Supreme Court: people convicted of crime overseas can still own gun in U.S.

[Bubbles]

http://www.signonsandiego.com/news/nation/20050426-0735-scotus-guns.html

Full Opinion

I can't believe that Scalia and Thomas went the wrong way on this one...

*****

WASHINGTON (AP) -- The Supreme Court ruled Tuesday that people convicted of a crime overseas may own a gun in the United States.

In a 5-3 decision, the court ruled in favor of Gary Sherwood Small of Pennsylvania. The court reasoned that U.S. law, which prohibits felons who have been convicted in "any court" from owning guns, applies only to domestic crimes.

Justice Stephen G. Breyer, writing for the majority, said interpreting the law broadly to apply to foreign convictions would be unfair to defendants because procedural protections are often less in international courts. If Congress intended foreign convictions to apply, they can rewrite the law to specifically say so, he said.

"We have no reason to believe that Congress considered the added enforcement advantages flowing from inclusion of foreign crimes, weighing them against, say, the potential unfairness of preventing those with inapt foreign convictions from possessing guns," Breyer wrote.

He was joined by Justices John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg. In a dissent, Justice Clarence Thomas argued that Congress intended for foreign convictions to apply. "Any" court literally means any court, he wrote.

"Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind,"' Thomas said. He was joined by Justices Antonin Scalia and Anthony Kennedy.

Small had answered "no" to the felony conviction question on a federal form when he bought a handgun in 1998, a few days after he was paroled from a Japanese prison for violating weapons laws in that country. Small was indicted in 2000 for lying on the form and for illegally owning two pistols and 335 rounds of ammunition. He later entered a conditional guilty plea pending the outcome of this case.

The Bush administration had asked the court to apply the statute to foreign convictions. Chief Justice William H. Rehnquist did not participate in deciding the case, which was heard in November when he was undergoing treatment for thyroid cancer.

The case is Small v. United States, 03-750. ------

 

[Cool Hand Luke 22:36]

Good decision.

Justice Stephen G. Breyer, writing for the majority, said interpreting the law broadly to apply to foreign convictions would be unfair to defendants because procedural protections are often less in international courts.

How in the world do you reconcile this with the Court majority's reference to foreign law to strike down intsitution of the death penalty against those under 18 years of age?

Aren't our preceedural safeguards such as our 25 year long apppeals process for death row inmates greater than those of foreign courts?

 

[Boats]

Scalia and Thomas are just being consistent. According to them, there is not any language in the statute that limits the scope of "any court" to be domestic courts only.

IOW, if Congress intended for the law to apply only to domestic convictions, it was perfectly capable of saying so.

 

[Control Group]

Aren't our preceedural safeguards such as our 25 year long apppeals process for death row inmates greater than those of foreign courts?

Yes, they are, which is the point. The SCOTUS has ruled that if I get "convicted" on some trumped-up charge in the kangaroo court of some third-world dictatorship that I've never even visited, I still get to own guns in this country. If I get convicted in this country, on the other hand, I've been afforded every protection and opportunity possible to avoid conviction, so it must mean something.

This is a major win, in my book. It does seem to not entirely square with their recent consideration of foreign law when intepreting US law, but ruling otherwise would make all gun owners subject to everyone else's laws, whereas that decision gave judicial review as to which other laws to consider. I presume that's the operative difference.

In any event, considering the UN's stance on personal firearms ownership, had this gone the other way, I would not have been at all surprised to see some grandstanding little nation start "convicting" American citizens left and right to earn points in the general assembly.

 

[Mark13]

Can't people be convicted in absentia? It would seem ridiculous to let foreign courts determine our civil rights. I agree that the law says 'any', but they should use some common sense.

 

[WT]

Wow! This decision certainly surprised me. I thought selling guns to the Japanese mafia (yakuza) would count for something. Obviously not.

 

[Control Group]

Wow! This decision certainly surprised me. I thought selling guns to the Japanese mafia (yakuza) would count for something. Obviously not.

The question isn't whether this guy should be allowed to buy guns. The question is whether, in general, foreign courts should be able to dictate American citizens' right to buy guns. The answer to that question ought to be obvious.

If we want to prevent this guy from buying guns, then convict him of a crime in the US legal system. If you can't do that, then perhaps there's no reason to abridge his rights. Frankly, I'm entirely comfortable with not having to comply with all the laws of every other country on the planet to keep my right to bear arms.

What if a foreign court made it a high crime to own guns, irrespective of nationality, then tried American gun owners as a class, in absentia?

EDITED: post originally had a not-very-High Road tone. My apologies to WT.

 

[gunsmith]

so does this

help that guy who went to Mexico with a box of ammo (by mistake)?
I sure hope so

 

[motoman]

Thats what I was thinking about, The poor guy who had a round of ammo in his truck when he crossed into mexico. I hope he gets his rights restored.

 

[Kharn]

help that guy who went to Mexico with a box of ammo (by mistake)?
I sure hope so

I think his name was 'James Bean', I'm 95% sure on the last name but not very sure on the first.

ETA:
I was wrong, his name was 'Thomas Bean', here's a link to a previous discussion on his case: http://www.thehighroad.org/showthread.php?t=37052&highlight=Bean+Supreme

Kharn

 

[Nehemiah Scudder]

In a dissent, Justice Clarence Thomas argued that Congress intended for foreign convictions to apply. "Any" court literally means any court, he wrote.

"Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind,'" Thomas said.

What the hell is he smoking?

 

[Standing Wolf]

I can't believe that Scalia and Thomas went the wrong way on this one.

The Bush administration argued against the Second Amendment.

Would someone please explain to me again why we're supposed to vote for Republicans?

 

[WT]

CG - no problem.

I have an acquaintance who is a military lawyer on Okinawa. He deals with the Japanese authorities on a regular basis defending US servicemen. He thinks highly of the Japanese justice system.

(I refer to cases turned over to Japanese authorities in lieu of the American court martial system.)

That said, he says an American does not want to be put into a Japanese prison. Its very tough for an American under those conditions.

Now I wonder what happens to the many Americans in Japanese prisons convicted of rape, assault, robbery, etc. who come back to this country and want to buy a firearm.

I guess those with a DD would not be able to do so.

 

[itgoesboom]

This restores some faith in our system. Very good news.

I.G.B.

 

[Rebar]

Would someone please explain to me again why we're supposed to vote for Republicans?

Because they're better than the Democrats, and 3rd partys are too incompetent to field viable candidates.

 

[WT]

"What if a foreign court made it a high crime to own guns, irrespective of nationality, then tried American gun owners as a class, in absentia?"

I doubt our treaties allow for such. If such a requirement did exist, then we would see a repeat of what transpired with Mr. Small. The defendant would take it thru the US court system.

 

[Jay Kominek]

Would someone please explain to me again why we're supposed to vote for Republicans?

Got to make sure 'our' team wins, even if they long ago stopped caring about 'us'.

I doubt our treaties allow for such.

There are countries like North Korea that I don't think we've got significant diplomatic ties with. They could just make it a high crime to be American.

 

[Cosmoline]

I'm with the lefties on this one. Frankly I'd like to give an award to anyone who violates Japanese or UK gun laws.

 

[HankB]

I can't believe that Scalia and Thomas went the wrong way on this one...

Ditto on that.

Justice Clarence Thomas argued that Congress intended for foreign convictions to apply. "Any" court literally means any court, he wrote.

So if a person in Red China is convicted in a Red Chinese court of the "crime" of being a member of Falun Gong, he's considered to be a criminal here?

If a person is convicted in a Saudi Arabian court of the crime of praying to Jesus instead of Allah, he's considered to be a criminal here?

If a person is convicted in North Korea of the crime of "disrespect" to Kim Jong-Il, or of having hair that's too long, he's considered to be a criminal here?

If a person is convicted in Zimbabwe of the crime of being white, is he considered to be a criminal here?

I usually agree with Thomas and Scalia, but these guys (and the Bushmen) were so wrong on this it's downright scary.

[tinfoil hat]Maybe the "conservatives" were pressured into making an outrageous decision to convince us that it may not be so bad to have leftists on the court.[/tinfoil hat]

 

[Boats]

I guess Scalia and Thomas are showing why they are judges and most here are not.

Deprivation of gun rights to felons has been constitutional for so long it isn't worth discussing in any way other than in the theoretical.

A judge is properly an interpreter of laws, not a lawmaker. The lawmaking authority in this country is a power of Congress, not the Judiciary. I do not see why people here are taking issue with Scalia and Thomas, or Republicans generally on this particular case.

The radical proposition that the dissenters stand for is one that is usually more popular around here: The law means what it says, and if you don't like what it says, change it through the constitutional process provided for such changes, don't come looking for a judge to change it for you.

I guess it depends entirely upon whose ox is being gored whether the above principle should be observed, right?

The "so-called" liberal justices are now being praised for the very thing they were condemned here for rather heartily last month--just making the law or Constitution read as they'd like it to, actual language present be damned.

Missouri recently held, along with a great many states, that a minor could be tried and executed as an adult following a series of individualized decisions and steps in due process. That was the law duly passed by their representative government, who'd presumably know best, being the closest to the day-to-day problem of evil minors.

Of course, the self-same bloc of justices being praised here today pulled out of thin air, a national and international concensus that the death penalty, as applied to minors, amounted to cruel and unusual punishment. No deference to state lawmaking authority there, no respect for the division of powers apparent in the scheme of federalism was apparent then, and certainly no respect for the authority of Congress' law making authority is apparent in today's opinion. Who can say that the justices are being inconsistent? Perhaps their modus operandi has changed, but the objective of criminal self-aggrandizement of their branch of government remains the same.

 

[Sam Adams]

... The question is whether, in general, foreign courts should be able to dictate American citizens' right to buy guns. The answer to that question ought to be obvious.

...Frankly, I'm entirely comfortable with not having to comply with all the laws of every other country on the planet to keep my right to bear arms.

What if a foreign court made it a high crime to own guns, irrespective of nationality, then tried American gun owners as a class, in absentia?

No kidding. Hey, forget gun crimes, what if those wacked-out control freaks in Singapore make it a felony to spit on the sidewalk? That's a felony...and that's no guns for life under this absurd law. How many other seemingly innocuous things, or things that are perfectly legal here, are felonies in other countries? Remember, a felony is a crime PUNISHABLE by more than 1 year in jail - even if you serve no time at all.

In a dissent, Justice Clarence Thomas argued that Congress intended for foreign convictions to apply. "Any" court literally means any court, he wrote.

"Read naturally, the word 'any' has an expansive meaning, that is, 'one or some indiscriminately of whatever kind,'" Thomas said.


What the hell is he smoking?

I think that Mr. Justice Thomas has, for the first time in a very, very long time, completely missed the forest for the trees (and Scalia, too, for agreeing). The issue isn't what the law says, it is: "Is it Constitutional to make the basic rights of US citizens subject to the jurisdiction of foreign laws, over which our Constitution and our Congress have no control?"

The answer HAS to be: "NO FREAKING WAY!!!" Damn, if we wanted our rights to be subjected to the whims of foreign legislatures and dictators, *** was the point of revolting against King George?? Answer me that, Mr. Justice Thomas.

Seriously, if Thomas had written the majority opinion, then all that would be needed would be for the UN and the anti-gun NGOs to pressure every single foreign government to pass a law that it was a felony for any person to fail to declare the make, model and serial number of every single firearm that they owned. Americans would lose their guns in droves, until the time when word got around and gun owners simply stopped traveling overseas. Is that what Thomas would allow to happen? Apparently, and very sadly, the answer is "yes."

I simply cannot believe that our RKBA was just saved by Ruth Bader Ginsberg, et al, over the objections of Thomas and Scalia. IS THIS THE TWILIGHT ZONE?

 

[Sam Adams]

Boats

A judge is properly an interpreter of laws, not a lawmaker. The lawmaking authority in this country is a power of Congress, not the Judiciary. I do not see why people here are taking issue with Scalia and Thomas, or Republicans generally on this particular case.

You are simply wrong here. No one made any law, and the issue wasn't "How do you interpret the words of the statute in question?"

Ordinarily, of course, you'd be right - there is a presumption that any law is valid. However, where basic, Constitutionally-guaranteed liberties are at stake, then this calculus does not apply. In fact, the opposite applies - the law itself is (in essence) on trial, with the issue being "Did the federal government have the power under the Constitution to pass the right-depriving law in question?"

Sometimes the answer is "yes." However, here the answer was a resounding "NO!" How can our inalienable rights be dependent on laws not subject to judicial scrutiny here, as interpreted and enforced by courts and police forces which are also not subject to judicial scrutiny here? As such, the law was struck down.

What would you say if Congress passed a law stating that no person under the age of 50 or older than the age of 55 could legally own a firearm? What should the Court look at first in this case, the definitions under the law, or the Constitutionality of the law itself? The answer is obvious - and for the same reason your argument is fatally flawed.

 

[Henry Bowman]

Boats is spot on right.

However, I believe that

Deprivation of gun rights to felons has been constitutional for so long it isn't worth discussing in any way other than in the theoretical.

needs to be revisited.

 

[Michael Courtney]

Due process required to take away rights

Quote:
Can't people be convicted in absentia? It would seem ridiculous to let foreign courts determine our civil rights. I agree that the law says 'any', but they should use some common sense.

Bingo!

If foreign felony convictions counted then all that's necessary is for a complete gun ban would be for a foreign court to convict all americans of a felony in absentia!

We cannot abridge any constitutional rights based on decisions by foreign courts unless those foreign courts have all the same constitutional protections as the US.

Michaell Courtney

 

[Boats]

First of all, yes I know that constitutionality is usually what a law is on trial for in front of the Supreme Court.

Secondly, "no one under the age of 50 and over 55" being allowed to own a gun, would have a distinct ex post facto problem that the issue today doesn't

So it follows:

Congress has deemed, and the courts have backed, that felon deprivation is constitutional. Maybe that needs revisiting, but as of now, it is beyond all serious legal questioning;

Congress, knowing full well that other countries with laws and jurisprudential systems all their own, do in fact exist, and that Americans are busted by them regularly, passes a law that says any felony conviction in any court with a term of imprisonment over a year puts one in domestic felon status in regards to firearms;

Ergo, since there is nothing fundamentally unconstitutional in either recognizing the ministerial acts of other nations or domestically depriving felons of firearms rights, there was nothing for the SC majority to do but to disregard the actual text of the law, which, given their current composition, they duly did.

As for the "we could all be convicted in absentia" canard, I do believe that Congress would be very responsive to amending the law in question and invalidate the recognition of felon status in such an instance. Of course, that is how the system we have is supposed to work, but it is not instant gratification via judicial fiat.