STRICT
CONSTRUCTION
OF
FIREARMS.
OFFENSES:
THE
SUPREME
COURT
AND
THE
GUN
CONTROL
ACT
OF
1968
ROBERT
BATEY*
I
INTRODUCTION
Direct
limits
on
the
exercise
of
discretion
in
law
enforcement
are
commonplace
in
modern
criminal
law.
The
fourth
and
fifth
amendments
to
the
United
States
Constitution
restrict
police
investigations
of
suspected
criminal
activity,
while
the
due
process
and
equal
protection
clauses
regulate
the
discretion
of
prosecutors
to
file
criminal
charges.
Less
obvious
as
limits
on
police
and
prosecutorial
discretion
are
the
rules
governing
the
statutory
definition
of
crime.
By
requiring
prospective
enunciation,
in
clear
terms,
of
what
conduct
is
criminal
and
by
interpreting
any
residual
ambiguity
in
statutory
terms
in
favor
of
the
defendant,
courts
significantly
narrow
police
and
prosecutorial
law
enforcement
authority.
This
article
seeks
to
demonstrate
the
utility
of
the
latter
principle,
the
rule
of
strict
construction
of
criminal
statutes,
as
a
limit
on
overzealous
law
enforcement.
The
article
focuses
on
United
States
Supreme
Court
cases
interpreting
the
Gun
Control
Act
of
1968
(the
1968
Act).'
These
decisions
provide
a
unique
demonstration
of
the
relation
between
direct
and
indirect
controls
on
enforcement.
In
its
first
three
cases
under
the
1968
Act,
2
the
Court
faced
fourth
3
and
fifth
amendment
issues,
q
as
well
as
construction
Copyright
©
1986
by
Law and
Contemporary
Problems
*
Associate
Dean
and
Professor,
Stetson
University
College
of
Law.
Four
graduates
of
Stetson
University
College
of
Law-Robert
Butterfield,
Kevin
Fantauzzo,
David
Heil,
and
Matthew
King-aided
in
the
preparation
of
this
article.
At
the
editorial
conference
for
the
symposium,
a
discussion
group
including
David
Caplan,
Susan
Wimmershoff-Caplan,
Penny
Crook,
Margaret
Howard,
James
Jacobs,
Don Kates,
Gary
Kleck,
Daniel
Polsby,
and
Robert
Shalhope
made
helpful
suggestions.
Don
Kates'
editorial
assistance
was
invaluable:
without
his
insight
and
vast
knowledge
of
the
area,
I
would
not
have
been
able
to
write
this
article.
Of
course,
none
of
these
persons
bears
any
responsibility
for
the work's
defects.
i.
Pub.
L.
No.
90-618,
82
Stat.
1213
(codified
as
amended
at
18
U.S.C.
§§
921-928
(1982);
18
U.S.C.
app.
§§
1201-1203
(1982);
26
U.S.C.
§§
5801-5872
(1982)).
Manv
of
these
same
provisions
were
enacted
as
part
of
the
Omnibus
Crime
Control
and
Safe
Streets
Act
of
1968,
Pub.
L.
No.
90-
351,
82
Stat.
197
(codified
as
amended
in
scattered
sections
of
titles
5, 18,
42,
and
47
of
the
U.S.
Code
(1982)).
2.
United
States
v.
Biswell,
406
U.S.
311
(1972);
United
States
v.
Bass,
404
U.S.
336
(1971):
United
States
v.
Freed,
401
U.S.
601
(1971).
3.
United States
v.
Biswell,
406
U.S.
311,
313-17
(1972).
4.
United States
v.
Freed,
401
U.S.
601.
605-07
(1971).
LAW
AND
CONTEMPORARY
PROBLEMS
[Vol.
49:
No.
1
questions
regarding
act
5
and mental
requirements.
6
In
both
contexts,
its
resolution
of
these matters
ran
the gamut
from
restrictive
to
permissive.
Although
the
Court
probably recognized
the
relevance
of
limiting overzealous
law
enforcement
in
its
applications
of
the
fourth
and
fifth
amendments,
it
was
seemingly
unaware
that
the
regulative
concerns
of
enforcement
should
have
informed
its
statutory
constructions
as
well.
One
goal
of
this
article
is to
sensitize
judges
and
advocates
to
the
kinds
of
considerations
the
Court
seems
to
have
overlooked.
Because
of
our
confused
attitudes
toward
gun
control
legislation,
such
laws
are
a
particularly
apt
subject
for
a
study
of
strict
construction.
While
a
majority
of
Americans
apparently
favor
gun
control
in
some
form,
7
the
substantial
minority
of
gunholders
remain
vigorously
opposed
even
to
legislation
that would
not
seem
to
affect
them.
8
One
hypothesis
for
this
staunch
opposition
is
that
gunholders
fear
expansive
judicial
interpretations
of
gun
control
statutes
and
the
overreaching
by
law
enforcement
personnel
which,
they
believe,
would
surely follow
such
interpretations.
9
The
rule
of
strict
construction
addresses
this
fear
directly
by
promising
limited
interpretations
of
enacted
statutes.
The
widespread
belief
in
a
constitutional
right
to
bear
arms
adds
further
interest
to
the
study
of
strict
construction
of
gun
control
legislation.
Regardless
of
the
varied
perceptions
regarding
the
presumed
source
of
this
right-whether
the
federal'
°
or
a
state
constitution"
or
the
general
right
to
5.
United
States
v.
Bass,
404
U.S.
336,
339-47
(1971).
6.
United
States
v.
Freed,
401
U.S.
601,
607
(1971).
7.
J.
WRIGHT,
P.
Rossi
&
K.
DALY,
UNDER
THE
GUN:
WEAPONS,
CRIME,
AND
VIOLENCE
IN
AMERICA
240
&
n.15
(1983).
8.
Id.
at
239.
9.
The
overzealous
enforcement
of
gun
licensing
laws gives
credence
to
this
hypothesis.
See
Bruce-Briggs,
The
Great
American Gun
I1ar,
45
PUB.
INTEREST
37,
43-44
(1976).
Bruce-Briggs
concluded
that
this
enforcement
history
"suggests
to
the organized
gun owners
that
licensing
systems
are
a
screen
not
against
criminals
but
against
honest
citizens,
and that licensing
authorities
are
not
to
be
trusted
with
any
sort
of
discretionary
power."
Id.
at
44.
See
also
Hardy
&
Chotiner,
The
Potential
for
Civil
Liberties Violations
in the
Enforcement
of
Handgun
Prohibition,
in
RESTRICTING
HANDGUNS:
THE
LIBERAL
SKEPTICS
SPEAK
OUT
194,
211
(D.
Kates
ed.
1979)
("Under
existing
statutes,
broad
discretion
is
generally
given
and
cheerfully
abused.")
[hereinafter
cited
as
RESTRICTING
HANDGUNS].
10.
U.S.
CONST.
amend.
II;
see
STAFF OF SUBCOMM.
ON
THE
CONSTITUTION
OF THE SENATE
COMM.
ON
TIE
JUDICIARY,
97TH
CONG.,
2D
SESS.,
THE
RIGHT
TO
KEEP
AND
BEAR
ARMS
(Comm. Print
1982)
[hereinafter
cited
as
STAFF
REPORT].
[Tihe
history,
concept,
and wording
of
the
second
amendment
. . .
as well
as
its
interpretation
by
every
major
commentator
and
court
in
the
first
half-century
after
its
ratification,
indicates
that
what
is
protected
is
an
individual
right
of
a
private
citizen
to
own
and
carry
firearms
in
a
peaceful
manner.
STAFF
REPORT,
supra,
at
12.
For
an
exhaustive
exposition
and defense
of
this
view,
see
Kates.
Handgun
Prohibition
aiid
the
Original
.Mleaning
of
the
SecondAmendment,
82
MICH.
L.
REV.
204
(1983).
For
articles
taking
the
opposite
view,
see
id.
at
207
n.
13.
11.
See
STAFF
REPORT,
supra
note
10,
at
14-15
(citing the
following
cases
finding
a
right
to
bear
arms
under
state
constitutional
law:
City
of
Lakewood
v.
Pillow,
180
Colo.
20,
501
P.2d
744 (1972):
Schubert
v.
DeBard,
398
N.E.2d
1339
(Ind.
App.
1980);
Taylor
v.
McNeal,
523 S.W.2d
148
(Mo.
App.
1975); City
of
Las
Vegas
v.
Moberg,
82
N.M.
626, 485 P.2d
737
(Ct.
App.
1971):
State
v.
Kessler,
289
Or.
359, 614 P.2d
94
(1980)).
For
a
detailed
analysis,
see
Caplan,
The
Right
of
the
Individual
to
Bear
Arms:
A
Recent
Judicial
Trend,
1982
DET.
C.L.
REV.
789;
Dowlut
&
Knoop,
Stale
Constitutions
and
the
Right
to Keep
and
Bear
Arms,
7
OKLA.
CITY
U.L.
REV.
177
(1982).
Page
163:
Winter
1986]
defend
oneself
and
one's
family
2
-it
is
incontrovertible
that
a
large
majority
of
Americans
believe
that
they
do
have
the
right
to
possess
weapons.
'
3
The
perception
that
gun
ownership
is
protected
behavior
dramatically
affects
the
enforceability
of
gun
control
statutes.
Given
the large
volume
of
firearms
in
private
hands,
14
the
effectiveness
of
any
far-reaching
gun
control
initiative
depends
on
voluntary
compliance; believers
in
a
right
to
bear
arms are
significantly
less
likely
to
comply.'
5
Because
of
its
importance
to
the
enforcement
of
gun
control
statutes,
the
perception
of
a
right
to
possess
weapons
should
be
a
factor
in
the
interpretation
of
such
statutes.
Also
relevant
to
strict
construction
is
the
history
of
gun
control
as
a
tool
of
discrimination.
The
earliest
American
gun
control
statutes
were
directed
at
blacks
and
immigrants,'
6
and
modern
opponents
of
gun
control
have
emphasized
its
potential
for
aiding
racism
and
sexism.1
7
Beyond
discrimination
against
recognized
minorities
is
the
question
of
invidious
treatment
of
the
"gun
subculture";'
8
there
is
much
evidence
that
members
of
the
nongunholding
population
consider
discrimination against
gun
owners
commendable.'
9
Strict
construction
is
a
device
for limiting
the
discriminatory
use
of
criminal
statutes
against
any
identifiable minority.
A
final
reason
to
examine
strict
construction
of
gun
legislation
is
reflected
in
the
set
of
relatively
recent
publications
expressing
second
thoughts
about
the
wisdom
of
gun
control
laws.
Criminologists
and
criminal
law
theorists,
including
former
gun
control
supporters,
have
argued
that
the
crime-reducing
potential
of
gun
control
has
been
exaggerated
20
and
that
its
potential
12.
See
Kates,
Can
We
Deny
Citizens
Both
Guns
and
Protection?,
Wall
St.
J.,
Aug.
17,
1983, at
22, col.
4.
13.
J.
WRIGHT,
P.
Rossi
&
K.
DALY,
supra
note
7,
at
238-39.
14.
See
id.
at
43
(between
100
million
and
140
million
in
the
United States).
15.
See
Kates,
Handgun
Banning
in
Light
of
the
Prohibition
Experience,
in
FIREARMS
AND
VIOLENCE:
ISSUES OF REGULATION
139,
155-60
(D.
Kates ed.
1984).
16.
See
L.
KENNETT
&
J. ANDERSON,
THE
GUN
IN
AMERICA
50
(1975);
Kates,
Toward
a
History
of
Handgun
Prohibition
in
the
United
States, in
RESTRICTING
HANDGUNS,
supra
note
9,
at
7,
15-22;
Kessler,
Gun
Control
and
Political
Power,
5
LAW
&
POL'Y
Q.
381,
382 (1983).
17.
Salter
&
Kates,
The Necessity
of
Access
to
Firearms
by
Dissenters
and
Minorities
ll'/om
Government
Is
Unwilling
or Unable
to
Protect,
in
RESTRICTING
HANDGUNS,
supra
note
9,
at
185;
Silver
&
Kates,
Sel]-
Defense,
Handgun
Ownership,
and
the
Independence
of
Women
in
a
Violent,
Sexist
Society',
in
RESTRICTING
HANDGUNS, supra
note
9,
at
139.
18.
SeeJ.
WRIGHT,
P.
Rossi
&
K.
DALEY,
supra
note
7,
at
323-24.
Under
the
Gun
ends
by
raising
the
following
questions:
A
critical
issue
in
modern
America
is
whether
the
doctrine
of
cultural
pluralism
should
or
should
not
be
extended
to
cover
the
members
of
the
gun
subculture.
Is
this
cultural
pattern
akin
to
the
segregationism
of
the South
that
was
broken up
in
the
interest
of
the
public
good? Or.
is
it
more
akin
to
those subcultures
that
we
have
recognized
as
legitimate and
benign
forms
of
sell-
expression?
Id.
at
324.
19.
See
Tonso,
Social
Science
and
Sagecraft
in the
Debate
over Gun
Control,
5
Lsw
&
Poi.'v
Q
325.
326-
33
(1983);
see
also
L.
KENNETr
&J.
ANDERSON,
supra
note
16,
at
254-55;
Bruce-Briggs,
supra
note
9.
at
61.
20.
J.
WRIGHT,
P.
Rossi
&
K.
DALY,
supra
note
7,
at
319-24;
see
Bruce-Briggs.
supra
note
9.
at
60;
Kleck
&
Bordua,
The
Factual
Foundation
for
Cerlain
Key
Assuiptions
of
Gun
Control, 5
LAw
&
Po.'\"
Q
27
1.
272-74
(1983);
Silver
&
Kates,
supra
note
17,
at
151-58;
Tonso.
supra
note
19,
at
339-40.
STRICT
CONSTRUCTION
LAW
AND
CONTEMPORARY PROBLEMS
enforcement
costs
are
high.
2 1
Given
this
dubiety
regarding
the
effectiveness
of
gun legislation,
courts should
be
even
more hesitant
to
extend
a
gun
control
statute
to
a
case
outside
the
core meaning
of
that
statute.
This
article's
study
of
strict
construction
of
gun
control
statutes
has
three
parts.
Part
II
generally
explains
the
rule
of
strict
construction
and
its
function
as
a
limit
on
arbitrary
and
discriminatory
enforcement.
Part
III
describes
the
Gun
Control
Act
of
1968
and
the
first
three
Supreme
Court
decisions
interpreting
the
1968
Act.
Part
IV
examines
the
lower
federal
courts'
subsequent
use
of
these
decisions
in
order
to show
some
of
the
costs
resulting
from
the
Court's
failure to
impose
adequate
limits
on
law
enforcement.
II
CONSTITUTIONALLY
IMPOSED
LIMITS
ON
ENFORCEMENT
AND
PROSECUTORIAL
DISCRETION
Strict
construction
of
penal
statutes
in
favor
of
the
defendant
is
one
of
a
trio
of
doctrines
that
limit
overzealous
enforcement
of
criminal
laws.
22
Along
with
the
principle
of
legality
(the
concept
that
crimes
must
have
been
defined
prior
to
their
enforcement),
23
and
the
void-for-vagueness
doctrine,
24
the
rule
of
strict
construction
not
only
assures
more
complete notice
of
the
prohibitions
of
the
criminal
law,
25
but
also
limits
the
ability
of
police
and
prosecutors
to
use
that
law
to
harass
and
intimidate the
public.
In
The
Limits
of
the
Criminal
Sanction,
26
Herbert
Packer
outlined
the
impact
of
these
three
doctrines
on
criminal
law
enforcement.
Eschewing
the
customary
explanation
of
the
principle
of
legality-that
it
maintains
the
separation
of
powers
between
legislature
and
judiciary
27
-Packer
argued
that
the
principle's
most
important
function
is
"to
prevent
abuses
of
official
discretion"
28
by
those
who
commence
the
criminal
process,
that
is,
by
police
officers
and
prosecutors.
"[I]n
a
system
that
lodges the
all-important
21.
Hardy
&
Chotiner,
supra
note
9,
at
202-09;
Kaplan,
Controlling
Firearms,
28
CLEV.
ST.
L.
REV.
1,
11
(1979);
Kaplan,
The
Wisdom
of
Gun
Prohibition,
455
ANNALS
11,
15-19 (1981);
Kates, supra
note
15,
at
160-64;
Kessler,
Enforcement
Problems
of
Gun
Control:
A
Victimless
Crimes
Analysis,
16
CRIM.
L.
BULL.
131,
146-47
(1980).
22.
See
generally
P.
Low,
J.
JEFFRIES
&
R.
BONNIE,
CRIMINAL
LAW
31-112
(1982).
Part
II
of
this
article
draws
heavily
on
Low,
Jeffries,
and
Bonnie's
analysis
(though
it
is
clear
that
they would
not
support
many
of
its
more enthusiastic
claims
for
the
rule
of
strict
construction).
See
also
Jeffries,
Legality,
Vagueness,
and
the
Construction
of
Penal
Statutes,
71
VA.
L.
REV.
189
(1985).
23.
See
generally
J.
HALL,
GENERAL PRINCIPLES
OF
CRIMINAL
LAW
27-69
(2d
ed.
1960).
24.
See
generally
Note,
The
Void-for-Vagueness
Doctrine
in
the Supreme
Court,
109
U.
PA.
L.
REV.
67
(1960)
(authored
by
Professor
Anthony
Amsterdam).
25.
McBoyle
v.
United
States,
283
U.S.
25
(1931),
is a
celebrated
example
of
the notice function
of
the
rule
of
strict
construction.
The
.1IcBoyle
Court, through
Justice
Holmes,
held that
an
airplane
was
not
a
"motor
vehicle"
within
the
meaning
of
a
federal
statute
prohibiting
interstate
transportation
of
stolen
motor
vehicles.
"[Flair
warning
should
be
given to
the
world
in
language
that
the common
world
will
understand, of
what
the
law
intends
to
do
if
a
certain
line
is
passed."
Id.
at
27.
The
same
reasoning
also
explains the
notice
functions
of
the
requirements
of
a
previously
stated,
unambiguous
definition
of
the
crime.
26.
H.
PACKER,
THE LIMITS
OF
THE
CRIMINAL
SANCTION
79-102
(1968).
27.
See,
e.g.,
Keeler
v.
Superior
Court,
2
Cal.
3d
619,
631-32,470
P.2d
617,624-25,
87 Cal.
Rptr.
481,
488-89
(1970).
28.
H.
PACKER,
supra
note
26,
at
85.
[Vol.
49:
No.
I
Page
163:
Winter
1986]
initiating
power
in
the
hands
of
officials
who
operate,
as
they
must,
through
informal and
secret
processes,
there
must
be
some
devices
to
insure that
the
initiating
decisions
are,
to
the
greatest
extent
possible,
fair,
evenhanded,
and
rational."
2
Though
a
number
of
trial-related
mechanisms
serve
to
maximize
evenhandedness,
3 0
Packer
argued
that "the
most
important
single
device
is
the
requirement.
. .
that the
police
and
prosecutors
confine
their
attention
to
the
catalogue
of
what has
already
been
defined
as
criminal."
3
'
The
void-for-vagueness
doctrine
limits
arbitrary
enforcement
in
much
the
same
way.
A
vague
criminal
statute
offers
law
enforcement
personnel
opportunities
for
selective
interpretation,
harassment,
and
intimidation.
The
primary
vice
of
an
ambiguous
statute,
therefore,
is
not
that
it
delegates
too
much
lawmaking
power
to
the
courts,
but
that
it
delegates
too
much
law-
enforcing
discretion
to
police
and
prosecutors.
3 2
This
line
of
reasoning
in
support
of
the
void-for-vagueness
doctrine
lies
at
the
heart
of
Papachristou
v.
City
of
Jacksonville,
3 3
in
which
the
Court
struck
down
a
municipal
vagrancy
statute
used
to
arrest
two
white
women
and
two
black
men
traveling
together
in
an
automobile.
3 4
"Of
course,
vagrancy
statutes
are
useful
to
the
police
"
the
United
States
Supreme
Court
admitted,
"[b]ut the
rule
of
law
implies
equality
and
justice
in
its
application.
Vagrancy
laws
of
the
Jacksonville
type
teach
that
the
scales
of
justice
are
so
tipped
that
even-
handed
administration
of
the
law
is
not
possible."
'3
5
As
Papachristou
demonstrated,
the
void-for-vagueness
doctrine
has
constitutional
force,
36
as
does
the
principle
of
legality.
37
This
force
varies
considerably,
however,
depending
on
the
type
of
person
likely
to
be
harassed
and
the
type
of
conduct
likely
to
be
intimidated.
A
vague
statute
that
invites,
or
at
least
is
challenged
in
a
context
suggesting,
racially
discriminatory
29.
Id.
at
89.
On
the
necessary
secrecy
of
police
and
prosecutorial
activities,
see
id.
30.
Examples
include
a
subsequent
judicial
determination
of
probable
cause
to
arrest,
Gerstein
v.
Pugh, 420
U.S.
103,
112-13
(1975);
the
requirement
of
a
grand
jury
indictment,
see
U.S.
CONST.
amend.
V;
and
the disallowance
of
prosecutions based
on
impermissible
prosecutorial
motives,
see
Blackledge
v.
Perry,
417
U.S.
21,
27 (1974).
31.
H.
PACKER,
supra
note
26,
at
90.
To illustrate
the
principle
of
legality
at
work,
Packer
noted
that
when
LSD
became
a
drug of
choice
in
the
mid-1960's,
law
enforcement
personnel
largely
delayed
policing the
drug's
use
until
specific
legislative
prohibitions
were
enacted.
Id.
32.
Packer
described
the
void-for-vagueness
doctrine
as
an
injunction
[to
the
legislature] to
take
care
in
the
framing
of
criminal
statutes
that
no
more
power
be
given
to
call
conduct
into
question
as
criminal,
with
all
the
destruction
of
human
autonomy
that
this
power
necessarily
imports, than
is
reasonably
needed
to deal
with the
conduct
the
lawmakers
seek to
prevent.
Id.
at
94-95.
33.
405
U.S.
156
(1972).
34.
The
four
were
charged
with
"vagrancy-'prowling
by
auto.'
"
405
U.S.
at
158.
Other
defendants,
whose
cases
were
consolidated
in
Papachristou,
were
charged
as
"vagabond[sl,"
as
"common
thielves],"
or
for
"loitering." Id.
35.
405
U.S.
at
171.
36.
The
due
process
clauses
of
the
fifth
and
fourteenth
amendments
provide
the
constitutional
basis
for
the
vagueness
doctrine.
37.
The
cx
post
facto
clause,
U.S.
CONST.
art.
I,
§
9,
cl.
3,
prohibits
not
only
retroactive
criminal
statutes,
but
also
(with
the
aid
of
the
due
process
clause,
see
supra
note
36)
unforeseeable
judicial
enlargements
of
existing
statutes.
See
Bouie
v.
City
of
Columbia,
378
U.S.
347,
352-53
(1964).
STRICT
CONSTRUCTION