U.S. Supreme Court Lewis v. United States, 445 U.S.
55 (1980) Lewis v. United
States No. 78-1595 Argued January 7,
1980 Decided February 27,
1980 445 U.S.
55 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus Held: Even though petitioner's extant prior state court
felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U. S. 335 , it
could properly be used as a predicate for his subsequent conviction
for possession of a firearm in violation of § 1202(a)(1) of Title
VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 445 U. S.
60 -68.

															(a) The plain meaning of § 1202(a)(1)'s sweeping language
proscribing the possession of firearms by any person who "has been
convicted by a court of the United States or of a State . . . of a
felony," is that the fact of a felony conviction imposes firearm
disability until the conviction is vacated or the felon is relieved
of his disability by some affirmative action. Other provisions of
the statute demonstrate and reinforce its broad sweep, and there is
nothing in § 1202(a)(1)'s legislative history 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). Moreover, the fact that there are remedies available to
a convicted felon -- removal of the firearm disability by a
qualifying pardon or the Secretary of the Treasury's consent, as
specified in the Act, or a challenge to the prior conviction in an
appropriate court proceeding -- suggests that Congress intended
that the defendant clear his status before obtaining a firearm,
thereby fulfilling Congress' purpose to keep firearms away from
persons classified as potentially irresponsible and dangerous. Pp. 445 U. S.
60 -65.

															(b) 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, since 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. And use of an uncounseled felony conviction as the basis
for imposing a civil firearms disability, enforceable by criminal
sanction, is not inconsistent with Burgett v. Texas, 389 U. S. 109 ; United States v. Tucker, 404 U. S. 443 ; and Loper v. Beto, 405 U. S. 473 . Pp. 445 U. S.
65 -67.

															591 F.2d 978, affirmed. Page 445 U. S. 56 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. 445 U. S.
68 .

															MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															This case 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 II
of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C.App. § 1202(a)(1). [ Footnote
1 ] I In 1961, petitioner George Calvin Lewis, Jr., upon his plea of
guilty, was convicted in a Florida state court of a felony Page 445 U. S. 57 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). [ Footnote 2 ] 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. [ Footnote 3 ] He claimed that, under Gideon v.
Wainwright, supra, a violation of § 1202(a)(1) Page 445 U. S. 58 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
1292(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, [ Footnote 4 ] we granted certiorari. 442 U.S.
939 (1979). Page 445 U. S. 59 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). Page 445 U. S. 60 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 405 U. S. 484 ,
quoting Linkletter v. Walker, 381 U.
S. 618 , 381 U. S. 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. III 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 , 442 U. S. 337 (1979). See also Touche Ross & Co. v. Redington, 442 U. S. 560 , 442 U. S. 568 (1979); Southestern Community College v. Davis, 442 U. S. 397 , 442 U. S. 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 , 435 U. S. 373 (1978); see United States v. Naftalin, 441 U.
S. 768 , 441 U. S. 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 Page 445 U. S. 61 relieved of his disability by some affirmative action, such as a
qualifying pardon or a consent from the Secretary of the Treasury.
[ Footnote 5 ] 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, [ Footnote
6 ] 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 Page 445 U. S. 62 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 , 442 U. S. 120 (1979); Scarborough v. United States, 431 U.
S. 563 , 431 U. S.
569 -570 (1977); United States v. Bass, 404 U. S. 336 , 404 U. S. 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 Page 445 U. S. 63 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 expressedly 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 , 435 U. S. 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 431 U. S.
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 Page 445 U. S. 64 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). [ Footnote 7 ]

															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 Page 445 U. S. 65 from the persons Congress classified as potentially
irresponsible and dangerous." Barrett v. United States, 423 U. S. 212 , 423 U. S. 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 , 430 U. S. 378 ,
and n. 11 (1977); United States v. Batchelder, 442 U.S. at 422 U. S.
122 -123. Similarly, any principle of lenity, see
Rewis v. United States, 401 U. S. 808 , 401 U. S. 812 (1971), has no application. The touchstone of that principle is
statutory ambiguity. Huddleston v. United States, 415 U. S. 814 , 415 U. S. 832 (1974); United States v. Batchelder, 442 U.S. at 442 U. S.
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 , 414 U. S. 422 (1974), quoting from McGinnis v. Royster, 410 U.
S. 263 , 410 U. S. 270 (1973), and Baxstrom v. Herold, 383 U.
S. 107 , 383 U. S. 111 (1966). See Vance v. Bradley, 440 U. S.
93 , 440 U. S. 97 (1979). [ Footnote 8 ] Page 445 U. S. 66 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 Page 445 U. S. 67 is invalid for all purposes. See Scott v. Illinois, 440 U. S. 367 (1979); Loper v. Beto, 405 U.S. at 405 U. S. 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. [ Footnote 9 ] Enforcement of that
essentially civil disability through a criminal sanction does not
"support guilt or enhance punishment." See Burgett, 389
U.S. at 389 U. S. 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, Page 445 U. S. 68 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. [ Footnote 1 ]

															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."

															[ Footnote 2 ]

															The indictment also charged petitioner With a violation of 18
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.

															[ Footnote 3 ]

															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.

															[ Footnote 4 ] 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)).

															[ Footnote 5 ]

															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 445 U.S. 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).

															[ Footnote 6 ]

															"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."

															[ Footnote 7 ]

															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).

															[ Footnote 8 ]

															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 , 307 U. S. 178 (1939) (the Second Amendment guarantees no right to keep and bear a
firearm t.hat 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).

															[ Footnote 9 ]

															The dissent's assertion that Congress' judgment in this regard
cannot rationally be supported, post at 445 U. S. 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.

															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. [ Footnote 2/1 ]
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. 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. Corp., 344 U.
S. 218 , 344 U. S.
221 -222 (1952). The Court has repeatedly reaffirmed this
"rule of lenity." See, e.g., Simpson v. United States, 435 U. S. 6 , 435 U. S. 14 ; United States v. Bass, 404 U. S. 336 , 404 U. S.
347 -349 (1971); Rewis v. United States, 401 U. S. 808 , 401 U. S. 812 (1971); Ladner v. United
States , 355 U. S. 169 , Page 445 U. S. 69 355 U. S. 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 445 U. S. 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 445 U. S. 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 , 441 U. S. 263 (1979)(STEVENS, J., dissenting), Page 445 U. S. 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 , 304 U. S. 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). [ Footnote 2/2 ] Page 445 U. S. 71 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 , 285 U. S. 62 (1932). Accord, Schneider v. Smith, 390 U. S.
17 , 390 U. S. 26 (1968); United States v. Rumely, 345 U. S.
41 , 345 U. S. 45 (1953); United States v. CIO, 335 U.
S. 106 , 335 U. S.
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 389 U. S. 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 Page 445 U. S. 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 factfinding process." Linkletter v.
Walker, 381 U. S. 618 , 381 U. S. 639 (1965). Accord, Lakeside v. Oregon, 435 U.
S. 333 , 435 U. S. 341 (1978); Argersinger v. Hamlin, 407 U. S.
25 , 407 U. S. 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 405 U. S. 483 (opinion of STEWART, J.). III 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. Page 445 U. S. 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 2/1 ] 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 2/2 ]

															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 , 404 U. S. 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 404 U. S. 346 (quoting Universal Camera Corp. v. NLRB, 340 U.
S. 474 , 340 U. S. 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 445 U. S. 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).

Summary: The Supreme Court held that an existing prior state court felony conviction, even if it could be challenged under Gideon v. Wainwright, could still be used as the basis for a subsequent conviction for possessing a firearm as a felon under federal law. The Court found that the plain language of the federal statute prohibiting firearm possession by felons was broad and did not allow for exceptions, and that Congress intended to keep firearms away from potentially dangerous individuals. The Court also concluded that the firearm regulatory scheme did not violate equal protection, as any felony conviction could be a basis for prohibiting firearm possession.


U.S. Supreme Court Prince v. Massachusetts, 321
U.S. 158 (1944) Prince v.
Massachusetts No. 98 Argued December 14,
1943 Decided January 31,
1944 321
U.S. 158 APPEAL FROM THE SUPERIOR COURT OF
MASSACHUSETTS PLYMOUTH COUNTY Syllabus 1. A state statute provides that no minor (boy under 12 or girl
under 18) shall sell, or offer for sale, upon the streets or in
other public places, any newspapers, magazines, periodicals, or
other articles of merchandise. The statute makes it unlawful for
any person to furnish to a minor any article which he knows the
minor intends to sell in violation of the law, and for any parent
or guardian to permit a minor to work in violation of the law. Held -- as applied Page 321 U. S. 159 to a guardian who furnished a minor ward with religious
literature and permitted the minor to distribute the same on the
streets, although the guardian accompanied the minor and both were
-- acting in accord with their religious beliefs -- not violative
of freedom of religion, nor a denial of the equal protection of the
laws, under the Fourteenth Amendment of the Federal Constitution.
P. 321 U. S.
167 .

															2. Whether there was a "sale" or "offer to sell," and whether
what the minor was doing was "work," within the meaning of the
State statute, were question of local law upon which, on this
record, the decision of the state court is binding here. P. 321 U. S.
163 .

															3. With respect to the public proclaiming of religion in streets
and other public place, as in the case of other freedoms, the power
of the State to control the conduct of children is broader than its
power over adults. P. 321 U. S.
170 .

															4. There is no denial of equal protection of the laws in
excluding children of a particular sect from such use of the
streets as is barred also to all other children. P. 321 U. S.
170 .

															313 Mass. 223, 46 N.E.2d 755, affirmed.

															APPEAL from a judgment entered on a rescript from the highest
court of the State, which sustained convictions on two of three
complaints for violations of a state statute.

															MR. JUSTICE RUTLEDGE delivered the opinion of the Court.

															The case brings for review another episode in the conflict
between Jehovah's Witnesses and state authority. This time Sarah
Prince appeals from convictions for violating Massachusetts' child
labor laws, by acts said to be a rightful exercise of her religious
convictions. When the offenses were committed, she was the aunt and
custodian of Betty M. Simmons, a girl nine years of age.
Originally, there were three separate complaints. They Page 321 U. S. 160 were, shortly, for (1) refusal to disclose Betty's identity and
age to a public officer whose duty was to enforce the statutes; (2)
furnishing her with magazines, knowing she was to sell them
unlawfully, that is, on the street, and (3) as Betty's custodian,
permitting her to work contrary to law. The complaints were made,
respectively, pursuant to §§ 79, 80 and 81 of Chapter 149, Gen.Laws
of Mass. (Ter. Ed.). The Supreme Judicial Court reversed the
conviction under the first complaint on state grounds, [ Footnote 1 ] but sustained the judgments
founded on the other two. [ Footnote
2 ] 313 Mass. 223, 46 N.E.2d 755. They present the only
questions for our decision. These are whether §§ 80 and 81, as
applied, contravene the Fourteenth Amendment by denying or
abridging appellant's freedom of religion and by denying to her the
equal protection of the laws.

															Sections 80 and 81 form parts of Massachusetts' comprehensive
child labor law. [ Footnote 3 ]
They provide methods for enforcing the prohibitions of § 69, which
is as follows:

															"No boy under twelve and no girl under eighteen shall sell,
expose or offer for sale any newspapers, magazines, periodicals or
any other articles of merchandise of any Page 321 U. S. 161 description, or exercise the trade of bootblack or scavenger, or
any other trade, in any street or public place."

															Sections 80 and 81, so far as pertinent, read:

															"Whoever furnishes or sells to any minor any article of any
description with the knowledge that the minor intends to sell such
article in violation of any provision of sections sixty-nine to
seventy-three, inclusive, or after having received written notice
to this effect from any officer charged with the enforcement
thereof, or knowingly procures or encourages any minor to violate
any provisions of said sections, shall be punished by a fine of not
less than ten nor more than two hundred dollars or by imprisonment
for not more than two months, or both."

															§ 80.

															"Any parent, guardian or custodian having a minor under his
control who compels or permits such minor to work in violation of
any provision of sections sixty to seventy-four, inclusive, . . .
shall for a first offense be punished by a fine of not less than
two nor more than ten dollars or by imprisonment for not more than
five days, or both; . . ."

															§ 81.

															The story told by the evidence has become familiar. It hardly
needs repeating, except to give setting to the variations
introduced through the part played by a child of tender years. Mrs.
Prince, living in Brockton, is the mother of two young sons. She
also has legal custody of Betty Simmons, who lives with them. The
children, too, are Jehovah's Witnesses, and both Mrs. Prince and
Betty testified they were ordained ministers. The former was
accustomed to go each week on the streets of Brockton to distribute
"Watchtower" and "Consolation," according to the usual plan.
[ Footnote 4 ] She had permitted
the children to Page 321 U. S. 162 engage in this activity previously, and had been warned against
doing so by the school attendance officer, Mr. Perkins. But, until
December 18, 1941, she generally did not take them with her at
night.

															That evening, as Mrs. Prince was preparing to leave her home,
the children asked to go. She at first refused. Child-like, they
resorted to tears; and, mother-like, she yielded. Arriving
downtown, Mrs. Prince permitted the children "to engage in the
preaching work with her upon the sidewalks." That is, with specific
reference to Betty, she and Mrs. Prince took positions about twenty
feet apart near a street intersection. Betty held up in her hand,
for passers-by to see, copies of "Watch Tower" and "Consolation."
From her shoulder hung the usual canvas magazine bag, on which was
printed: "Watchtower and Consolation 5� per copy." No one accepted
a copy from Betty that evening, and she received no money. Nor did
her aunt. But on other occasions, Betty had received funds and
given out copies.

															Mrs. Prince and Betty remained until 8:45 p.m. A few minutes
before this, Mr. Perkins approached Mrs. Prince. A discussion
ensued. He inquired, and she refused to give Betty's name. However,
she stated the child attended the Shaw School. Mr. Perkins referred
to his previous warnings, and said he would allow five minutes for
them to get off the street. Mrs. Prince admitted she supplied Betty
with the magazines, and said,

															"[N]either you nor anybody else can stop me . . . This child is
exercising her God-given right and her constitutional right to
preach the gospel, and no creature has a right to interfere with
God's commands."

															However, Mrs. Prince and Betty departed. She remarked as she
went, "I'm not going through this any more. We've been through it
time and time again. I'm going home and put the little girl to
bed." It may be added that testimony, by Betty, her aunt, and
others was offered at the trials, and was excluded, Page 321 U. S. 163 to show that Betty believed it was her religious duty to perform
this work, and failure would bring condemnation "to everlasting
destruction at Armageddon."

															As the case reaches us, the questions are no longer open whether
what the child did was a "sale" or an "offer to sell" within § 69
[ Footnote 5 ] or was "work"
within § 81. The state court's decision has foreclosed them
adversely to appellant as a matter of state law. [ Footnote 6 ] The only question remaining
therefore is whether, as constituted and applied, the statute is
valid. Upon this, the court said:

															"We think that freedom of the press and of religion is subject
to incidental regulation to the slight degree involved in the
prohibition of the selling of religious literature in streets and
public places by boys under twelve and girls under eighteen, and in
the further statutory provisions herein considered, which have been
adopted as means of enforcing Page 321 U. S. 164 that prohibition."

															313 Mas. 223, 229, 46 N.E.2d 755, 758.

															Appellant does not stand on freedom of the press. Regarding it
as secular, she concedes it may be restricted as Massachusetts has
done. [ Footnote 7 ] Hence, she
rests squarely on freedom of religion under the First Amendment,
applied by the Fourteenth to the states. She buttresses this
foundation, however, with a claim of parental right as secured by
the due process clause of the latter Amendment. [ Footnote 8 ] Cf. Meyer v. Nebraska, 262 U. S. 390 .
These guaranties, she thinks, guard alike herself and the child in
what they have done. Thus, two claimed liberties are at stake. One
is the parent's, to bring up the child in the way he should go,
which, for appellant, means to teach him the tenets and the
practices of their faith. The other freedom is the child's, to
observe these, and among them is "to preach the gospel . . . by
public distribution" of "Watchtower" and "Consolation," in
conformity with the scripture: "A little child shall lead
them."

															If, by this position, appellant seeks for freedom of conscience
a broader protection than for freedom of the mind, it may be
doubted that any of the great liberties insured by the First
Article can be given higher place than the others. All have
preferred position in our basic scheme. Schneider v.
State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 . All
are interwoven there together. Differences there are, in them and
in the modes appropriate for their exercise. But they have unity in
the charter's prime place because they have unity in their human
sources and Page 321 U. S. 165 functionings. Heart and mind are not identical. Intuitive faith
and reasoned judgment are not the same. Spirit is not always
thought. But, in the everyday business of living, secular or
otherwise, these variant aspects of personality find inseparable
expression in a thousand ways. They cannot be altogether parted in
law more than in life.

															To make accommodation between these freedoms and an exercise of
state authority always is delicate. It hardly could be more so than
in such a clash as this case presents. On one side is the obviously
earnest claim for freedom of conscience and religious practice.
With it is allied the parent's claim to authority in her own
household and in the rearing of her children. The parent's conflict
with the state over control of the child and his training is
serious enough when only secular matters are concerned. It becomes
the more so when an element of religious conviction enters. Against
these sacred private interests, basic in a democracy, stand the
interests of society to protect the welfare of children, and the
state's assertion of authority to that end, made here in a manner
conceded valid if only secular things were involved. The last is no
mere corporate concern of official authority. It is the interest of
youth itself, and of the whole community, that children be both
safeguarded from abuses and given opportunities for growth into
free and independent well developed men and citizens. Between
contrary pulls of such weight, the safest and most objective
recourse is to the lines already marked out, not precisely but for
guides, in narrowing the no man's land where this battle has gone
on.

															The rights of children to exercise their religion, and of
parents to give them religious training and to encourage them in
the practice of religious belief, as against preponderant sentiment
and assertion of state power voicing it, have had recognition here,
most recently in West Virginia State Board of
Education v. Barnette , 319 U.S. Page 321 U. S. 166 624. Previously, in Pierce v. Society of Sisters, 268 U. S. 510 ,
this Court had sustained the parent's authority to provide
religious with secular schooling, and the child's right to receive
it, as against the state's requirement of attendance at public
schools. And in Meyer v. Nebraska, 262 U.
S. 390 , children's rights to receive teaching in
languages other than the nation's common tongue were guarded
against the state's encroachment. It is cardinal with us that the
custody, care and nurture of the child reside first in the parents,
whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder. Pierce v.
Society of Sisters, supra. And it is in recognition of this
that these decisions have respected the private realm of family
life which the state cannot enter.

															But the family itself is not beyond regulation in the public
interest, as against a claim of religious liberty. Reynolds v.
United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 . And
neither rights of religion nor rights of parenthood are beyond
limitation. Acting to guard the general interest in youth's
wellbeing, the state, as parens patriae, may restrict the
parent's control by requiring school attendance, [ Footnote 9 ] regulating or prohibiting the
child's labor [ Footnote 10 ]
and in many other ways. [ Footnote 11 ] Its authority is not nullified merely
because the parent grounds his claim to control the child's course
of conduct on religion or conscience. Thus, he cannot claim freedom
from compulsory vaccination for the child more than for himself on
religious grounds. [ Footnote
12 ] The right to practice religion freely does not include
liberty to expose the community or the child Page 321 U. S. 167 to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. [ Footnote 13 ] The catalogue need not
be lengthened. It is sufficient to show what indeed appellant
hardly disputes, that the state has a wide range of power for
limiting parental freedom and authority in things affecting the
child's welfare, and that this includes, to some extent, matters of
conscience and religious conviction.

															But it is said the state cannot do so here. This, first, because
when state action impinges upon a claimed religious freedom, it
must fall unless shown to be necessary for or conducive to the
child's protection against some clear and present danger, cf.
Schenck v. United States, 249 U. S. 47 ; and,
it is added, there was no such showing here. The child's presence
on the street, with her guardian, distributing or offering to
distribute the magazines, it is urged, was in no way harmful to
her, nor, in any event, more so than the presence of many other
children at the same time and place, engaged in shopping and other
activities not prohibited. Accordingly, in view of the preferred
position the freedoms of the First Article occupy, the statute in
its present application must fall. It cannot be sustained by any
presumption of validity. Cf. Schneider v. State, 308 U. S. 147 .
And, finally, it is said, the statute is, as to children, an
absolute prohibition, not merely a reasonable regulation, of the
denounced activity.

															Concededly a statute or ordinance identical in terms with § 69,
except that it is applicable to adults or all persons generally,
would be invalid. Young v. California, 308 U.
S. 147 ; Nichols v. Massachusetts, 308 U.
S. 147 ; Jamison v. Texas, 318 U.
S. 413 ; Murdock v. Pennsylvania, 319 U.
S. 105 ; Martin v. City of Struthers, 319 U. S. 141 .
[ Footnote 14 ] Page 321 U. S. 168 But the mere fact a state could not wholly prohibit this form of
adult activity, whether characterized locally as a "sale" or
otherwise, does not mean it cannot do so for children. Such a
conclusion granted would mean that a state could impose no greater
limitation upon child labor than upon adult labor. Or, if an adult
were free to enter dance halls, saloons, and disreputable places
generally, in order to discharge his conceived religious duty to
admonish or dissuade persons from frequenting such places, so would
be a child with similar convictions and objectives, if not alone,
then in the parent's company, against the state's command.

															The state's authority over children's activities is broader than
over like actions of adults. This is peculiarly true of public
activities and in matters of employment. A democratic society
rests, for its continuance, upon the healthy, well rounded growth
of young people into full maturity as citizens, with all that
implies. It may secure this against impeding restraints and dangers
within a broad range of selection. Among evils most appropriate for
such action are the crippling effects of child employment,
[ Footnote 15 ] more
especially in public places, and the possible harms arising from
other activities subject to all the diverse influences of the
street. [ Footnote 16 ] It is
too late now to doubt Page 321 U. S. 169 that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim
to control of the child or one that religious scruples dictate
contrary action.

															It is true children have rights, in common with older people, in
the primary use of highways. But even in such use, streets afford
dangers for them not affecting adults. And in other uses, whether
in work or in other things, this difference may be magnified. This
is so not only when children are unaccompanied, but certainly to
some extent when they are with their parents. What may be wholly
permissible for adults therefore may not be so for children, either
with or without their parents' presence.

															Street preaching, whether oral or by handing out literature, is
not the primary use of the highway, even for adults. While for them
it cannot be wholly prohibited, it can be regulated within
reasonable limits in accommodation to the primary and other
incidental uses. [ Footnote
17 ] But, for obvious reasons, notwithstanding appellant's
contrary view, [ Footnote 18 ]
the validity of such a prohibition applied to children not
accompanied by an older person hardly would seem on to question.
The case reduces itself therefore to the question whether the
presence of the child's guardian puts a limit to the state's power.
That fact may lessen the likelihood that some evils the legislation
seeks to avert will occur. But it cannot forestall all of them. The
zealous though lawful exercise of the right to engage in
propagandizing the community, whether in religious, political or
other matters, may, and at times does, create situations Page 321 U. S. 170 difficult enough for adults to cope with and wholly
inappropriate for children, especially of tender years, to face.
Other harmful possibilities could be stated, of emotional
excitement and psychological or physical injury. Parents may be
free to become martyrs themselves. But it does not follow they are
free, in identical circumstances, to make martyrs of their children
before they have reached the age of full and legal discretion when
they can make that choice for themselves. Massachusetts has
determined that an absolute prohibition, though one limited to
streets and public places and to the incidental uses proscribed, is
necessary to accomplish its legitimate objectives. Its power to
attain them is broad enough to reach these peripheral instances in
which the parent's supervision may reduce, but cannot eliminate
entirely, the ill effects of the prohibited conduct. We think that,
with reference to the public proclaiming of religion, upon the
streets and in other similar public places, the power of the state
to control the conduct of children reaches beyond the scope of its
authority over adults, as is true in the case of other freedoms,
and the rightful boundary of its power has not been crossed in this
case.

															In so ruling, we dispose also of appellant's argument founded
upon denial of equal protection. It falls with that based on denial
of religious freedom, since, in this instance, the one is but
another phrasing of the other. Shortly, the contention is that the
street, for Jehovah's Witnesses and their children, is their
church, since their conviction makes it so, and to deny them access
to it for religious purposes, as was done here, has the same effect
as excluding altar boys, youthful choristers, and other children
from the edifices in which they practice their religious beliefs
and worship. The argument hardly needs more than statement, after
what has been said, to refute it. However Jehovah's Witnesses may
conceive them, the public highways have not become their religious
property Page 321 U. S. 171 merely by their assertion. And there is no denial of equal
protection in excluding their children from doing there what no
other children may do.

															Our ruling does not extend beyond the facts the case presents.
We neither lay the foundation "for any [that is, every] state
intervention in the indoctrination and participation of children in
religion" which may be done "in the name of their health and
welfare" nor give warrant for "every limitation on their religious
training and activities." The religious training and indoctrination
of children may be accomplished in many ways, some of which, as we
have noted, have received constitutional protection through
decisions of this Court. These and all others except the public
proclaiming of religion on the streets, if this may be taken as
either training or indoctrination of the proclaimer, remain
unaffected by the decision.

															The judgment is Affirmed. [ Footnote 1 ]

															The court found there was no evidence that appellant was asked
Betty's age. It then held that conviction for refusal to disclose
the child's name, based on the charge under § 79, would violate
Article 12 of the Declaration of Rights of the Commonwealth, which
provides in part:

															"No subject shall be held to answer for any crimes or offence,
until the same is fully and plainly, substantially and formally,
described to him; or be compelled to accuse, or furnish evidence
against himself."

															[ Footnote 2 ]

															Appellant received moderate fines on each complaint, first in
the District Court of Brockton, then on pleas of not guilty by
trial de novo without a jury in the Superior Court for
Plymouth County. Motions to dismiss and quash the complaints, for
directed findings, and for rulings, were made seasonably and denied
by the Superior Court.

															[ Footnote 3 ]

															Mass.Gen.Laws (Ter. Ed.) c. 149, as amended by Acts and Resolves
of 1939, c. 461.

															[ Footnote 4 ] Cf. the facts as set forth in Jamison v.
Texas, 318 U. S. 413 ; Largent v. Texas, 318 U. S. 418 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Busey v. District of Columbia, 75 U.S.App.D.C. 352, 129
F.2d 24. A common feature is that specified small sums are
generally asked and received, but the publications may be had
without the payment if so desired.

															[ Footnote 5 ]

															In this respect, the Massachusetts decision is contrary to the
trend in other states. Compare State v. Mead, 230 Iowa
1217, 300 N.W. 523; State v. Meredith, 197 S.C. 351, 15
S.E.2d 678; State ex rel. Semansky v. Stark, 196 La. 307,
199 So. 129; Shreveport v. Teague, 200 La. 679, 8 So. 2d
640; People v. Barber, 289 N.Y. 378, 46 N.E.2d 329; Thomas v. Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418. Contra: McSparran v. Portland (Circuit Court, Multnomah
County, Oregon, June 8, 1942), cert. denied, 318 U.S.
768.

															[ Footnote 6 ]

															The court's opinion said:

															"The judge could find that, if a passer-by should hand over five
cents in accordance with the sign on the bag and should receive a
magazine in return, a sale would be effected. The judge was not
required to accept the defendant's characterization of that
transaction as a 'contribution.' He could believe that selling the
literature played a more prominent part in the enterprise than
giving it away. He could find that the defendant furnished the
magazines to Betty, knowing that the latter intended to sell them,
if she could, in violation of § 69. . . . The judge could find that
the defendant permitted Betty to 'work' in violation of § 81. . . .
[W]e cannot say that the evils at which the statutes were directed
attendant upon the selling by children of newspapers, magazines,
periodicals, and other merchandise in streets and public places do
not exist where the publications are of a religious nature."

															313 Mass. 223, 227-228.

															[ Footnote 7 ]

															Appellant's brief says:

															"The purpose of the legislation is to protect children from
economic exploitation and keep them from the evils of such
enterprises that contribute to the degradation of children."

															And at the argument counsel stated the prohibition would be
valid as against a claim of freedom of the press as a nonreligious
activity.

															[ Footnote 8 ]

															The due process claim, as made and perhaps necessarily, extends
no further than that to freedom of religion, since, in the
circumstances, all that is comprehended in the former is included
in the latter.

															[ Footnote 9 ] State v. Bailey, 157 Ind. 324, 61 N.E. 730; compare
Meyer v. Nebraska, 262 U. S. 390 ; Pierce v. Society of Sisters, 268 U.
S. 510 ; West Virginia State Board of Education v.
Barnette, 319 U. S. 624 .

															[ Footnote 10 ] Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.
S. 320 ; compare Muller v. Oregon, 208 U.
S. 412 .

															[ Footnote 11 ] Cf. People v. Ewer, 141 N.Y. 129, 36 N.E. 4.

															[ Footnote 12 ] Jacobson v. Massachusetts, 197 U. S.
11 .

															[ Footnote 13 ] See also State v. Chenoweth, 163 Ind. 94, 71 N.E. 197; Owens v. State, 6 Okla.Cr. 110, 116 P. 345.

															[ Footnote 14 ]

															Pertinent also are the decisions involving license features: Lovell v. City of Griffin, 303 U.
S. 444 ; Schneider v. State, 308 U.
S. 147 ; Hague v. Committee for Industrial
Organization, 307 U. S. 496 .

															[ Footnote 15 ] See, e.g., Volumes 1-4, 6-8, 14, 18, Report on
Condition of Women and Child Wage Earners in the United States,
Sen.Doc. No. 645, 61st Cong., 2d Sess.; The Working Children of
Boston, U.S. Dept. of Labor, Children's Bureau Publication No. 89
(1922); Fuller, The Meaning of Child Labor (1922); Fuller and
Strong, Child Labor in Massachusetts (1926).

															[ Footnote 16 ] See, e.g., Clopper, Child Labor in City Streets (1912);
Children in Street Work, U.S. Dept. of Labor, Children's Bureau
Publication No. 183 (1928); Children Engaged in Newspaper and
Magazine Selling and Delivering, U.S. Dept. of Labor, Children's
Bureau Publication No. 227 (1935).

															[ Footnote 17 ] Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U.
S. 568 .

															[ Footnote 18 ]

															Although the argument points to the guardian's presence as
showing the child's activities here were not harmful, it is nowhere
conceded in the briefs that the statute could be applied,
consistently with the guaranty of religious freedom, if the facts
had been altered only by the guardian's absence.

															MR. JUSTICE MURPHY, dissenting:

															This attempt by the state of Massachusetts to prohibit a child
from exercising her constitutional right to practice her religion
on the public streets cannot, in my opinion, be sustained.

															The record makes clear the basic fact that Betty Simmons, the
nine-year old child in question, was engaged in a genuine
religious, rather than commercial, activity. She was a member of
Jehovah's Witnesses, and had been taught the tenets of that sect by
her guardian, the appellant. Such tenets included the duty of
publicly distributing religious tracts on the street and from door
to door. Pursuant to this religious duty and in the company of the
appellant, Betty Simmons on the night of December 18, 1941, was
standing on a public street corner and offering to distribute
Jehovah's Witness literature to passersby. There was no expectation
of pecuniary profit to Page 321 U. S. 172 herself or to appellant. It is undisputed, furthermore, that she
did this of her own desire, and with appellant's consent. She
testified that she was motivated by her love of the Lord, and that
He commanded her to distribute this literature; this was, she
declared, her way of worshipping God. She was occupied, in other
words, in "an age-old form of missionary evangelism" with a purpose
"as evangelical as the revival meeting." Murdock v.
Pennsylvania, 319 U. S. 105 , 319 U. S. 108 ,
109.

															Religious training and activity, whether performed by adult or
child, are protected by the Fourteenth Amendment against
interference by state action, except insofar as they violate
reasonable regulations adopted for the protection of the public
health, morals and welfare. Our problem here is whether a state,
under the guise of enforcing its child labor laws, can lawfully
prohibit girls under the age of eighteen and boys under the age of
twelve from practicing their religious faith insofar as it involves
the distribution or sale of religious tracts on the public streets.
No question of freedom of speech or freedom of press is present,
and we are not called upon to determine the permissible restraints
on those rights. Nor are any truancy or curfew restrictions in
issue. The statutes in question prohibit all children within the
specified age limits from selling or offering to sell "any
newspapers, magazines, periodicals or any other articles of
merchandise of any description . . . in any street or public
place." Criminal sanctions are imposed on the parents and guardians
who compel or permit minors in their control to engage in the
prohibited transactions. The state court has construed these
statutes to cover the activities here involved, cf. State v.
Richardson, 92 N.H. 178, 27 A.2d 94, thereby imposing an
indirect restraint through the parents and guardians on the free
exercise by minors of their religious beliefs. This indirect
restraint is no less effective than a direct one. A square conflict
between the constitutional Page 321 U. S. 173 guarantee of religious freedom and the state's legitimate
interest in protecting the welfare of its children is thus
presented.

															As the opinion of the Court demonstrates, the power of the state
lawfully to control the religious and other activities of children
is greater than its power over similar activities of adults. But
that fact is no more decisive of the issue posed by this case than
is the obvious fact that the family itself is subject to reasonable
regulation in the public interest. We are concerned solely with the
reasonableness of this particular prohibition of religious activity
by children.

															In dealing with the validity of statutes which directly or
indirectly infringe religious freedom and the right of parents to
encourage their children in the practice of a religious belief, we
are not aided by any strong presumption of the constitutionality of
such legislation. United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 ,
note 4. On the contrary, the human freedoms enumerated in the First
Amendment and carried over into the Fourteenth Amendment are to be
presumed to be invulnerable, and any attempt to sweep away those
freedoms is prima facie invalid. It follows that any
restriction or prohibition must be justified by those who deny that
the freedoms have been unlawfully invaded. The burden was therefore
on the state of Massachusetts to prove the reasonableness and
necessity of prohibiting children from engaging in religious
activity of the type involved in this case.

															The burden in this instance, however, is not met by vague
references to the reasonableness underlying child labor legislation
in general. The great interest of the state in shielding minors
from the evil vicissitudes of early life does not warrant every
limitation on their religious training and activities. The
reasonableness that justifies the prohibition of the ordinary
distribution of literature in the public streets by children is not
necessarily the reasonableness Page 321 U. S. 174 that justifies such a drastic restriction when the distribution
is part of their religious faith. Murdock v. Pennsylvania,
supra, 319 U. S. 111 .
If the right of a child to practice its religion in that manner is
to be forbidden by constitutional means, there must be convincing
proof that such a practice constitutes a grave and immediate danger
to the state or to the health, morals or welfare of the child. West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 .
The vital freedom of religion, which is "of the very essence of a
scheme of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 ,
cannot be erased by slender references to the state's power to
restrict the more secular activities of children.

															The state, in my opinion, has completely failed to sustain its
burden of proving the existence of any grave or immediate danger to
any interest which it may lawfully protect. There is no proof that
Betty Simmons' mode of worship constituted a serious menace to the
public. It was carried on in an orderly, lawful manner at a public
street corner. And

															"one who is rightfully on a street which the state has left open
to the public carries with him there as elsewhere the
constitutional right to express his views in an orderly fashion.
This right extends to the communication of ideas by handbills and
literature as well as by the spoken word." Jamison v. Texas, 318 U. S. 413 , 318 U. S. 416 .
The sidewalk, no less than the cathedral or the evangelist's tent,
is a proper place, under the Constitution, for the orderly worship
of God. Such use of the streets is as necessary to the Jehovah's
Witnesses, the Salvation Army and others who practice religion
without benefit of conventional shelters as is the use of the
streets for purposes of passage.

															It is claimed, however, that such activity was likely to affect
adversely the health, morals and welfare of the child. Reference is
made in the majority opinion to "the crippling effects of child
employment, more especially in public Page 321 U. S. 175 places, and the possible harms arising from other activities
subject to all the diverse influences of the street." To the extent
that they flow from participation in ordinary commercial
activities, these harms are irrelevant to this case. And the bare
possibility that such harms might emanate from distribution of
religious literature is not, standing alone, sufficient
justification for restricting freedom of conscience and religion.
Nor can parents or guardians be subjected to criminal liability
because of vague possibilities that their religious teachings might
cause injury to the child. The evils must be grave, immediate,
substantial. Cf. Bridges v. California, 314 U.
S. 252 , 314 U. S. 262 .
Yet there is not the slightest indication in this record, or in
sources subject to judicial notice, that children engaged in
distributing literature pursuant to their religious beliefs have
been or are likely to be subject to any of the harmful "diverse
influences of the street." Indeed, if probabilities are to be
indulged in, the likelihood is that children engaged in serious
religious endeavor are immune from such influences. Gambling,
truancy, irregular eating and sleeping habits, and the more serious
vices are not consistent with the high moral character ordinarily
displayed by children fulfilling religious obligations. Moreover,
Jehovah's Witness children invariably make their distributions in
groups subject at all times to adult or parental control, as was
done in this case. The dangers are thus exceedingly remote, to say
the least. And the fact that the zealous exercise of the right to
propagandize the community may result in violent or disorderly
situations difficult for children to face is no excuse for
prohibiting the exercise of that right.

															No chapter in human history has been so largely written in terms
of persecution and intolerance as the one dealing with religious
freedom. From ancient times to the present day, the ingenuity of
man has known no limits in its ability to forge weapons of
oppression for use against Page 321 U. S. 176 those who dare to express or practice unorthodox religious
beliefs. And the Jehovah's Witnesses are living proof of the fact
that, even in this nation, conceived as it was in the ideals of
freedom, the right to practice religion in unconventional ways is
still far from secure. Theirs is a militant and unpopular faith,
pursued with a fanatical zeal. They have suffered brutal beatings;
their property has been destroyed; they have been harassed at every
turn by the resurrection and enforcement of little used ordinances
and statutes. See Mulder and Comisky, "Jehovah's Witnesses
Mold Constitutional Law," 2 Bill of Rights Review, No. 4, p. 262.
To them, along with other present-day religious minorities, befalls
the burden of testing our devotion to the ideals and constitutional
guarantees of religious freedom. We should therefore hesitate
before approving the application of a statute that might be used as
another instrument of oppression. Religious freedom is too sacred a
right to be restricted or prohibited in any degree without
convincing proof that a legitimate interest of the state is in
grave danger.

															MR. JUSTICE JACKSON:

															The novel feature of this decision is this: the Court holds that
a state may apply child labor laws to restrict or prohibit an
activity of which, as recently as last term, it held:

															"This form of religious activity occupies the same high estate
under the First Amendment as do worship in the churches and
preaching from the pulpits. It has the same claim to protection as
the more orthodox and conventional exercises of religion."

															". . . the mere fact that the religious literature is 'sold' by
itinerant preachers, rather than 'donated.' does not transform
evangelism into a commercial enterprise. If it did, then the
passing of the collection plate in church would make the church
service a commercial project. The constitutional right of those
spreading their religious beliefs through the spoken Page 321 U. S. 177 and printed word are not to be gauged by standards governing
retailers or wholesalers of books." Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 109 ,
111.

															It is difficult for me to believe that going upon the streets to
accost the public is the same thing for application of public law
as withdrawing to a private structure for religious worship. But if
worship in the churches and the activity of Jehovah's Witnesses on
the streets "occupy the same high estate" and have the "same claim
to protection," it would seem that child labor laws may be applied
to both if to either. If the Murdock doctrine stands along
with today's decision, a foundation is laid for any state
intervention in the indoctrination and participation of children in
religion, provided it is done in the name of their health or
welfare.

															This case brings to the surface the real basis of disagreement
among members of this Court in previous Jehovah's Witness cases. Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. Struthers, 319 U. S. 141 ; Jones v. Opelika, 316 U. S. 584 , 316 U. S. 319 U.S. 103; Douglas v. Jeannette, 319 U.
S. 157 . Our basic difference seems to be as to the
method of establishing limitations which of necessity bound
religious freedom.

															My own view may be shortly put: I think the limits begin to
operate whenever activities begin to affect or collide with
liberties of others or of the public. Religious activities which
concern only members of the faith are and ought to be free -- as
nearly absolutely free as anything can be. But beyond these, many
religious denominations or sects engage in collateral and secular
activities intended to obtain means from unbelievers to sustain the
worshippers and their leaders. They raise money not merely by
passing the plate to those who voluntarily attend services or by
contributions by their own people, but by solicitations and drives
addressed to the public by holding public dinners and
entertainments, by various kinds Page 321 U. S. 178 of sales and Bingo games and lotteries. All such money-raising
activities on a public scale are, I think, Caesar's affairs, and
may be regulated by the state so long as it does not discriminate
against one because he is doing them for a religious purpose and
the regulation is not arbitrary and capricious, in violation of
other provisions of the Constitution.

															The Court in the Murdock case rejected this principle
of separating immune religious activities from secular ones in
declaring the disabilities which the Constitution imposed on local
authorities. Instead, the Court now draws a line based on age that
cuts across both true exercise of religion and auxiliary secular
activities. I think this is not a correct principle for defining
the activities immune from regulation on grounds of religion, and Murdock overrules the grounds on which I think affirmance
should rest. I have no alternative but to dissent from the grounds
of affirmance of a judgment which I think was rightly decided, and
upon right grounds, by the Supreme Judicial Court of Massachusetts.
313 Mass. 223.

															MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this
opinion.

Summary: In *Prince v. Massachusetts*, the Supreme Court upheld a Massachusetts child labor law that prohibited minors from selling newspapers or other items on public streets. The case involved a member of Jehovah's Witnesses who allowed her nine-year-old niece to sell religious literature on the street, in violation of the law. The Court ruled that the state's interest in protecting the welfare of children justified the restriction on the child's religious activities in public places. The Court also found no violation of equal protection, as the law applied equally to all children, regardless of their religious affiliation.