Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
more than five years. We observed that "we [had] never attempted to define precisely the constitutional limits noted in Patterson, i. e., the extent to which due process forbids the reallocation or reduction of burdens of proof in criminal cases," but explained that, whatever those limits, Pennsylvania's law did not transgress them, id., at 86, primarily because it "neither alter[ed] the maximum penalty for the crime committed nor create[d] a separate offense calling for a separate penalty; it operate[d] solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm," id., at 87-88.
The feebleness of the Court's contention that here there is no serious constitutional doubt is evidenced by the degree to which it must ignore or distort the analysis of McMillan. As just described, that opinion emphasized—and emphasized repeatedly—that an increase of the maximum penalty was not at issue. Beyond that, it specifically acknowledged that the outcome might have been different (i. e., the statute might have been unconstitutional) if the maximum sentence had been affected:
"Petitioners' claim that visible possession under the Pennsylvania statute is 'really' an element of the offenses for which they are being punished—that Pennsylvania has in effect defined a new set of upgraded felon-ies—would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U. S. C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through 'use of a dangerous weapon or device'), but it does not." Id., at 88.
The opinion distinguished one of our own precedents on this very ground, noting that the Colorado Sex Offenders Act invalidated in Specht v. Patterson, 386 U. S. 605 (1967), increased a sex offender's sentence from a 10-year maximum
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