concurring.
Federal law requires some, but not all, firearms to be registered. Six circuits, including ours, hold that conviction of a defendant for possessing an unregistered firearm does not require the government to prove that the defendant knew of the characteristics of the weapon that brought it within the registration requirement. See United States v. Thomas, 531 F.2d 419, 421-22 (9th Cir.), cert. denied, 425 U.S. 996, 96 S.Ct. 2210, 48 L.Ed.2d 821 (1976); see also United States v. Ross, 917 F.2d 997, 999-1001 (7th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991); United States v. Mittleider, 835 F.2d 769, 774 (10th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490 (1988); United States v. Shilling, 826 F.2d 1365, 1367-68 (4th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988); United States v. Gonzalez, 719 F.2d 1516, 1522 (11th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 710 (1984); Morgan v. United States, 564 F.2d 803, 805-06 (8th Cir.1977). Three circuits hold that it does. See United States v. Harris, 959 F.2d 246, 259-261 (D.C.Cir.1992); United States v. Anderson, 885 F.2d 1248, 1250-55 (5th Cir.1989) (en banc); United States v. Williams, 872 F.2d 773, 774-77 (6th Cir.1989); see also Thomas, 531 F.2d at 422-24 (Hufstedler, J., dissenting).
My colleagues reach the correct result under the law of our circuit, but I believe the governing circuit law is in error. I would hold that conviction under 26 U.S.C. § 5861(d) requires proof that the defendant knew of those characteristics of the weapon which subjected it to the federal registration requirement.1
Discussion
Section 5861 of Title 26 states: “It shall be unlawful for any person ... (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” Section 5845 defines firearm to include automatic weapons (i.e., machine guns), but not semi-automatic weapons: It’s a crime to possess an unregistered automatic weapon, but it’s not a crime to possess an unregistered semi-automatic weapon. It’s also a crime to possess, among other things, an unregistered shotgun with a barrel less than 18 inches, an unregistered rifle with a barrel less than 16 inches, a silencer, or a *1293destructive device such as a bomb. See 26 U.S.C. § 5845. The maximum penalty for a violation of this statute is ten years’ imprisonment and a $10,000 fine. 26 U.S.C. § 5871. O’Mara received a sentence of twenty-one months’ imprisonment for possessing an unregistered automatic weapon.
A criminal statute is of the strict liability variety if it does not require that the defendant know, or be aware of, the facts constituting the crime; under such statutes, ignorance or mistake of fact does not relieve the defendant of criminal liability. Even if not all elements of a crime provide for strict liability, certain elements may. See United States v. Freed, 401 U.S. 601, 613, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring) (“mens rea is not a unitary concept, but may vary as to each element of a crime”).
Suppose a person walks out of a restaurant with someone else’s umbrella mistakenly believing it to be his own. If the crime of theft requires that the defendant know the property belongs to another, the defendant has a valid defense — if the jury believes his story. But suppose theft does not require that the defendant know the property belongs to another — in other words, that liability is strict as to that element of the crime. If such be the case, the defendant is guilty of theft, regardless of what he thought or knew.
Because, as in my example, strict liability can produce harsh results, it is disfavored in the criminal law. “Traditional notions of punishment require consciousness of the acts being done.” Ross, 917 F.2d at 1000. As one commentator has noted:
The consensus can be summarily stated: to punish conduct without reference to the actor’s state of mind is both ineffica-cious and unjust. It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy.
Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.
On the other hand, the criminal law does not generally require that the prosecution prove that the defendant knew of the law rendering his acts criminal. See Model Penal Code § 2.02(9) (Official Draft 1962). Thus the familiar maxims: Ignorance or mistake of the law is no defense; ignorance or mistake of fact is. These are not constitutional requirements; they merely reflect the usual legislative practice — and are therefore subject to legislative variation. The legislature can, for example, make knowledge of the law an element of the offense; under such statutes, ignorance or mistake of the law is a defense. See Cheek v. United States, — U.S. —, 111 S.Ct. 604, 609-10, 112 L.Ed.2d 617 (1991) (requiring government to prove defendant’s knowledge of law to obtain criminal tax conviction). Similarly, the legislature can enact a law where the defendant’s knowledge of the facts constituting the crime is not an element of the offense; under such statutes, mistake or ignorance of fact is not a defense. The standard example of this is statutory rape, which generally does not require the prosecution to prove that the defendant had knowledge of the partner’s age.
The question we face here is how to interpret criminal statutes, such as 26 U.S.C. § 5861(d), which are silent about mens rea. The usual method of statutory interpretation would require that we follow the text of the statute. See West Virginia Univ. Hospitals, Inc. v. Casey, — U.S. —, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991). We would thus hold that there is strict liability as to all of the elements of 26 U.S.C. § 5861(d). However, in light of the historical and commonsensical opposition to strict liability crimes, the Supreme Court has rejected this approach.
In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the government argued that federal criminal *1294statutes are to be read literally, and that where they do not explicitly contain a mens rea requirement, there is none. The Court held otherwise: “[S]uch adoption of the literal reasoning announced in those cases would ... sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a resume of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.” Id. at 250, 72 S.Ct. at 243.
The Court again confronted the issue in United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), where it considered criminal liability under the Sherman Antitrust Act. Although the text of the Sherman Act contains no mens rea requirement, the Court was “unwilling to construe the Sherman Act as mandating a regime of strict-liability criminal offenses.” Id. at 436, 98 S.Ct. at 2873. The Court noted “the familiar proposition that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ” Id. (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951)). Because of this general presumption and the rule that ambiguous criminal statutes are to be construed with lenity, see Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); see also United States v. Yermian, 468 U.S. 63, 77, 104 S.Ct. 2936, 2943, 82 L.Ed.2d 53 (1984) (Rehnquist, J., dissenting), the Court noted that it had “on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” United States Gypsum, 438 U.S. at 437, 98 S.Ct. at 2873 (emphasis added). In fact, the Court read Morissette “as establishing, at least with regard to crimes having their origin in the common law, an interpretative presumption that mens rea is required.” Id. at 437, 98 S.Ct. at 2873.2
Morissette and United States Gypsum create a clear rule of statutory interpretation: Courts are to interpret a federal criminal statute, or an element of a federal crime, to contain a mens rea requirement unless the structure or language of the statutory text (or, perhaps, the legislative history3) reveals a contrary congressional *1295intent.4
The only exception to this rule occurs with a “public welfare offense” (i.e., a crime that is not a common law crime) which has a small penalty attached. The Court articulated the exception in Morissette, noting that the public welfare offenses for which it had interpreted silence not to require any mens rea are those where “penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.” 342 U.S. at 256, 72 S.Ct. at 246. In interpreting the Sherman Act to contain a mens rea requirement, the United States Gypsum Court found an important factor to be the penalty attached to Sherman Act criminal violations: a potential fine of $100,000 and imprisonment of three years. “The severity of these sanctions provides further support for our conclusion that the Sherman Act should not be construed as creating strict-liability crimes.” 438 U.S. at 442 n. 18, 98 S.Ct. at 2876 n. 18.5 Similarly, the two cases where the Court interpreted silence to allow strict and vicarious liability involved misdemeanors. United States v. Park, 421 U.S. 658, 666 n. 10, 95 S.Ct. 1903, 1908 n. 10, 44 L.Ed.2d 489 (1975); United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943).
As I see it, this is the only situation where the Supreme Court has presumed that congressional silence means that Congress intended not to require proof of any mens rea. Here, while it’s true the offense is a public welfare offense, see Freed, 401 U.S. at 609, 91 S.Ct. at 1118, there is a potentially large penalty attached: The maximum penalty for possession of an unregistered firearm is ten years; Mr. O’Mara was sentenced to twenty-one months. If O'Mara’s claimed defense— that he thought the weapon was a semiautomatic — is true, this is an extraordinarily harsh penalty. After all, in United States Gypsum, where the maximum penalty was three years and a fine of $100,000, the severity of the penalty was a strong consideration in the Supreme Court’s holding that it would not construe the Sherman Act as a strict liability crime. 438 U.S. at 442 n. 18, 98 S.Ct. at 2876 n. 18. In light of this, I think the Fifth Circuit, sitting en banc, hit the nail on the head:
It is unthinkable to us that Congress intended to subject ... law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if — unknown to them, and without reasonable cause on their part to think otherwise — what they genuinely and reasonably believed was a conventional semi-automatic pistol turns out to have worn down into or been secretly modified to be a fully automatic weapon....
We think it far too severe for our community to bear — and plainly not intended by Congress — to subject to ten years’ imprisonment one who possesses what appears to be, and what he innocently and reasonably believes to be, a wholly ordinary and legal pistol merely because it has been, unknown to him, modified to be fully automatic. Certain*1296ly we have not done this for other offenses.
Anderson, 885 F.2d at 1254 (footnote omitted).
Conclusion
Based on my analysis of cases where the Supreme Court has read congressional silence on mens rea to mean strict liability, I cannot understand why so many courts have interpreted 26 U.S.C. § 5861(d) not to require proof that a defendant knew of those characteristics of the weapon subjecting it to the federal registration requirement. But whatever the cause, the time may be near when we must revisit section 5861(d) and interpret it to require that the government prove the defendant knew of the characteristics of the weapon requiring federal registration.
. This does not mean that the government must prove that the defendant knew of every last characteristic of the weapon, only of the specific characteristic that required the weapon to be registered. Here, that means the defendant’s knowledge that the weapon was an automatic, as opposed to a semi-automatic. See Anderson, 885 F.2d at 1254; Williams, 872 F.2d at 777.
. The decision in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), is similar. Liparota involved 7 U.S.C. § 2024(b)(1), which provides that "whoever knowingly uses, transfers, acquires, alters, or possesses [food stamps] in any manner not authorized by this chapter or the regulations issued pursuant to this chapter” is guilty of a criminal offense. Addressing the question whether a defendant needs to know that his use of food stamps was unauthorized, the Court concluded: “Absent indication of contrary purpose in the language or legislative history of the statute, we believe that § 2024(b)(1) requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations.” 471 U.S. at 425, 105 S.Ct. at 2088 (emphasis added); cf. United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922) (interpreting mens rea requirement for conviction under the Narcotic Act: "The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress.").
. If the legislative history shows that omission of a mens rea requirement was "quite clearly deliberate," United States v. United States Dist. Ct. (Kantor), 858 F.2d 534, 538 (9th Cir.1988), the courts have relied on that history to interpret textual silence as imposing strict liability. For example, in Yermian, the Court held that the government need not prove the defendant’s knowledge of the federal status of an agent to whom a false statement is made. The relevant legislative history suggested that Congress in fact intended strict liability as to that element of the crime. 468 U.S. at 70-74, 104 S.Ct. at 2940-42.
Given the disfavor into which legislative history has justly fallen, it is questionable whether reliance on legislative history in this context is still appropriate. See West Virginia Univ. Hospitals, 111 S.Ct. at 1147; see also United States v. R.L.C., — U.S. —, —, 112 S.Ct. 1329, 1340-41, 117 L.Ed.2d 559 (1992) (Scalia, J., concurring). In any event, section 5861’s legislative history tells us nothing about whether Congress intended a mens rea requirement as to the characteristics of the weapon subjecting it to the registration requirement. See Freed, 401 U.S. at 614, 91 S.Ct. at 1120 (Brennan, J., concurring) ("the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense"); Anderson, 885 F.2d at 1254 n. 9.
. In Freed, the Court held that the government need not prove that the defendant knew the weapon was unregistered to convict a person for possession of an unregistered firearm. 401 U.S. at 609-10, 91 S.Ct. at 1118-19. The Court compared the statute after congressional amendment to the case law interpreting the statute as previously written to divine Congress’ intent as to the mens rea for that element. See id. at 607, 91 S.Ct. at 1117; id. at 616, 91 S.Ct. at 1121 (Brennan, J., concurring).
It's important to note that Freed did not address the mens rea requirement for the element of the crime at issue here: knowledge of the characteristics of the firearm that subject it to the registration requirement. See id. at 612, 91 S.Ct. at 1120 (Brennan, J., concurring) (“The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus, while the Court does hold that no intent at all need be proved in regard to one element of the offense — the unregistered status of the grenades— knowledge must still be proved as to the other two elements.”).
. The Court also cited a law review article for the proposition that "strict liability [is] generally inappropriate when [an] offense [is] punishable by imprisonment.” United States Gypsum, 438 U.S. at 442-43 n. 18, 98 S.Ct. at 2876 n. 18 (citing Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 72 (1933)).