“A Rogue’s Gallery of Offenses”: Implications of Rehaif and Davis for Prosecuting Gun Crimes

  • Date:
  • June 25, 2019

In the past week, the Supreme Court issued two decisions likely to have a major impact on gun prosecutions: Rehaif v. United States, in which the Court tossed out an immigrant’s conviction for unlawful possession of a firearm, and United States v. Davis, in which the Court tossed out a pair of convictions for possessing a firearm during a crime of violence. Justice Kavanaugh chronicled a list of crimes potentially imperiled by Davis. Justice Gorsuch dismissed the relevance of this “rogue’s gallery of offenses.” How should we understand these decisions?

This post and the next one will explore that question. At the outset, it’s worth noting some things the two decisions have in common:

  • Both majorities include justices typically described as conservative (indeed, Justice Gorsuch wrote Davis).
  • Both majorities also include all the justices typically described as liberal, even though the decisions narrow the range of prosecutorial tools to enforce firearms regulations.
  • And in both cases, the dissents—which were each longer than the corresponding majority opinions—decried the impact on law enforcement and frustration of criminal prosecutions of gun crimes. (Notice how the dissents described the relevant laws as powerful crime-fighting tools. Justice Alito in Rehaif: “[T]oday’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law.” Justice Kavanaugh in Davis: “Many factors have contributed to the decline of violent crime in America. But one cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violent crimes with firearms.”)


Each case alone is major; together they're a huge deal. Rehaif came first, decided on June 21 by a 7-2 majority. (Only Justices Alito and Thomas dissented). Hamid Rehaif came to college in the United States on a student visa. But he effectively failed out of school, which meant he could no longer remain legally in the country. Rehaif, however, not only remained, but also visited a shooting range in Florida where he bought a box of ammo and rented a gun. That’s a problem because 18 U.S.C. § 922(g)(5) makes it unlawful for an alien who is illegally or unlawfully present in the United States to possess a gun or ammunition. Rehaif was charged with violating § 922(g) and 18 U.S.C. § 924(a)(2), the latter of which punishes anyone who “knowingly” violates the former with up to 10 years’ imprisonment. Rehaif argued that the statute required the government to prove he knew his unlawful status; the lower courts rejected this claim.

But the Supreme Court reversed. Writing for the majority, Justice Breyer applied the presumption that a statute’s mens rea requirement flows through to each of its elements.

With some here-irrelevant omissions, §922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”).

Because jurisdictional elements are generally excluded from scienter requirements, that left the substantive elements that define a violation of 922(g). An alien cannot “knowingly” violate the statute unless he knows his status. As the Court noted, “[a]ssuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. It is therefore the defendant’s status, and not his conduct alone, that makes the difference.”

In dissent, Justice Alito decried the majority’s dismissal of “an interpretation that has been adopted by every single Court of Appeals to address the question.” He suggested that “[t]oday’s decision will make it significantly harder to convict persons falling into some of” the 922(g) categories, such as those “adjudicated as . . . mental defective,” or those under certain types of domestic violence restraining orders, or those convicted of misdemeanor crimes of domestic violence. In his view, the scienter requirement plainly covers only the conduct element, and leaves the status element as an issue for the courts to decide as a matter of law.

The Court left Justice Alito’s worries about other statuses for another day, but nonetheless suggested some situations in which its narrow reading of 922(g) would change the outcome: without the scienter requirement the law “might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’”  And with that, Justice Alito is likely correct that Rehaif may open a wide door to post-conviction petitions from offenders convicted of 922(g) offenses. Time will tell, but when combined with Davis, the decision just might be a major change in criminal enforcement of gun regulations.