author: Justice Thomas

text:
    CASS COUNTY, MINNESOTA, et al. v. LEECH LAKE BAND OF CHIPPEWA INDIANS
    No. 97-174.
    Argued February 24, 1998
    Decided June 8, 1998

      Thomas, J,, delivered the opinion for a unanimous Court.

      Earl E. Maus argued the cause for petitioners. With him on the briefs were Mark B. Levinger and James W. Neher, Assistant Attorneys General of Minnesota.

      James M.' Schoessler argued the cause for respondent. With him on the brief were Steven G. Thorne and Joseph F. Halloran.

      Barbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, and James C. Kilbourne

      Briefs of amid curiae urging reversal were filed for the State of Michigan et al. by Frank J. Kelley, Attorney General of Michigan, Thomas L. Casey, Solicitor General, and R. John Wemet, Jr., Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Daniel E. Lnngren of California, Gale A Norton of Colorado, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Joseph P. Mazurek of Montana, Dennis C. Vacco of New York, W. A Drew Edmond-son of Oklahoma, and Jan Graham of Utah; for Lewis County, Idaho, et al. by Tom D. Tobin, James M. Johnson, Kimron Torgerson, Michael Jesse, and Herbert Wm. Gillespie; and for the National Association of Counties et al. by Richard Rada and Carter G. Phillips.

      urging affirmance were filed for the Confederated Tribes and Bands of the Yakama Indian Nation by Tim Weaver; for the Grand Portage Band of Chippewa et al. by Vanya S. Hogen-Kind; for the Hoopa Valley Tribe et al. by Michael J. Wahoske; for the Lummi Indian Tribe by Harry L. Johnsen III and Judith K. Bush; for the Saginaw Chippewa Indian Tribe of Michigan by Frank R. Jomiak and K Allison

        McGaw; and for the National Congress of American Indians Labin and Kim Jerome Gottschalk.

      Briefs of amid curiae were by Douglas Y. Freeman; for the Oneida Indian Nation of New York by William W. Taylor III and Michael B. Smith; and for the Tribes of Forest County Potawatomi Community et al. by Carol Brown Biermeier.

   Justice Thomas

delivered the opinion of the Court.

We granted certiorari in this case to resolve whether state and local governments may tax reservation land that was made alienable by Congress and sold to. non-Indians by the Federal Government, but was later repurchased by a tribe. We hold that ad valorem taxes may be imposed upon such land because, under the test established by our precedents, Congress has made “unmistakably clear” its intent to allow such taxation.

I

The Leech Lake Band of Chippewa Indians is a federally recognized Indian tribe. The Leech Lake Reservation, which today encompasses 588,684 acres within the northern Minnesota counties of Cass, Itasca, and Beltrami, was established by federal treaty in 1855 and was augmented by subsequent treaties and Executive Orders.

During the late 19th century, changed its policy of setting aside reservation lands exclusively for Indian tribes under federal supervision. The new “allotment” policy removed significant portions of reservation land from tribal ownership and federal protection, allotting some parcels to individual Indians and providing for other parcels to be sold to non-Indians. See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 253-254 (1992); F. Cohen, Handbook of Federal Indian Law 127-138 (1982). The purpose of the policy was to assimilate Indians into American society and to open reservation lands to ownership by non-Indians. Id., at 128.

Most of the allotments were implemented pursuant to the General Allotment Act of 1887 (GAA), 24 Stat. 388, as amended, 25 U. S. G. § 331 et seq. Section 5 of the GAA provided that parcels of tribal land would be patented to individual Indians and held in trust by the United States for a 25-year period, after which the Federal Government would convey title to the individual allottees—

“in fee, discharged of said trust and free of all charge or incumbrance whatsoever .... And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, sueh conveyance or contract shall be absolutely null and void....” 25U.S.C. §348.

Section 6 of the GAA, as originally enacted in 1887, provided that “each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” 24 Stat. 388. In 1905, this Court interpreted §6 to mean that Indian allottees were subject to plenary state jurisdiction immediately upon issuance of the trust patent. See In re Heff, 197 U. S. 488.

The following year, Congress reversed the result of In re Hejf by passing the Burke Act, 34 Stat. 182,25 U. S. C. § 349, which amended § 6 of the GAA to provide that state jurisdiction did not attach until the end of the 25-year trust period, when the lands were conveyed to the Indians in fee. The Burke Act also contained a proviso to the effect that the Secretary of the Interior could, if “satisfied that any Indian allottee is competent and capable of managing his or her affairs,” authorize issuance of a fee simple patent to the land before the end of the usual trust period, “and thereafter all restrictions as to sale, ineumbranee, or taxation of said land shall be removed ....” Ibid.

For the Leech Lake Band and other Chippewa Tribes in Minnesota, the allotment policy was implemented through the Nelson Act of 1889, 25 Stat. 642. The Nelson Act provided for the “complete cession and relinquishment” of tribal title to all reservation land in the State of Minnesota, except for parts of two reservations, to the United States. After such “complete cession and relinquishment,” which “operate[d] as a complete extinguishment of Indian title,” the lands were to be disposed of in one of three ways: under § 3, the United States would allot parcels to individual tribe members as provided in the GAA; under §§4 and 5, so-called “pine lands” (surveyed 40-acre lots with standing or growing pine timber) were to be sold by the United States at public auction to the highest bidder; and under § 6, the remainder of the reservation land (called “agricultural lands”) was to be sold by the United States to non-Indian settlers under the provisions of the Homestead Act of 1862,12 Stat. 392.

In 1934, federal Indian policy Congress enacted the Indian Reorganization Act, 48 Stat. 984,25 U. S. C. §461 et seq., which ended the practice of making federal allotments to individual Indians. Although the Reorganization Act did not repeal allotment statutes such as the Nelson Act, it extended the trust period for lands already allotted but not yet fee patented, provided that unallotted surplus lands would be restored to tribal ownership, and allowed additional lands “within or without existing reservations” to be acquired by the Federal Government for the tribes. See §§461, 462, 463, 465.

In 1977, the Leech Lake Band members owned only about 27,000 acres — less than five percent— of Leech Lake Reservation land. See State v. Forge, 262 N. W. 2d 341, 343, and n. 1 (Minn. 1977). Since then, the Leech Lake Band has sought to reestablish its land base by purchasing back parcels of reservation land that were allotted to individual Indians or sold to non-Indians during the allotment period.

In 1992, we held in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, supra, that a county could assess ad valorem taxes on reservation land owned in fee by individual Indians or the tribe and originally made alienable when patented in fee simple under the GAA.

In 1998, Cass County began assessing ad valorem taxes on 21 parcels of reservation land that had been alienated from tribal control under the various provisions of the Nelson Act and later reacquired by the Leech Lake Band. Thirteen of the parcels had been allotted to individual Indians under §3; seven had been sold to non-Indians as pine lands under §§4 and 5 for commercial timber harvest; and one parcel had been distributed to a non-Indian under §6 as a homestead plot. Under protest and to avoid foreclosure, the Leech Lake Band paid more than $64,000 in taxes, interest, and penalties.

In 1995, the Band filed suit in federal court seeking a declaratory judgment that Cass County could not tax the 21 parcels. The District Court granted summary judgment in favor of Cass County, holding that all of the land that had been alienated from tribal ownership under the Nelson Act was taxable. 908 F. Supp. 689 (Minn. 1995). The District Court interpreted our decision in Yakima to mean that “if Congress has made Indian land freely alienable, states may tax the land” — that is, “alienability equals taxability.” 908 F. Supp., at 693.

A divided panel of the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. 108 F. 3d 820 (1997). Noting that Yakima reaffirmed prior statements by this Court indicating that Congress must make “unmistakably clear” its intent to subject reservation lands to state or local taxation, 108 F. 3d, at 826, the panel majority held that the 13 parcels allotted to individual Indians under § 3 of the Nelson Act could he taxed so long as the District Court confirmed on remand that they had been patented after passage of the Burke Act proviso, because the explicit mention of “taxation” in the proviso manifested the necessary “unmistakably clear” intent. Id., at 827,829-830. But the panel majority further held that the eight parcels sold as pine lands or homestead land under §§4-6 of the Nelson Act could not be taxed because those sections, “unlike §3, did not incorporate the GAA or include any mention of an intent to tax lands distributed under them which might become reacquired by the Band in fee.” Id., at 829.

Judge Magill concurred with the majority on the taxability of the 13 allotted parcels, but he dissented from the holding that the remaining 8 parcels were not also taxable. In his view, Yakima propounded “the clear rule... that alienability allows taxation.” 108 F. 3d, at 831.

We granted certiorari, 522 U. S. 944 (1997), to decide whether Cass County may impose its ad valorem property tax on the seven parcels sold as pine lands and the one sold as a homestead to non-Indians.

II

State and local governments may not tax Indian reservation land “‘absent cession of jurisdiction or other federal statutes permitting it.’” County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S., at 258 (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973)). We have consistently declined to find that Congress has authorized such taxation unless it has “ ‘made its intention to do so unmistakably clear.Yakima, supra, at 258 (quoting Montana v. Blackfeet Tribe, 471 U. S. 759, 765 (1985)). We have determined that Congress has manifested such an intent when it has authorized reservation lands to be allotted in fee to individual Indians, thus making the lands freely alienable and withdrawing them from federal protection. This was the case in both Yakima and Goudy v. Meath, 203 U. S. 146 (1906), in which this Court held that land, allotted and patented in fee to individual Indians and thus rendered freely alienable after the expiration of federal trust status, was subject to county ad valorem taxes even though it was within a reservation and held by either individual Indians or a tribe.

In Goudy, Congress had made reservation land alienable by authorizing the President to issue patents to individual members of the Puyallup Tribe. The President issued such a patent to the plaintiff shortly before Washington became a State. The treaty of March 16, 1854, between the United States and the Puyallup Tribe, 10 Stat. 1043, provided that such fee-patented land “shall be exempt from levy, sale, or forfeiture” until a state constitution was adopted and the state legislature removed the restrictions with Congress’ consent. When Washington became a State, its legislature passed a law authorizing the sale of reservation lands; shortly thereafter, Congress authorized the appointment of a commission with the power to superintend the sale of those lands, with the proviso that “the Indian allottees shall not have power of alienation of the allotted lands not selected for sale by said Commission for a period of ten years from the date of the passage of this act.” 27 Stat. 633 (1893).

When the 10-year period expired, the county levied an ad valorem tax on the land. This Court held that the tax was permissible because the land was freely alienable. Goudy v. Meath, 203 U. S., at 149-150. Although the Indian patent owner argued that there had been no express repeal of the exemption provided by the 1854 treaty, this Court stated that such an express repeal was unnecessary:

“That Congress may grant the power of voluntary sale, while withholding the land from taxation or forced alienation may be conceded. . . . But while Congress may make such provision, its intent to do so should be clearly manifested.” Id, at 149.

The Goudy Court concluded that it would “seem strange [for Congress] to withdraw [federal] protection and permit the Indian to dispose of his lands as he pleases, while at the same time releasing [the lands] from taxation.” Ibid. Indeed, because such congressional purpose would be unreasonable, Congress would have to “clearly manifest” sueh a contrary purpose in order to counteract the consequence of taxability that ordinarily flows from alienability. Ibid.

In Yakima, we considered whether the GAA manifested an unmistakably clear intent to allow state and local taxation of reservation lands allotted under the GAA and owned in fee by either the Yakima Indian Nation or individual Indians. In holding that the lands could be taxed, we noted that the Burke Act proviso clearly manifested such an intent by expressly addressing the taxability of fee-patented land. 502 U. S., at 259. We also indicated that the alienability of allotted lands itself, as provided by § 5 of the GAA, similarly manifested an unmistakably clear intent to allow taxation. We reasoned that Goudy, “without even mentioning the Burke Act proviso,” 502 U. S., at 259, had held that state tax laws applied to the Indian allottee at the expiration of the trust period: “[I]t was the alienability of the allotted lands . . . that the [Goudy]' Court found of central significance.” Id., at 26B (emphasis deleted). And we reiterated Goudy's point that, although it is possible for Congress to render reservation land alienable and still forbid States to tax it, this unlikely arrangement would not be presumed unless Congress “elearly manifested” such an intent. 502 U. S., at 263 (internal quotation marks and citation omitted).

The Court of Appeals thus erred in concluding that our holding in Yakima turned on the Burke Act proviso’s express reference to taxability. Yakima, like Goudy, stands for the proposition that when Congress makes reservation lands freely alienable, it is “unmistakably clear” that Congress intends that land to be taxable by state and local governments, unless a contrary intent is “clearly manifested.” 502 U. S., at 263.

The foregoing principle controls the disposition of this case. In §§ 5 and 6 of the Nelson Act, Congress provided for the public sale of pine lands and agricultural “homestead” lands by the Federal Government to non-Indians. Congress thereby removed that reservation land from federal protection and made it fully alienable. Under Goudy and Yakima, therefore, it is taxable. Indeed, this conclusion flows a forti-ori from Goudy and Yakima: Those cases establish that Congress clearly intended reservation lands conveyed in fee to Indians to be subject to taxation; hence Congress surely intended reservation lands conveyed in fee to non-Indians also to be taxable. The Court of Appeals’ contrary holding attributes to Congress the odd intent that parcels conveyed to Indians are to assume taxable status, while parcels sold to the general public are to remain tax exempt.

The Band essentially argues that, although its tax immunity lay dormant during the period when the eight parcels were held by non-Indians, its reaequisition of the lands in fee rendered them nontaxable once again. We reject this contention. As explained, once Congress has demonstrated (as it has here) a clear intent to subject the land to taxation by making it alienable, Congress must make an unmistakably clear statement in order to render it nontaxable. See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S., at 263 (citing Goudy v. Meath, supra, at 149). The subsequent repurchase of reservation land by a tribe does not manifest any congressional intent to reassume federal protection of that land and to oust state taxing authority — particularly when Congress explicitly relinquished such protection many years before.

Further, if we were to accept the Leech Lake Band’s argument, it would render partially superfluous §465 of the Indian Reorganization Act. That section grants the Secretary of the Interior authority to place land in trust, to be held by the Federal Government for the benefit of the Indians and to be exempt from state and local taxation after assuming sueh status:

“The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assignment, and interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians....
“Title to any lands ... shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands ... shall be exempt from State and local taxation.” 25 U.S. C. §465.

In §465, therefore, Congress has explicitly set forth a procedure by which lands held by Indian tribes may become tax exempt. It would render this procedure unnecessary, as far as exemption from taxation is concerned, if we held that tax-exempt status automatically attaches when a tribe acquires reservation land. The Leech Lake Band apparently realizes this, because in 1995 it successfully applied to the Secretary of the Interior under §465 to restore federal trust status to seven of the eight parcels at issue here. See Complaint ¶ 18 and Affidavit of Joseph F. Halloran in support of Plaintiff’s Motion for Summary Judgment, in Civ. No. 5-95-99, ¶ Y (DC Minn.); Tr. of Oral Arg. 9.

* * *

When Congress makes Indian reservation land' freely alienable, it manifests an unmistakably clear intent to render such land subject to state and local taxation. The repurchase of such land by an Indian tribe does not cause the land to reassume tax-exempt status. The eight parcels at issue here were therefore taxable unless and until they were restored to federal trust protection under §465. The judgment of the Court of Appeals with respect to those lands is reversed.

It is so ordered.

       Also in 1995, the Band successfully applied, pursuant to §465 of the Indian Reorganization Act, 25 U. S. C. §465, to restore 11 of the parcels to federal trust status. See infra, at 114-115; App. to Pet. for Cert. 56; Tr. of Oral Arg. 9.

       We denied the cross-petition for a writ of certiorari filed by the Band, which sought review of the holding by the courts below that the 13 parcels allotted to Indians under §3 of the Nelson Act are taxable.

       We are concerned here only with Yakima’s holding with respect to ad valorem taxes such as those at issue in this ease. Yakima also held that the GAA did not authorize the county to impose an excise tax on the sale of land held by individual Indians or by the tribe, because such a tax did not constitute the “taxation of land.” See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 268-269 (1992). That holding, however, is not relevant to this ease, which involves only an ad valorem tax on land itself, rather than an excise tax on a transaction.

       The Burke Act proviso, as noted, see supra, at 107, did not itself authorize taxation of fee-patented land; it merely altered the result of In re Heff, 197 U. S. 488 (1905), as to when parcels allotted to the Indians could be alienated and. taxed. In re Heff load held this occurred as soon as allotted lands were patented to the Indians in trust (during which the land would still be under the protection of the Federal Government); the Burke Act proviso stated that this did not occur until the lands were patented in fee.

       The Leech Lake Band and the United States, as amicus, also argue that the parcels at issue here are not alienable — and therefore not taxable — under the terms of the Indian Nonintercourse Act, which provides: “No purchase, grant, lease, or other conveyance of lands . . . from any Indian nation or tribe ... shall be of any validity in law or equity, unless the same be made by treaty .or convention entered into pursuant to the Constitution.” 25 U. S. C. § 177.
      This Court has never determined whether the Indian Nonintereourse Act, which was enacted in 1834, applies to land that has been rendered alienable by Congress and later reacquired by an Indian tribe. Because the parcels at issue here are not alienable — and therefore not taxable— under the terms of the Indian Nonintercourse Act, which provides: “No taxation if it remains freely alienable”, and because it was not addressed by the Court of Appeals, we decline to consider it for the first time in this Court. See, e. g., Matsushita Elec. Indus. Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996) (declining to address issue both because it was “outside the scope of the question presented in this Court” and because “we generally do not address arguments that were not the basis for the decision below”).


source: Caselaw Access Project

license: Public Domain

text:
    DOOLEY, personal representative of the ESTATE OF CHUAPOCO, et al. v. KOREAN AIR LINES CO., LTD.
    No. 97-704.
    Argued April 27, 1998
    Decided June 8, 1998

      Thomas, J., delivered the opinion for a unanimous Court.

      Juanita M. Mandóle argued the cause and filed briefs for petitioners.

      Andrew J. Harakas argued the cause for respondent. With him on the brief was George N. Tompkins, Jr.

      Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, David C. Frederick, Barbara B. O’Malley, and Bruce G. Forrest

   Justice Thomas

delivered the opinion of the Court.

In a case of death on the high seas, the Death on the High Seas Act, 46 U. S. C. App. § 761 et seq., allows certain relatives of the decedent to sue for their pecuniary losses, but does not authorize recovery for the decedent’s pre-death pain and suffering. This ease presents the question whether those relatives may nevertheless recover such damages through a survival action under general maritime law. We hold that they may not.

I

On September 1, 1983, Korean Air Lines Flight KE007, en route from Anchorage, Alaska, to Seoul, South Korea, strayed into the airspace of the former Soviet Union and was shot down over the Sea of Japan. All 269 people on board were killed.

Petitioners, the personal representatives of three of the passengers, brought lawsuits against respondent Korean Air Lines Co., Ltd. (KAL), in the United States District Court for the District of Columbia. These cases were consolidated in that court, along with the other federal actions arising out of the crash. After trial, a jury found that KAL had committed “willful misconduct,” thus removing the Warsaw Convention’s $75,000 cap on damages, and in a subsequent verdict awarded $50 million in punitive damages. The Court of Appeals for the District of Columbia Circuit upheld the finding of willful misconduct, but vacated the punitive damages award on the ground that the Warsaw Convention does not permit the recovery of punitive damages. In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F. 2d 1475, cert. denied, 502 U. S. 994 (1991).

The Judicial Panel on Multidistrict Litigation thereafter remanded, for damages trials, all of the individual cases to the District Courts in which they had been filed. In petitioners’ cases, KAL moved for a pretrial determination that the Death on the High Seas Act (DOHSA or Act), 46 U. S. C. App. § 761 et seq., provides the exclusive source of recoverable damages. DOHSA provides, in relevant part:

“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative . . . .” §761.
“The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought....” §762.

KAL argued that, in a case of death on the high seas, DOHSA provides the exclusive cause of action and does not permit damages for loss of society, survivors’ grief, and decedents’ pre-death pain and suffering. The District Court for the District of Columbia disagreed, holding that because petitioners’ claims were brought pursuant to the Warsaw Convention, DOHSA could not limit the recoverable damages. The court determined that Article 17 of the Warsaw Convention “allows for the recovery of all ‘damages sustained,’ ” meaning any “actual harm” that any party “experienced” as a result of the crash. App. 59.

While petitioners’ cases were awaiting damages trials, we reached a different conclusion in Zicherman v. Korean Air Lines Co., 516 U. S. 217 (1996), another case arising out of the downing of Plight KE007. In Zicherman, we held that the Warsaw Convention “permit[s] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum’s choice-of-law rules,” and that where “an airplane crash occurs on the high seas, DOHSA supplies the substantive United States law.” Id., at 231. Accordingly, the petitioners could not recover damages for loss of society: “[W]here DOHSA applies, neither state law, see Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232-233 (1986), nor general maritime law, see Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 626-626 (1978), can provide a basis for recovery of loss-of-soeiety damages.” Id., at 230. We did not decide, however, whether the petitioners in Zicherman could recover for them decedents’ pre-death pain and suffering, as KAL had not raised this issue in its petition for certiorari. See id., at 230, n. 4.

After the Zicherman decision, KAL again moved to dismiss all of petitioners’ claims for nonpecuniary damages. The District Court granted this motion, holding that United States law (not South Korean law) governed these cases; that DOHSA provides the applicable United States law; and that DOHSA does not permit the recovery of nonpecuniary damages — including petitioners’ claims for their decedents’ pre-death pain and suffering. In re Korean Air Lines Disaster of Sept. 1, 1983, 935 F. Supp. 10, 12-15 (1996).

On appeal, petitioners argued that, although DOHSA does not itself permit recovery for a decedent’s pre-death pain and suffering, general maritime law provides a survival action that allows a decedent’s estate to recover for injuries (including pre-death pain and suffering) suffered by the decedent. The Court of Appeals rejected this argument and affirmed. In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F. 3d 1477 (CADC 1997). Assuming, arguendo, that there is a survival cause of action under general maritime law, the court held that such an action is unavailable when the death is on the high seas:

“For deaths on the high seas, Congress decided who may sue and for what. Judge-made general maritime law may not override such congressional judgments, however ancient those judgments may happen to be. Congress made the law and it is up to Congress to change it.” Id., at 1481.

We granted certiorari, 522 U. S. 1038 (1998), to resolve a Circuit split concerning the availability of a general maritime survival action in cases of death on the high seas. Compare, e. g., In re Korean Air Lines Disaster, 117 F. 3d, at 1481, with Gray v. Lockheed Aeronautical Systems Co., 125 F. 3d 1371, 1385 (CA11 1997).

II

Before Congress enacted DOHSA in 1920, the general law of admiralty permitted a person injured by tortious conduct to sue for damages, but did not permit an action to be brought when the person was killed by that conduct. See generally R. Hughes, Handbook of Admiralty Law 222-223 (2d ed. 1920). This rule stemmed from the theory that a right of action was personal to the victim and thus expired when the victim died. Accordingly, in the absence of an Act of Congress or state statute providing a right of action, a suit in admiralty could not be maintained in the courts of the United States to recover damages for a person’s death. See The Harrisburg, 119 U. S. 199, 213 (1886); The Alaska, 130 U. S. 201, 209 (1889).

Congress passed such a statute, and thus authorized recovery for deaths on the high seas, with its enactment of DOHSA. DOHSA provides a cause of action for “the death of a person . . . caused by wrongful act, neglect, or default occurring on the high seas,” §761; this action must be brought by the decedent’s personal representative “for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative,” ibid. The Act limits recovery-in such a suit to "a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is sought.” § 762. DOHSA also includes a limited survival provision: In situations in which a person injured on the high seas sues for his injuries and then dies prior to completion of the suit, “the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762.” § 765. Other sections establish a limitations period, § 763a, govern actions under foreign law, §764, bar contributory negligence as a complete defense, § 766, exempt the Great Lakes, navigable waters in the Panama Canal Zone, and state territorial waters from the Act’s coverage, § 767, and preserve certain state-law remedies and state-court jurisdiction, ibid. DOHSA does not authorize recovery for the decedent’s own losses, nor does it allow damages for nonpecuniary losses.

In Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 (1978), we considered whether, in a ease of death on the high seas, a decedent’s survivors could recover damages under general maritime law for their loss of society. We held that they could not, and thus limited to territorial waters those cases in which we had permitted loss of society damages under general maritime law. Id., at 622-624; see n. 1, supra. For deaths on the high seas, DOHSA “announces Congress’ considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages.” 436 U. S., at 625. We thus noted that while we could “fil[l] a gap left by Congress’ silence,” we were not free to “rewrit[e] rules that Congress has affirmatively and specifically enacted.” Ibid. Because “Congress ha[d] struck the balance for us” in DOHSA by limiting the available recovery to pecuniary losses suffered by surviving relatives, id., at 623, we had “no authority to substitute our views for those expressed by Congress,” id., at 626. Hig- gmbotham, however, involved only the scope of the remedies available in a wrongful-death action, and thus did not address the availability of other causes of action.

Conceding that DOHSA does not authorize recovery for a decedent’s pre-death pain and suffering, petitioners seek to recover such damages through a general maritime survival action. Petitioners argue that general maritime law recognizes a survival action, which permits a decedent’s estate to recover damages that the decedent would have been able to recover but for his death, including pre-death pain and suffering. And, they contend, because DOHSA is a wrongful-death statute — giving surviving relatives a cause of action for losses they suffered as a result of the decedent’s death — it has no bearing on the availability of a survival action.

We disagree. DOHSA expresses Congress’ judgment that there should be no such cause of action in cases of death on the high seas. By authorizing only certain surviving relatives to recover damages, and by limiting damages to the pecuniary losses sustained by those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas. Petitioners concede that their proposed survival action would necessarily expand the class of beneficiaries in cases of death on the high seas by permitting decedents’ estates (and their various beneficiaries) to recover compensation. They further concede that their cause of action would expand the recoverable damages for deaths on the high seas by permitting the recovery of nonpeeuniary losses, such as pre-death pain and suffering. Because Congress has already decided these issues, it has precluded the judiciary from enlarging either the class of beneficiaries or the recoverable damages. As we noted in Higginbotham, “Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpeeuni-ary supplements.” Id., at 625.

The comprehensive scope of DOHSA is confirmed by its survival provision, see swpm, at 122, which limits the recovery in such cases to the pecuniary losses suffered by surviving relatives. The Act thus expresses Congress’ “considered judgment,” Mobil Oil Corp. v. Higginbotham, supra, at 625, on the availability and contours of a survival action in cases of death on the high seas. For this reason, it cannot be contended that DOHSA has no bearing on survival actions; rather, Congress has simply chosen to adopt a more limited survival provision. Indeed, Congress did so in the same year that it incorporated into the Jones Aet, which permits seamen injured in the course of their employment to recover damages for their injuries, a survival action similar to the one petitioners seek here. See Act of June 5,1920, §33, 41 Stat. 1007 (incorporating survival action of the Federal Employers’ Liability Act, 45 U. S. C. § 59). Even in the exercise of our admiralty jurisdiction, we will not upset the balance struck by Congress by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt.

In sum, Congress has spoken on the availability of a survival action, the losses to be recovered, and the beneficiaries, in cases of death on the high seas. Because Congress has chosen not to authorize a survival action for a decedent’s pre-death pain and suffering, there can be no general maritime survival action for such damages. The judgment of the Court of Appeals is

Affirmed.

      We later rejected this rule in Moragne v. States Marine Lines, Inc., 398 U. S. 375, 408-409 (1970), by overruling The Harrisburg, 119 U. S. 199 (1886), and holding that a federal remedy for wrongful death exists under general maritime law. In Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 574 (1974), we further held that such wrongful-death awards could include compensation for loss of support and services and for loss of society.

       Accordingly, we need not decide whether general maritime law ever provides a survival action.


author: Justice Breyer Justice Ginsburg,

text:
    MUSCARELLO v. UNITED STATES
    No. 96-1654.
    Argued March 23, 1998 —
    Decided June 8, 1998

      Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, and Thomas, JJ., joined, Gjnsburg, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scaiaa and Souter, JJ., joined, post, p. 139.

      Robert B. Klonoff argued the cause for petitioner in No. 96-1654. With him on the briefs were Gregory A. Cos-tamos, Paul R. Reichert, and Ron S. Macaluso. Norman S. Zalkind, by appointment of the Court, 522 U. S. 1074, argued the cause for petitioners in No. 96-8887. With him on the briefs were Elizabeth A. Lunt, David Duncan, and John H. Cunha, Jr., by appointment of the Court, 522 U. S. 1074.

      James A. Feldman argued the cause for the United States in both cases. With him on the brief were So Heitor General Waxman, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben:

      Together with No. 96-8837, Cleveland et al. v. United States, on certio-rari to the United States Court of Appeals for the First Circuit.

        Daniel Kanstroom, David Porter, and Kyle O’Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.

   Justice Breyer

delivered the opinion of the Court.

A provision in the firearms chapter of the federal criminal code imposes a 5-year mandatory prison term upon a person who “uses or carries a firearm” “during and in relation to” a “drug trafficking crime.” 18 U. S. C. § 924(c)(1). The question before us is whether the phrase “carries a firearm” is limited to the carrying of firearms on the person. We hold that it is not so limited. Bather, it also applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies.

I

The question arises in two eases, which we have consolidated for argument. Petitioner in the first case, Frank J. Muscarello, unlawfully sold marijuana, which he carried in his truck to the place of sale. Police officers found a handgun locked in the truck’s glove compartment. During plea proceedings, Muscarello admitted that he had “carried” the gun “for protection in relation” to the drug offense, App. in No. 96-1654, p. 12, though he later claimed to the contrary, and added that, in any event, his “earrtying]” of the gun in the glove compartment did not fall within the scope of the statutory word “carries.” App. to Pet. for Cert, in No. 96-1654, p. 10a.

Petitioners in the second case, Donald Cleveland and Enrique Gray-Santana, placed several guns in a bag, put the bag in the trunk of a ear, and then traveled by ear to a proposed drug-sale point, where they intended to steal drugs from the sellers. Federal agents at the scene stopped them, searched the ears, found the guns and drugs, and arrested them.

In both eases the Courts of Appeals found that petitioners had “carrie[d]” the guns during and in relation to a drug trafficking offense. 106 F. 3d 636, 639 (CA5 1997); 106 F. 3d 1056, 1068 (CA1 1997). We granted certiorari to determine whether the fact that the guns were found in the locked glove compartment, or the trunk, of a ear precludes application of § 924(c)(1). We conclude that it does not.

I — i H-i

A

We begin with the statute’s language. The parties vigorously contest the ordinary English meaning of the phrase “carries a firearm.” Because they essentially agree that Congress intended the phrase to convey its ordinary, and not some special legal, meaning, and because they argue the linguistic point at length, we too have looked into the matter in more than usual depth. Although the word “carry” has many different meanings, only two are relevant here. When one uses the word in the first, or primary, meaning, one can, as a matter of ordinary English, “carry firearms” in a wagon, car, truck, or other vehicle that one accompanies. "When one uses the word in a different, rather special, way, to mean, for example, “bearing” or (in slang) “packing” (as in “packing a gun”), the matter is less clear. But, for reasons we shall set out below, we believe Congress intended to use the word in its primary sense and not in this latter, special way.

Consider first the word’s primary meaning. The Oxford English Dictionary gives as its first definition “convey, originally by cart or wagon, hence in any vehicle, by ship, on horseback, etc.” 2 Oxford English Dictionary 919 (2d ed. 1989); see also Webster’s Third New International Dictionary 343 (1986) (first definition: “move while supporting (as in a vehicle or in one’s hands or arms)”); Random House Dictionary of the English Language Unabridged 319 (2d ed. 1987) (first definition: “to take or support from one place to another; convey; transport”).

The origin of the word “carries” explains why the first, or basic, meaning of the word “carry” includes conveyance in a vehicle. See Barnhart Dictionary of Etymology 146 (1988) (tracing the word from Latin “carum,” which means “car” or “cart”); 2 Oxford English Dictionary, supra, at 919 (tracing the word from Old French “earier” and the late Latin “carn-eare,” which meant to “convey in a ear”); Oxford Dictionary of English Etymology 148 (C. Onions ed. 1966) (same); Barn-hart Dictionary of Etymology, supra, at 143 (explaining that the term “car” has been used to refer to the automobile since 1896).

The greatest of writers have used the word with this meaning. See, e. g., The King James Bible, 2 Kings 9:28 (“[H]is servants carried him in a chariot to Jerusalem”); id., Isaiah 30:6 (“[TJhey will carry their riches upon the shoulders of young asses”). Robinson Crusoe says, “[wjith my boat, I carry’d away every Thing.” D. Defoe, Robinson Crusoe 174 (J. Crowley ed. 1972). And the owners of Quee-queg’s ship, Melville writes, “had lent him a [wheelbarrow], in which to carry his heavy chest to his boarding-house.” H. Melville, Moby Dick 43 (U. Chicago 1952). This Court, too, has spoken of the “carrying” of drugs in a ear or in its “trunk.” California v. Acevedo, 500 U. S. 565, 572-573 (1991); Florida v. Jimeno, 500 U. S. 248, 249 (1991).

These examples do not speak directly about carrying guns. But there is nothing linguistically special about the fact that weapons, rather than drugs, are being carried. Robinson Crusoe might have carried a gun in his boat; Queequeg might have borrowed a wheelbarrow in which to carry not a chest but a harpoon. And, to make certain that there is no special ordinary English restriction (unmentioned in dictionaries) upon the use of “carry” in respect to guns, we have surveyed modern press usage, albeit crudely, by searching computerized newspaper data bases — both the New York Times data base in Lexis/Nexis, and the “US News” data base in West-law. We looked for sentences in which the words “carry,” “vehicle,” and “weapon” (or variations thereof) all appear. We found thousands of such sentences, and random sampling suggests that many, perhaps more than one-third, are sentences used to convey the meaning at issue here, i. e., the carrying of guns in a car.

The New York Times, for example, writes about “an ex-con” who “arrives home driving a stolen ear and carrying a load of handguns,” Mar. 21,1992, section 1, p. 18, col. 1, and an “official peace officer who carries a shotgun in his boat,” June 19, 1988, section 12WC, p. 2, col. 1; cf. The New York Times Manual of Style and Usage, a Desk Book of Guidelines for Writers and Editors, foreword (L. Jordan rev. ed. 1976) (restricting Times journalists and editors to the use of proper English). The Boston Globe refers to the arrest of a professional baseball player ‘Tor carrying a semiloaded automatic weapon in his ear.” Dee. 10, 1994, p. 75, col. 5. The Colorado Springs Gazette Telegraph speaks of one “Russell” who “carries a gun hidden in his car.” May 2, 1993, p. Bl, eol. 2. The Arkansas Gazette refers to a “house” that was “searched” in an effort to find “items that could be carried in a car, such as... guns.” Mar. 10,1991, p. Al, col. 2. The San Diego Union-Tribune asks, “What, do they carry guns aboard these boats now?” Feb. 18,1992, p. D2, col. 5.

Now consider a different, somewhat special meaning of the word “carry” — -a meaning upon which the linguistic arguments of petitioners and the dissent must rest. The Oxford English Dictionary’s twenty-sixth definition of “carry” is “bear, wear, hold up, or sustain, as one moves about; habitually to bear about with one.” 2 Oxford English Dictionary, at 921. Webster’s defines “carry” as “to move while supporting,” not just in a vehicle, but also “in one’s hands or arms.” Webster’s Third New International Dictionary, supra, at 343. And Black’s Law Dictionary defines the entire phrase “carry arms or weapons” as

“To wear, bear or carry them upon the person or in the clothing or in a pocket, for the purpose of use, or for the purpose of being armed and ready for offensive or defensive action in case of a conflict with another person.” Black’s Law Dictionary 214 (6th ed. 1990).

These special definitions, however, do not purport to limit the “carrying of arms” to the circumstances they describe. No one doubts that one who bears arms on his person “carries a weapon.” But to say that is not to deny that one may also “carry a weapon” tied to the saddle of a horse or plaeed in a bag in a car.

Nor is there any linguistic reason to think that Congress intended to limit the word “carries” in the statute to any of these special definitions. To the contrary, all these special definitions embody a form of an important, but secondary, meaning of “carry,” a meaning that suggests support rather than movement or transportation, as when, for example, a column “carries” the weight of an arch. 2 Oxford English Dictionary, at 919, 921. In this sense a gangster might “carry” a gun (in colloquial language, he might “pack a gun”) even though he does not move from his chair. It is difficult to believe, however, that Congress intended to limit the statutory word to this definition — imposing special punishment upon the comatose gangster while ignoring drug lords who drive to a sale carrying an arsenal of weapons in their van.

We recognize, as the dissent emphasizes, that the word “carry” has other meanings as well. But those other meanings (e. g., “carry all he knew,” “carries no colours”), see post, at 143-144, are not relevant here. And the fact that speakers often do not add to the phrase “carry a gun” the words “in a car” is of no greater relevance here than the fact that millions of Americans did not. see Musearello carry a gun in his truck. The relevant linguistic facts are that the word “carry” in its ordinary sense includes carrying in a ear and that the word, used in its ordinary sense, keeps the same meaning whether one carries a gun, a suitcase, or a banana.

Given the ordinary meaning of the word “carry,” it is not surprising to find that the Federal Courts of Appeals have unanimously concluded that “carry” is not limited to the carrying of weapons directly on the person but can include their carriage in a car. United States v. Toms, 136 F. 3d 176, 181 (CADC 1998); United States v. Foster, 133 F. 3d 704, 708 (CA9 1998); United States v. Eyer, 113 F. 3d 470, 476 (CA3 1997); 106 F. 3d, at 1066 (case below); 106 F. 3d, at 639 (case below); United States v. Malcuit, 104 F. 3d 880, 885, rehearing en banc granted, 116 F. 3d 163 (CA6 1997); United States v. Mitchell, 104 F. 3d 649, 653-654 (CA4 1997); United States v. Molina, 102 F. 3d 928, 932 (CA7 1996); United States v. Willis, 89 F. 3d 1371, 1379 (CA8 1996); United States v. Miller, 84 F. 3d 1244, 1259-1260 (1996), overruled on other grounds, United States v. Holland, 116 F. 3d 1353 (CA10 1997); United States v. Giraldo, 80 F. 3d 667, 676-677 (CA2 1996); United States v. Farris, 77 F. 3d 391, 395-396 (CA11 1996).

B

We now explore more deeply the purely legal question of whether Congress intended to use the word “carry” in its ordinary sense, or whether it intended to limit the scope of the phrase to instances in which a gun is carried “on the person.” We conclude that neither the statute's basic purpose nor its legislative history support circumscribing the scope of the word “carry” by applying an “on the person” limitation.

This Court has described the statute’s basic purpose broadly, as an effort to combat the “dangerous combination” of “drugs and guns.” Smith v. United States, 508 U. S. 223, 240 (1993). And the provision’s chief legislative sponsor has said that the provision seeks “to persuade the man who is tempted to commit a Federal felony to leave his gun at home.” 114 Cong. Rec. 22231 (1968) (Rep. Poff); see Busic v. United States, 446 U. S. 398, 405 (1980) (describing Poff’s comments as “crucial material” in interpreting the purpose of § 924(c)); Simpson v. United States, 435 U. S. 6, 13-14 (1978) (concluding that Poff’s comments are “clearly probative” and “certainly entitled to weight”); see also 114 Cong. Rec. 22243-22244 (statutes would apply to “the man who goes out taking a gun to commit a crime”) (Rep. Hunt); id., at 22244 (“Of course, what we are trying to do by these penalties is to persuade the criminal to leave his gun at home”) (Rep. Randall); id., at 22236 CWe are concerned . . . with having the criminal leave his gun at home”) (Rep. Meskill).

From the perspective of any such purpose (persuading a criminal “to leave his gun at home”), what sense would it make for this statute to penalize one who walks with a gun in a bag to the site of a drug sale, but to ignore a similar individual who, like defendant Gray-Santana, travels to a similar site with a similar gun in a similar bag, but instead of walking, drives there with the gun in his ear? How persuasive is a punishment that is without effect until a drug dealer who has brought his gun to a sale (indeed has it available for use) actually takes it from the trunk (or unlocks the glove compartment) of his car? It is difficult to say that, considered as a class, those who prepare, say, to sell drugs by placing guns in their cars are less dangerous, or less deserving of punishment, than those who carry handguns on their person.

We have found no significant indication elsewhere in the legislative history of any more narrowly focused relevant purpose. We have found an instance in which a legislator referred to the statute as applicable when an individual “has a firearm on his person,” ibid. (Rep. Meskill); an instance in which a legislator speaks of “a criminal who takes a gun in his hand,” id., at 22239 (Rep. Pucinski); and a reference in the Senate Report to a “gun carried in a pocket,” S. Rep. No. 98-225, p. 314, n. 10 (1983); see also 114 Cong. Rec. 21788, 21789 (1968) (references to gun “carrying” without more). But in these instances no one purports to define the scope of the term “carries”; and the examples of guns carried on the person are not used to illustrate the reach of the term “carries” but to illustrate, or to criticize, a different aspect of the statute.

Regardless, in other instances, legislators suggest that the word “carries” has a broader scope. One legislator indicates that the statute responds in part to the concerns of law enforcement personnel, who had urged that “carrying short firearms in motor vehicles be classified as carrying such weapons concealed.” Id., at 22242 (Rep. May). Another criticizes a version of the proposed statute by suggesting it might apply to drunken driving, and gives as an example a drunken driver who has a “gun in his ear.” Id., at 21792 (Rep. Yates). Others describe the statute as criminalizing gun “possession” — a term that could stretch beyond both the “use” of a gun and the carrying of a gun on the person. See id., at 21793 (Rep. Casey); id., at 22236 (Rep. Meskill); id., at 30584 (Rep. Collier); id., at 30585 (Rep. Skubitz).

C

We are not convinced by petitioners’ remaining arguments to the contrary. First, they say that our definition of “carry” makes it the equivalent of “transport.” Yet, Congress elsewhere in related statutes used the word “transport” deliberately to signify a different, and broader, statutory coverage. The immediately preceding statutory subsection, for example, imposes a different set of penalties on one who, with an intent to commit a crime, “ships, transports, or receives a firearm” in interstate commerce. 18 U. S. C. § 924(b). Moreover, § 926A specifically “entitle^]” a person “not otherwise prohibited... from transporting, shipping, or receiving a firearm” to “transport a firearm ... from any place where he may lawfully possess and carry” it to “any other place” where he may do so. Why, petitioners ask, would Congress have used the word “transport,” or used both “carry” and “transport” in the same provision, if it had intended to obliterate the distinction between the two?

The short answer is that our definition does not equate “carry” and “transport.” “Carry” implies personal agency and some degree of possession, whereas “transport” does not have such a limited connotation and, in addition, implies the movement of goods in bulk over great distances. See Webster’s Third New International Dictionary, at 343 (noting that “carry” means “moving to a location some distance away while supporting or maintaining off the ground” and “is a natural word to use in ref. to cargoes and loads on trucks, wagons, planes, ships, or even beasts of burden,” while “transport refers to carriage in bulk or number over an appreciable distance and, typically, by a customary or usual carrier agency”); see also Webster’s Dictionary of Synonyms 141 (1942). If Smith, for example, calls a parcel delivery service, which sends a truck to Smith’s house to pick up Smith’s package and take it to Los Angeles, one might say that Smith has shipped the package and the parcel delivery service has transported the package. But only the truck driver has “carried” the package in the sense of “carry” that we believe Congress intended. Therefore, “transport” is a broader category that includes “carry” but also encompasses other activity.

The dissent refers to § 926A and to another statute where Congress used the word “transport” rather than “carry” to describe the movement of firearms. 18 U. S. C. § 925(a) (2)(B); post, at 146-147. According to the dissent, had Congress intended “carry” to have the meaning we give it, Congress would not have needed to use a different word in these provisions. But as we have discussed above, we believe the word “transport” is broader than the word “carry.”

And, if Congress intended “carry” to have the limited definition the dissent contends, it would have been quite unnecessary to add the proviso in § 926A requiring a person, to be exempt from penalties, to store her firearm in a locked container not immediately accessible. See § 926A (quoted in full, post, at 146) (exempting from criminal penalties one who transports a firearm from a place where “he may lawfully possess and carry such firearm” but not exempting the “transportation” of a firearm if it is “readily accessible or is directly accessible from the passenger compartment of such transporting vehicle”). The statute simply could have said that such a person may not “carry” a firearm. But, of course, Congress did not say this because that is not what “carry” means.

As we interpret the statutory scheme, it makes sense. Congress has imposed a variable penalty with no mandatory minimum sentence upon a person who “transports” (or “ships” or “receives”) a firearm knowing it will be used to commit any “offense punishable by imprisonment for [more than] one year,” § 924(b), and it has imposed a 5-year mandatory minimum sentence upon one who “carries” a firearm “during and in relation to” a “drug trafficking crime,” § 924(c). The first subsection imposes a less strict sentencing regime upon one who, say, ships firearms by mail for use in a crime elsewhere; the latter subsection imposes a mandatory sentence upon one who, say, brings a weapon with him (on his person or in his ear) to the site of a drug sale.

Second, petitioners point out that, in Bailey v. United States, 516 U. S. 137 (1995), we considered the related phrase “uses ... a firearm” found in the same statutory provision now before us. See 18 U. S. C. § 924(c)(1) (“uses or carries a firearm”). We construed the term “use” narrowly, limiting its application to the “active employment” of a firearm. Bailey, 516 U. S., at 144. Petitioners argue that it would be anomalous to construe broadly the word “carries,” its statutory next-door neighbor. '

In Bailey, however, we limited “use” of a firearm to “active employment” in part because we assumed “that Congress ... intended each term to have a particular, nonsuperfluous meaning.” Id., at 146. A broader interpretation of “use,” we said, would have swallowed up the term “carry.” Ibid. But “carry” as we interpret that word does not swallow up the term “use.” “Use” retains the same independent meaning we found for it in Bailey, where we provided examples involving the displaying or the bartering of a gun. Ibid. “Carry” also retains an independent meaning, for, under Bailey, carrying a gun in a car does not necessarily involve the gun’s “active employment.” More importantly, having construed “use” narrowly in Bailey, we cannot also construe “carry” narrowly without undercutting the statute’s basic objective. For the narrow interpretation would remove the act of carrying a gun in a car entirely from the statute’s reach, leaving a gap in coverage that we do not believe Congress intended.

Third, petitioners, say that our reading of the statute would extend its coverage to passengers on buses, trains, or ships, who have placed a firearm, say, in cheeked luggage. To extend this statute so far, they argue, is unfair, going well beyond what Congress likely would have thought possible. They add that some lower courts, thinking approximately the same, have limited the scope of “carries” to instances where a gun in a car is immediately accessible, thereby most likely excluding from coverage a gun carried in a car’s trunk or locked glove compartment. See, e. g., Foster, 133 F. 3d, at 708 (concluding that person “carries” a firearm in a ear only if the firearm is immediately accessible); Giraldo, 80 F. 3d, at 676 (same).

In our view, this argument does not take adequate account of other limiting words in the statute — words that make the statute applicable only where a defendant “carries” a gun both “during and in relation to” a drug crime. § 924(e)(1) (emphasis added). Congress added these words in part to prevent prosecution where guns “played” no part in the crime. See S. Rep. No. 98-225, at 314, n. 10; cf. United States v. Stewart, 779 F. 2d 538, 539 (CA9 1985) (Kennedy, J.) (observing that “ fin relation to’ ” was “added to allay explicitly the concern that a person could be prosecuted ... for committing an entirely unrelated crime while in possession of a firearm”), overruled in part on other grounds, United States v. Hernandez, 80 F. 3d 1253, 1257 (CA9 1996).

Once one takes account of the words “during” and “in relation to,” it no longer seems beyond Congress’ likely intent, or otherwise unfair, to interpret the statute as we have done. If one carries a gun in a car “during” and “in relation to” a drug sale, for example, the fact that the gun is carried in the car’s trunk or locked glove compartment seems not only logically difficult to distinguish from the immediately accessible gun, but also beside the point.

At the same time, the narrow interpretation creates its own anomalies. The statute, for example, defines “firearm” to include a “bomb,” “grenade,” "rocket having a propellant charge of more than four ounces,” or “missile having an explosive or incendiary charge of more than one-quarter ounce,” where such device is “explosive,” “incendiary,” or delivers ‘‘poison gas.” 18 U. S. C. § 921(a)(4)(A). On petitioners’ reading, the “carry” provision would not apply to instances where drug lords, engaged in a major transaction, took with them “firearms” such as these, which most likely could not be carried on the person.

Fourth, petitioners argue that we should construe the word “carry” to mean “immediately accessible.” And, as we have said, they point out that several Courts of Appeals have limited the statute’s scope in this way. See, e.g., Foster, supra, at 708; Giraldo, supra, at 676. That interpretation, however, is difficult to square with the statute’s language, for one “carries” a gun in the glove compartment whether or not that glove compartment is locked. Nothing in the statute’s history suggests that Congress intended that limitation. And, for reasons pointed out above, see supra, at 137, we believe that the words “during” and “in relation to” will limit the statute’s application to the harms that Congress foresaw.

Finally, petitioners and the dissent invoke the “rule of lenity.” The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree. Cf. Smith, 508 U. S., at 239 (“The mere possibility of articulating a narrower construction . . . does not by itself make the rule of lenity applicable”). “‘The rule of lenity applies only if, “after seizing everything from which aid can be derived,” ... we can make “no more than a guess as to what Congress intended.”’” United States v. Wells, 519 U. S. 482, 499 (1997) (quoting Reno v. Koray, 515 U. S. 50, 65 (1995), in turn quoting Smith, supra, at 239, and Ladner v. United States, 358 U. S. 169, 178 (1958)). To invoke the rule, we must con-elude that there is a “‘“grievous ambiguity or uncertainty”’ in the statute.” Staples v. United States, 511 U. S. 600, 619, n. 17 (1994) (quoting Chapman v. United States, 500 U. S. 453, 463 (1991)). Certainly, our decision today is based on much more than a “guess as to what Congress intended,” and there is no “grievous ambiguity” here. The problem of statutory interpretation in these cases is indeed no different from that in many of the criminal cases that confront us. Yet, this Court has never held that the rule of lenity automatically permits a defendant to win.

In sum, the “generally accepted contemporary meaning” of the word “carry” includes the carrying of a firearm in a vehicle. The purpose of this statute warrants its application in such circumstances. The limiting phrase “during and in relation to” should prevent misuse of the statute to penalize those whose conduct does not create the risks of harm at which the statute aims.

For these reasons, we conclude that petitioners’ conduct falls within the scope of the phrase “carries a firearm.” The judgments of the Courts of Appeals are affirmed.

It is so ordered.

Justice Ginsburg,

with whom The ChieF Justice, Justice Scalia, and Justice Souter join, dissenting.

Section 924(c)(1) of Title 18, United States Code, is a punishment-enhancing provision; it imposes a mandatory five-year prison term when the defendant “during and in relation to any crime of violence or drug trafficking . . . uses or carries a firearm.” In Bailey v. United States, 516 U. S. 137 (1995), this Court held that the term “uses,” in the context of § 924(c)(1), means “active employment” of the firearm. In today’s eases we confront a related question: What does the term “carries” mean in the context of § 924(e)(1), the enhanced punishment prescription again at issue.

It is uncontested that § 924(e)(1) applies when the defendant bears a firearm, i. e., carries the weapon on or about his person “for the purpose of being armed and ready for offensive or defensive action in case of a conflict.” Black’s Law Dictionary 214 (6th ed. 1990) (defining the phrase “carry arms or weapons”); see ante, at 130. The Court holds that, in addition, “carries a firearm,” in the context of § 924(c)(1), means personally transporting, possessing, or keeping a firearm in a vehicle, anyplace in a vehicle.

Without doubt, “carries” is a word of many meanings, definable to mean or include carting about in a vehicle. But that encompassing definition is not a ubiquitously necessary one. Nor, in my judgment, is it a proper construction of “carries” as the term appears in § 924(e)(1). In line with Bailey and the principle of lenity the Court has long followed, I would confine “carries a firearm,” for § 924(c)(1) purposes, to the undoubted meaning of that expression in the relevant context. I would read the words to indicate not merely keeping arms on one’s premises or in one’s vehicle, but bearing them in such manner as to be ready for use as a weapon.

I

A

I note first what is at stake for petitioners. The question before the Court “is not whether possession of a gun [on the drug offender’s premises or in his ear, during and in relation to commission of the offense,] means a longer sentence for a convicted drug dealer. It most certainly does. .. . Rather, the question concerns which sentencing statute governs the precise length of the extra term of punishment,” § 924(c)(l)’s “blunt ‘mandatory minimum’” five-year sentence, or the more finely timed “sentencing guideline statutes, under which extra punishment for drug-related gun possession varies with the seriousness of the drug crime.” United States v. McFadden, 13 F. 3d 463, 466 (CA1 1994) (Breyer, C. J., dissenting).

Accordingly, there would be no “gap,” see ante, at 137, no relevant conduct “ignore[d],” see ante, at 133, were the Court to reject the Government’s broad reading of § 924(c)(1). To be more specific, as cogently explained on another day by today’s .opinion writer:

“The special ‘mandatory minimum’ sentencing statute says that anyone who ‘uses or carries’ a gun ‘during and in relation to any . . . drug trafficking crime’ must receive a mandatory five-year prison term added on to his drug crime sentence. 18 U. S. C. § 924(c). At the same time, the Sentencing Guidelines, promulgated under the authority of a different statute, 28 U. S. G. § 994, provide for a two-level (i. e., a 30% to 40%) sentence enhancement where a ‘firearm . . . was possessed’ by a drug offender, U. S. S. G. §2Dl.l(b)(l), unless the possession clearly was not ‘connected with the [drug] offense.’” McFadden, 13 F. 3d, at 467 (Breyer, C. J., dissenting).

In Muscarello’s case, for example, the underlying drug erimes involved the distribution of 3.6 kilograms of marijuana, and therefore carried a base offense level of 12. See United States Sentencing Commission, Guidelines Manual §2Dl.l(a)(3) (Nov. 1995). After adjusting for Muscarello’s acceptance of responsibility, see id., §3El.l(a), his final offense level was 10, placing him in the 6-to-12 month sentencing range. See id., eh. 5, pt. A. The two-level enhancement for possessing a fireaim, id., §2Dl.l(b)(l), would have increased his final offense level to 12 (a sentencing range of 10 to 16 months). In other words, the less rigid (tailored to “the seriousness of the drug crime,” McFadden, 13 F. 3d, at 466) Guidelines regime would have added four months to Muscarello’s prison time, in contrast to the five-year minimum addition the Court’s reading of § 924(e)(1) mandates.

In stun, drug traffickers will receive significantly longer sentences if they are caught traveling in vehicles in which they have placed firearms. The question that divides the Court concerns the proper reference for enhancement in the cases at hand, the Guidelines or § 924(c)(1).

B

Unlike the Court, I do not think dictionaries, surveys of press reports, or the Bible tell us, dispositively, what “ear-ries” means embedded in § 924(c)(1). On definitions, “carry” in legal formulations could mean, inter alia, transport, possess, have in stock, prolong (carry over), be infectious, or wear or bear on one’s person. At issue here is not “carries” at large but “carries a firearm.” The Court’s computer search of newspapers is revealing in this light. Carrying guns in a car showed up as the meaning “perhaps more than one-third” of the time. Ante, at 129. One is left to wonder what meaning showed up some two-thirds of the time. Surely a most familiar meaning is, as the Constitution’s Second Amendment (“keep and bear Arms”) (emphasis added) and Black’s Law Dictionary, at 214, indicate: “wear, bear, or carry .. . upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a ease of conflict with another person.”

On lessons from literature, a scan of Bartlett’s and other quotation collections shows how highly selective the Court’s choices are. See ante, at 129. If “[t]he greatest of writers” have used “carry” to mean convey or transport in a vehicle, so have they used the hydra-headed word to mean, inter alia, carry in one’s hand, arms, head, heart, or soul, sans vehicle. Consider, among countless examples:

“[H]e shall gather the lambs with his arm, and carry them in his bosom.” The King James Bible, Isaiah 40:11.
“And still they gaz’d, and still the wonder grew,
That one small head could carry all he knew.”
0. Goldsmith, The Deserted Village, 11. 215-216, in The Poetical Works of Oliver Goldsmith 30 (A. Dobson ed. 1949).
“There’s a Legion that never was ’listed,
That carries no colours or crest.”
R. Kipling, The Lost Legion, st. 1, in Rudyard Kipling’s Verse, 1885-1918, p. 222 (1920).
“There is a homely adage which runs, ‘Speak softly and carry a big stick; you will go far.’” T. Roosevelt, Speech at Minnesota State Fair, Sept. 2,1901, in J. Bartlett, Familiar Quotations 575:16 (J. Kaplan ed. 1992).

These and the Court’s lexicological sources demonstrate vividly that “carry” is a word commonly used to convey various messages. Such references, given their variety, are not reliable indicators of what Congress meant, in § 924(c)(1), by “carries a firearm.”

C

Noting the paradoxical statement, “T use a gun to protect my house, but I’ve never had to use it,’ ” the Court in Bailey, 516 U. S., at 143, emphasized the importance of context— the statutory context. Just as “uses” was read to mean not simply “possession,” but “active employment,” so “carries,” correspondingly, is properly read to signal the most dangerous eases — the gun at hand, ready for use as a weapon. It is reasonable to comprehend Congress as having provided mandatory mínimums for the most life-jeopardizing gun-connection cases (guns in or at the defendant’s hand when committing an offense), leaving other, less imminently threatening, situations for the more flexible Guidelines regime. As the Ninth Circuit suggested, it is not apparent why possession of a gun in a drug dealer’s moving vehicle would be thought more dangerous than gun possession on premises where drugs are sold: “A drug dealer who packs heat is more likely to hurt someone or provoke someone else to violence. A gun in a bag under a tarp in a truck bed [or in a bedroom closet] poses substantially less risk.” United States v. Foster, 133 F. 3d 704, 707 (1998) (en banc).

For indicators from Congress itself, it is appropriate to consider word usage in other provisions of Title 18’s chapter on “Firearms.” See Bailey, 516 U. S., at 143, 146 (interpreting § 924(c)(1) in light of 18 U. S. C. §§ 922(g), 922(j), 922(k), 922(o)(l), 924(d)(1), 930(a), 930(b)). The Court, however, does not derive from the statutory complex at issue its thesis that “‘[cjarry’ implies personal agency and some degree of possession, whereas ‘transport’ does not have such a limited connotation and, in addition, implies the movement of goods in bulk over great distances.” Ante, at 134. Looking to provisions Congress enacted, one finds that the Legislature did not acknowledge or routinely adhere to the distinction the Court advances today; instead, Congress sometimes employed “transports” when, according to the Court, “carries” was the right word to use.

Section 925(a)(2)(B), for example, provides that no criminal sanction shall attend “the transportation of [a] firearm or ammunition carried out to enable a person, who lawfully received such firearm or ammunition from the Secretary of the Army, to engage in military training or in competitions.” The fell text of § 926A, rather than the truncated version the Court presents, see ibid., is also telling:

“Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the ease of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”

In describing when and how a person may travel in a vehicle that contains his firearm without violating the law, §§ 925(a)(2)(B) and 926A use “transport,” not “carry,” to “impl[y] personal agency and some degree of possession.” Ibid.

Reading “carries” in § 924(c)(1) to mean “on or about [one’s] person” is fully compatible with these and other “Firearms” statutes. For example, under § 925(a)(2)(B), one could carry his gun to a ear, transport it to the shooting competition, and use it to shoot targets. Under the conditions of § 926A, one could transport her gun in a car, but under no circumstances could the gun be readily accessible while she travels in the ear. “[G]ourts normally try to read language in different, but related, statutes, so as best to reconcile those statutes, in light of their purposes and of common sense.” McFadden, 13 F. 3d, at 467 (Breyer, C. J., dissenting). So reading the “Firearms” statutes, I would not extend the word “carries” in § 924(c)(1) to mean transports out of hand’s reach in a vehicle.

HH HH

Section 924(c)(1), as the foregoing discussion details, is not decisively clear one way or another. The sharp division in the Court on the proper reading of the measure confirms, “[a]t the very least, . . . that the issue is subject to some doubt. Under these circumstances, we adhere to the familiar rule that, ‘where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.’” Adamo Wrecking Co. v. United States, 434 U. S. 275, 284-285 (1978) (citation omitted); see United States v. Granderson, 511 U. S. 39, 54 (1994) (“[Wjhere text, structure, and history fail to establish that the Government’s position is unambiguously correct — we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”). “Carry” bears many meanings, qs the Court and the '‘Firearms” statutes demonstrate. The narrower “on or about [one’s] person” interpretation is hardly implausible nor at odds with an accepted meaning of “carries a firearm.”'

Overlooking that there will be an enhanced sentence for the gun-possessing drug dealer in any event, see supra, at 140-142, the Court asks rhetorically: “How persuasive is a punishment that is without effect until a drug dealer who has brought his gun to a sale (indeed has it available for use) actually takes it from the trunk (or unlocks the glove compartment) of his ear?” Ante, at 138. Correspondingly, the Court defines “carries a firearm” to cover “a person who knowingly possesses and conveys firearms [anyplace] in a vehicle ... which the person accompanies.” Ante, at 126-127. Congress, however, hardly lacks competence to select the words “possesses” or “conveys” when that is what the Legislature means. Notably in view of the Legislature’s capacity to speak plainly, and of overriding concern, the Court’s inquiry pays scant attention to a core reason for the rule of lenity: “[B]eeause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ ” United States v. Bass, 404 U. S. 336, 348 (1971) (quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)).

* * *

The narrower “on or about [one’s] person” construction of “carries a firearm” is consistent with the Court’s construction of “uses” in Bailey to entail an immediacy element. It respects the Guidelines system by resisting overbroad readings of statutes that deviate from that system. See McFadden, 13 F. 3d, at 468 (Breyer, C. J., dissenting). It fits plausibly with other provisions of the “Firearms” chapter, and it adheres to the principle that, given two readings of a penal provision, both consistent with the statutory text, we do not choose the harsher construction. The Court, in my view, should leave it to Congress to speak “fin language that is clear and definite’ ” if the Legislature wishes to impose the sterner penalty. Bass, 404 U. S., at 347 (quoting United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 222 (1952)). Accordingly, I would reverse the judgments of the First and Fifth Circuits.

      The Sentencing Guidelines carry out “a major congressional effort to create a fairly sophisticated... system that distinguishes among different kinds of criminal behavior and punishes accordingly.” United States v. McFadden, 13 F. 3d, at 467-468 (Breyer, C. J., dissenting). A “mandatory minimum” statute deviates from the general regime Congress installed. “Given the importance (to Congress) of the Guidelines system,... courts should take care not to interpret [with unnecessary breadth]... deviations from the basic congressionally-directed effort to rationalize sentencing.” Id., at 468.

      I note, however, that the only legal dictionary the Court cites, Black’s Law Dictionary, defines “carry arms or weapons” restrietively. See ante, at 130; supra, at 139-140.

      Many newspapers, the New York Times among them, have published stories using “transport,” rather than “carry,” to describe gun placements resembling petitioners’. See, e. g., Atlanta Constitution, Feb. 27, 1998, p. 9D, col. 2 (“House members last week expanded gun laws by allowing weapons to be carried into restaurants or transported anywhere in cars.”); Chicago Tribune, June 12, 1997, sports section, p. 13 (“Disabled hunters with permission to hunt from a standing vehicle would be able to transport a shotgun in an all-terrain vehicle as long as the gun is unloaded and the breech is open.”); Colorado Springs Gazette Telegraph, Aug. 4, 1996, p. CIO (British gun laws require “locked steel cases bolted onto a car for transporting guns from home to shooting range.”); Detroit News, Oct. 26,1997, p. D14 (“It is unlawful to carry afield or transport a rifle ... or shotgun if you have buckshot, slug, ball loads, or cut shells in possession except while traveling directly to deer camp or target range with firearm not readily available to vehicle occupants.”); N. Y. Times, July 4,1993, p. A21, col. 2 (“[T]he gun is supposed to be transported unloaded, in a locked box in the trunk.”); Santa Rosa Press Democrat, Sept. 28,1996, p. B1 (“Police and volunteers ask that participants ... transport [their guns] to the fairgrounds in the trunks of their cars.”); Worcester Telegram & Gazette, July 16, 1996, p. B8 (“Only one gun can be turned in per person. Guns transported in a vehicle should be locked in the trunk.”) (emphasis added in all quotations).

       The translator of the Good Book, it appears, bore responsibility for determining whether the servants of Ahaziah “carried” his corpse to Jerusalem. Compare ante, at 129, with, e. g., The New English Bible, 2 Kings 9:28 (“His servants conveyed his body to Jerusalem.”); Saint Joseph Edition. of the New American Bible (“His servants brought him in a chariot to Jerusalem.”): Tanakh: The Holy Scriptures (“His servants convoyed him in a chariot to Jerusalem.”); see also id., Isaiah 30:6 (“They convey their wealth on the backs of asses.”); The New Jerusalem Bible (“[T]hey bear their riches on donkeys’ backs.”) (emphasis added in all quotations).

       The dictionary to which this Court referred in Bailey v. United States, 516 U. S. 137, 145 (1995), contains 32 discrete definitions of “carry,” including “[t]o make good or valid,” “to bear the aspect of,” and even “[t]o bear (a hawk) on the fist.” See Webster’s New International Dictionary 412 (2d ed. 1949).

       Popular films and television productions provide corroborative illustrations. In “The Magnificent Seven,” for example, O’Reilly (played by Charles Bronson) says: “You think I am brave because I carry a gun; well, your fathers are much braver because they carry responsibility, for you, your brothers, your sisters, and your mothers.” See http://us.imdb.com/ M/seareh_quotes?for=carry. And in the television series “M*A*S*H,” Hawkeye Pierce (played by Alan Alda) preseiently proclaims: “I will not carry a gun.... I’ll carry your books, I’ll carry a torch, I’ll carry a tune, I’ll carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old 'Virginia, I’ll even ‘hari-kari’ if you show me how, but I will not carry a gun!” See http://www.geodties.com/Hollywood/8915/ mashquotes.html.

       In my view, the Government would carry its burden by proving a firearm was kept so dose to the person as to approximate placement in a pocket or holster, e. g., guns carried at one’s side in a briefcase or handbag, or strapped to the saddle of a horse. See ante, at 130.

       The Court reports that the Courts of Appeals “have unanimously concluded that ‘carry’ is not limited to the carrying of weapons directly on the person.” Ante, at 131. In Bailey, however, the Government’s argument based on a similar observation did not carry the day. See Brief for United States in Bailey v. United States, O. T. 1995, Nos. 94-7448 and 94-7492, p. 16, n. 4. No Court of Appeals had previously adopted an “active employment” construction of “uses... a firearm” in § 924(c)(1), yet this Court did exactly that. See 516 U. S., at 144.

       The “Firearms” statutes indicate that Congress, unlike the Court, ante, at 132-133, recognizes that a gun in the hand is indeed more dangerous than a gun in the trunk. See, e. g., 18 U. S. C. §926A (permitting the transportation of firearms in a vehicle, but only if “neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle”); see infra, at 146-147.

       The Court asserts that “ ‘transport’ is a broader category that includes ‘carry5 but also encompasses other activity.55 Ante, at 135. "Carry,” however, is not merely a subset of “transport.” A person seated at a desk with a gun in hand or pocket is carrying the gun, but is not transporting it. Yes, the words “carry” and “transport” often can be employed interchangeably, as can the words “carry” and “use.” But in Bailey, this Court settled on constructions that gave “carry” and “use” independent meanings. See 516 U. S., at 145-146. Without doubt, Congress is alert to the discrete meanings of “transport” and “carry55 in the context of vehicles, as the Legislature’s placement of each word in §926A illustrates. The narrower reading of “carry” preserves discrete meanings for the two words, while in the context of vehicles the Court’s interpretation of “carry” is altogether synonymous with “transport.” Tellingly, when referring to firearms traveling in vehicles, the “Firearms” statutes routinely use a form of “transport”; they never use a form of “carry.”

       See infra, at 149, nn. 13, 14. The Government points to numerous federal statutes that authorize law enforcement officers to “carry firearms” and notes that, in those authorizing provisions, “carry” of course means “both on the person and in a vehicle.” Brief for United States 31-32, and n. 18. Quite right. But as viewers of "Sesame Street” will quickly recognize, “one of these things [a statute authorizing conduct] is not like the other [a statute criminalizing conduct].” The authorizing statutes in question are properly accorded a construction compatible with the clear purpose of the legislation to aid federal law enforcers in the performance of their official duties. It is fundamental, however, that a penal statute is not to be construed generously in the Government’s favor. See, e. g., United States v. Bass, 404 U. S. 336, 348 (1971).

         The Court places undue reliance on Representative Poff's statement that § 924(c)(1) seeks ‘“to persuade the man who is tempted to commit a Federal felony to leave his gun at home.’” Ante, at 132 (quoting 114 Cong. Ree. 22231 (1968)). As the Government argued in its brief to this Court in Bailey:

      “In making that statement, Representative Poff was not referring to the ‘carries’ prong of the original Section 924(c). As originally enacted, the ‘carries’ prong of the statute prohibited only the ‘unlawful’ carrying of a firearm while committing an offense. The statute would thus not have applied to an individual who, for instance, had a permit for carrying a gun and carried it with him when committing an offense, and it would have had no force in ‘persuading’ such an individual ‘to leave his gun at home.’ Instead, Representative Poff was referring to the ‘uses’ prong of the original Section 924(c).” Brief for United States in Bailey v. United States, O. T. 1995, Nos. 94-7448 and 94-7492, p. 28.
      Representative Poff's next sentence confirms that he was speaking of “uses," not “carries”: “Any person should understand that if he uses his gun and is caught and convicted, he is going to jail.” 114 Cong. Ree., at 22231 (emphasis added).

       Any doubt on that score is dispelled by examining the provisions in the “Firearms” chapter, in addition to § 924(c)(1), that include a form of the word “carry”: 18 U. S. C. § 922(a)(5) (“carry out a bequest”); §§ 922(s)(6)(B)(ii), (iii) (¡‘carry out this subsection”); § 922(u) (¡‘carry away [a firearm]”); 18 U. S. C. §924(a)(6)(B)(ii) (1994 ed., Supp. II) (¡‘carry or otherwise possess or discharge or otherwise use [a] handgun”); 18 U. S. C. § 924(e)(2)(B) (¡‘carrying of a firearm”); § 925(a)(2) (“carried out to enable a person”); § 926(a) (¡‘carry out the provisions of this chapter”); §926A (“lawfully possess and carry such firearm to any other place where he may lawfiilly possess and carry such firearm”); § 929(a)(1) ('‘uses or carries a firearm and is in possession of armor piercing ammunition”); § 980(d)(3) (“lawful carrying of firearms ... in a Federal facility incident to hunting or other lawful purposes”) (emphasis added in all quotations).

       See, e. g., 18 U. S. C. § 924(a)(6)(B)(ii) (1994 ed., Supp. II) (“if the person sold... a handgun... to a juvenile knowing... that the juvenile intended to carry or otherwise possess ... the handgun... in the commission of a crime of violence”); 18 U. S. C. §926A (“may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm”); § 929(a)(1) (“uses or carries a firearm and is in possession of armor piercing ammunition”); §2277 (“brings, carries, or possesses any dangerous weapon”) (emphasis added in all quotations).


author: Per Curiam.

text:
    NEW MEXICO ex rel. ORTIZ v. REED
    No. 97-1217.
    Decided June 8, 1998
   Per Curiam.

Respondent, sentenced to a term of 25 years upon conviction of armed robbery and theft of drugs, was paroled from the Ohio correctional system in 1992. In the following year Ohio prison officials told respondent they planned to revoke his parole status. Before the scheduled date of his meeting with his parole officer, respondent fled from Ohio to New Mexico.

Ohio sought extradition and the Governor of New Mexico issued a warrant directing the extradition of respondent. He was arrested in October 1994, and later that year sought a writ of habeas corpus from the New Mexico State District Court. He claimed he was not a “fugitive” for purposes of extradition because he fled under duress, believing that Ohio authorities intended to revoke his parole without due process and to cause him physical harm if he were returned to an Ohio prison. In January 1995, the New Mexico trial court ruled in favor of respondent and directed his release from custody. The State appealed this order, and in September 1997 the Supreme Court of New Mexico affirmed the grant of habeas corpus. 124 N. M. 129, 947 P. 2d 86 (1997). The State has petitioned for certiorari from that decision.

Article IV of the United States Constitution provides that:

“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” Art. IV, §2, cl. 2.

The Extradition Act, 18 U. S. C. §3182, provides the procedures by which this constitutional command is carried out.

In Michigan v. Doran, 439 U. S. 282 (1978), we said:

“Once the Governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.” Id., at 289.

The Supreme Court of New Mexico agreed that the first three requirements had been met, but decided that respondent was not a “fugitive” from justice; in the words of the Supreme Court of New Mexieo, he was a “refugee from injustice.” 124 N. M, at 146, 947 P. 2d, at 103. That court held that respondent fled Ohio because of fear that his parole would be revoked without due process, and that he would be thereafter returned to prison where he faced the threat of bodily injury. This “duress” negated his status as a fugitive under Article IV.

These are serious charges, unrebutted by any evidence at the hearing in the state trial court. It may be noted, however, that the State of Ohio was not a party at that hearing, and the State of New Mexico, which was defending the Governor’s action, is at a considerable disadvantage in producing testimony, even in affidavit form, of occurrences in the State of Ohio. Very likely Ohio was aware of our statement in Sweeney v. Woodall, 344 U. S. 86, 89-90 (1952), that the “scheme of interstate rendition, as set forth in both the Constitution and the statutes which Congress has enacted to implement the Constitution,.. . do[es] not contemplate an appearance by [the demanding State] in respondent’s asylum to defend against the claimed abuses of its prison system” (footnotes omitted).

We accept, of course, the determination of the Supreme Court of New Mexico that respondent’s testimony was credible, but this is simply not the kind of issue that may be tried in the asylum State. In ease after case we have held that claims relating to what actually happened in the demanding State, the law of the demanding State, and what may be expected to happen in the demanding State when the fugitive returns are issues that must be tried in the courts of that State, and not in those of the asylum State. Drew v. Thaw, 235 U. S. 432 (1914); Sweeney v. Woodall, supra; Michigan v. Doran, supra; Pacileo v. Walker, 449 U. S. 86 (1980) (per curiam). As we said in Pacileo:

“Once the Governor of California issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. ‘ To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Article IV, §2.’ Michigan v. Doran, supra, at 290.” Id., at 88.

There are practical reasons as well as legal reasons which support this result. In a brief filed by 40 States as amici curiae, we are advised that in 1997, for example, Ohio made •218 extradition requests from its sister States, and returned 209 prisoners to other States. California in that same year had a total of 685 demands and returns, New York 490, Texas 700, and Pennsylvania 543. The burden on a demanding State of producing witnesses and records in the asylum State to counter allegations such as those of respondent’s in this case would be substantial, indeed.

The Supreme Court of New Mexico also held that the New Mexieo Constitution’s provision guaranteeing the right “of seeking and obtaining safety” prevailed over the State’s duty under Article IV of the United States Constitution. But as long ago as Kentucky v. Dennison, 24 How. 66 (1861), we held that the duty imposed by the Extradition Clause on the asylum State was mandatory. In Puerto Rico v. Branstad, 483 U. S. 219, 227 (1987), we reaffirmed “the conclusion that the commands of the Extradition Clause are mandatory, and afford no discretion to the executive officers or the courts of the asylum State.” And in California v. Superior Court of Cal., San Bernardino Cty., 482 U. S. 400, 405-406 (1987), we said:

“The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers’ conception of national identity and Union. One such limit is found in Article IV, §2, cl. 2, the Extradition Clause: [text of clause omitted].
“The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State’s criminal justice system.”

As is apparent from the length of time this proceeding has taken in the courts of New Mexico, it has been anything but the “summary” proceeding contemplated by the decisions cited above. This is because the Supreme Court of New Mexico went beyond the permissible inquiry in an extradition ease, and permitted the litigation of issues not open in the asylum State. The State’s petition for certiorari is granted, the judgment of the New Mexico Supreme Court is reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

      The motion of National Association of Extradition Officials for leave to file a brief as amicus curiae is granted.