author: Mr. Chief Justice Burger Mr. Justice Stewart,

text:
    TRAMMEL v. UNITED STATES
    No. 78-5705.
    Argued October 29, 30, 1979
    Decided February 27, 1980

      Burger, C. J., delivered the opinion of the Court, in which BreNnan, White, Marshall, Blackmun, Powell, RehNquist, and Stevens, JJ., joined. Stewart, J., filed an opinion concurring in the judgment, post, p. 53.

      J. Terry Wiggins argued the cause for petitioner. With him on the brief was Frederick A. Fielder, Jr.

      Solicitor General McCree argued the cause for the United States. With him on the brief were Assistant Attorney General Heymann, Deputy Solicitor General Frey, Elinor Hadley Stillman, and Joel M. Gershowitz.

       Briefs of amici curiae were filed by Frank E. Booker for the Michigan Bar Association Standing Committee on Civil Procedure; and by Mr. Booker for the Missouri Bar.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to consider whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife. 440 U. S. 934 (1979). This calls for a re-examination of Hawkins v. United States, 358 U. S. 74 (1958).

I

On March 10, 1976, petitioner Otis Trammel was indicted with two others, Edwin Lee Roberts and Joseph Freeman, for importing heroin into the United States from Thailand and the Philippine Islands and for conspiracy to import heroin in violation of 21 U. S. C. §§ 952 (a), 962 (a), and 963. The indictment also named six unindieted eo-conspirators, including petitioner’s wife Elizabeth Ann Trammel.

According to the indictment, petitioner and his wife flew from the Philippines to California in August 1975, carrying with them a quantity of heroin. Freeman and Roberts assisted them in its distribution. Elizabeth Trammel then traveled to Thailand where she purchased another supply of the drug. On November 3, 1975, with four ounces of heroin on her person, she boarded a plane for the United States. During a routine customs search in Hawaii, she was searched, the heroin was discovered, and she was arrested. After discussions with Drug Enforcement Administration agents, she agreed to cooperate with the Government.

Prior to trial on this indictment, petitioner moved to sever his case from that of Roberts and Freeman. He advised the court that the Government intended to call his wife as an adverse witness and asserted his claim to a privilege to prevent her from testifying against him. At a hearing on the motion, Mrs. Trammel was called as a Government witness under a grant of use immunity. She testified that she and petitioner were married in May 1975 and that they remained married. She explained that her cooperation with the Government was based on assurances that she would be given lenient treatment. She then described, in considerable detail, her role and that of her husband in the heroin distribution conspiracy.

After hearing this testimony, the District Court ruled that Mrs. Trammel could testify in support of the Government’s case to any act she observed during the marriage and to any communication “-made in the presence of a third person”; however, confidential communications between petitioner and his wife were held to, be privileged and inadmissible. The motion to sever was denied.

At trial, Elizabeth Trammel testified within the limits of the court’s pretrial ruling; her testimony, as the Government concedes, constituted virtually its entire case against petitioner. He was found guilty on both the substantive and conspiracy charges and sentenced to an indeterminate term of years pursuant to the Federal Youth Corrections Act, 18 U. S. C. § 5010 (b).

In the Court of Appeals petitioner’s only claim of error was that the admission of the adverse testimony of his wife, over his objection, contravened this Court’s teaching in Hawkins v. United States, supra, and therefore constituted reversible error. The Court of Appeals rejected this contention. It concluded that Hawkins did not prohibit “the voluntary testimony of a spouse who appears as an unindicted co-conspirator under grant of immunity from the Government in return for her-testimony.” 583 F. 2d 1166, 1168 (CA10 1978).

II

The privilege claimed by petitioner has ancient roots. Writing in 1628, Lord Coke observed that “it hath beene resolved by the Justices that a wife cannot be produced either against or for her husband.” 1 E. Coke, A Commentarie upon Little-ton 6b (1628). See, generally, 8 J. Wigmore, Evidence § 2227 (McNaughton rev. 1961). This spousal disqualification sprang from two canons of medieval jurisprudence: first, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife.

Despite its medieval origins, this rule of spousal disqualification remained intact in most common-law jurisdictions well into the 19th century. See id., § 2333. It was applied by this Court in Stein v. Bowman, 13 Pet. 209, 220-223 (1839), in Graves v. United States, 150 U. S. 118 (1893), and again in Jin Fuey Moy v. United States, 254 U. S. 189, 195 (1920), where it was deemed so well established a proposition as to “hardly requir[e] mention.” Indeed, it was not until 1933, in Funk v. United States, 290 U. S. 371, that this Court abolished the testimonial disqualification in the federal courts, so as to permit the spouse of a defendant to testify in the defendant’s behalf. Funk, however, left undisturbed the rule that either spouse could prevent the other from giving adverse testimony. Id., at 373. The rule thus evolved into one of privilege rather than one of absolute disqualification. See J. Maguire, Evidence, Common Sense and Common Law 78-92 (1947).

The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. Notwithstanding this benign purpose, the rule was sharply criticized. Professor Wigmore termed it “the merest anachronism in legal theory and an indefensible obstruction to truth in practice.” 8 Wigmore § 2228, at 221. The Committee on Improvements in the Law of Evidence of the American Bar Association called for its abolition. 63 American Bar Association Reports 594-595 (1938). In its place, Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient. See 8 Wigmore § 2332 et seq.

These criticisms influenced the American Law Institute, which, in its 1942 Model Code of Evidence, advocated a privilege for marital confidences, but expressly rejected a rule vesting in the defendant the right to exclude all adverse testimony of his spouse. See American Law Institute, Model Code of Evidence, Rule 215 (1942). In 1953 the Uniform Rules of Evidence, drafted by the National Conference of Commissioners on Uniform State Laws, followed a similar course; it limited the privilege to confidential communications and “abolishe[d] the rule, still existing in some states, and largely a sentimental relic, of not requiring one spouse to testify against the other in a criminal action.” See Rule 23 (2) and comments. Several state legislatures enacted similarly patterned provisions into law.

In Hawkins v. United States, 358 U. S. 74 (1958), this Court considered the continued vitality of the privilege against adverse spousal testimony in the federal courts. There the District Court had permitted petitioner’s wife, over his objection, to testify against him. With one questioning concurring opinion, the Court held the wife’s testimony inadmissible ; it took note of the critical comments that the common-law rule had engendered, id., at 76, and n. 4, but chose not to abandon it. Also rejected was the Government’s suggestion that the Court modify the privilege by vesting it in the witness-spouse, with freedom to testify or not independent of the defendant’s control. The Court viewed this proposed modification as antithetical to the widespread belief, evidenced in the rules then in effect in a majority of the States and in England, “that the law should not force or encourage testimony which might alienate husband and wife, or further inflame existing domestic differences.” Id., at 79.

Hawkins, then, left the federal privilege for adverse spousal testimony where it found it, continuing “a rule which bars the testimony of one spouse against the other unless both consent.” Id., at 78. Accord, Wyatt v. United States, 362 U. S. 525, 528 (1960). However, in so doing, the Court made clear that its decision was not meant to “foreclose whatever changes in the rule may eventually be dictated by ‘reason and experience.’ ” 358 U. S., at 79.

III

A

The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials “governed by the principles of the common law as they may be interpreted ... in the light of reason and experience.” Fed. Rule Evid. 501. Cf. Wolfle v. United States, 291 U. S. 7, 12 (1934). The general mandate of Rule 501 was substituted by the Congress for a set of privilege rules drafted by the Judicial Conference Advisory Committee on Rules of Evidence and approved by the Judicial Conference of the United States and by this Court. That proposal defined nine specific privileges, including a husband-wife privilege which would have codified the Hawkins rule and eliminated the privilege for confidential marital communications. See proposed Fed. Rule Evid. 505. In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to “provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,” 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change. See also S. Rep. No. 93-1277, p. 11 (1974); H. R. Rep. No. 93-650, p. 8 (1973).

Although Rule 501 confirms the authority of the federal courts to reconsider the continued validity of the Hawkins rule, the long history of the privilege suggests that it ought not to be casually cast aside. That the privilege is one affecting marriage, home, and family relationships— already subject to much erosion in our day — also counsels caution. At the same time, we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggests the need for change. This was recognized in Funk where the Court “decline [d] to enforce . . . ancient rule[s] of the common law under conditions as they now exist.” 290 U. S., at 382. For, as Mr. Justice Black admonished in another setting, “[w]hen precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule’s creator to destroy it.” Francis v. Southern Pacific Co., 333 U. S. 445, 471 (1948) (dissenting opinion).

B

Since 1958, when Hawkins was decided, support for the privilege against adverse spousal testimony has been eroded further. Thirty-one jurisdictions, including Alaska and Hawaii, then allowed an accused a privilege to prevent adverse spousal testimony. 358 U. S., at 81, n. 3 (Stewart, J., concurring). The number has now declined to 24. In 1974, the National Conference on Uniform State Laws revised its Uniform Rules of Evidence, but again rejected the Hawkins rule in favor of a limited privilege for confidential communications. See Uniform Rules of Evidence, Rule 504. That proposed rule has been enacted in Arkansas, North Dakota, and Oklahoma — each of which in 1958 permitted an accused to exclude adverse spousal testimony. The trend in state law toward divesting the accused of the privilege to bar adverse spousal testimony has special relevance because the laws of marriage and domestic relations are concerns traditionally reserved to the states. See Sosna v. Iowa, 419 U. S. 393, 404 (1975). Scholarly criticism of the Hawkins rule has also continued unabated.

C

Testimonial exclusionary rules and privileges contravene the fundamental principle that ‘the public . . . has a right to every man’s evidence.’ ” United States v. Bryan, 339 U. S. 323, 331 (1950). As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U. S. 683, 709-710 (1974). Here we must decide whether the privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.

It is essential to remember that the Hawkins privilege is not needed to protect information privately disclosed between husband and wife in the confidence of the marital relationship— once described by this Court as “the best solace of human existence.” Stein v. Bowman, 13 Pet., at 223. Those confidences are privileged under the independent rule protecting confidential marital communications. Blau v. United States, 340 U. S. 332 (1951); see n. 5, supra. The Hawkins privilege is invoked, not to exclude private marital communications, but rather to exclude evidence of criminal acts and of communications made in the presence of third persons.

No other testimonial privilege sweeps so broadly. The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out. Similarly, the physician must know all that a patient can articulate in order to identify and to treat disease; barriers to full disclosure would impair diagnosis and treatment.

The Hawkins rule stands in marked contrast to these three privileges. Its protection is not limited to confidential communications; rather it permits an accused to exclude all adverse spousal testimony. As Jeremy Bentham observed more than a century and a half ago, such a privilege goes far beyond making “every man’s house his castle,” and permits a person to convert his house into “a den of thieves.” 5 Rationale of Judicial Evidence 340 (1827). It “secures, to every man, one safe and unquestionable and ever ready accomplice for every imaginable crime.” Id., at 338.

The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world— indeed in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Chip by chip, over the years those archaic notions have been cast aside so that “[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.” Stanton v. Stanton, 421 U. S. 7, 14-15 (1975).

The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding— whatever the motivation — their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. Indeed, there is reason to believe that vesting the privilege in the accused could actually undermine the marital relationship. Eor example, in a case such as this, the Government is unlikely to offer a wife immunity and lenient treatment if it knows that her husband can prevent her from giving adverse testimony. If the Government is dissuaded from making such an offer, the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony.

IV

Our consideration of the foundations for the privilege and its history satisfy us that "reason and experience” no longer justify so sweeping a rule as that found acceptable by the Court in Hawkins. Accordingly, we conclude that the existing rule should be modified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. This modification — vesting the privilege in the witness-spouse — furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs.

Here, petitioner’s spouse chose to testify against him. That she did so after a grant of immunity and assurances of lenient treatment does not render her testimony involuntary. Cf. Bordenkircher v. Hayes, 434 U. S. 357 (1978). Accordingly, the District Court and the Court of Appeals were correct in rejecting petitioner’s claim of privilege, and the judgment of the Court of Appeals is

Affirmed.

Mr. Justice Stewart,

concurring in the judgment.

Although agreeing with much of what the Court has to say, I cannot join an opinion that implies that “reason and experience” have worked a vast change since the Hawkins case was decided in 1958. In that case the Court upheld the privilege of a defendant in a criminal case to prevent adverse spousal testimony, in an all-but-unanimous opinion by Mr. Justice Black. Today the Court, in another all-but-unanimous opinion, obliterates that privilege because of the pur-

ported change in perception that “reason and experience” have'wrought.

The fact of the matter is that the Court in this case simply accepts the very same arguments that the Court rejected when the Government first made them in the Hawkins case in 1958. I thought those arguments were valid then, and I think so now.

The Court is correct when it says that “[t]he ancient foundations for so sweeping a privilege have long since disappeared.” Ante, at 52. But those foundations had disappeared well before 1958; their disappearance certainly did not occur in the few years that have elapsed between the Hawkins decision and this one. To paraphrase what Mr. Justice Jackson once said in another context, there is reason to believe that today’s opinion of the Court will be of greater interest to students of human psychology than to students of law.

       In response to the question whether divorce was contemplated, Mrs. Trammel testified that her husband had said that “I would go my way and he would go his.” App. 27.

       The Government represents to the Court that Elizabeth Trammel has not been prosecuted for her role in the conspiracy.

       Roberts and Freeman were also convicted. Roberts was sentenced to two years’ imprisonment. Freeman received an indeterminate sentence under the Youth Corrections Act.

       See Brosman, Edward Livingston and Spousal Testimony in Louisiana, 11 Tulane L. Rev. 243 (1937); Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn. L. Rev. 675 (1929); Note, 24 Calif. L. Rev. 472 (1936); Note, 35 Mich. L. Rev. 329 (1936); Note, 10 So. Cal. L. Rev. 94 (1936); Note, 20 Minn. L. Rev. 693 (1936).

       This Court recognized just such a confidential marital communications privilege in Wolfle v. United States, 291 U. S. 7 (1934), and in Blau v. United States, 340 U. S. 332 (1951). In neither case, however, did the Court adopt the Wigmore view that the communications privilege be substituted in place of the privilege against adverse spousal testimony. The privilege as to confidential marital communications is not at issue in the instant case; accordingly, our holding today does not disturb Wolfie and Blau.

         See Note, Competency of One Spouse to Testify Against the Other in Criminal Cases Where the Testimony Does Not Relate to Confidential Communications: Modern Trend, 38 Va. L. Rev. 359 (1952).

       The decision in Wyatt recognized an exception to Hawkins for cases in which one spouse commits a crime against the other. 362 U. S., at 526. This exception, placed on the ground of necessity, was a longstanding one at common law. See Lord Audley’s Case, 123 Eng. Rep. 1140 (1631); 8 Wigmore §2239. It has been expanded since then to include crimes against the spouse’s property, see Herman v. United States, 220 F. 2d 219, 226 (CA4 1955), and in recent years crimes against children of either spouse, United States v. Allery, 526 F. 2d 1362 (CA8 1975). Similar exceptions have been found to the confidential marital communications privilege. See 8 Wigmore §2338.

       Petitioner’s reliance on 28 U. S. C. § 2076 for the proposition that this Court is without power to reconsider Hawkins is ill-founded. That provision limits this Court’s statutory rulemaking authority by providing that rules “creating, abolishing, or modifying a privilege shall have no force or effect unless . . . approved by act of Congress.” It was enacted principally to insure that state rules of privilege would apply in diversity jurisdiction cases unless Congress authorized otherwise. In Rule 501 Congress makes clear that §2076 was not intended to prevent the federal courts from developing testimonial privilege law in federal criminal cases on a case-by-case basis “in light of reason and experience”; indeed Congress encouraged such development.

       Eight States provide that one spouse is incompetent to testify against the other in a criminal proceeding: see Haw. Rev. Stat. §621-18 (1976); Iowa Code § 622.7 (1979); Miss. Code Ann. § 13-1-5 (Supp. 1979); N. C. Gen. Stat. § 8-57 (Supp. 1977); Ohio Rev. Code Ann. § 2945.42 (Supp. 1979); Pa. Stat. Ann., Tit. 42, §§ 5913, 5915 (Purdon Supp. 1979); Tex. Crim. Proc. Code Ann., Art. 38.11 (Vernon 1979); Wyo. Stat. § 1-12-104 (1977).
      Sixteen States provide a privilege against adverse spousal testimony and vest the privilege in both spouses or in the defendant-spouse alone: see Alaska Crim. Proc. Rule 26 (b) (2); Colo. Rev. Stat. § 13-90-107 (1973) ; Idaho Code §9-203 (Supp. 1979); Mich. Comp. Laws §600.2162 (1968); Minn. Stat. §595.02 (1978); Mo. Rev. Stat. §546.260 (1978); Mont. Code Ann. §46-16-212 (1979); Neb. Rev. Stat. §27-505 (1975); Nev. Rev. Stat. §49.295 (1977); N. J. Stat. Ann. §-2A:84A-17 (West 1976); N. M. Stat. Ann. §20-4-505 (Supp. 1977); Ore. Rev. Stat. §44.040 (1977); Utah Code Ann. §78-24-8 (1977); Va. Code § 19.2-271.2 (Supp. 1979); Wash. Rev. Code § 5.60.060 (Supp. 1979); W. Ya. Code §57-3-3 (1966).
      Nine States entitle the witness-spouse alone to assert a privilege against adverse spousal testimony: see Ala. Code § 12-21-227 (1975); Cal. Evid. Code Ann. §§ 970-973 (West 1966 and Supp. 1979); Conn. Gen. Stat. §54-84 (1979); Ga. Code §38-1604 (1978); Ky. Rev. Stat. §421.210 (Supp. 1978); La. Rev. Stat. Ann. §15:461 .(West 1967); Md. Cts. & Jud. Proc. Code Ann. §§ 9-101, 9-106 (1974); Mass. Gen. Laws Ann., ch. 233, §20 (West Supp. 1979); R. I. Gen. Laws § 12-17-10 (1970).
      The remaining 17 States have abolished the privilege in criminal cases: see Ariz. Rev. Stat. Ann. § 12-2231 (Supp. 1978); Ark. Stat. Ann. § 28-101, Rules 501 and 504 (1979); Del. Code Ann., Tit. 11, § 3502 (1975); Fla. Stat. §§ 90.501, 90.504 (1979); Ill. Rev. Stat., ch. 38, § 155-1 (1977); Ind. Code §§34-1-14-4, 34-1-14-5 (1976); Kan. Stat. Ann. §§60-407, 60-428 (1976); Maine Rules of Evidence 501, 504; N. H. Rev. Stat. Ann. §516.27 (1974); N. Y. Crina. Proc. Law §60.10 (McKinney 1971); N. Y. Civ. Proc. Law §§ 4502, 4512 (McKinney 1963); N. D. Rules of Evidence 501, 504; Okla. Stat., Tit. 12, §§2103, 2501, 2504 (West Supp. 1979); S. C. Code § 19-11-30 (1976); S. D. Comp. Laws Ann. §§19-13-1, 19-13-12 to 19-13-15 (1979); Tenn. Code Ann. § 40-2404 (1975); Vt. Stat. Ann., Tit. 12, § 1605 (1973); Wis. Stat. §§ 905.01, 905.05 (1975).
      In 1901, Congress enacted a rule of evidence for the District of Columbia that made husband and wife “competent but not compellable to testify for or against each other,” except as to confidential communications. This provision, which vests the privilege against adverse spousal testimony in the witness-spouse, remains in effect. See 31 Stat. 1358, §§ 1068, 1069, recodified as D. C. Code § 14-306 (1973).

       In 1965, California took the privilege from the defendant-spouse and vested it in the witness-spouse, accepting a study commission recommendation that the “latter [was] more likely than the former to determine whether or not to claim the privilege on the basis of the probable effect ' on the marital relationship.” See Cal. Evid. Code Ann. §§ 970-973 (West 1966 and Supp. 1979) and 1 California Law Revision Commission, Recommendation and Study relating to The Marital “For and Against” Testimonial Privilege, at F-5 (1956). See also 6 California Law Revision Commission, Tentative Privileges Recommendation — Rule 27.5, pp. 243-244 (1964).
      Support for the common-law rule has also diminished in England. In 1972, a study group there proposed giving the privilege to the witness-spouse, on the ground that “if [the wife] is willing to give evidence . . . the law would be showing excessive concern for the preservation of marital harmony if it were to say that she must not do so.” Criminal Law Revision Committee, Eleventh Report, Evidence (General) 93.

       See Reutlinger, Policy, Privacy, and Prerogatives: A Critical Examination of the Proposed Federal Rules of Evidence as They Affect Marital Privilege, 61 Calif. L. Rev. 1353, 1384-1385 (1973); Orfield, The Husband-Wife 'Privileges in Federal Criminal Procedure, 24 Ohio St. L. J. 144 (1963); Rothstein, A Re-evaluation of the Privilege Against Adverse Spousal Testimony in the Light of its Purpose, 12 Int’l and Comp. L. Q. 1189 (1963); Note, 1977 Ariz. St. L. J. 411; Comment, 17 St. Louis L. J. 107 (1972); Comment, 15 Wayne L. Rev. 1287, 1334-1337 (1969); Comment, 52 J. Crim. L. 74 (1961); Note, 56 Nw. U. L. Rev. 208 (1961); Note, 32 Temp. L. Q. 351 (1959); Note, 33 Tulane L. Rev. 884 (1959).

       It is argued that abolishing the privilege will permit the Government to come between husband and wife, pitting one against the other. That, too, misses the mark. Neither Hawkins, nor any other privilege, prevents the Government from enlisting one spouse to give information concerning the other or to aid in the other’s apprehension. It is only the spouse’s testimony in the courtroom that is prohibited.

       “The rule of evidence we are here asked to re-examine has been called a ‘sentimental relic.’ It was bom of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against him.
      “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a con-ceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely ‘reason and experience’ require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity.” Hawkins v. United States, 358 U. S. 74, 81-82 (concurring opinion) (citations and footnotes omitted).

       See Zorach v. Clauson, 343 U. S. 306, 325 (dissenting opinion).


source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Justice Brennan,

license: Public Domain

text:
    LEWIS v. UNITED STATES
    No. 78-1595.
    Argued January 7, 1980
    Decided February 27, 1980

      BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall and Powell, JJ., joined, post, p. 68.

      Andrew W. Wood argued the cause for petitioner. With him on the briefs was Neal P. Rutledge.

      Andrew J. Levander argued the cause pro hac vice for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Joel M. Gershowits.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This ease presents the question whether a defendant’s extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U. S. 335 (1963), may constitute the predicate for a subsequent conviction under § 1202 (a) (1), as amended, of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. App. § 1202 (a)(1).

I

In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony for breaking and entering with intent to commit a misdemeanor. See Fla. Stat. § 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U. S. C. App. § 1203 (2) and 18 U. S. C. § 925 (c).

In January 1977, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment with having knowingly received and possessed at that time a specified firearm, in violation of 18 U. S. C. App. § 1202 (a)(1). He waived a jury and was given a bench trial. It was stipulated that the weapon in question had been shipped in interstate commerce. The Government introduced in evidence an exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10.

Shortly before the trial, petitioner’s counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding. He claimed that under Gideon v. Wainwright, supra, a violation of § 1202 (a)(1) could not be predicated on a prior conviction obtained in violation of petitioner’s Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner’s status under § 1202 (a)(1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time.

On appeal, the United States Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. 591 F. 2d 978 (1979). It held that a defendant, purely as a defense to a prosecution under § 1202 (a)(1), could not attack collaterally an outstanding prior felony conviction, and that the statutory prohibition applied irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also rejected Lewis’ constitutional argument to the effect that the use of the prior conviction as a predicate for his prosecution under § 1202 (a)(1) violated his rights under the Fifth and Sixth Amendments.

Because of conflict among the Courts of Appeals, we granted certiorari. 442 U. S. 939 (1979).

II

Four cases decided by this Court provide the focus for petitioner’s attack upon his conviction. The first, and pivotal one, is Gideon v. Wainwright, supra, where the Court held that a state felony conviction without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U. S. 847 (1971).

The second case is Burgett v. Texas, 389 U. S. 109 (1967). There the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a State’s recidivist statute. The third is United States v. Tucker, 404 U. S. 443 (1972), where it was held that such a conviction could not be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is Loper v. Beto, 405 U. S. 473 (1972), where the Court disallowed the use of the conviction to impeach the general credibility of the defendant. The prior conviction, the plurality opinion said, “lacked reliability.” Id., at 484, quoting Linkletter v. Walker, 381 U. S. 618, 639, and n. 20 (1965).

We, of course, accept these rulings for purposes of the present case. Petitioner’s position, however, is that the four cases require a reversal of his conviction under § 1202 (a)(1) on both statutory and constitutional grounds.

Ill

The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the “starting point” must be the language of the statute itself. Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979). See also Touche Ross & Co. v. Redington, 442 U. S. 560, 568 (1979); Southeastern Community College v. Davis, 442 U. S. 397, 405 (1979). An examination of § 1202 (a)(1) reveals that its proscription is directed unambiguously at any person who “has been convicted by a court of the United States or of a State ... of a felony.” No modifier is present, and nothing suggests any restriction on the scope of the term “convicted.” “Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack].” United States v. Culbert, 435 U. S. 371, 373 (1978); see United States v. Naftalin, 441 U. S. 768, 772 (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury. The obvious breadth of the language may well reflect the expansive legislative approach revealed by Congress’ express findings and declarations, in 18 U. S. C. App. § 1201, concerning the problem of firearm abuse by felons and certain specifically described persons.

Other provisions of the statute demonstrate and reinforce its broad sweep. -Section 1203 enumerates exceptions to § 1202 (a)(1) (a prison inmate who by reason of his duties has expressly been entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly been authorized to receive, possess, or transport a firearm). In addition, § 1202 (c) (2) defines “felony” to exclude certain state crimes punishable by no more than two years’ imprisonment. No exception, however, is made for a person whose outstanding felony conviction ultimately might turn out to be invalid for any reason. On its face, therefore, § 1202 (a)(1) contains nothing by way of restrictive language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony. See, e. g., 18 U. S. C. § 3575 (e) (dangerous special offender) and 21 U. S. C. § 851 (c) (2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 1970).

When we turn to the legislative history of § 1202 (a) (1), we find nothing to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202 (a)(1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to the Act and thus was not a subject of discussion in the legislative reports. See United States v. Batchelder, 442 U. S. 114, 120 (1979); Scarborough v. United States, 431 U. S. 563, 569-570 (1977); United States v. Bass, 404 U. S. 336, 344, and n. 11 (1971). What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a “valid” conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed:

“So, under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been ex-pressedly authorized by his pardon to possess a firearm.” 114 Cong. Rec. 14773 (1968).

See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. Simpson v. United States, 435 U. S. 6, 13 (1978).

It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960’s. See, e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed:

“The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly — to keep guns out of the hands of those who have demonstrated that ‘they may not be trusted to possess a firearm without becoming a threat to society.’ ” Scarborough v. United States, 431 U. S., at 572.

The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional challenge, to the broad statutory scheme enacted by Congress. Section 1202 (a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction.

The very structure of the Omnibus Act’s Title IV, enacted simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U. S. C. §§ 922 (g) and (h). Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from “any person . . . who has been convicted” of a felony, although the definition of “felony” differs somewhat in the respective statutes. But to limit the scope of §§ 922 (g)(1) and (h)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm.

Finally, it is important to note that a convicted felon is not without relief. As has been observed above, the Omnibus Act, in §§ 1203 (2) and 925 (c), states that the disability may be removed by a qualifying pardon or the Secretary’s consent. Also, petitioner, before obtaining his firearm, could have challenged his prior conviction in an appropriate proceeding in the Florida state courts. See Fla. Const., Art. 5, § 5 (3) ; L’Hommedieu v. State, 362 So. 2d 72 (Fla. App. 1978); Weir v. State, 319 So. 2d 80 (Fla. App. 1975). See also United States v. Morgan, 346 U. S. 502 (1954).

It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress’ purpose “broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.” Barrett v. United States, 423 U. S. 212, 218 (1976).

With the face of the statute and the legislative history so clear, petitioner’s argument that the statute nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is appropriate only when the statute provides a fair alternative construction. This statute could not be more plain. Swain v. Pressley, 430 U. S. 372, 378, and n. 11 (1977); United States v. Batchelder, 442 U. S., at 122-123. Similarly, any principle of lenity, see Rewis v. United States, 401 U. S. 808, 812 (1971), has no application. The touchstone of that principle is statutory ambiguity. Huddleston v. United States, 415 U. S. 814, 832 (1974); United States v. Batchelder, 442 U. S., at 121-122. There is no ambiguity here.

We therefore hold that § 1202 (a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.

IV

The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is “some ‘rational basis’ for the statutory distinctions made . . . or . . . they ‘have some relevance to the purpose for which the classification is made.’ ” Marshall v. United States, 414 U. S. 417, 422 (1974), quoting from McGinnis v. Royster, 410 U. S. 263, 270 (1973), and Baxstrom v. Herold, 383 U. S. 107, 111 (1966). See Vance v. Bradley, 440 U. S. 93, 97 (1979).

Section 1202 (a)(1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U. S. C. App. § 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress’ worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at 16298 (remarks of Rep. Pollock). Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. See, e. g., United States v. Ransom, 515 F. 2d 885, 891-892 (CA5 1975), cert. denied, 424 U. S. 944 (1976). This Court has recognized repeatedly that a- legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U. S. 24 (1974) (disenfranchisement); De Veau v. Braisted, 363 U. S. 144 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U. S. 189 (1898) (prohibition against the practice of medicine).

We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes. See Scott v. Illinois, 440 U. S. 367 (1979); Loper v. Beto, 405 U. S., at 482. n. 11 (plurality opinion).

Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational. Enforcement of that essentially civil disability through a criminal sanction does not “support guilt or enhance punishment.” see Burgett, 389 U. S., at 115, on the basis of a conviction that is unreliable when one considers Congress’ broad purpose. Moreover, unlike the situation in Burgett, the sanction imposed by § 1202 (a)(1) attaches immediately upon the defendant’s first conviction.

Again, it is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior Convictions and the Gun Control Act of 1968. 76 Colum. L. Rev. 326, 338-339 (1976). Cf. Walker v. City of Birmingham, 388 U. S. 307 (1967).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Marshall and Mr. Justice Powell join, dissenting.

In disagreement with every other Court of Appeals that has addressed the issue, the Court of Appeals for the Fourth Circuit, held, by a divided vote, that an uncounseled and hence unconstitutional felony conviction may form the predicate for conviction under § 1202 (a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968. Today the Court affirms that judgment, but by an analysis that cannot be squared with either the literal language of the statute or controlling decisions of this Court. I respectfully dissent.

I

Two longstanding principles of statutory construction independently mandate reversal of petitioner’s conviction. The first is the precept that “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” United States v. Universal C. I. T. Credit Cory., 344 U. S. 218, 221-222 (1952). The Court has repeatedly reaffirmed this “rule of lenity.” See, e. g., Simpson v. United States, 435 U. S. 6, 14 (1978); United States v. Bass, 404 U. S. 336, 347-349 (1971); Rewis v. United States, 401 U. S. 808, 812 (1971); Ladner v. United States, 358 U. S. 169, 177 (1958); Bell v. United States, 349 U. S. 81 (1955). Indeed, the principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity” has previously been invoked in interpreting the very provision at issue in this case. See United States v. Bass, supra.

The Court declines to apply this established rule of construction in this case because, in its view, “[t]here is no ambiguity here.” Ante, at 65. In light of the gloss the Court places on the literal language of the statute, I find this to be a curious conclusion. By its own terms, § 1202 (a)(1) reaches “[a]ny person who has been convicted ... of a felony.” The provision on its face admits of no exception to its sweeping proscription. Yet despite the absence of any qualifying phrase, the Court concedes — as it must — that the statute cannot be interpreted so as to include those persons whose predicate convictions have been vacated or reversed on appeal. Ante, at 60-61, and n. 5.

It thus appears that the plain words of § 1202 (a)(1) are not so clear after all, and we therefore must determine the section’s reach. Two alternative constructions are offered: The first is the Government’s — that § 1202 (a)(1) may be read to permit only outstanding felony convictions to serve as the basis for prosecution. Tr. of Oral Arg. 29-30. The second is petitioner’s — that the predicate conviction must be not only outstanding, but also constitutionally valid. Because either interpretation fairly comports with the statutory language, surely the principle of lenity requires us to resolve any doubts against the harsher alternative and to read the statute to prohibit the possession of firearms only by those who have been constitutionally convicted of a felony.

The Court nevertheless adopts the Government’s construction, relying on a supposed legislative resolve to enact a sweeping measure against the misuse of firearms. But however expansive § 1202 was meant to be, we are not faithful to “our duty to protect the rights of the individual,” Dalia v. United States, 441 U. S. 238, 263 (1979) ( Stevens, J., dissenting), when we are so quick to ascribe to Congress the intent to punish the possession of a firearm by a person whose predicate felony conviction was obtained in violation of the right to the assistance of counsel, “one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.” Johnson v. Zerbst, 304 U. S. 458, 462 (1938). Petitioner has once already been imprisoned in violation of the Constitution. In the absence of any clear congressional expression of its intent, I cannot accept a construction of § 1202 (a)(1) that reflects such an indifference to petitioner’s plight and such a derogation of the principles of Gideon v. Wainwright, 372 U. S. 335 (1963).

II

The second maxim of statutory construction that compels a narrow reading of § 1202 (a)(1) is the “cardinal principle” that “if a serious doubt - of constitutionality is raised, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Accord, Schneider v. Smith, 390 U. S: 17, 26 (1968); United States v. Rumely, 345 U. S. 41, 45 (1953); United States v. CIO, 335 U. S. 106, 120-121, and n. 20 (1948). And doubts as to the constitutionality of a statute that could predicate criminal liability solely on the existence of a previous uncounseled felony conviction are indeed serious, for a trilogy of this Court’s decisions would seem to prohibit precisely such a result.

Burgett v. Texas, 389 U. S. 109 (1967), held that a prior uncounseled felony conviction was void and thus inadmissible in a prosecution under a Texas recidivist statute. Burgett stated: “To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” Id., at 115 (citation omitted). United States v. Tucker, 404 U. S. 443 (1972), and Loper v. Beto, 405 U. S. 473 (1972), respectively prohibited the use of uneounseled felony convictions as a factor to be considered in sentencing, and to impeach the defendant’s credibility.

Burgett and its progeny appear to control the result in this case. The clear teaching of those decisions is that an uncoun-seled felony conviction can never be used “to support guilt or enhance punishment for another offense.” Here, petitioner could not have been tried and convicted for violating § 1202 (a)(1) in the absence of his previous felony conviction. It could not be plainer that his constitutionally void conviction was therefore used “to support guilt” for the current offense. The Court's bald assertion to the contrary is simply inexplicable.

The Court’s attempt to distinguish Burgett, Tucker, and Loper on the ground that the validity of the subsequent convictions or sentences in those cases depended on the reliability of the prior uncounseled felony convictions, while in the present case the law focuses on the mere fact of the prior conviction, is unconvincing. The fundamental rationale behind those decisions was the concern that according any credibility to an uncounseled felony conviction would seriously erode the protections of the Sixth Amendment. Congress’ decision to include convicted felons within the class of persons prohibited from possessing firearms can rationally be supported only if the historical fact of conviction is indeed a reliable indicator of potential dangerousness. As we have so often said, denial of the right to counsel impeaches “the very integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S. 618, 639 (1965). Accord, Lakeside v. Oregon, 435 U. S. 333, 341 (1978); Argersinger v. Hamlin, 407 U. S. 25, 31 (1972). And the absence of counsel impairs the reliability of a felony conviction just as much when used to prove potential ’ dangerousness as when used as direct proof of guilt. Cf. Loper v. Beto, supra, at 483 (opinion of Stewart, J.).

Ill

Finally, it is simply irrelevant that petitioner could have challenged the validity of his prior conviction in appropriate proceedings in the state courts. Nor can the existence of such a remedy prohibit him from raising the unconstitutionality of that conviction as a defense to the present charge. In the first place, neither Burgett nor Loper imposed any requirement that a defendant collaterally attack his uncoun-seled conviction before he faces prosecution under § 1202 (a)(1); in both cases the Court held the use of the prior invalid convictions impermissible even though the defendants had taken no affirmative steps to have them overturned. More to the point, however, where the very defect in the initial proceedings was that the accused did not have the assistance of counsel in defending the felony charges against him, it simply defies reason and sensibility to suggest that the defendant must be regarded as having waived his defense to the § 1202 (a)(1) prosecution because he failed first to retain counsel to seek an extraordinary writ of coram nobis.

       Section 1202 (a) reads in full:
      “Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      “(2) has been discharged from the Armed Forces under dishonorable conditions, or
      “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      “(4) having been a citizen of the United States has renounced his citizenship, or
      “(5) being an alien is illegally or unlawfully in the United States,
      “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

       The indictment also charged petitioner with a violation of IS U. S. C. §922 (h)(1). That statute reads in pertinent part:
      “It shall be unlawful for any person—
      “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      “to receive any firearm . . . which has been shipped or transported in interstate . . . commerce.”
      Petitioner was acquitted on the §922 (h)(1) charge and it is not before us here.

       Petitioner’s counsel stated that a Florida attorney had advised him that the court records in that State showed affirmatively that Lewis had no lawyer. He noted also that Lewis had been charged with the same offense as had the defendant in Gideon v. Wainwright, 372 U. S. 335 (1963), and that petitioner had been tried in the same State about six months before Gideon was tried. App. 2-3.

       Compare United States v. Lufman, 457 F. 2d 165 (CA7 1972) (use of an underlying felony conviction unconstitutionally obtained to support a conviction under § 1202 (a)(1) is reversible error), with the Fourth Circuit’s ruling in the present case, and with United States v. Maggard, 573 F. 2d 926 (CA6 1978); and United States v. Graves, 554 F. 2d 65 (CA3 1977) (en banc) (claim of constitutional error in the underlying conviction may not be raised). The Ninth Circuit has distinguished between a claim of constitutional invalidity in the underlying conviction, which it has held may be raised, and a claim that the underlying conviction has been, or should be, reversed on other grounds. Compare United States v. O’Neal, 545 F.. 2d 85 (1976), and United States v. Pricepaul, 540 F. 2d 417 (1976), with United States v. Liles, 432 F. 2d 18 (1970). See also United States v. Herrell, 588 F. 2d 711 (CA9 1978), cert. denied, 440 U. S. 964 (1979) (underlying conviction in a prosecution under 18 U. S. C. §922 (h)(1) may not be challenged on nonconstitutional grounds).
      The identical issue that is presented in this case has also arisen in the context of challenges to convictions under 18 U. S. C. §922 (g)(1) (proscribing shipping or transport of a firearm in interstate or foreign commerce by a person under indictment for, or convicted of, a felony) and §922 (h)(1) (proscribing receipt of a firearm shipped in interstate or foreign commerce by such a person). Compare United States v. Scales, 599 F. 2d 78 (CA5 1979); Dameron v. United States, 488 F. 2d 724 (CA5 1974); Pasterchik v. United States, 466 F. 2d 1367 (CA9 1972); and United States v. DuShane, 435 F. 2d 187 (CA2 1970) (underlying conviction may be attacked as unconstitutional), with Barker v. United States, 579 F. 2d 1219, 1226 (CA10 1978) (underlying conviction may not be so challenged in prosecution under § 922 (h) (1)).
      The Courts of Appeals have treated the issue somewhat differently in prosecutions under 18 U. S. C. §922 (a)(6) (prohibiting the falsification of one’s status as a convicted felon in purchasing a firearm). Nonuniformity has prevailed nonetheless on the question whether a defendant charged with violating that statute may challenge the constitutionality of the underlying felony conviction. Compare United States v. O’Neal, supra, and United States v. Pricepaul, supra (permitting the challenge), with United States v. Allen, 556 F. 2d 720 (CA4 1977); United States v. Graves, supra; and Cassity v. United States, 521 F. 2d 1320 (CA6 1975) (holding that the challenge may not be made). The Eighth Circuit has stated that it will not permit a challenge to the constitutionality of the underlying conviction where the defendant is charged under §922 (a)(6), while reserving the question under § 1202 (a)(1) and §§922 (g)(1) and (h)(1). United States v. Edwards, 568 F. 2d 68, 70-72, and n. 3 (1977). See also United States v. Graves, 554 F. 2d, at 83-88 (Garth, J., and Seitz, C. J., concurring in part and dissenting in part) (the Government need not prove the validity of the underlying conviction in a prosecution brought under § 922 (a) (6), but it must do so in a prosecution under § 1202 (a) (1)).

       One might argue, of course, that the language is so sweeping that it includes in its proscription even a person whose predicate conviction in the interim had been finally reversed on appeal and thus no longer was outstanding. The Government, however, does not go so far, Tr. of Oral Arg. 29-30, 37-40, and though we have no need to pursue that extreme argument in this case, we reject it. We are not persuaded that the mere possibility of making that argument renders the statute, as petitioner suggests, unconstitutionally vague. And unlike the dissent, post, at 69, we view the language Congress chose as consistent with the common-sense notion that a disability based upon one’s status as a convicted felon should cease only when the conviction upon which that status depends has been vacated.
      We note, nonetheless, that the disability effected by § 1202 (a) (1) would apply while a felony conviction was pending on appeal. See Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, and n. 42 (1976).

       “The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes — .
      “(1) a burden on commerce or threat affecting the free flow of commerce,
      “(2) a threat to the safety of the President of the United States and Vice President of the United States,
      “(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
      “(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution.”

       This being so, § 1202 (a) (1) does not attach “what may amount to lifelong sanctions to a mere finding of probable cause,” as has been argued by one commentator. See Comment, 92 Harv. L. Rev. 1790, 1795 (1979).

       These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia”); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F. 2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F. 2d 548 (CA4 1974); Cody v. United States, 460 F. 2d 34 (CA8), cert. denied, 409 U. S. 1010 (1972) (the latter three cases holding, respectively, that § 1202 (a) (1), §922 (g), and §922 (a)(6) do not violate the Second Amendment).

       The dissent’s assertion that Congress’ judgment in this regard cannot rationally be supported, post, at 72-, is one we do not share. Moreover, such an assertion seems plainly inconsistent with the deference that a reviewing court should give to a legislative determination that, in essence, predicts a potential for future criminal behavior.

       See, e. g., Dameron v. United States, 488 F. 2d 724 (CA5 1974); United States v. Lufman, 457 F. 2d 165 (CA7 1972); United States v. DuShane, 435 F. 2d 187 (CA2 1970); United States v. Thoresen, 428 F. 2d 654 (CA9 1970). See generally Comment, 92 Harv. L. Rev. 1790 (1979).

       As the Court has previously observed, § 1202 “was hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, 404 U. S. 336, 344 (1971). “In short, 'the legislative history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.’ ” Id., at 346 (quoting Universal Camera Corp. v. NLRB, 340 U. S. 474, 483 (1951)). It is thus little wonder that the Court finds no explicit support in the statute’s legislative history for petitioner’s construction.
      Nor do the few signposts that do exist in the history and structure of Title VII point unambiguously to the Court’s conclusion. That Congress included provisions within the Omnibus Act whereby a convicted felon could have his disability removed by a qualifying pardon or the Secretary’s consent, see §§ 1203 (2) and 925 (c), does not mean that Congress intended them to be exclusive remedies. Indeed, these provisions were clearly designed only to provide a mechanism for those persons with valid felony convictions to seek relief from the prohibitions of § 1202.
      Similarly, a comparison between the scope of Title IV and Title VII is unenlightening on the question before us. Simply because the former Title imposes a disability on any person under a felony indictment, it by no means follows, a fortiori or otherwise, that Congress intended by the latter Title to impose a somewhat harsher disability on those persons with unconstitutional felony convictions. Cf. ante, at 64. Significantly, the restrictions attaching to an individual under indictment are necessarily temporary, while those imposed on the basis of a previous conviction are indefinite in duration. Moreover, Congress’ failure to include persons “under indictment” within the proscriptions of § 1202 more plausibly signals its desire to demand a greater indication of potential dangerousness than would be provided by the mere fact of indictment — or, for that matter, by an uncounseled felony conviction. In fact, in a slightly different context, Congress has expressly rejected the proposition that an invalid prior conviction is a reliable indicator of “dangerousness.” See 18 U. S. C. § 3575 (e) (dangerous special offender).