Commentary by Jon Roland
Although the order in this case is correct, the reasoning of the opinions, including that of J. Thomas, does not go far enough regarding the constitutional principles that apply to this case.
The opinion implies that if Congress had expressed the intent to dispense with mens rea, it would be constitutional, and only finds it did not express that intent, and that such intent cannot be inferred. This position fails to address the more fundamental question of whether Congress has power under the Constitution to impose criminal penalties for this kind of activity, and whether it has constitutional authority to dispense with mens rea even for those offenses for which it does have authority to impose penalties.
I have argued in my article, Original Understanding of the Commerce Clause, that the Constitution does not confer that authority under the Commerce Clause, which is the authority claimed by the government in this case. Their chain of reasoning was originally based on the power to tax, the imposition of an excise ("transfer") tax on certain classes of "firearm", the inference that the power to tax implies the power to require registration of taxed items, and the further inference of a power to impose criminal penalties for either failing to register or to possess an unregistered item. Then Congress repealed the tax, but extended the prohibitions that had originally been based on it. Both the premise and the inferences fail, however. Outside the territory of "federal enclaves" established under U.S. Const. Art. I Sec. 8 Cl. 17, there is no authority to prohibit the possession of anything, or to impose criminal penalties for violations of a regulation, or for failure to pay a tax. Furthermore, as implied in the opinion in United States v. Miller, 307 U.S. 174 (1939), if an item is suitable for militia use, it is exempt from taxation, and any firearm that is useful for cambat and not unduly dangerous to persons not its intended targets would qualify.
As I have argued in my Introduction to Conflict of Criminal Laws, Edward S. Stimson (1936), the elements of proof of a crime are:
1. Actus reus The voluntary act of the accused, irreversible in its effects.
2. Mens rea Criminal intent, including reasonable presumption of knowledge of the law.
3. Concurrence The union of actus reus and mens rea as a single event.
4. Causation The act must have actual effect, or be capable of producing an effect.
5. Harm The effect must constitute actual harm, unmitigated by consent of the victim.
The argument is that there can be no mens rea without scienter, or knowledge by the alleged offender that:
1. That a certain type of item or activity was regulated or prohibited by law; and
2. That an item or activity had the attributes that made it subject to the regulation or prohibition.
This would require the prosecution to prove beyond a reasonable doubt that the accused could be reasonably expected to know there is a law, as well as that the item or activity had the attributes that made it subject to the law. It can no longer be presumed that a person knows the law, and this opinion reflects that. But it also raises the key question of what can a reasonable person be expected to know about the attributes of items or activities.
Scienter goes beyond mens rea. It also goes to causation and harm. The prosecution must prove, by common-law standards, that the accused can be reasonably expected to know that the item or activity would cause harm, which goes to whether he might be reasonably expected to know it might be subject to regulation, and had the attributes making it subject to such regulation. By those standards, criminal penalties, that is, deprivations of life, limb, or liberty, are not authorized for any mala prohibita. Only for mala in se. The Constitution does not delegate general police powers to Congress to impose criminal penalties for "public safety" or "public swelfare".
Also unaddressed is the due process requirement that all issues of law be argued in the presence of the jury. It should not be about jury instructions, but about presenting the jury with opposing arguments on the elements of proof, which are necessary for them to render a general verdict.
These principles extend to the states and under the 14th Amendment federal courts have jurisdiction over cases between a state and a resident thereof involving a constitutional right of individuals against the actions of government officials. See my article Intent of the Fourteenth Amendment was to Protect All Rights, in which I argue that these include the unenumerated rights of the Ninth Amendment, which include the rights recognized under the common law writs and practices of Anglo-American law at the time of the Founding. See the page on Common Law Writs.
5. Several interesting cases provide light on the thinking of the courts on questions of scienter:
Also see discussions and cases on the liabilities of common carriers, and the following:
6. Law Must be Argued Before Jury, Jon Roland. //constitution.org/col/0814lmbabj.htm
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