlawfully in the United States” is restrictive in the
8 REHAIF v. UNITED STATES
ALITO, J., dissenting
first of these versions and nonrestrictive in the second,
might interpret the first to favor petitioner and the second
to favor the Government. And under both of these ver-
sions, it is again unclear whether a defendant’s possession
of the firearm or ammunition must be knowing.
All of the versions discussed so far place the term
“knowingly” at the beginning of our transformed version of
§922(g), but as noted, there is no reason why this term’s
leap from §924(a)(2) must land at that point. So our new
version of §922(g) could just as logically read like this:
Whoever . . . It is unlawful for any person . . . who,
being an alien who—is illegally or unlawfully in the
United States . . . to knowingly possesses in or af-
fecting commerce, any firearm or ammunition . . .
[commits a crime punishable by . . . .]
That would make it clear that the long-established inter-
pretation of §922(g) is correct.
What these possibilities show is that any attempt to
combine the relevant language from §924(a)(2) with the
language of §922(g) necessarily entails significant choices
that are not dictated by the text of those provisions. So
the purportedly textualist argument that we were sold at
the certiorari stage comes down to this: If §§922(g) and
924(a)(2) are arbitrarily combined in the way that peti-
tioner prefers, then, presto chango, they support petition-
er’s interpretation. What a magic trick!
B
The truth behind the illusion is that the terms used in
§§924(a)(2) and 922(g), when read in accordance with their
use in ordinary speech, can easily be interpreted to treat
the question of mens rea in at least four different ways.
First, the language of §§924(a)(2) and 922(g) can be read
to require that a defendant know that his conduct is a
violation of §922(g). In ordinary speech, to knowingly
Cite as: 588 U. S. ____ (2019) 9
ALITO, J., dissenting
violate a rule may mean to violate a known rule. (“He was
told it is forbidden to smoke in the restroom of a plane, but
he knowingly did so.”) Neither petitioner nor the Gov-
ernment suggests that this is the proper interpretation of
§§922(g) and 924(a)(2), but their reason is not based on the
plain or ordinary meaning of the statutory text. Instead,
it rests on an inference about congressional intent that, in
turn, is based on a drafting convention, namely, that
where Congress wants to require proof that a criminal
defendant knew his conduct was illegal, it specifies that
the violation must be “willful.” In ordinary speech, “will-
fulness” does not require or even suggest knowledge of
illegality. See Webster’s Third New International Dic-
tionary 2617 (1976). But we have construed the term as
used in statutes to mean the “intentional violation of a
known legal duty.” United States v. Bishop, 412 U.S. 346,
360 (1973). Thus, the pointed use of the term “knowingly,”
as opposed to “willfully,” in §922(g), provides a ground to
infer that Congress did not mean to require knowledge of
illegality.
Second, a “knowing” violation could require knowledge
of every element that makes up the offense. As applied to
§922(g), that would mean that the Government would
have to prove that the defendant: (1) knew that he is an
alien “illegally or unlawfully in the United States,”
(2) knew that the thing he “possess[ed]” was “a firearm or
ammunition,” and (3) knew that what he did was “in or
affecting commerce.” But again, the parties (and the
majority) disclaim this reading because, they contend, the
mens rea requirement does not apply to the interstate-
commerce element of the offense. To reach this conclu-
sion, however, neither the parties nor the majority relies
on the text. How could they? If positioning the term
“knowingly” at the beginning of a list of elements (or
incorporating it through a separate provision) means that
it applies to every element, then it would have to apply to
10 REHAIF v. UNITED STATES
ALITO, J., dissenting
the interstate-commerce element just like the others.
Once again, the conclusion that “knowingly” does not
apply to the interstate-commerce element is not based on
any rule of English usage but on yet another inference
about congressional intent: that the question whether a
defendant knew that his act of possessing a gun or ammu-
nition was “in or affecting commerce” is simply not the
sort of question that Congress wanted a jury to decide.
The conclusion is sound, see, e.g., Luna Torres v. Lynch,
578 U. S. ___, ___ (2016) (slip op., at 15). But the inference
that this is not what Congress intended is in no way com-
pelled by the text of §922(g), which simply includes the
jurisdictional element among the other elements of the
crime with no textual indication that Congress meant for
it to be treated differently.2
Third, a “knowing” violation could require knowledge of
both the conduct and status elements of the offense (but
not the jurisdictional element). This is the reading that
petitioner advocates and that the majority adopts. Yet
again, this interpretation is not based on the text of the
provisions but on two other factors: the inference about
congressional intent just discussed and the assumption
that Congress, had it incorporated the term “knowingly”
into §922(g), would have placed it at the beginning of that
provision. As I have explained, there is no textual basis
for that assumption.
Fourth, a “knowing” violation could require knowledge
of the conduct element—the possession of a firearm or
ammunition—but not the others. Putting aside the ques-
——————
2 Indeed, the jurisdictional element is listed before the firearm ele-
ment of the offense, to which everyone agrees the mens rea requirement
applies. The text alone does not explain why the word “knowingly”
would “leapfro[g]” over the middle element, which is perhaps why the
majority does not adopt the novel “grammatical gravity” canon. United
States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J.,
concurring); see also Tr. of Oral Arg. 32.
Cite as: 588 U. S. ____ (2019) 11
ALITO, J., dissenting
tion of the jurisdictional element, that is how one would
naturally read §922(g) if Congress had incorporated the
knowledge requirement into §922(g) after the status ele-
ment and just before the conduct element. Of course,
Congress did not do that—but neither did it place “know-
ingly” at the beginning of the list of elements.
As these competing alternatives show, the statutory text
alone does not tell us with any degree of certainty the
particular elements of §922(g) to which the term “know-
ingly” applies. And once it is recognized that the statutory
text does not specify the mens rea applicable to §922(g)’s
status element, there is no reason to assume that what
Congress wanted was either a very high mens rea re-
quirement (actual knowledge) or no mens rea at all. See
infra, at 22. However, if we limit ourselves to those op-
tions, as the parties and the majority assume we must, the
latter is more likely.
C
1
That is so for at least six reasons. First, in no prior case
have we inferred that Congress intended to impose a mens
rea requirement on an element that concerns the defend-
ant’s own status. Nor has petitioner pointed to any stat-
ute with text that plainly evinces such a congressional
intent. Instead, in instances in which Congress has ex-
pressly incorporated a mens rea requirement into a provi-
sion with an element involving the defendant’s status, it
has placed the mens rea requirement after the status
element. For example, 18 U.S. C. §2251(b) punishes any
“person having custody or control of a minor who know-
ingly permits such minor to engage in . . . sexually explicit
conduct for the purpose of producing any visual depiction
of such conduct.” To show a violation, the Government
need not prove that the defendant knew that the person
under his custody or control was a minor. Even where the
12 REHAIF v. UNITED STATES
ALITO, J., dissenting
issue of a defendant’s status is open and shut, Congress
has taken pains to place the mens rea requirement so that
it clearly does not apply to the status element. Thus, 18
U.S. C. §1924(a) punishes an “officer, employee, contrac-
tor, or consultant of the United States [who] knowingly
removes [classified] documents or materials without au-
thority.” And 21 U.S. C. §861(a) prohibits “any person at
least eighteen years of age [from] knowingly and inten-
tionally . . . receiv[ing] a controlled substance from a per-
son under 18 years of age.” So what the majority has done
in this case is groundbreaking.
Second, there are sound reasons for treating §922(g)’s
status element like its jurisdictional element. The parties
agree that federal criminal statutes presumptively do not
require proof that an accused knew that his conduct satis-
fied a jurisdictional element, and our cases support this
proposition. See Luna Torres, 578 U. S. ___; United States
v. Yermian, 468 U.S. 63 (1984); United States v. Feola,
420 U.S. 671 (1975). We have never provided a compre-
hensive explanation of the basis for this presumption, but
our decision in Feola, which concerned the offense of as-
saulting a federal officer in violation of 18 U.S. C. §111, is
instructive. Agreeing with the interpretation that had
been adopted with “practical unanimity” by the courts of
appeals, Feola held that an accused need not be shown to
have been aware of his victim’s status. We inferred that
this is what the statute means because requiring proof of
knowledge would undermine the statute’s dual objectives
of protecting federal officers and preventing the obstruc-
tion of law enforcement. 420 U.S., at 679.
A similar consideration appears to provide the basis for
the conclusion that a §922(g) defendant need not know
that his possession of a gun is “in or affecting commerce.”
Whether or not conduct satisfies that requirement in-
volves a complicated legal question; requiring proof of such
knowledge would threaten to effectively exempt almost
Cite as: 588 U. S. ____ (2019) 13
ALITO, J., dissenting
everyone but students of constitutional law from the stat-
ute’s reach; and that would obviously defeat the statute’s
objectives.
The reason for the rule exempting knowledge of jurisdic-
tional elements supports the conclusion that knowledge of
§922(g)’s status element is also not required. Whether a
defendant falls into one of the §922(g) categories often
involves complicated legal issues, and demanding proof
that a defendant understood those issues would seriously
undermine the statute’s goals.
Take the category defined in §922(g)(4), which applies to
a person who has been “adjudicated as a mental defective,”
a term that is defined by regulation to mean
“(a) A determination by a court, board, commission, or
other lawful authority that a person, as a result of
marked subnormal intelligence, or mental illness, in-
competency, condition, or disease:
“(1) Is a danger to himself or to others; or
“(2) Lacks the mental capacity to contract or manage
his own affairs.” 27 CFR §478.11(a) (2019).
Congress thought that persons who fall into this category
lack the intellectual capacity to possess firearms safely. Is
it likely that Congress wanted §922(g) to apply only to
those individuals who nevertheless have the capacity to
know that they fall within the complicated definition set
out in the regulation? If a person has been found by a
court to present a “danger . . . to others” due to mental
illness or incompetency, should he escape the reach of
§922(g) because he does not know that a court has so
found?
Or consider the category defined by §922(g)(8), which
applies to a person
“who is subject to a court order that—
“(A) was issued after a hearing of which such person
received actual notice, and at which such person had
14 REHAIF v. UNITED STATES
ALITO, J., dissenting
an opportunity to participate;
“(B) restrains such person from harassing, stalking,
or threatening an intimate partner of such person or
child of such intimate partner or person, or engaging
in other conduct that would place an intimate partner
in reasonable fear of bodily injury to the partner or
child; and
“(C)(i) includes a finding that such person repre-
sents a credible threat to the physical safety of such
intimate partner or child; or
“(ii) by its terms explicitly prohibits the use, at-
tempted use, or threatened use of physical force
against such intimate partner or child that would rea-
sonably be expected to cause bodily injury . . . .”
Under this reticulated provision, does the majority’s inter-
pretation require proof beyond a reasonable doubt that the
defendant knew, when he possessed the gun or ammuni-
tion, (1) that his restraining order had been issued after a
hearing, (2) that he had received actual notice of the hear-
ing, (3) that he had been given an opportunity to partici-
pate at the hearing, (4) that the order covered harassing,
stalking, or threatening, (5) that the person protected by
the order qualified as his “intimate partner,” and (6) that
the order explicitly prohibited the “use, attempted use, or
threatened use of physical force”? Did Congress want a
person who terrorized an intimate partner to escape con-
viction under §922(g) by convincing a jury that he was so
blinded by alcohol, drugs, or sheer rage that he did not
actually know some of these facts when he acquired a gun?
What about the category defined by §922(g)(9), which
covers a person “who has been convicted in any court of a
misdemeanor crime of domestic violence”? Did Congress
want this provision to apply only to those abusers who
actually know that an offense for which they were con-
victed falls within the complicated definition of a “crime of
Cite as: 588 U. S. ____ (2019) 15
ALITO, J., dissenting
domestic violence”? The Members of this Court have been
unable to agree on the meaning of that concept. Is it
limited to offenses that have an element requiring proof
that the abuser had a domestic relationship with the
victim? In United States v. Hayes, 555 U.S. 415 (2009),
the majority said no, but THE CHIEF JUSTICE and Justice
Scalia disagreed. Can a conviction qualify if the offense
required only recklessness? In Voisine v. United States,
579 U. S. ___ (2016), the Court said yes, but JUSTICE
THOMAS and JUSTICE SOTOMAYOR dissented. Does this
provision apply if only slight force is required for convic-
tion by the misdemeanor provision under which the de-
fendant was convicted? Again, the Members of the Court
have disagreed. Compare United States v. Castleman, 572
U.S. 157, 162 (2014) (opinion of the Court), with id., at
175 (opinion of Scalia, J.). If the Justices of this Court,
after briefing, argument, and careful study, disagree about
the meaning of a “crime of domestic violence,” would the
majority nevertheless require the Government to prove at
trial that the defendant himself actually knew that his
abuse conviction qualified? Can this be what Congress
had in mind when it added this category in 1996 to combat
domestic violence?
Serious problems will also result from requiring proof
that an alien actually knew—not should have known or
even strongly suspected but actually knew—that his con-
tinued presence in the country was illegal. Consider a
variation on the facts of the present case. An alien admit-
ted on a student visa does little if any work in his courses.
When his grades are sent to him at the end of the spring
semester, he deliberately declines to look at them. Over
the summer, he receives correspondence from the college,
but he refuses to open any of it. He has good reason to
know that he has probably flunked out and that, as a
result, his visa is no longer good. But he doesn’t actually
know that he is not still a student. Does that take him
16 REHAIF v. UNITED STATES
ALITO, J., dissenting
outside §922(g)(8)? Is it likely that this is what Congress
wanted?
That is most doubtful. Congress enacted §922(g)’s status-
based restrictions because of its judgment that specific
classes of people are “potentially irresponsible and dan-
gerous” and therefore should be prohibited from owning or
possessing firearms and ammunition. Barrett v. United
States, 423 U.S. 212, 218 (1976). It is highly unlikely that
Congress wanted defendants to be able to escape liability
under this provision by deliberately failing to verify their
status.
Third, while the majority’s interpretation would frus-
trate Congress’s public safety objectives in cases involving
some of the §922(g) status categories, in prosecutions
under the most frequently invoked category, possession by
a convicted felon, the majority’s interpretation will pro-
duce perverse results. A felony conviction is almost al-
ways followed by imprisonment, parole or its equivalent,
or at least a fine. Juries will rarely doubt that a defendant
convicted of a felony has forgotten that experience, and
therefore requiring the prosecution to prove that the
defendant knew that he had a prior felony conviction will
do little for defendants. But if the prosecution must prove
such knowledge to the satisfaction of a jury, then under
our decision in Old Chief v. United States, 519 U.S. 172
(1997), it is questionable whether a defendant, by offering
to stipulate that he has a prior conviction, can prevent the
prosecution from offering evidence about the nature of
that offense. And the admission of that information may
work to a §922(g) defendant’s detriment.
Old Chief recognized that a party is generally entitled to
admit evidence to prove a necessary fact even if the oppos-
ing party offers to stipulate to that fact, id., at 186–190,
but the Court held that a §922(g) defendant’s offer to
stipulate to the fact that he had a prior felony conviction
precluded the prosecution from offering evidence about the
Cite as: 588 U. S. ____ (2019) 17
ALITO, J., dissenting
identity of that offense. This holding appears to rest on
the understanding that §922(g) requires proof of status
but not of knowledge. See id., at 190 (suggesting that a
prosecutor would be entitled to seek admission of evidence
of the nature of a prior felony if offered to prove
knowledge). So if a defendant’s knowledge is now neces-
sary, the logic of Old Chief is undermined.
Fourth, the majority’s interpretation of §922(g) would
lead to an anomaly that Congress is unlikely to have
intended. Another provision of §922—i.e., §922(d)(5)(A)—
prohibits firearms sellers from selling to persons who fall
within a §922(g) category, but this provision does not
require proof that the seller had actual knowledge of the
purchaser’s status. It is enough if the seller had “reason-
able cause” to know that a purchaser fell into a prohibited
category. A person who falls into one of the §922(g) cate-
gories is more likely to understand his own status than is
a person who sells this individual a gun. Accordingly, it is
hard to see why an individual who may fall into one of the
§922(g) categories should have less obligation to verify his
own situation than does the person who sells him a gun.
Yet that is where the majority’s interpretation leads.
Fifth, the legal landscape at the time of §922(g)’s enact-
ment weighs strongly against the majority’s reading.
Long before Congress added the term “knowingly” to
§924(a)(2), federal law prohibited certain categories of
people from possessing firearms. See Federal Firearms
Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87–342, 75
Stat. 757; Omnibus Crime Control and Safe Street Act of
1968, Pub. L. 90–351, 82 Stat. 197; Gun Control Act of
1968, Pub. L. 90–618, 82 Stat. 1213, note following 18
U.S. C. §921. These predecessors of §922(g) did not ex-
pressly include any mens rea requirement, but courts
generally interpreted them to require proof that a defend-
ant acted knowingly in receiving, transporting, or pos-
sessing a firearm. The courts did not, however, require
18 REHAIF v. UNITED STATES
ALITO, J., dissenting
proof that a defendant knew that he fell within one of the
covered categories or that his conduct satisfied the stat-
utes’ interstate-commerce requirement. See, e.g., United
States v. Santiesteban, 825 F.2d 779, 782–783 (CA4 1987);
United States v. Schmitt, 748 F.2d 249, 252 (CA5 1984);
United States v. Oliver, 683 F.2d 224, 229 (CA7 1982);
United States v. Lupino, 480 F.2d 720, 723–724 (CA8
1973); United States v. Pruner, 606 F.2d 871, 873–874
(CA9 1979).3
During this same period, many States adopted similar
laws,4 and no State’s courts interpreted such a law to
require knowledge of the defendant’s status. See, e.g.,
People v. Nieto, 247 Cal. App. 2d 364, 368, 55 Cal. Rptr.
546, 549 (1966). People v. Tenorio, 197 Colo. 137, 144–145,
590 P.2d 952, 957 (1979); State v. Harmon, 25 Ariz. App.
137, 139, 541 P.2d 600, 602 (1975); State v. Heald, 382
A.2d 290, 297 (Me. 1978); Williams v. State, 565 P.2d 46,
49 (Okla. Crim. App. 1977).
All this case law formed part of the relevant backdrop of
which we assume Congress was aware when it enacted
§924(a)(2)’s mens rea requirement in 1986. See Firearms
Owners’ Protection Act, 100 Stat. 449, note following 18
U.S. C. §921. “We normally assume that, when Congress
enacts statutes, it is aware of relevant judicial precedent.”
Ryan v. Valencia Gonzales, 568 U.S. 57, 66 (2013) (inter-
nal quotation marks omitted). Where all the Federal
Courts of Appeals and all the state courts of last resort to
have interpreted statutes prohibiting certain classes of
——————
3 The majority highlights a single case where the Sixth Circuit did
require knowledge that the defendant was under indictment, out of a
concern about secret indictments. Ante, at 10 (citing United States v.
Renner, 496 F.2d 922, 924, 927 (1974)). But Congress addressed this
concern separately when it enacted the mens rea requirement. It
moved the provision involving indictments to its own statutory subsec-
tion, §922(n), and punished only willful violations, see §924(a)(1)(D).
4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8.
Cite as: 588 U. S. ____ (2019) 19
ALITO, J., dissenting
persons from possessing firearms agreed that knowledge
of status was not required, it is fair to expect Congress to
legislate more clearly than it has done here if it seeks to
deviate from those holdings. Adding the mens rea provi-
sion in §924(a)(2) “clarif[ied]” that knowledge is the re-
quired mens rea with respect to a defendant’s conduct,
ante, at 10, but it did not indicate any disagreement with
the established consensus that already applied that mens
rea to §922(g)’s conduct element but not to the element of
the defendant’s status.5
Finally, the judgment of the courts of appeals should
count for something. In Feola, the Court cited the “practi-
cal unanimity” of the courts of appeals, 420 U.S., at 676;
see also Luna Torres, 578 U. S., at ___, ___ (slip op., at 15–
16), and here, even after Congress added the mens rea
requirement, all the courts of appeals to address the ques-
tion have held that it does not apply to the defendant’s
status.6 In addition, the decisions of the highest courts of
——————
5 Contrary to the majority’s suggestion, ante, at 10, the addition of the
mens rea requirement does serve a purpose under this interpretation: It
codifies the holdings of the lower courts that knowledge is required for
the conduct element. If Congress had left §922(g) off the list of offenses
requiring knowledge in §924(a)(2), some may have invoked expressio
unius to argue that a violation of §922(g) required no mens rea at all.
Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal
Texts 107 (2012).
6 See United States v. Smith, 940 F.2d 710, 713 (CA1 1991); United
States v. Huet, 665 F.3d 588, 596 (CA3 2012); United States v. Langley,
62 F.3d 602, 604–608 (CA4 1995) (en banc); United States v. Rose, 587
F.3d 695, 705–706, and n. 9 (CA5 2009) (per curiam); United States v.
Dancy, 861 F.2d 77, 80–82 (CA5 1988) (per curiam); United States v.
Lane, 267 F.3d 715, 720 (CA7 2001); United States v. Thomas, 615 F.
3d 895, 899 (CA8 2010); United States v. Kind, 194 F.3d 900, 907 (CA8
1999); United States v. Miller, 105 F.3d 552, 555 (CA9 1997); United
States v. Games-Perez, 667 F.3d 1136, 1142 (CA10 2012); United States
v. Capps, 77 F.3d 350, 352–354 (CA10 1996); United States v. Jackson,
120 F.3d 1226, 1229 (CA11 1997) (per curiam); United States v. Bryant,
523 F.3d 349, 354 (CADC 2008).
20 REHAIF v. UNITED STATES
ALITO, J., dissenting
States with laws similar to §922(g) have continued to
unanimously interpret those provisions in the same way.7
2
Petitioner contends that all the Courts of Appeals to
address the question now before us have gone astray
because they have not given proper weight to the pre-
sumption that a mens rea requirement applies to every
element of an offense that results in the criminalization of
otherwise innocent conduct. See Elonis v. United States,
575 U. S. ___ (2015); United States v. X-Citement Video,
Inc., 513 U.S. 64 (1994); Morissette v. United States, 342
U.S. 246 (1952). This concern, which also animates much
of the majority’s analysis, is overstated.
The majority does not claim that the Constitution re-
quires proof of mens rea for every status element or every
element that has the effect of criminalizing what would
otherwise be lawful conduct. Nor does it suggest that the
presumption it invokes is irrebuttable for any other rea-
son. That would be a radical conclusion because it has
long been accepted that some status elements do not
require knowledge. Laws that aim to protect minors, for
example, often do not require proof that an offender had
actual knowledge of the age of a minor who is the victim of
a crime. “ ‘The majority rule in the United States is that a
defendant’s knowledge of the age of a victim is not an
essential element of statutory rape. . . . A defendant’s good
faith or reasonable belief that the victim is over the age of
consent is simply no defense.’ ” United States v. Gomez-
Mendez, 486 F.3d 599, 603, n. 7 (CA9 2007) (citation
omitted). Similarly, 18 U.S. C. §2243(a) makes it a crime,
punishable by up to 15 years’ imprisonment, knowingly to
engage in a sexual act with a person who is between the
——————
7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19
(collecting cases).
Cite as: 588 U. S. ____ (2019) 21
ALITO, J., dissenting
ages of 12 and 16 and is less than four years younger than
the accused. This statute expressly provides that
knowledge of the victim’s age need not be proved.
§2241(d). I do not understand the majority to suggest that
these laws, which dispense with proof of knowledge for
public safety purposes, are invalid.
Not only is there no blanket rule requiring proof of mens
rea with respect to every element that distinguishes be-
tween lawful and unlawful conduct, but petitioner exag-
gerates in suggesting that the so-called jurisdictional
elements in federal criminal statutes comply with this
“rule” because they do no more than provide a hook for
prosecuting a crime in federal court. These elements often
do more than that. They sometimes transform lawful
conduct into criminal conduct: In a State that chooses to
legalize marijuana, possession is wrongful only if the
defendant is on federal property. Cf. 41 CFR §102–74.400
(2018). Jurisdictional elements may also drastically in-
crease the punishment for a wrongful act. For example,
the statute at issue in Feola, which criminalizes assault on
a federal officer, doubles the possible prison sentence that
would have been applicable to simple assault. Compare
18 U.S. C. §111 and §113. Just like a status element, a
jurisdictional element can make the difference between
some penalty and no penalty, or between significantly
greater and lesser penalties.
Since a legislative body may enact a valid criminal
statute with a strict-liability element, the dispositive
question is whether it has done so or, in other words,
whether the presumption that petitioner invokes is rebut-
ted. This rebuttal can be done by the statutory text or
other persuasive factors. See Liparota v. United States,
471 U.S. 419, 425 (1985) (applying presumption “[a]bsent
indication of contrary purpose in the language or legisla-
tive history”); X-Citement Video, 513 U.S., at 70–72 (dis-
cussing statutory context in reaching conclusion); Flores-
22 REHAIF v. UNITED STATES
ALITO, J., dissenting
Figueroa, 556 U.S., at 652; id., at 660 (ALITO, J., concur-
ring in part and concurring in judgment). And here, for
the reasons discussed above, §922(g) is best interpreted
not to require proof that a defendant knew that he fell
within one of the covered categories.
I add one last point about what can be inferred regard-
ing Congress’s intent. Once it becomes clear that statu-
tory text alone does not answer the question that we face
and we are left to infer Congress’s intent based on other
indicators, there is no reason why we must or should infer
that Congress wanted the same mens rea to apply to all
the elements of the §922(g) offense. As we said in Staples
v. United States, 511 U.S. 600, 609 (1994), “different
elements of the same offense can require different mental
states.” And if Congress wanted to require proof of some
mens rea with respect to the categories in §922(g), there is
absolutely no reason to suppose that it wanted to impose
one of the highest degrees of mens rea—actual knowledge.
Why not require reason to know or recklessness or negli-
gence? To this question, neither petitioner nor the major-
ity has any answer.
D
Because the context resolves the interpretive question,
neither the canon of constitutional avoidance nor the rule
of lenity can be invoked to dictate the result that the
majority reaches. As to the canon, we have never held
that the Due Process Clause requires mens rea for all
elements of all offenses, and we have upheld the constitu-
tionality of some strict-liability offenses in the past. See
United States v. Freed, 401 U.S. 601 (1971); United States
v. Dotterweich, 320 U.S. 277 (1943); United States v.
Balint, 258 U.S. 250 (1922); United States v. Behrman,
258 U.S. 280 (1922). In any event, if the avoidance of a
serious constitutional question required us to infer that
some mens rea applies to §922(g)’s status element, that
Cite as: 588 U. S. ____ (2019) 23
ALITO, J., dissenting
would hardly justify bypassing lower levels of mens rea
and going all the way to actual knowledge.
As for the rule of lenity, we resort to it “only if, after
seizing everything from which aid can be derived, we can
make no more than a guess as to what Congress intended.”
Muscarello v. United States, 524 U.S. 125, 138 (1998)
(alterations and internal quotation marks omitted). And
what I have just said about the constitutional avoidance
canon applies equally to lenity: It cannot possibly justify
requiring actual knowledge.
III
Although the majority presents its decision as modest,
its practical effects will be far reaching and cannot be
ignored. Tens of thousands of prisoners are currently
serving sentences for violating 18 U.S. C. §922(g).8 It is
true that many pleaded guilty, and for most direct review
is over. Nevertheless, every one of those prisoners will be
able to seek relief by one route or another. Those for
whom direct review has not ended will likely be entitled to
a new trial. Others may move to have their convictions
vacated under 28 U.S. C. §2255, and those within the
statute of limitations will be entitled to relief if they can
show that they are actually innocent of violating §922(g),
which will be the case if they did not know that they fell
into one of the categories of persons to whom the offense
applies. Bousley v. United States, 523 U.S. 614, 618–619
(1998). If a prisoner asserts that he lacked that
knowledge and therefore was actually innocent, the dis-
trict courts, in a great many cases, may be required to
hold a hearing, order that the prisoner be brought to court
——————
8 The U. S. Sentencing Commission reports that in fiscal year 2017
there were 6,032 offenders convicted under 18 U.S. C. §922(g), with an
average sentence of 64 months, https:// www.ussc.gov / sites / default /
files / pdf / research - and - publications / quick - facts / Felon_in_Possession_
FY17.pdf (as last visited June 19, 2019).
24 REHAIF v. UNITED STATES
ALITO, J., dissenting
from a distant place of confinement, and make a credibil-
ity determination as to the prisoner’s subjective mental
state at the time of the crime, which may have occurred
years in the past. See United States v. Garth, 188 F.3d
99, 109 (CA3 1999); United States v. Jones, 172 F.3d 381,
384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d
782, 784 (CA8 1998); United States v. Benboe, 157 F.3d
1181, 1184 (CA9 1998). This will create a substantial
burden on lower courts, who are once again left to clean up
the mess the Court leaves in its wake as it moves on to the
next statute in need of “fixing.” Cf. Mathis v. United
States, 579 U. S. ___, ___–___ (2016) (ALITO, J., dissenting)
(slip op., at 5–6).
Nor is there any reason to think that the Court’s reason-
ing here will necessarily be limited to §922(g). The Court
goes out of its way to point out that it is not taking a
position on the applicability of mens rea requirements in
other status-based offenses, even where the statute lists
the status before the mens rea. Ante, at 7.
* * *
The majority today opens the gates to a flood of litiga-
tion that is sure to burden the lower courts with claims for
relief in a host of cases where there is no basis for doubt-
ing the defendant’s knowledge. The majority’s interpreta-
tion of §922(g) is not required by the statutory text, and
there is no reason to suppose that it represents what
Congress intended.
I respectfully dissent.