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

[odysseus]

Concerned...

I am really peaved that Scalia and Thomas actually decided that a foreign court decision could invoke prohobition to US constitutionally protected rights. That is in many ways extending their jurisdiction into our country, which the US Consitiution and Bill of Rights so protects.

It is further an outrage that the Bush Administration supported this as well. As I usually vote the conservative Republican route - I am most disappointed, but increasingly not surprised.

 

[Sam Adams]

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

OK, fine, so change it so that no one who isn't between 50 and 55 can acquire a new firearm. Now there's no ex post facto problem, just a simple denial of an inalienable right, so please answer the question: Do you want the Court to interpret the meaning of the statute, or to determine whether it is Constitutional?

 

[Omaha-BeenGlockin]

There is a guy here in Ne that was convicted selling pro-Nazi books in Germany and Holland------not that I agree with all the Nazi crap------but couldn't buy a gun here because of the conviction there.

Problem is----he was convicted of something that's not even a crime in this country.


The Court got it right this time.

 

[Brett Bellmore]

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

No, as "ex post facto" is currently understood by the courts, it's only ex post facto if you're criminally convicted of conduct that occured before it was made illegal. If today they passed a law such as you suggest, it would be ex post facto to charge you for having owned the gun yesterday, but not to charge you with owning it tomorrow.

However, once you've been convicted of anything, no matter how trivial, your penalty can be increased long after the fact, if the law is changed. They could pass a law today saying that anyone who'd ever gotten a traffic ticket could no longer own a gun from this day forward, and it wouldn't be considered ex post facto, because leaving your car parked next to an expired meter was illegal back when you did it.

 

[Mulliga]

The "any court" language is fairly vague, and, as stated in the majority opinion, leads to all sorts of contradictory consequences with other laws and regulations concerning firearms ownership.

This seems like one of those "housekeeping" decisions - rather limited effects based on a small ambiguity of wording in a law.

 

[Boats]

Well I thought I had answered the question. In regards to your hypothetical Sam, I'd like to see the Court determine the constitutionality of the law, especially since it would be a facial challenge.

However, as I laid out, there are conditions precedent in this case today that make it distinct. First of all, felon extinguishment of the right to firearms has already been legislatively and judicially endorsed. Like it or not, the scheme that sees (domestically convicted) felons debarred the use or arms has long been the law of the land.

So why not try answering the challenge I put to you: If the role of a judge is to presume a statute is constitutional and there was nothing unconstitutional about either Congress' power to bar felons the use of firearms, nor about its power to recognize the ministerial acts of other nations, nor were anything suspect about that branch's constitutional powers to redraft the statute to meet the legitimate concerns of the people, and the statute itself is not facially unconstitutional because it will not fail that test in all of its applications, why the phrase any court does not have its plain meaning?

Remember, in terms of your constitutional role, you have to presume the constitutionality of an act of Congress and save the statute unless you cannot.

Hint: The correct decision would have been along these lines. 1) Felons are constitutionally barred from firearms possession when convicted in this country. 2) Congress has the power to recognize, or not, the magisterial decisions of foreign countries. 3) It is presumed that Congress meant what it wrote as Congress is cognizant of its ability to give its laws international reach in either direction. 4) If citizens do not like Congress having branded them felons despite a lack of a domestic felony record, their beef is a political one with Congress, and not the Court. 5) Change the law through the legislative power because it is Constitutional.

 

[Brett Bellmore]

There's no avoiding it, Thomas and Scalia really blew it on this one. Per the 5th amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Being stripped of the right to keep and bear arms, and explicit right guaranteed by the Bill of Rights, is pretty unambiguously a deprivation of liberty, requiring "due process". What's "due process"? Look to the next amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Those are the minimal elements of "due process" to deprive somebody of a liberty.

Japan doesn't even HAVE trial by jury! Therefore a trial in Japan can NOT constitute "due process" to deprive an American of liberty in America, and it wouldn't matter one bit if the law had said, "any court, including foreign courts". Congress doesn't have the authority to override the Bill of Rights, not by implication, not even clearly and deliberately.

 

[beerslurpy]

My ownership of firearms is a felony in nearly every other country on the planet.

If any one of them takes a disliking to me and decides to convict me in absentia, then I get my guns taken away.

I think that is an overriding principle that events outside of the jurisdictions of the US courts cannot have legal weight in those US courts. This is why casinos operate off cruise ships. This is why people go to Amsterdam to smoke weed. This is why people take untaxed money to the Bahamas. This is why people go to Thailand to have sex with children. Those acts are legal in the country in which they take place (more or less) and the US lacks jurisdiction there. Similarly, laws which you can break over there are likely not crimes in the US, such as firearm posession, praying to the wrong god, drinking alcohol, etc. The US cant have half-jurisdiction over the entire world. Either the laws of the US entirely apply to a place or they entirely do not.

I think scalia and thomas missed the big picture on this one. Congress doesnt even have the ability to pass laws that exceed the jurisdiction of the US. If you are outside the US, you are outside the reach of US law. Period. Regardless of the letter of the law in question.

 

[P95Carry]

Hardly pertinent here but might be of interest.

Back when I was applying for my first green card - one of the (many) things I had to produce, was a confirmation that I was not on any UK criminal database - that meant effectively - New Scotland Yard. Had to get a certified letter to that effect!!! I have always wondered where I'd be now with my shooting, had that record had something on it?!

As it is - my NICS takes all but seconds - cos I am clean ... but that clean means not only here but ''back there'' for all my life. Seemed like this was real important.

 

[gc70]

Members of this forum usually howl about judicial activists whose decisions are based on their feelings rather than strict interpretation of the law. In this case, many are willing to ignore the plain, but troublesome, language of the law because they like the resulting decision.

This decision is not a victory for gun owners. In exchange for the dubious benefit of one apparently unsavory individual regaining the right to gun ownership, we all have to live with the extension of an already long string of Supreme Court decisions that are results-oriented and based on loose (dare I say 'liberal') interpretation of the law.

The hypocrisy of damning judicial activism when you don't like the results, but praising it when you do, is stunning. Maybe we should all reflect on the fact that Justice is blindfolded for a good reason.

 

[gc70]

Congress doesnt even have the ability to pass laws that exceed the jurisdiction of the US. If you are outside the US, you are outside the reach of US law. Period.

This State Departement news release may be enlightening. The individuals mentioned in the news release, who have been convicted under the 2003 PROTECT Act for child sex tourism, would probably not agree with the assessment that being outside the US puts a person outside the reach of US law.

 

[pax]

The Bush administration argued against the Second Amendment.

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

As so many have argued so eloquently every election cycle, we have to vote for Republicans because otherwise someone besides a Republican would appoint Supreme Court nominees.

pax

Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule-- and both commonly succeed, and are right. -- H.L. Mencken

 

[deanf]

Small Victory in US Supreme Court

Court: Foreign conviction can't strip gun rights

http://www.usatoday.com/news/washin...urtopinions/2005-04-26-court-gun-rights_x.htm

By Joan Biskupic, USA TODAY
WASHINGTON — A federal law that prohibits felons from owning firearms does not apply to those whose previous convictions were in foreign courts, the U.S. Supreme Court ruled Tuesday.
The justices voted 5-3 to reverse a federal gun-possession conviction against Gary Small, who in 1994 had been found guilty in Japan of trying to smuggle several pistols, a rifle and ammunition into that country.

The ruling is likely to have modest practical effect, but it provoked a lively discussion among justices over the differences between U.S. and foreign laws. The court's liberal-leaning justices, who prevailed in the ruling, said they did not believe that Congress intended for foreign convictions to be used as a basis for the type of charges that Small faced here.

Small was released on parole from a Japanese prison in 1996. After he returned here and was caught with a gun he bought in Pennsylvania, he was charged under a U.S. law that bars those "convicted in any court" of a crime punishable by more than one year from possessing a firearm. Small entered a conditional guilty plea and appealed the use of his conviction from Japan in the case against him here.

Lower U.S. courts rejected Small's claim, but most of the Supreme Court agreed with his stance that the foreign conviction should not have applied in his current case. "Congress ordinarily intends its statutes to have domestic, not extraterritorial, application," Justice Stephen Breyer wrote. He was joined by John Paul Stevens, David Souter, Ruth Bader Ginsburg and Sandra Day O'Connor, who is at the court's political center and sometimes votes with the more liberal justices.

Breyer said there can be variations among nations in determining crimes and punishments. He said some nations punish conduct that U.S. law permits, or even encourages. He cited the former Soviet Union's ban on private entrepreneurial activity. "These ... considerations, suggesting significant differences between foreign and domestic convictions, do not dictate our ultimate conclusion," he wrote. "They simply convince us that we should apply an ordinary assumption about the reach of domestically oriented statutes here."

He noted that a Justice Department lawyer had told the court that since 1968, there probably have been no more than a dozen instances in which a foreign conviction led to a felon-in-possession prosecution here.

Justice Clarence Thomas, who wrote the dissent, said Breyer exaggerated the variations between U.S. and foreign criminal laws. Thomas said the court's majority ignored "countless other foreign convictions punishable by more than a year" that closely match U.S. laws. "The majority's interpretation permits those convicted overseas of murder, rape, assault, kidnapping, terrorism and other dangerous crimes to possess firearms freely" in the USA, wrote Thomas, who was joined by Antonin Scalia and Anthony Kennedy.

Chief Justice William Rehnquist, who is being treated for thyroid cancer, did not participate. He was away from the court in November, when the case was heard.

 

[Byron Quick]

I count that as more than a small victory. In view of previous rulings on this issue; I've been concerned about the felony provisions for some time. After all, one way to get rid of gun ownership is to make darn near everything a felony.

 

[Brett Bellmore]

I vote for Republicans because, so far, Democrats tend to be worse. Though the difference it getting to be too small to bother with in many respects.

As I've said before, I thought Bush might appoint some good Supreme court justices by accident. And that Kerry wouldn't make such a mistake.

 

[Iain]

I love your quotes pax. About the only person that I can quote right now is PJ O'Rourke.

For my own point of view I get the suspicion of some foreign courts. Japan's 99% conviction rate is worrying from our shores. But, when I were 18 I could buy alcohol here, in many areas of the US I could not legally buy alcohol. Had I tried I would have been committing a crime (minor and for the sake of example) and would have expected to have received the exact same punishment that a US 18 year old would have received.

 

[skidmark]

foreign convictions do NOT eliminate gun rights

U.S. Supreme Court: people convicted of crime overseas can still own gun in U.S.
By HOPE YEN Associated Press Writer

(AP) - WASHINGTON-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.

2005-04-26T14:40:22Z

 

[Talon]

My God! The Supreme Court actually ruled in favor of sovereignty???? There's a first time for everything, I guess.

 

[LawDog]

Multiple threads merged.

LawDog

 

[Sam Adams]

Boats

I will answer your challenge to me in Post # 31 by saying "See Brett Bellmore's Post # 32."

The issue is whether Congress has the Constitutional authority to deny any of us of our inalienable rights by passing a law that recognizes the ministerial acts of a foreign state. Brett Bellmore is 100% correct in stating that when the standards of Due Process are not met - which is far more often the case in foreign courts than not - then Congress simply hasn't the authority to pass such a law and enforce it. The issue isn't the language of the statute, or even the "will of the people" or some such nonsense, it is about what our most basic and inalienable rights are worth.

This law wasn't re-written by the Justices, it was properly struck down as being an unconstitutional abuse of power by Congress.

The law in question has - and would continue to, if not stricken down - denied Americans their inalienable rights for doing things in a foreign land that are perfectly legal here. I am certain that the very concept would've had the Founding Fathers oiling up their flintlocks and Kentucky rifles within 5 minutes.

 

[Firethorn]

P95Carry,

I'm pretty sure that green cards go through a different process than a felon/non-felon test.

It all depends on how the US-source nation relations are. For example, we give asylum for people from all sorts of places, and don't bother checking for convictions. Heck, from some areas like China, conviction might be grounds for political asylum.

I happen to like the ruling. It's effects will be modest. If anything, it'll make it more likely that Japan and other countries will hand jurisdiction over to the states (real easy in military cases).

As for Japan's 99% conviction rate, I understand that's because they don't bring it to trial until they have a much more iron-clad case than US prosecuters. On the flip side, it also makes it more likely that cases with guilty parties won't even go to trial. Countering that is that the rules on questioning are far more lax in Japan. You don't have the right to an attorney during questioning, they can record the whole thing, and can question you for 12 hours straight for weeks on end. And yes, the Japanese prison system is particularly harsh to American mentalities. Imagine having to sit "at attention" for hours on end.

I read an article about this when a military member was accused of rape.

 

[ring0]

I could be wrong about this b/c I haven't read the case, but if my understanding is correct (that's a big IF since all I know is what's in the newspapers) the question decided by the Supreme court was what the wording of the law meant. Since the majority held that "any court" really means "any US court" the court never ruled on whether the law, as originally interpreted, was constitutional, and any debate about the 5th and 6th amendment constitutionality of using foreign convictions would be dicta.

Many posters bashing the strict constuctionists for their literal interpretation "any court" would be quite pleased to have the court adopt a strict construction of "shall not be infringed". Strict construction is like computer programming: garbage in, garbage out. Strict construction of bad law gives you a bad result. Strict construction of a good law gives you a good result. It's a sad reflection on this forum that justices are being repeatedly criticized for interpreting a law; yet hardly anyone bothers to criticize congress for writing the bad law to begin with.

 

[cropcirclewalker]

Thomas said,

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

He screwed up big time and I yam glad that the majority figgered it out.

By Thomas' definition, Judge Judy could do a show in the PRK, declare a person a felon and it would be just as "Lawful" as if they did it in Japan. The word "ANY" is indeed expansive.

Where does one play tennis? In a court. Basketball? Handball?

If Thomas had gotten away with his stupid statement, and it became precedent, we could have been disarmed by the Harlem Globetrotters.

Whaddaya think about that?, Mr. Boats?

Personally, I think congress was referring to a court constitutionally created by them (Congress) in accordance with and subject to the Constitution.

Of course, that could just be me. YMMV

 

[CentralTexas]

Wish the Bush administration was more pro gun

Felonies in overseas courts can be for things not illegal here or just bogus!

"The Bush administration had asked the court to apply the statute to foreign convictions." http://www.washtimes.com/national/20050426-105934-1619r.htm

 

[Boats]

The only way the Globetrotters are going to disarm you is if you play for the Washington Generals.

Strict construction is the preferred method that judges should use according to nearly everyone concerning every other case that has ever been discussed on this board.

Unless of course, one doesn't like the outcome. Then things are completely different.

I maintain my stance. Court means a duly constituted court where felony level justice is dispensed since punishable by a year in prison is part of the standard. Any means any court meeting that first common definition. Judge Judy can't meet the definition.

The proper beef was with the sloppy Congressional language, not the constitutionality.