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,[1] 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.
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 Corp., 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 , [445 U.S. 55, 69] 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), [445 U.S. 55, 70] 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).[2] [445 U.S. 55, 71]
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 uncounseled 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 uncounseled [445 U.S. 55, 72] 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.).
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. [445 U.S. 55, 73] In the first place, neither Burgett nor Loper imposed any requirement that a defendant collaterally attack his uncounseled 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.
[Footnote 1] 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).
[Footnote 2] 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 [445 U.S. 55, 71] 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). [445 U.S. 55, 74]
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