Six Justices joined Justice Breyer's opinion today in Rehaif v. United States, a 12-page ruling overturning the conviction of an illegal alien in possession of a firearm. The court held that while defendant Hamid Rehaif was indeed in the country illegally and did possess firearms, he may not have known his immigration status or that it was unlawful for an illegal alien to possess firearms. After acknowledging that "The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Government to establish a defendant's knowledge of his status in the analogous context of felon-in-possession prosecutions," (emphasis added), the Court cites 18 U.S.C. § 924(a)(2) which states, "Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10, years, or both." Section 922(g) specifies that it is unlawful for an illegal alien to possess a firearm. From this, the Court announced that the prosecution is required to prove that a defendant knew both his status and that he possessed a gun. In a dissent, Justice Alito, joined by Justice Thomas, notes that the majority's holding "overturns the long-established interpretation of an important criminal statute, 18 U.S.C. § 922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years."
Why did the court take this case? There was no conflict or controversy, no split among the circuits. The defendant in this case came to the U.S. from the United Arab Emirates on a student visa which, at entry, he was informed automatically expired when he was no longer a student. After he flunked out he was notified by the college that he was no longer legally in the country. He then moved to a hotel near an airport in Florida, checking in and out each day for 53 days at a cost of $11,000. Each time he checked in he insisted on an eighth floor room facing the airport. During this time he frequented a nearby firing range. A suspicious hotel employee called the FBI after the defendant informed him that he had firearms in the room. He was convicted, sentenced to 18 months, and would have been deported after serving his sentence. Was anything about this wrong?
How many thousands of convicted felons, dangerous mentally ill people, stalkers, wife beaters and illegal aliens, the court has now determined were improperly convicted for unlawful possession of a firearm, can petition for new trials?
Michael, given that (1) persons generally have a constitutional right to possess a gun under the Second Amendment, and (2) we generally think it unfair and unjustified to severely punish persons who lack bad criminal intent, it makes sense to assume Congress only wants those who know they are among those ineligible to possess a gun to be subject to severe punishment for possessing a gun. If you take issue with (1) or (2) above, then Rehaif makes less senses. But if you accept these points, requiring a showing a mens rea here seems sound (and surely not very hard in 98% of all cases).
As for the impact, Justice Alito asserts "tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g) [and] every one of those prisoners will be able to seek relief by one route or another." I predict only a few hundred will get relief from Rehaif, but time will tell.
Professor Berman, a small quibble: Alito said "seek," not "get." The ratio of petitions to ultimate acquittals may ultimately be tens of thousands to a few hundred, so you might both be right.