Massachusetts (its bullets originated in Brazil).
Notable for our analytical purposes here, the Government
introduced no evidence at all regarding how the gun got into the
Subaru. There was also no evidence regarding the origin or
destination of Coward's drive that night. As noted, Coward was
alone in the car. There was, therefore, no evidence suggesting
any commercial or transactional aspect to Coward's possession of
the gun that night, nor any evidence of his intention, say, to
drive to an interstate highway such as the nearby Schuylkill or
Vine Street Expressways (I-76 and I-676, respectively).
In view of the absence of any commercial or transactional
aspect of the case, or regarding any other present interstate
dimension to the evidence, Coward, after the Government rested,
moved for a judgment of acquittal on the bald possession charge.
Although recognizing the gravity of Coward's claim, after
examining the issues overnight, and discussing them at length at
the charge conference the next morning, we denied the defendant's
motion without prejudice to its renewal should the jury find
Coward guilty. As it turned out, late on the afternoon of March
8, 2001, the jury did just that, and after we discharged the
jury, Coward renewed his motion pursuant to Fed.R.Crim.P. 29(c).
We afforded the parties the opportunity to submit detailed briefs
on this subject, which they have done.*fn1
In order to decide Coward's Rule 29 motion, we will first
briefly consider the language of the oddly phrased and punctuated
statute that has become such a commonplace in this district as a
result of the Government's highly-publicized Operation Ceasefire.
We then examine the jurisprudence under § 922(g)(1)'s statutory
predecessor, chiefly embodied in the Bass and Scarborough
cases, that has served as the legal predicate for applying the
legal fiction of using past interstate transport of a weapon to
federalize its present possession. We then outline the historical
use of legal fictions, and analyze post-Lopez Supreme Court
cases to determine the vitality of continued application of the
interstate transport legal fiction to possession cases like
Coward's. We conclude that the Supreme Court's recent decisions
in Morrison and Jones strongly suggest that this legal
fiction no longer deserves any vitality, awaiting only the right
case for terminal dispatch.
As will be seen, we believe Coward presents that case.
A. The Statute
The statute under which Coward was indicted and convicted
provides, in relevant part:
(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
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.
18 U.S.C. § 922(g)(1). As noted earlier, the specific part of
this statute which proved to be the offense of conviction charged
that Coward on September 23, 1998 "knowingly possessed in and
affecting commerce" the Smith & Wesson semi-automatic weapon and
ammunition in it.
Reading the statute, it is apparent that it creates three
crimes for convicted felons: (1) "to ship or transport in
interstate or foreign commerce . . . any firearm or ammunition";
(2) "to . . . possess in or affecting commerce, any firearm or
ammunition"; and (3) "or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign
commerce." It will be immediately observed that the crimes of (1)
shipping or transporting, and (3) receiving any firearm or
ammunition "in interstate or foreign commerce" is a crime. Oddly,
Congress did not use the locution "in interstate or foreign
commerce", when it came to criminalize possession, but merely
referred to "in or affecting commerce".
The ordinary dictionary definition of the verb possess is
"[t]o hold as property; to have belonging to one, as wealth or
material objects". XII The Oxford English Dictionary 171, def.
2.a (2d ed. 1989). As the OED itself notes, the law uses this
verb "as distinct from ownership", id. at def. 2.b.
With respect to the word commerce, it would seem rather clear
that it is implied
after "in" as it is explicitly used after "affecting". This
reading stems from the well-established difference between "in
commerce" and "affecting commerce". The term "in commerce" is
limited to denote "only persons or activities within the flow of
interstate commerce — the practical, economic continuity in the
generation of goods and services for interstate markets and their
transport and distribution to the consumer." Gulf Oil Corp. v.
Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 398, 42
L.Ed.2d 378 (1974) (construing Clayton Act § 7). As Jones v.
United States, supra, noted, there is a "recognized distinction
between legislation limited to activities `in commerce' and
legislation invoking Congress' full power over activity
substantially `affecting . . . commerce.'" 120 S.Ct. at 1911.
That is to say, "affecting commerce" invokes Congress's power
under the Commerce Clause, "Commerce with foreign Nations, and
among the several States, and with the Indian Tribes", Art. I, §
8, cl. 3, and thus the locution "affecting commerce" means that
"Congress intended to and did vest . . . the fullest
jurisdictional breadth constitutionally permissible under the
Commerce Clause." NLRB v. Reliance Fuel Oil Corp.,
371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963) (citations
omitted). See also Russell v. United States, 471 U.S. 858, 859,
105 S.Ct. 2455, 2456, 85 L.Ed.2d 829 (1985) ("affecting
interstate or foreign commerce" in 18 U.S.C. § 844(i) "expresses
an intent by Congress to exercise its full power under the
As a matter of understanding the English language, how can the
act of merely holding property ever be "in" or "affecting" such
"commerce"? It would be a fair use of the verb possess in such
a sense if the possession were part of some transactional or
commercial use — for example, holding a gun while inspecting it
during a contemplated purchase — and one could imagine such a use
distinct from the shipping or transporting or receiving that the
statute otherwise criminalizes. But if a gun is held by one
alone, say, in a dwelling or in a stopped car or under a bed, can
it fairly be understood to involve any "commerce" at all? Absent
some transactional or commercial context, it seems paradoxical at
best that the static condition of holding property can affect
"commerce" or be "in" it.
Our task of parsing through this paradox within this statute is
not made any easier by reference to its punctuation. After the
disjunctive "or", the statute offers as a complete crime the
words, "possess in or affecting commerce, any firearm or
ammunition". The statute then closes those words not with a
comma, but with a semicolon. The use of the semicolon, rather
than a comma, suggests the end of a clause or a completed
thought, rather than a pause in an enumeration of related ideas.
See, e.g., Wm. Strunk Jr. and E.B. White, The Elements of
Style 5-6 (3d ed. 1979) ("clauses grammatically complete" joined
by semicolons, not commas); H.W. Fowler, A Dictionary of Modern
English Usage 587-89 (2d ed. 1965) (contrasting commas and
semicolons). But it is very difficult to discern how this
punctuation helps our understanding of "possess" or of the
differences among the three crimes § 922(g)(1) imposes on
convicted felons with differing word formulae.
B. Judicial Construction of Gun Possession Statutes
At the time the Supreme Court established what remains the
governing jurisprudence on federalization of gun possession, the
statute, then codified at 18 U.S.C.
§ 1202(a)*fn2, was phrased differently.*fn3 As then-Chief Judge
Sloviter has noted, this "predecessor statute to § 922(g)(1) .
. . made any felon `who receives, possesses, or transports in
commerce or affecting commerce . . . any firearm' guilty of a
federal offense." See United States v. Gateward, 84 F.3d 670,
671 (3d Cir. 1996). The use of commas implied an enumeration of
related ideas, all modified by the same words, "in commerce or
affecting commerce". And this is precisely how the Supreme Court
construed the three offenses when it interpreted this predecessor
United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d
488 (1971) construed the former 18 U.S.C. § 1202(a) against a
Government contention that the statute "banned all possessions
and receipts of firearms by convicted felons, and that no
connection with interstate commerce had to be demonstrated in
individual cases." Id. at 338, 92 S.Ct. at 517. In rejecting
the Government's expansive reading, the Court held that "the
commerce requirement in § 1202(a) must be read as part of the
`possesses' and `receives' offenses" and that "[a]bsent a clearer
statement of intention from Congress than is present here, we do
not interpret § 1202(a) to reach the `mere possession' of
firearms" because "[a]bsent proof of some interstate commerce
nexus in each case, § 1202(a) dramatically intrudes upon
traditional state criminal jurisdiction." Id. at 350, 92 S.Ct.
Six years later, the Court construed Bass in Scarborough v.
United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582
(1977). After reviewing § 1202(a)'s legislative history, the
Court, purely as a matter of statutory construction, held that in
order to convict a felon under the statute, the Government only
had to prove that "the firearm possessed by the convicted felon
traveled at some time in interstate commerce." 431 U.S. at 568,
97 S.Ct. at 1966.
Scarborough may fairly be read to establish the legal fiction
that has prevailed in these cases since it was announced. This is
so even under the present § 922(g)(1). See Gateward, supra.
Simply phrased, Scarborough's legal fiction is that the
transport of a weapon in interstate commerce, however remote in
the distant past, gives its present intrastate possession
sufficient interstate aspect to fall within the ambit of the
statute. This fiction is indelible and lasts as long as the gun
can shoot. Thus, a felon who has always kept his father's World
War II trophy Luger in his bedroom has the weapon "in" commerce.
The question now is whether this legal fiction can survive as a
statutory construct in the shadow of the edifice the Supreme
Court has built upon Lopez's foundation. Before considering the
dimensions of this structure, we briefly
pause to review the traditional understanding of fictions in our
C. Legal Fictions in Anglo-American Experience
Though it is a large subject, there are, historically speaking,
a few noncontroversial aspects of legal fictions that are
pertinent to our current inquiry.
As Professor Lon Fuller long ago observed, "a fiction is
distinguished from a lie by the fact that it is not intended to
deceive." Lon L. Fuller, "Legal Fictions", 25 Ill.L.Rev. 323, 367
(1930). Professor Fuller summarized the meaning of a fiction as
"either, (1) a statement propounded with a complete or partial
consciousness of its falsity, or (2) a false statement recognized
as having utility." Id. at 369.
John Chipman Gray recorded that fictions go back as far as the
time of Roman law, and came to play an important part in the
administration of law in England. Interestingly, and rather to
the point of Coward's case, Gray characterized fictions in
England as having a "bolder" and "more brutal" aspect as compared
with their Roman antecedents, in that "[i]n England the plaintiff
alleged a fact which was false, and the courts did not allow the
defendant to contradict it." John Chipman Gray, Nature and
Sources of the Law 32 (2d ed. 1921). Gray later cited an example
that is relevant to the Scarborough fiction:
The most grotesque of these fictions was that by
which, for the purpose of giving a remedy in England
for a wrong done in the Mediterranean, it was alleged
that the Island of Minorca was at London, in the
parish of St. Mary Le Bow in the Ward of Cheap. . . .
Id. at 34.