STEWART, J., concurring in judgment

445 U.S.

ported change in perception that "reason and experience" have wrought.

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

now.

The Court is correct when it says that "[t]he ancient foundations for so sweeping a privilege have long since disappeared." Ante, at 52. But those foundations had disappeared well before 1958; their disappearance certainly did not occur in the few years that have elapsed between the Hawkins decision and this one. To paraphrase what Mr. Justice Jackson once said in another context, there is reason to believe that today's opinion of the Court will be of greater interest to students of human psychology than to students of law.2

1 "The rule of evidence we are here asked to re-examine has been called a 'sentimental relic.' It was born of two concepts long since rejected: that a criminal defendant was incompetent to testify in his own case, and that in law husband and wife were one. What thus began as a disqualification of either spouse from testifying at all yielded gradually to the policy of admitting all relevant evidence, until it has now become simply a privilege of the criminal defendant to prevent his spouse from testifying against

him.

"Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice. When such a rule is the product of a conceptualism long ago discarded, is universally criticized by scholars, and has been qualified or abandoned in many jurisdictions, it should receive the most careful scrutiny. Surely 'reason and experience' require that we do more than indulge in mere assumptions, perhaps naive assumptions, as to the importance of this ancient rule to the interests of domestic tranquillity." Hawkins v. United States, 358 U. S. 74, 81-82 (concurring opinion) (citations and footnotes omitted).

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

Syllabus

LEWIS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 78-1595. Argued January 7, 1980-Decided February 27, 1980 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. 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. 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. 65-67.

591 F.2d 978, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and POWELL, JJ., joined, post, p. 68.

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

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

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 VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. App. § 1202 (a)(1).1

I

In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony

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."

for breaking and entering with intent to commit a misdemeanor. See Fla. Stat. § 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U. S. C. App. § 1203 (2) and 18 U. S. C. § 925 (c).

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

Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding. He claimed that under Gideon v. Wainwright, supra, a violation of § 1202

2 The indictment also charged petitioner with a violation of 15 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.

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.

Opinion of the Court

445 U.S. (a)(1) could not be predicated on a prior conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner's status under § 1202 (a) (1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time.

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

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

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