johnson argued november decided june petitioner johnson pleaded guilty felon possession firearm see government sought enhanced sentence armed career criminal act imposes increased prison term upon defendant three prior convictions violent felony term defined residual clause include felony involves conduct presents serious potential risk physical injury another government argued johnson prior conviction unlawful possession shotgun met definition making third conviction violent felony previously pronounced upon meaning residual clause james begay chambers sykes rejected suggestions dissenting justices james sykes clause void vagueness district held residual clause cover unlawful possession shotgun imposed sentence acca eighth circuit affirmed held imposing increased sentence acca residual clause violates due process pp government violates due process clause takes away someone life liberty property criminal law vague fails give ordinary people fair notice conduct punishes standardless invites arbitrary enforcement kolender lawson courts must use categorical approach deciding whether offense violent felony looking fact defendant convicted crimes falling within certain categories facts underlying prior convictions taylor deciding whether residual clause covers crime thus requires picture kind conduct crime involves ordinary case judge whether abstraction presents serious potential risk physical injury james supra pp two features residual clause conspire make unconstitutionally vague tying judicial assessment risk judicially imagined ordinary case crime rather facts statutory elements clause leaves grave uncertainty estimate risk posed crime see james supra time residual clause leaves uncertainty much risk takes crime qualify violent felony taken together uncertainties produce unpredictability arbitrariness due process clause tolerates repeated failure craft principled standard residual clause lower courts persistent inability apply clause consistent way confirm hopeless indeterminacy pp cases squarely contradict theory residual clause constitutional merely underlying crimes may clearly pose serious potential risk physical injury another see cohen grocery holding residual clause void vagueness put criminal laws use terms substantial risk doubt laws generally require gauging riskiness individual conduct particular occasion riskiness idealized ordinary case crime pp doctrine stare decisis require continued adherence james sykes experience leaves doubt unavoidable uncertainty arbitrariness adjudication residual clause james sykes opined vagueness without full briefing argument continued adherence decisions undermine rather promote goals evenhandedness predictability consistency served stare decisis pp fed appx reversed remanded scalia delivered opinion roberts ginsburg breyer sotomayor kagan joined kennedy thomas filed opinions concurring judgment alito filed dissenting opinion opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press samuel james johnson petitioner writ certiorari appeals eighth circuit june justice scalia delivered opinion armed career criminal act defendant convicted felon possession firearm faces severe punishment three previous convictions violent felony term defined include felony involves conduct presents serious potential risk physical injury another must decide whether part definition violent felony survives constitution prohibition vague criminal laws federal law forbids certain people convicted felons persons committed mental institutions drug users ship possess receive firearms general law punishes violation ban years imprisonment violator three earlier convictions serious drug offense violent felony armed career criminal act increases prison term minimum years maximum life johnson act defines violent felony follows crime punishable imprisonment term exceeding one year element use attempted use threatened use physical force person another ii burglary arson extortion involves use explosives otherwise involves conduct presents serious potential risk physical injury another emphasis added closing words definition italicized come known act residual clause since decided four cases attempting discern meaning held residual clause covers florida offense attempted burglary james cover new mexico offense driving influence begay cover illinois offense failure report penal institution chambers cover indiana offense vehicular flight officer sykes james sykes rejected suggestions dissenting justices residual clause violates constitution prohibition vague criminal laws compare james scalia dissenting compare sykes slip scalia dissenting slip case involves application residual clause another crime minnesota offense unlawful possession shotgun petitioner samuel johnson felon long criminal record federal bureau investigation began monitor involvement organization bureau suspected planning commit acts terrorism investigation johnson disclosed undercover agents manufactured explosives planned attack mexican consulate minnesota progressive bookstores revised presentence investigation johnson showed agents rifle several semiautomatic firearms rounds ammunition eventual arrest johnson pleaded guilty felon possession firearm violation government requested enhanced sentence armed career criminal act argued three johnson previous offenses including unlawful possession shotgun see stat qualified violent felonies district agreed sentenced johnson prison term act appeals affirmed fed appx per curiam granted certiorari decide whether minnesota offense unlawful possession shotgun ranks violent felony residual clause later asked parties present reargument addressing compatibility residual clause constitution prohibition vague criminal laws ii fifth amendment provides person shall deprived life liberty property without due process law cases establish government violates guarantee taking away someone life liberty property criminal law vague fails give ordinary people fair notice conduct punishes standardless invites arbitrary enforcement kolender lawson prohibition vagueness criminal statutes requirement consonant alike ordinary notions fair play settled rules law statute flouts violates first essential due process connally general constr principles apply statutes defining elements crimes also statutes fixing sentences batchelder taylor held armed career criminal act requires courts use framework known categorical approach deciding whether offense burglary arson extortion involves use explosives otherwise involves conduct presents serious potential risk physical injury another categorical approach assesses whether crime qualifies violent felony terms law defines offense terms individual offender might committed particular occasion begay supra deciding whether residual clause covers crime thus requires picture kind conduct crime involves ordinary case judge whether abstraction presents serious potential risk physical injury james supra task goes beyond deciding whether creation risk element crime unlike part definition violent felony asks whether crime element use physical force residual clause asks whether crime involves conduct presents much risk physical injury inclusion burglary extortion among enumerated offenses preceding residual clause confirms task also goes beyond evaluating chances physical acts make crime injure someone act making extortionate demand breaking entering someone home normally cause physical injury rather risk injury arises extortionist might engage violence making demand burglar might confront resident home breaking entering convinced indeterminacy inquiry required residual clause denies fair notice defendants invites arbitrary enforcement judges increasing defendant sentence clause denies due process law two features residual clause conspire make unconstitutionally vague first place residual clause leaves grave uncertainty estimate risk posed crime ties judicial assessment risk judicially imagined ordinary case crime facts statutory elements one go deciding kind conduct ordinary case crime involves statistical analysis state reporter survey expert evidence google gut instinct mayer kozinski dissenting denial rehearing en banc take example ordinary instance witness tampering involve offering witness bribe threatening witness violence critically picturing criminal behavior enough already discussed assessing potential risk seemingly requires judge imagine idealized ordinary case crime subsequently plays james illustrates speculative detached statutory elements enterprise become explaining attempted burglary poses serious potential risk physical injury said armed burglar may spotted police officer private security guard participant neighborhood watch program homeowner may give chase violent encounter may ensue dissent contrast asserted confrontation occurs attempted burglary likely consist nothing occupant yelling window burglar running away opinion scalia residual clause offers reliable way choose competing accounts ordinary attempted burglary involves time residual clause leaves uncertainty much risk takes crime qualify violent felony one thing apply imprecise serious potential risk standard facts quite another apply abstraction asking whether crime otherwise involves conduct presents serious potential risk moreover residual clause forces courts interpret serious potential risk light four enumerated crimes burglary arson extortion crimes involving use explosives offenses far clear respect degree risk poses begay ordinary burglar invade occupied home night unoccupied home day typical extortionist threaten victim person use force threaten victim mail revelation embarrassing personal information combining indeterminacy measure risk posed crime indeterminacy much risk takes crime qualify violent felony residual clause produces unpredictability arbitrariness due process clause tolerates acknowledged failure persistent efforts establish standard provide evidence vagueness cohen grocery repeated attempts repeated failures craft principled objective standard residual clause confirm hopeless indeterminacy three previous four decisions clause concentrated level risk posed crime question though case found necessary resort different ad hoc test guide inquiry james asked whether risk posed attempted burglary comparable posed closest analog among enumerated offenses namely completed burglary concluded rule takes care attempted burglary offers help respect vast majority offenses apparent analog among enumerated crimes example driving influence alcohol analogous burglary arson extortion crime involving use explosives scalia dissenting chambers next case focus risk relied principally statistical report prepared sentencing commission conclude offender fails report prison significantly likely others attack physically resist apprehender thereby producing potential risk physical injury much failure report prison tens thousands federal state crimes comparable reports exist even studies available might suffer methodological flaws skewed toward rarer forms crime paint widely divergent pictures riskiness conduct crime involves see sykes scalia dissenting slip kagan dissenting slip recent case sykes also relied statistics though confirm commonsense conclusion indiana vehicular flight crime violent felony majority opinion slip common sense much less useful criterion sounds sykes illustrates indiana statute involved case covered everything provoking car chase merely failing stop immediately seeing police officer signal see kagan dissenting slip common sense help federal discern ordinary case vehicular flight indiana lies along spectrum common sense even produced consistent conception degree risk posed four enumerated crimes reason expect fare better respect thousands unenumerated crimes james chambers sykes failed establish generally test prevents risk comparison required residual clause devolving guesswork intuition remaining case begay preceded chambers sykes took entirely different approach held order qualify violent felony residual clause crime must resemble enumerated offenses kind well degree risk posed deemed drunk driving insufficiently similar listed crimes typically involve purposeful violent aggressive conduct internal quotation marks omitted alas begay succeed bringing clarity meaning residual clause eliminate need imagine kind conduct typically involved crime addition enumerated crimes much similar one another kind degree risk posed concept aggressive conduct far clear sykes criticized purposeful violent aggressive test addition text explained levels risk normally dispositive confined begay strict liability negligence recklessness crimes slip present case fifth meaning residual clause opens new front uncertainty deciding whether unlawful possession shotgun violent felony confine attention risk shotgun go accident someone possession also consider possibility person possessing shotgun later use commit crime inclusion burglary extortion among enumerated offenses suggests crime may qualify residual clause even physical injury remote criminal act remote remote residual clause yields answers one trouble making sense residual clause clause created numerous splits among lower federal courts proved nearly impossible apply consistently chambers alito concurring judgment telling feature lower courts decisions division whether residual clause covers crime even clear laws produce close cases rather pervasive disagreement nature inquiry one supposed conduct kinds factors one supposed consider judges concluded deciding whether conspiracy violent felony requires evaluating dangers posed simple act agreeing commit crime whitson per curiam others also considered probability agreement carried white judges assumed battery police officer defined include slightest touching explode violence result physical injury williams others felt es great disservice law enforcement officers assume explod violence rather rely training experience determine best method responding carthorne judges considering whether statutory rape qualifies violent felony concentrated cases involving perpetrator much older victim daye others tried account possibility perpetrator victim might close age mcdonald disagreements like go well beyond disputes matters degree said life law experience nine years experience trying derive meaning residual clause convinces us embarked upon failed enterprise uncertainties residual clause may tolerable isolation sum makes task us best guesswork evans invoking shapeless provision condemn someone prison years life comport constitution guarantee due process government dissent claim straightforward cases residual clause crimes clearly pose serious potential risk physical injury another see post opinion alito true enough though think many cases government dissent deem easy turn easy consider one government examples connecticut offense rioting correctional institution see johnson certainly sounds like violent felony one realizes connecticut defines offense include taking part disorder disturbance strike riot organized disobedience rules regulations prison stat say ordinary disorder closely resembles prison riot prison cafeteria passive nonviolent act disregarding order move johnson parker dissenting events although statements opinions read suggest otherwise holdings squarely contradict theory vague provision constitutional merely conduct clearly falls within provision grasp instance deemed law prohibiting grocers charging unjust unreasonable rate void vagueness even though charging someone thousand dollars pound sugar surely unjust unreasonable cohen grocery similarly deemed void vagueness law prohibiting people sidewalks conduct ing manner annoying persons passing even though spitting someone face surely annoying coates cincinnati decisions refute suggestion existence obviously risky crimes establishes residual clause constitutionality resisting force decisions dissent insists statute void vagueness vague applications post claims prohibition unjust unreasonable rates cohen grocery vague applications even though one easily envision rates high unreasonable measure post seems us dissent supposed requirement vagueness applications requirement tautology hold statute vague vague applications never mind reality existence clearly unreasonable rates save law cohen grocery existence clearly risky crimes save residual clause government dissent next point dozens federal state criminal laws use terms like substantial risk grave risk unreasonable risk suggesting hold residual clause unconstitutional place provisions constitutional doubt see post almost none cited laws links phrase substantial risk confusing list examples phrase red standing alone generate confusion unpredictability phrase red light pink maroon navy blue colors otherwise involve shades red assuredly james scalia dissenting importantly almost cited laws require gauging riskiness conduct individual defendant engages particular occasion general matter doubt constitutionality laws call application qualitative standard substantial risk conduct law full instances man fate depends estimating rightly matter degree nash residual clause however requires application serious potential risk standard idealized ordinary case crime elements necessary determine imaginary ideal uncertain nature degree effect abstract inquiry offers significantly less predictability one hat deals actual imaginary condition facts international harvester america kentucky finally dissent urges us save residual clause vagueness interpreting refer risk posed particular conduct defendant engaged risk posed ordinary case defendant crime see post words dissent suggests jettison residual clause though enumerated crimes categorical approach adopted taylor see reaffirmed four cases see james begay chambers sykes slip decline dissent invitation first place government asked us abandon categorical approach cases addition taylor good reasons adopt categorical approach reasons apply less residual clause enumerated crimes taylor explained relevant part armed career criminal act refers person three previous convictions person committed three previous violent felonies drug offenses emphasis convictions indicates congress intended sentencing look fact defendant convicted crimes falling within certain categories facts underlying prior convictions ibid taylor also pointed utter impracticability requiring sentencing reconstruct long original conviction conduct underlying conviction example original conviction rested guilty plea record underlying facts may available plausible interpretation law therefore requires use categorical approach brings us stare decisis first case received briefing heard argument parties whether residual clause void vagueness james however stated persuaded principal dissent suggestion residual provision unconstitutionally vague sykes rejected dissenting opinion claim vagueness slip doctrine stare decisis allows us revisit decision experience application reveals unworkable payne tennessee experience instructive decision question rejected claim vagueness unlike judicial mistakes need correction error rejected vagueness challenge manifests precisely subsequent judicial decisions inability later opinions impart predictability earlier opinion forecast experience federal courts leaves doubt unavoidable uncertainty arbitrariness adjudication residual clause even sykes tried clarify residual clause meaning provision remains judicial morass defies systemic solution black hole confusion uncertainty frustrates effort impart sense order direction vann agee concurring cases make plain even decisions rendered full adversarial presentation may yield lessons subsequent experience see dixon payne james sykes opined vagueness without full briefing argument issue circumstance leaves us less constrained follow precedent hohn brief discussions vagueness james sykes homed imprecision phrase serious potential risk neither opinion evaluated uncertainty introduced need evaluate riskiness abstract ordinary case crime slip departing decisions raise concerns upsetting private reliance interests although vital rule judicial stare decisis matter sake matters promotes evenhanded predictable consistent development legal principles payne supra decisions residual clause proved anything evenhanded predictable consistent standing james sykes undermine rather promote goals stare decisis meant serve hold imposing increased sentence residual clause armed career criminal act violates constitution guarantee due process contrary holdings james sykes overruled today decision call question application act four enumerated offenses remainder act definition violent felony reverse judgment appeals eighth circuit remand case proceedings consistent opinion ordered kennedy concurring judgment samuel james johnson petitioner writ certiorari appeals eighth circuit june justice kennedy concurring judgment view reasons well stated justice alito dissent residual clause armed career criminal act unconstitutionally vague categorical approach approach assumption categorical approach still control reasons given justice thomas part opinion concurring judgment johnson conviction possession shotgun qualify violent felony reasons concur judgment thomas concurring judgment samuel james johnson petitioner writ certiorari appeals eighth circuit june justice thomas concurring judgment agree johnson sentence stand rather use fifth amendment due process clause nullify act congress resolve case ordinary grounds conventional principles interpretation precedents offense unlawfully possessing shotgun constitute violent felony residual clause armed career criminal act acca majority wants content engage usual business interpreting statutes holds clause unconstitutionally vague notwithstanding fact four previous occasions found determinate enough judicial application justice alito explains decision reconciled precedents concerning vagueness doctrine see post dissenting opinion even closer case decisions wary holding residual clause unconstitutionally vague although joined applying modern vagueness doctrine past see fcc fox television stations slip become increasingly concerned origins application simply put vagueness doctrine shares uncomfortably similar history substantive due process judicially created doctrine lacking basis constitution easily disposed case without nullifying acca residual clause ordinary principles statutory interpretation crime unlawfully possessing shotgun constitute violent felony acca relevant part act defines violent felony crime punishable imprisonment term exceeding one year either element use attempted use threatened use physical force person another ii burglary arson extortion involves use explosives otherwise involves conduct presents serious potential risk physical injury another offense unlawfully possessing shotgun neither satisfies first clause definition falls within enumerated offenses second therefore constitute violent felony falls within acca residual clause involves conduct presents serious potential risk physical injury another ii determine whether offense falls within residual clause consider whether conduct encompassed elements offense ordinary case presents serious potential risk injury another james specific crimes listed ii arson extortion burglary offense involving use explosives offer baseline measure degree risk crime must present fall within clause offenses provide high threshold see crime question must still present risk physical injury deemed violent felony begay alito dissenting accord chambers qualify serious risk injury generally must closely related offense precedents provide useful examples close relationship must exist conduct offense risk presented sykes instance held offense intentional vehicular flight constitutes violent felony conduct always triggers dangerous confrontation slip explained vehicular flights definitional necessity occur police present done defiance instructions vehicle used way cause serious potential risk physical injury another ibid james likewise held attempted burglary offenses requir ing overt act directed toward entry structure violent felonies underlying conduct often results dangerous confrontation distinguished crimes attenuated conduct encompassed attempt offenses satisfied preparatory conduct pose risk violent confrontation burglary tools point words risk injury crime may attenuated conviction fall within residual clause additional voluntary act use burglary tools enter structure necessary bring risk physical injury another light elements reported convictions unlawful possession shotgun crime involv conduct presents serious potential risk physical injury another ii acts form basis offense simply remote risk physical injury fall within residual clause standing alone elements offense unlawfully possessing shotgun describe inherently dangerous conduct conceptual matter simple possession firearm even felon takes place variety ways closet storeroom car pocket many perhaps involve likely accompanying violence doe weapons also stored manner posing danger one unloaded disassembled locked away elements offense indicate ordinary commission crime far less risky acca enumerated offenses reported convictions support conclusion mere possession shotgun ordinary case pose serious risk injury others examples suffice one case officers found shotgun locked inside gun cabinet empty home state salyers another firearm retrieved trunk defendant car state ellenberger app still another weapon found missing firing pin state johnson app instances others offense threatened one government theory crime nonetheless qualify violent felony unpersuasive although dispute unlawful possession shotgun occur nondangerous manner government contends offense poses serious risk physical injury due connection shotguns serious crimes government explains firearms weapons typically possessed citizens lawful purposes district columbia heller instead primarily intended use criminal activity light intended use government reasons ordinary case possession offense involve use shotgun serious crime scenario obviously posing serious risk physical injury even assuming unlawfully possess weapons typically intend use serious crime risk government identifies arises act possessing weapon act using unlike attempted burglary least type issue james intentional vehicular flight conduct often always invites dangerous confrontation possession shotgun poses threat offender decides engage additional voluntary conduct included elements crime weapon assembled loaded used example poses risk injury others risk injury others mere possession firearm attenuated treat offense violent felony reverse appeals basis ii foregoing analysis demonstrates acca residual clause applied principled manner one thought proposition well established given already decided four cases addressing clause majority nonetheless concludes operation provision violates fifth amendment due process clause justice alito shows analysis wrong precedents see post dissenting opinion concerns modern vagueness doctrine whether doctrine defensible original meaning due process law difficult question leave another day doctrine history prompt us least examine constitutional underpinnings closely use nullify yet another duly enacted law become accustomed using due process clauses invalidate laws ground vagueness doctrine developed quite sweeping statute impermissibly vague fails provide people ordinary intelligence reasonable opportunity understand conduct prohibits authorizes even encourages arbitrary discriminatory enforcement hill colorado using framework nullified wide range enactments struck laws ranging city ordinances papachristou jacksonville acts congress cohen grocery struck laws whether penal lanzetta new jersey keyishian board regents univ state struck laws addressing subjects ranging abortion colautti franklin obscenity winters new york minimum wage connally general constr antitrust cline frink dairy even struck law using term used describe criminal conduct country since constitution ratified chicago morales invalidating loitering law see thomas dissenting discussing georgia law requiring apprehension able bodied persons shall found loitering repeatedly used doctrine invalidate laws make legitimate dred scott sandford stating act congress prohibiting slavery certain federal territories violated substantive due process rights slaveowners therefore void history wielding doctrines purportedly rooted due process law achieve policy goals substantive due process poster child see mcdonald chicago thomas concurring part concurring judgment one theme links substantive due process precedents together lack guiding principle distinguish rights warrant protection nonfundamental rights although vagueness doctrine distinct substantive due process histories disquieting parallels problem vague penal statutes nothing new notion laws may void constitution due process clauses however recent development end century courts addressed vagueness rule strict construction penal statutes rule constitutional law rule construction better known today rule lenity first emerged england reaction parliament practice making large swaths crimes capital offenses though gain broad acceptance following century see hall strict liberal construction penal statutes harv rev see also radzinowicz history english criminal law administration pp noting following crimes triggered death penalty marking edges current coin kingdom maliciously cutting growing poles plantation hops company gypsies courts relied rule construction refusing apply vague statutes prosecutions example rule william blackstone described notable instance english statute imposing death penalty anyone convicted stealing sheep cattle held extend nothing mere sheep th general words cattle looked upon much loose create capital offence commentaries laws england vague statutes surfaced side atlantic well shortly first congress proposed bill rights instance passed law providing hat every person shall attempt trade indian tribes found indian country merchandise possession usually vended indians without license must forfeit offending goods act july ch stat first glance punishing unlicensed possession merchandise usually vended indians seem far likely invit arbitrary enforcement ante residual clause rather strike arguably vague laws fifth amendment due process clause antebellum american courts like english predecessors simply refused apply individual cases rule penal statutes construed strictly see sharp cas cc washington sharp instance several defendants charged violating act rendering capital offense seaman make revolt ship act apr stat objected offence making revolt wa sufficiently defined law standard reference safely made warrant passing sentence upon justice washington riding circuit apparently agreed observing common definitions phrase make revolt multifarious different avoid feeling natural repugnance selecting mass definitions one may fix crime upon men capital nature ibid remarking aws create crimes explicit reference standard men subject penalties may know acts duty avoid refused recommend jury find prisoners guilty making endeavouring make revolt however strong evidence may ibid analysis mean federal courts believed power invalidate vague penal laws unconstitutional indeed good evidence courts time understood judicial review consist refusal give statute effect operative law resolving case notion quite distinct modern practice ing legislation walsh partial unconstitutionality rev process refusing apply laws appeared occur basis instance notwithstanding doubts expressed sharp justice washington writing later rejected argument lower courts arrest judgment statute define offence endeavouring make revolt kelly wheat explained competent give judicial definition offence endeavouring make revolt definition consists endeavour crew vessel one overthrow legitimate authority commander intent remove command take possession vessel assuming government navigation transferring obedience lawful commander person dealing statutory indeterminacy federal courts saw engaged construction judicial review understood although vagueness concerns played role strict construction penal statutes early little indication anyone late century believed courts power due process clauses nullify statutes ground instead modern vagueness doctrine materialized rise substantive due process following ratification fourteenth amendment corporations began use amendment due process clause challenge state laws attached penalties unauthorized commercial conduct addition claiming laws violated substantive due process rights litigants began success contend laws unconstitutionally indefinite one case railroad company challenged tennessee law authorizing penalties railroad demanded reasonable compensation engaged unjust unreasonable discrimination setting rates louisville nashville railroad cc md internal quotation marks deleted without specifying constitutional authority holding circuit concluded citizen constitutionally subjected penalties despoiled property criminal quasi criminal proceeding force indefinite legislation emphasis deleted justice brewer widely recognized leading spokesman due process gamer justice brewer substantive due process conservative revisited vand rev employed similar reasoning riding circuit though identify constitutional source judicial authority nullify vague laws reviewing iowa law authorizing fines railroads charging reasonable rate justice brewer mentioned dictum penal law sustained unless mandates clearly expressed ordinary person determine advance may may chicago dey cc sd iowa constitutional vagueness challenges initially met resistance although appeared acknowledge possibility unconstitutionally indefinite enactments repeatedly rejected vagueness challenges penal laws addressing railroad rates railroad cases liquor sales ohio ex rel lloyd dollison anticompetitive conduct nash oil texas however nullified law vagueness grounds due process clause first time international harvester america kentucky tobacco company brought fourteenth amendment challenge several kentucky antitrust laws construed render unlawful combination made purpose effect fixing price greater less real value article company argued referring real value laws provided standard conduct possible know ibid agreed although specify case portion fourteenth amendment served basis holding explained related case lack knowable standard conduct kentucky statutes violated fundamental principles justice embraced conception due process law collins kentucky since time application vagueness doctrine largely mirrored application substantive due process lochner era period marked use substantive due process strike economic regulations lochner new york frequently used vagueness doctrine invalidate economic regulations penalizing commercial among penal laws found impermissibly vague state law regulating production crude oil champlin refining corporation state antitrust law cline state law connally federal statute cohen grocery around time began shifting focus substantive due process equal protection jurisprudence economic interests discrete insular minorities see carolene products target vagueness doctrine changed well began use vagueness doctrine invalidate noneconomic regulations state statutes penalizing obscenity winters membership gang lanzetta successful vagueness challenges regulations penalizing commercial conduct contrast largely fell wayside instance upheld federal regulation punishing knowing violation order instructing drivers transporting dangerous chemicals far practicable driving congested thoroughfares places crowds assembled street car tracks tunnels viaducts dangerous crossings boyce motor lines notwithstanding earlier conclusion oklahoma law requiring state employees contractors paid less current rate per diem wages locality work unconstitutionally vague connally supra found sufficiently definite federal law forbidding radio broadcasting companies attempting compel threat duress licensee hire excess number employees needed licensee perform actual services petrillo recent times substantive due process jurisprudence focused abortions vagueness doctrine played correspondingly significant role fact vagueness doctrine served basis first draft majority opinion roe wade theory laws prohibiting abortions save done purpose saving life mother forced abortionists guess exception apply penalty conviction see schwartz unpublished opinions burger reprinting first draft roe roe course turned substantive due process opinion see since repeatedly deployed vagueness doctrine nullify even mild regulations abortion industry see akron akron center reproductive health nullifying law requiring remains unborn child disposed humane sanitary colautti nullifying law mandating abortionists adhere prescribed standard care reason believe fetus may one recent decisions nullifying law vagueness grounds substantive due process lurking background morales plurality insisted freedom loiter innocent purposes part protected due process clause fourteenth amendment conclusion colored analysis ordinance prohibiting loitering unconstitutionally indeterminate see vagueness permeates text penal law infring ing constitutionally protected rights subject facial attack find history unsettling long understood one problems holding statute void indefinite concept winters supra frankfurter dissenting bad habit using indefinite concepts especially ones rooted due process invalidate democratically enacted laws also clear vagueness doctrine reconciled original understanding term due process law traditional justification doctrine need notice conviction fails comport due process statute obtained fails provide person ordinary intelligence fair notice prohibited williams accord ante presumably justification rests view expressed murray lessee hoboken land improvement due process law constrains legislative branch guaranteeing usages modes proceeding existing common statute law england emigration ancestors shown unsuited civil political condition acted settlement country justification assumes providing person ordinary intelligence fair notice prohibited williams supra one usage accept vagueness doctrine founded constitution one must reject possibility due process clause requires government must proceed according land according written constitutional statutory provisions may original meaning provision demands hamdi rumsfeld thomas dissenting internal quotation marks omitted accord turner rogers thomas dissenting slip although murray lessee stated contrary number scholars jurists concluded considerable historical evidence supports position process law concept designed safeguard unlicensed executive action forbidding deprivations authorized legislation common law currie constitution first hundred years see also winship black dissenting others disagreed see chapman mcconnell due process separation powers yale arguing originally understood principle due process required among things statutes purported empower branches deprive persons rights without adequate procedural guarantees subject judicial review need choose two understandings due process law case justice alito explains majority decision wrong even precedents see post dissenting opinion generally adhere view fool know particular category conduct within reach statute unmistakable core reasonable person know forbidden law enactment unconstitutional face morales supra thomas dissenting question acca residual clause meets description see ante agreeing government straightforward cases residual clause love residual clause jurisprudence observed first got business sixth amendment problem allowing district courts conduct factfinding determine whether offense violent felony made attempt construe residual clause unnecessary exercise james thomas dissenting rejected argument choosing instead begin unnecessary exercise see principled way four cases later declare residual clause become indeterminate apply damaged residual clause misguided jurisprudence right send provision back congress ask new one join using due process clause nullify act congress contains unmistakable core forbidden conduct concur judgment alito dissenting samuel james johnson petitioner writ certiorari appeals eighth circuit june justice alito dissenting tired armed career criminal act acca particular residual clause anxious rid docket bothersome residual clause cases willing takes get job done brushing aside stare decisis holds residual clause unconstitutionally vague even though twice rejected argument within last eight years canons interpretation get greater respect inverting canon statute construed possible avoid unconstitutionality rejects reasonable construction residual clause avoid vagueness problems preferring alternative finds unconstitutionally vague stopped rule statute void vagueness vague applications conceding applications residual clause straightforward holds clause void entirety determination done residual clause cases fidelity legal principles impressive petitioner samuel johnson unlike famous namesake led life crime violence presentence investigation report sets résumé petty serious crimes beginning years old johnson adult record includes convictions among things robbery attempted robbery illegal possession shotgun drug offense federal bureau investigation fbi began monitoring johnson involvement national socialist movement organization suspected plotting acts terrorism june year johnson left group formed radical organization aryan liberation movement planned finance counterfeiting currency course government investigation johnson disclosed undercover fbi agents manufactured napalm silencers explosives new organization fed appx per curiam also showed agents rifle semiautomatic rifle semiautomatic pistol cache approximately rounds ammunition later johnson told undercover agent know love assassinate hoodrats much next guy think really got stick high priority targets revised presentence investigation report psr among top targets mentioned mexican consulate progressive bookstores individuals viewed liberals psr april johnson arrested subsequently indicted four counts possession firearm felon two counts possession ammunition felon violation pleaded guilty one firearms counts district sentenced statutory minimum years imprisonment acca based prior felony convictions robbery attempted robbery illegal possession shotgun acca provides mandatory minimum sentence certain violations prohibits shipment transportation possession firearms ammunition convicted felons persons previously committed mental institution certain others federal law normally provides maximum sentence years imprisonment crimes see acca however defendant convicted three prior convictions violent felony serious drug offense sentencing must impose sentence least years imprisonment acca definition violent felony three parts first felony qualifies element use attempted use threatened use physical force person another second act specifically names four categories qualifying felonies burglary arson extortion offenses involving use explosives see ii third act contains called residual clause reaches felony otherwise involves conduct presents serious potential risk physical injury another ibid present case concerns residual clause sole question raised johnson certiorari petition whether possession shotgun minnesota law qualifies violent felony clause although johnson argued lower courts residual clause unconstitutionally vague renew argument nevertheless oral argument raised question vagueness holds residual clause unconstitutionally vague applications agree ii begin stare decisis eight years ago james justice scalia author today opinion fired opening shot residual clause dissent suggested residual clause void vagueness held otherwise explaining standard residual clause indefinite prevent ordinary person understanding scope four years later sykes justice scalia fired another round dissenting argued residual clause void vagueness rehearsed basic arguments adopts see slip see also derby scalia dissenting denial certiorari slip james rejected arguments see sykes slip fact justice scalia member sykes took position residual clause intelligibly applied offense issue opinion five justices joined expressly held residual clause intelligible principle provides guidance allows person conduct law slip quoting chicago morales plurality opinion justice thomas concurrence disagreeing part interpretation residual clause question constitutionality see sykes opinion concurring judgment justice kagan dissent justice ginsburg joined argued proper application provision required different result see thus eight members found statute capable principled application course true tare decisis inexorable command payne tennessee neither empty latin phrase must good reasons overruling precedent none nothing changed since decisions james sykes nothing except weariness acca cases reprising argument justice scalia made avail sykes supra dissenting opinion slip reasons residual clause must unconstitutionally vague trouble settling interpretation see ante disagreement meaning application clause new divided james sykes intervening decisions begay chambers pattern unique acca unable come agreement many recurring legal questions confrontation clause one example comes readily mind see williams illinois bullcoming new mexico massachusetts disagreements meaning provision prove confrontation clause ascertainable meaning likewise disagreements residual clause prove unconstitutionally vague also points conflicts decisions lower courts proof statute unconstitutional see ante overstates degree disagreement many crimes dispute residual clause applies certiorari docket provides skewed picture decisions asked review usually involving issues least arguable circuit conflict event never thought conflicting interpretations statute justify judicial elimination statute one chief responsibilities resolve disagreements see rule strike laws create work may relish task resolving residual clause questions circuits disagree provision placed crushing burden docket eight years since james decided three cases involving residual clause see begay supra chambers supra sykes supra nevertheless faced unappealing prospect resolving circuit splits various residual clause issues see ante six members thrown towel responsible iii even put stare decisis aside decision remains indefensible residual clause unconstitutionally vague fifth amendment prohibits enforcement vague criminal laws threshold declaring law void vagueness high strong presumptive validity attaches act congress led hold many times statutes automatically invalidated vague simply difficulty found determining whether certain marginal offenses fall within language national dairy products rather sufficient statute sets ascertainable standard cohen grocery statute thus void vagueness wholly fails provide person ordinary intelligence fair notice prohibited standardless authorizes encourages seriously discriminatory enforcement williams bar even higher sentencing provisions fair notice concerns inform vagueness doctrine aimed ensuring ordinary intelligence reasonable opportunity know prohibited may act accordingly hoffman estates flipside hoffman estates quoting grayned city rockford fear vague laws innocent concerns less force comes sentencing provisions come play defendant found guilty crime question due process require johnson oddly suggests prospective criminal able calculate precise penalty conviction bring supp brief petitioner see chapman concluding vagueness challenge particularly weak since whatever debate center around appropriate sentence criminality conduct acca residual clause unquestionably provides ascertainable standard defines violent felony include offense involves conduct presents serious potential risk physical injury another ii language means incomprehensible unusual scores federal state laws employ similar standards solicitor general brief contains appendix setting laws see app supp brief see also james supra laws unconstitutionally vague today decision blast shotgun nuclear explosion attempting avoid devastation distinguishes laws primarily ground almost require gauging riskiness conduct individual defendant engages particular occasion ante emphasis original thus admits general matter doubt constitutionality laws call application qualitative standard risk conduct ibid complaint residual clause requires application potential risk standard idealized ordinary case crime ibid emphasis added thus according acca residual clause unconstitutionally vague standard must applied idealized ordinary case crime like vast majority laws solicitor general appendix conduct acca however makes reference idealized ordinary case crime requirement handiwork taylor show residual clause reasonably interpreted refer conduct statute constitutionality doubt obligation interpret law possible avoid constitutional problem see edward debartolo florida gulf coast building constr trades council one treatise puts statute interpreted way avoids placing constitutionality doubt scalia garner reading law interpretation legal texts canon applies fully considering vagueness challenges cases like one task destroy act construe consistent congress comport constitutional limitations civil service letter carriers see also skilling indeed elementary rule every reasonable construction must resorted order save statute unconstitutionality quoting hooper california emphasis deleted see also ex parte randolph cas cc marshall concedes residual clause constitutional applied conduct whether best interpretation residual clause beside point matters whether reasonable interpretation statute surely first interpretation heeds pointed distinction acca draws element offense conduct crime qualifies violent felony one element involves use attempted use threatened use physical force person another residual clause appears next subsection ii focuses conduct specifically conduct presents serious potential risk physical injury another use two different terms indicates conduct refers things done commission offense part elements needed conviction extra actions vary case case natural interpret conduct mean conduct conduct involved platonic ideal offense second points standards like one residual clause almost always appear laws call application trier fact strongly suggests residual clause calls sort application third correct residual clause nearly incomprehensible interpreted applying idealized ordinary case crime telling evidence congress intended another interpretation ready hand assume congress gave clause meaning impossible even exceedingly difficult apply conduct interpretation fit terms residual clause reasons persuaded adopt categorical approach taylor either apply much less force residual clause cases taylor question concerned meaning burglary one acca enumerated offenses gave three reasons holding judge making acca determination generally look elements offense conviction things defendant commission offense first thought acca use term convictions pointed categorical approach wrote section refers person three previous convictions person committed three previous violent felonies drug offenses second relied legislative history noting acca previously contained generic definition burglary deletion definition may inadvertent casualty complex drafting process third felt practical difficulties potential unfairness factual approach daunting none three grounds dictates categorical approach must used residual clause cases second ground concerned deletion generic definition burglary obviously application residual clause first ground much less force residual clause cases taylor reasoned defendant conviction burglary burglary offense set judgment conviction instance defendant commits burglary pleads guilty plea bargain possession burglar tools taylor thought unnatural say defendant conviction burglary consider case gang member convicted illegal possession shotgun evidence shows concealed weapon coat searching rival gang member killed brother situation unnatural say defendant conviction crime involve conduct present ed serious potential risk physical injury another ii emphasis added least reasonable way describe defendant conviction taylor remaining reasons adopting categorical approach justify interpretation renders residual clause unconstitutional taylor feared approach unduly burden courts experience shown application categorical approach always easy indeed main argument overturning statute approach unmanageable residual clause cases notion categorical approach forgiving defendants strong argument opposite true least respect residual clause consider two criminal laws injury occurs cases involving violation statute cases involving violation statute categorical approach truly dangerous crime statute might qualify violent felony crime measurable risk harm statute count defendant inquiry hand defendant actual conduct determine whether acca mandatory penalty applies also significant allocation burden proof protects defendants prosecution bears burden proving defendant convictions qualify sentencing acca evidentiary deficiencies poor recordkeeping anything else prevents prosecution discharging burden approach defendant receive acca sentence inquiry raise constitutional problems questionable whether sixth amendment creates right jury trial situation see issue tried jury prosecution bear burden proving beyond reasonable doubt defendant prior crimes involved conduct presented serious potential risk injury another adopt alternative interpretation hold residual clause requires examination conduct reason refusing consider interpretation government asked us abandon categorical approach cases ante cites case suggested saving interpretation may adopted proposed one parties cite secondary authorities advocating rule cf scalia reading law stating canon limitation contrary long recognized plain duty adopt construction save statute constitutional infirmity fairly possible ex rel attorney general delaware hudson strange fulfill plain duty party asks us refusal consider saving interpretation advocated government hard square adoption argument petitioner chose raise noted johnson ask us hold residual clause unconstitutionally vague interjected issue case requested supplemental briefing question heard reargument refusal look beyond arguments parties apparently applies arguments want hear even categorical approach used residual clause cases however clause still void vagueness well established vagueness challenges statutes involve first amendment freedoms must examined basis mazurie objections vagueness due process clause rest lack notice hence may overcome specific case reasonable persons know conduct risk maynard cartwright thus due process vagueness case hold law facially invalid enactment impermissibly vague applications hoffman estates emphasis added see also chapman concluding residual clause facially void vagueness flatly contravenes rule admits straightforward cases residual clause ante rather exercising restraint vagueness cases prescribe holds residual clause unconstitutionally vague even application clear treatment issue startling facial invalidation precludes sentencing applying acca counting convictions even specific offenses previously found fall within residual clause see james attempted burglary sykes slip flight law enforcement vehicle still worse holds vagueness bars use residual clause cases applicability hardly questioned attempted rape example see dawson doubt idealized ordinary case th crime involves conduct presents serious potential risk physical injury another attempted attempted solicitation commit aggravated possession loaded weapon intent use unlawfully another possession weapon compelling person act prostitute much doubt offenses involve conduct presents serious potential risk physical injury another transforming vagueness doctrine claims never actually held statue may voided vagueness vague applications simply wrong hoffman estates reversed seventh circuit decision voided ordinance prohibiting sale certain items see seventh circuit struck ordinance unclear applications reversed emphasized law void vagueness impermissibly vague applications see also collecting cases applying principle held facial challenge wa unavailing least items sold covered ordinance statements dicta holding case yet even mention binding precedent instead says facts two earlier cases support broader application vagueness doctrine see ante incorrect neither case remotely suggested mere overbreadth enough facial invalidation fifth amendment coates cincinnati addressed ordinance restricted free assembly association rights prohibiting annoying conduct analysis turned large part first amendment concerns fact specifically explained vice ordinance lies alone violation due process standard vagueness present case contrast first amendment rights issue thus coates support rejection repeated statements vagueness challenges statutes involve first amendment freedoms must examined light facts hand mazurie supra emphasis added likewise cohen grocery proves precisely opposite claims case struck statute prohibiting unreasonable rate provided ascertainable standard guilt left open widest conceivable inquiry scope one foresee result one foreshadow adequately guard clear import language law issue impermissibly vague applications years since never adopted majority contradictory interpretation contrary characterized case involving statute constitutionally applied set facts powell thus holdings dicta prohibit expansion vagueness doctrine constitution allow us hold statute void vagueness unless vague applications iv strike acca residual clause necessary address whether johnson conviction possessing shotgun qualifies violent felony either categorical approach inquiry categorical approach requires us determine whether conduct encompassed elements offense ordinary case presents serious potential risk injury another james inherently probabilistic determination considers circumstances conduct ordinarily attend offense mere fact crime committed without risk physical harm exclude statute reach see instead residual clause speaks potential risk ii term suggesting congress intended encompass possibilities even contingent remote simple much less certainty james supra principles unlawful possession shotgun qualifies violent felony recognized district columbia heller shotguns typically possessed citizens lawful purposes instead uniquely attractive violent criminals much easier conceal shotguns used hunting lawful purposes shotguns hidden coat tucked bag stowed car seat like handgun fired one hand except lethal effect weapons thus combine deadly characteristics conventional shotguns convenient handling handguns unlike common firearms however typically possessed lawful purposes person illegally possesses shotgun commission crime risk violence seriously increased ordinary case unlawful possession shotgun therefore presents serious potential risk physical injury another ii congress treatment shotguns confirms judgment government initial brief colorfully recounts shotguns weapon choice gangsters bank robbers prohibition era see brief response congress enacted national firearms act required individuals possessing certain especially dangerous weapons including shotguns register federal government pay special tax act passed understanding justification permitting citizen keep pistol revolver protection without restriction reason anyone except law officer shotgun amended act imposes strict registration requirements individual wishing possess covered shotgun see illegal possession weapon punishable imprisonment years see telling penalty exceeds prescribed federal law quintessential violent thus seems perfectly clear congress long regarded illegal possession shotgun crime poses serious risk harm others majority agree government informs johnson dispute followed congress lead making crime possess unregistered shotgun district columbia prohibit private possession shotguns entirely see brief collecting statutes minnesota petitioner convicted adopted blanket ban based judgment shotgun legitimate use society whatsoever state ellenberger app internal quotation marks citation omitted possession shotgun minnesota thus inherently criminal act fanciful assume person chooses break law risk heavy criminal penalty incurred possessing notoriously dangerous weapon unlikely use weapon violent ways abandon categorical approach facts johnson offense satisfy residual clause well according record case johnson possessed shotgun dealing drugs police responded reports drug activity parking lot told two people johnson another individual approached offered sell drugs psr police searched vehicle johnson seated passenger found shotgun five bags marijuana johnson admitted gun understood context johnson conduct posed acute risk physical injury another drugs guns never safe combination one drug deals gone bad rival dealer arrived scene johnson deadly weapon close hand nature gun elevated risk collateral damage beyond intended targets location crime public parking lot significantly increased chance innocent bystanders might caught carnage case mere possession johnson suggests brief petitioner storing gun safe family heirloom collector item illegally possessed weapon case needed use another crime judge jury thus conclude johnson offense qualified violent felony doubt samuel johnson armed career criminal record includes number serious felonies caught dangerous weapons numerous occasions case led residual clause demise confounding hope congress take word either amending list enumerated offenses abandoning categorical approach solve problem perceives footnotes penal mean laws authoriz ing criminal punishment well authorizing fines forfeitures enforced civil rather criminal process cf nelson statutory interpretation discussing definition penal purposes rule lenity law requiring termination employment public institutions instance penal see keyishian law creating obligation pay taxes milwaukee county white conversely law imposing monetary exaction punishment noncompliance regulatory mandate penal see national federation independent business sebelius scalia kennedy thomas alito dissenting slip time ordinary meaning word cattle limited cows instead encompassed easts pasture wild domestick johnson dictionary english language ed parliament responded judicial refusal apply provision cattle passing another statute geo ii extending law bulls cows oxen steers bullocks heifers calves lambs name blackstone commentaries laws england early american state courts also sometimes refused apply law found completely unintelligible even outside penal context one antebellum decision pennsylvania even attempt apply statute gave pennsylvania state treasurer many state bank elections held without providing guidance individuals referring commonwealth bank pennsylvania watts serg concluding seldom ever found language legislation devoid certainty withdrew case ibid see also drake drake whether statute public private one terms couched vague convey definite meaning whose duty execute either ministerially judicially necessarily inoperative practice distinct modern vagueness doctrine applies laws intelligible vague time apply new vagueness doctrine outside penal context well small american sugar refining sugar dealer raised defense suit contracts unlawful several provisions lever act including one making person make unjust unreasonable charge dealing necessaries agree another exact excessive prices necessaries applying cohen grocery held provision unconstitutionally vague rejected dealer argument explained criminal penalty held invalid exaction obedience rule standard vague indefinite really rule standard doctrine thus applied penalties well ny means exaction declaring transaction unlawful stripping participant rights ibid vagueness challenges laws regulating speech period less successful among laws found sufficiently definite included state law making misdemeanor publish among things materials shall tend encourage advocate disrespect law courts justice fox washington federal statute criminalizing candidate solicitation contributions political purpose whatever wurzbach state prohibition becoming member organization advocates using unlawful violence effect political change whitney california see stromberg california holding state statute punishing use symbol opposition organized impermissibly vague however rejected vagueness challenges laws punishing side abortion debate comes restricting speech abortion opponents dismissed concerns vagueness observation never expect mathematical certainty language hill colorado even though restrictions arguably least imprecise criminal prohibitions speech declared void vagueness past decades kennedy dissenting general matter cautious relying general theories fair notice due process jurisprudence exploited achieve particular ends bmw north america gore instance held due process clause imposed limits punitive damages clause guaranteed person receive fair notice conduct subject punishment also severity penalty state may impose true even though fourteenth amendment adopted punitive damages undoubtedly established part american common law torts particular procedures deemed necessary circumscribe jury discretion regarding award damages amount pacific mut life ins haslip scalia concurring judgment even view due process clause articulated murray lessee allow nebulous principles supplant specific historically grounded rules see opinion scalia footnotes also says residual clause reference enumerated offenses confusing ante another argument rejected james sykes persuasive although risk level varies among enumerated offenses four categories offenses involve conduct presents serious potential risk harm others concern enumerated offenses seem especially risky means statute sets low baseline level risk thomas concurring judgment slip rule simply application broader rule except first amendment cases hold statute facially unconstitutional set circumstances exists act valid salerno challenge facial challenge see hoffman estates flipside hoffman estates nn chicago morales scalia dissenting consequently reason rule apply context assume mean abrogate rule entirety provides justification refusal apply rule perhaps concluded undisclosed reason claims different facial challenges based first amendment perhaps simply created acca exception rainey per curiam cert denied kaplansky en banc benton cert denied lynch cert denied boyce cert denied brown al capone chicago henchmen used shotguns executed rivals bugs moran gang infamous saint valentine day massacre see chicago gangsters slain firing squad rivals police uniforms times wild bill rooney gunned chicago shotgun pointed rear window passing automobile union boss slain gang chicago times mar infamous outlaws bonnie clyde killed police clyde found clutching shotgun one hand barrow woman slain police louisiana trap times may see physical assault federal officer punishable eight years imprisonment assault within maritime territorial jurisdiction resulting substantial bodily injury individual age punishable five years imprisonment assault sexual abuse serious violent felony spouse intimate partner habitual offender within maritime territorial jurisdiction punishable five years imprisonment except cases substantial bodily injury