Cite as: 511 U. S. 513 (1994)
Scalia, J., concurring in judgment
plier of like or related items." Again, that casts light upon nothing but the seller's intent regarding use.
On first glance, the Court's claim that "primarily intended" does not refer to the defendant's state of mind seems to be supported by § 857(f)(2), which exempts from the entire section the sale, "in the normal lawful course of business," of items "traditionally intended for use with tobacco products." This might be thought to suggest that the section applies only to categories of items, and not at all to items sold with a particular intent. On further consideration, however, it is apparent that § 857(f)(2) militates against, rather than in favor of, the Court's view. Unless unlawful intent could have produced liability, there would have been no need for the exception. Tobacco pipes are tobacco pipes, and cigarette paper is cigarette paper; neither could possibly meet the Court's test of being "items . . . likely to be used with illegal drugs," ante, at 524. Only the criminalizing effect of an unlawful intent to sell for drug use puts tobacconists at risk. Because of the ready (though not ordinary) use of items such as cigarette paper and tobacco pipes for drug purposes, tobacconists would have been in constant danger of being accused of having an unlawful intent in their sales—so Congress gave them what amounts to a career exception.
Through most of the Court's opinion, an item's "likely use" seems to refer to the objective features of the item that render it usable for one purpose or another. At the very end of the relevant discussion, however, in apparent response to the difficulties presented by the factors listed in § 857(e), one finds, in a footnote, the following:
"Although we describe the definition of 'primarily intended' as 'objective,' we note that it is a relatively particularized definition, reaching beyond the category of items that are likely to be used with drugs by virtue of their objective features. . . . Thus, while scales or razor blades as a general class may not be designed specifi-
529
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