Curious Supreme Court Ruling

[Brown]

Small v. United States, decided today, is a somewhat curious ruling. I don't say that it's right or that it's wrong... just curious.

At issue is a federal statute passed by Congress pertaining to possession of firearms. The statute forbids any person convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess any firearm.

The defendant did five years in the pokey for gun smuggling... in Japan. He was convicted in a Japanese Court. The basic question for the court to answer was whether the words "in any court" meant "any court in the U.S.A." or "any court in the whole world."

At issue is the defendant's right to possess firearms. He bought a firearm from a Pennsylvania dealer and then got arrested.

Before we get to the curious stuff, let me just say that the Second Amendment was not an issue in this case, even though the defendant's right to keep arms was at stake.

Even so, one might assume that, even though the Second Amendment is not at issue, the "conservative" wing of the court would tend to favor the right to bear arms, and the "liberal" wing would be against it.

And yet, it is the opposite. Justice Thomas (joined by Justice Scalia and Justice Kennedy, recently accused of being a "judicial activism" sympathizer) thought that the defendant ought to be prevented from posessing firearms due to his Japanese conviction. Justice Breyer (writing for a majority that included Justices Stevens, O'Connor, Souter and Ginsburg), however, ruled in favor of the defendant's right to possess firearms.

It gets a little stranger. As you may recall, the case of Roper v. Simmons recently got some attention, as it ruled execution of minors to be unconstitutional. Critics charged that the majority improperly deferred to foreign law.

But now in Small, Justices Thomas and Scalia, so critical of deference to the laws of other nations, now think foreign laws are pretty peachy, even though they may apply quite different standards than the United States applies:

And it is eminently practical to put foreign convictions to the same use as domestic ones; foreign convictions indicate dangerousness just as reliably as domestic convictions.

 

[crimresearch]

Roper did not defer to foreign law...the Supremes said that not executing kids was so obvious that even a bunch of foreigners could figure it out.


But in today's rulings, they did appear to directly reject foreign courts in one case (Small), and then allow other crimes against foreign laws to fall under US jurisdiction in the other case (Pasquantino v US).


I'm sure they had goooooood reasons for the apparent inconsistency.

 

[The Central Scrutinizer]

Before we get to the curious stuff, let me just say that the Second Amendment was not an issue in this case, even though the defendant's right to keep arms was at stake.

Obviously you didn't consult with the NRA loonies. Every Supreme Court decision involves the Second Ammendment, if any of the defendants or any of their relatives or anyone they ever met in their life ever touched a gun.

On a more serious note, thanks for the analysis. That is a curious decision.

 

[Art Vandelay]

The defendant did five years in the pokey for gun smuggling... in Japan. He was convicted in a Japanese Court. The basic question for the court to answer was whether the words "in any court" meant "any court in the U.S.A." or "any court in the whole world."

It seems to me that there are two issues: whether the legislative intent was to include foreign convictions, and, if that is the case, whether such a law is constitutional. But perhaps only the former was raised as an issue.

Before we get to the curious stuff, let me just say that the Second Amendment was not an issue in this case, even though the defendant's right to keep arms was at stake.

It may have not been raised as an issue, but a case could still have been made that it was relevant.

I can't see how anyone could possibly rule for a foreign interpretation. The term "court" is well defined only domestically. Who accredits foreign courts? If a group of Iraqi insurgents get together and call themselves a "court" and convict someone, does that count? If someone in another country is caught spying for us, flees here, and is convicted in absentia, would they be barred from carrying firearms? How can anyone dispute that accepting foreign convictions violates due process?

 

[Kerberos]

Re: Re: Curious Supreme Court Ruling

I can't see how anyone could possibly rule for a foreign interpretation. The term "court" is well defined only domestically. Who accredits foreign courts? If a group of Iraqi insurgents get together and call themselves a "court" and convict someone, does that count? If someone in another country is caught spying for us, flees here, and is convicted in absentia, would they be barred from carrying firearms? How can anyone dispute that accepting foreign convictions violates due process?

It does strike me as a little bizare too, I mean Japan properbly has a fairly good judicial system, but what if he'd been convicted in Somalia on dubious evidence and of a crime that isn't illegal in the US?

 

[Ian Osborne]

Re: Re: Re: Curious Supreme Court Ruling

It does strike me as a little bizare too, I mean Japan properbly has a fairly good judicial system, but what if he'd been convicted in Somalia on dubious evidence and of a crime that isn't illegal in the US?

That's what I wondered as I read the OP. Perhaps the law should be amended to include foreign-court convictions only if they're deemed relevent by a US court?

 

[crimresearch]

I believe one of the justices said something to that effect...Congress is certainly free under this ruling to spell out what courts they intended.

And it turns out the wording in the Pasquantino case only refers to the use of interstate wire funds in commission of a a crime, not where/who the victims of the crime are (in this case, Canada).

So, as I surmised, gooooood reasons.

 

[shanek]

Small v. United States, decided today, is a somewhat curious ruling. I don't say that it's right or that it's wrong... just curious.

At issue is a federal statute passed by Congress pertaining to possession of firearms. The statute forbids any person convicted in any court of a crime punishable by imprisonment for a term exceeding one year to possess any firearm.

The defendant did five years in the pokey for gun smuggling... in Japan. He was convicted in a Japanese Court. The basic question for the court to answer was whether the words "in any court" meant "any court in the U.S.A." or "any court in the whole world."

I think there would be an additional wrinkle, too: what about state courts? The Federal government doing this for state courts would be just as much of a jurisdictional intrusion, IMO, than that for courts in another country.

Even so, one might assume that, even though the Second Amendment is not at issue, the "conservative" wing of the court would tend to favor the right to bear arms, and the "liberal" wing would be against it.

Unless you consider the conservative wing being "tough on crime." They love doing that crap.

Of course, if they're doing this to people who have already been convicted, that's ex post facto and against the Constitution.

 

[crimresearch]

Of course, if they're doing this to people who have already been convicted, that's ex post facto and against the Constitution.

Doing what?

Overturning their convictions after they have been convicted is unconstitutional? Or Congress amending a law after anyone has been convicted under it is ex post facto?

 

[corplinx]

I believe the original foreign law hubbub was caused by Breyer. And he had a very good explanation for it.

He basically wanted to determine what was "reasonable" and looked to see what other countries determined was reasonable in comparison. He admits he made a mistake by referencing a certain African country who has an abysmal human rights record.

The second hubbub was over the death penalty case. Once again the court looked to other countries for to see what standards they had regarding a practice to use a comparison.

Scalia has some very eloquent arguements against this practice since he seems more concerned about determining what is best from an american-centric point of view rather than a global one. Even though I think the slippery slope he sees is not there, I appreciate his dissent and warning.

I do think this is apples and oranges comparison. Here they were referring to the scope of a law on the books.

 

[crimresearch]

I really don't think that in the Roper case, the Supreme Court needed to look to other countries, in order to find out what was reasonable. (Although there has been a lot of rhetoric to that effect).

I believe they made that determination based on US law and precedent, and then as an after the fact adjunct, pointed out that other countries also considered it reasonable...

Which is different from not knowing what is reasonable, and asking foreign courts to define it for them.

"Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. When Atkins was decided only a minority of States permitted the practice, and even in those States it was rare. 536 U.S., at 314—315. On the basis of these indicia the Court determined that executing mentally retarded offenders “has become truly unusual, and it is fair to say that a national consensus has developed against it.”

Then after repeatedly citing STATE decisions, and firmly establishing an American precedent, the Court added:

"Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility."

http://supct.law.cornell.edu:8080/supct/html/03-633.ZO.html

 

[Suddenly]

Of course, if they're doing this to people who have already been convicted, that's ex post facto and against the Constitution.

Doing what?

Overturning their convictions after they have been convicted is unconstitutional? Or Congress amending a law after anyone has been convicted under it is ex post facto?

No.

Shanek's claim is more to the idea that if I am convicted of a qualifying crime in 1979, and the law that makes it illegal for those convicted of such a crime is passed in 1995, then it would be an ex post facto application to try to convict me under the 1995 crime.

At least that is what I gathered, of course I'm not as willing (at least not anymore) as some to read everything shanek posts "in the light most favorable to the proposition that shanek is a moron."

I think it is a good question, a bit out of context but a good one nonetheless. I'd tend to agree that it violates the principles behind the prohibition of ex post facto laws...

I'm less in line with the jurisdictional issues though. The use of the prior offense seems to me more of a classification of persons than a reach across jurisdictional lines to punish crimes the Federal Government has no businsess messing with, but that is a grey area. If viewed as a classification, I'm not sure "convicted of a felony (more or less... a felony has come to be generally defined as a crime punishable by more than a year) in a foreign country" carries much weight as a suspect classification...



As per the lack of Second Amendment mention in this case, consider that 1) The weight of prior precident weighs against the personal right to bear arms outside of a militia context, no matter what the NRA claims, and more importantly, 2) even if we consider the Second to carry a personal right outside such a context, all rights are subject to reasonable regulation. Keeping felons from owning guns is quite reasonable as a regulation, and furthermore is defensible on the ground that we remove rights from felons all the time as part of the punishment... although this second rationale would clearly run into the ex post facto concern shanek brought up.

 

[Thanz]

Re: Re: Curious Supreme Court Ruling

I think there would be an additional wrinkle, too: what about state courts? The Federal government doing this for state courts would be just as much of a jurisdictional intrusion, IMO, than that for courts in another country.

I think that the law uses the conviction as a way of saying "this kind of person should not own a gun", right? If that is the case, I'd say that the problem with foreign convictions would be concerns about procedural justice ("due process") and that a person's rights are not infringed because of a kangaroo court - as has been brought up by others.

If that is the case, I'd say they are not worried about the state courts, as they operate under the same procedural justice restrictions in the constitution. They are not stomping on states and telling them what should or should not be punishable by a year in prison - rather, they are saying that they trust the states to make that decision and they will rely on it. I think.

 

[Suddenly]

I believe the original foreign law hubbub was caused by Breyer. And he had a very good explanation for it.

He basically wanted to determine what was "reasonable" and looked to see what other countries determined was reasonable in comparison. He admits he made a mistake by referencing a certain African country who has an abysmal human rights record.

The second hubbub was over the death penalty case. Once again the court looked to other countries for to see what standards they had regarding a practice to use a comparison.

Scalia has some very eloquent arguements against this practice since he seems more concerned about determining what is best from an american-centric point of view rather than a global one. Even though I think the slippery slope he sees is not there, I appreciate his dissent and warning.

I do think this is apples and oranges comparison. Here they were referring to the scope of a law on the books.

I tend to agree that these cases are not really contradictory.

I think the real issue here is that we had certain groups on the right screaming that Kennedy was a crazed liberal that wanted us to be ruled by the French... Are they going to apply the same ill-informed analysis and see Scalia as ruling that the Japanese should be able to tell us who can own a gun in America? Are we going to hear Scalia criticized as a runaway activist liberal judge?

(If we do I may snap. The Kennedy thing was alarming enough. Where do you go after you consider Scalia to be a flaming liberal? Is Delay next? Bork? The mind reels...)

This is all of course nonsense.. but it is the sort of cheap underhanded crap that appeals to the rubes and is the sort of thing that often is defended as being savvy politics. On the surface it really, really, looks contradictory. Scratch a level and it is just Scalia being a strict textualist. Most won't scratch that level. However, IMO most on the left don't have the stomach to make a big deal out of something they know to be an illusion on hypocracy. This is either a level of political ineptness or just a sense of principle. Whether those are the same thing is a question for another day....

 

[corplinx]

I tend to agree that these cases are not really contradictory.

I think the real issue here is that we had certain groups on the right screaming that Kennedy was a crazed liberal that wanted us to be ruled by the French..

I was out to lunch one day and tuned in Rush Limbaugh in the car. He was playing audio of Scalia and either Breyer or Kennedy discussing that much maligned decision. It was very informative and showed the deep level of deliberation of both men.

Rush of course followed up their clips by shilling about loss of sovereignty and the cut and paste right wing line about it.

Its a shame to hear the wisdom of these men and them explaining their thought processes to be followed up by simplistic shilling.

 

[crimresearch]

No.

Shanek's claim is more to the idea that if I am convicted of a qualifying crime in 1979, and the law that makes it illegal for those convicted of such a crime is passed in 1995, then it would be an ex post facto application to try to convict me under the 1995 crime.

At least that is what I gathered, of course I'm not as willing (at least not anymore) as some to read everything shanek posts "in the light most favorable to the proposition that shanek is a moron."

I think it is a good question, a bit out of context but a good one nonetheless. I'd tend to agree that it violates the principles behind the prohibition of ex post facto laws...
<SNIP>

I've been quite harsh with Shanek precisely because I don't think he is a moron..I think he is intelligent enough to know better.

But it would be correct to say that I am ready to think his posts are based on his own highly irregular interpretations, often leading to illogical conclusions.

 

[shanek]

Shanek's claim is more to the idea that if I am convicted of a qualifying crime in 1979, and the law that makes it illegal for those convicted of such a crime is passed in 1995, then it would be an ex post facto application to try to convict me under the 1995 crime.

Well, not exactly...in this case, we have Congress passing a law saying that people convicted of a crime cannot carry a firearm. If they apply that to people who were convicted before that law was passed, it would be ex post facto. That applies to making additional or lengthier punishments for existing crimes as well as for new crimes.

As per the lack of Second Amendment mention in this case, consider that 1) The weight of prior precident weighs against the personal right to bear arms outside of a militia context, no matter what the NRA claims,

Funny; I thought Article VI Section 2 says that the Constitution is the Supreme Law of the Land, and therefore supercedes lesser laws, judicial precedents, etc.

2) even if we consider the Second to carry a personal right outside such a context, all rights are subject to reasonable regulation.

Really? Where does the Constitution say that? Seems to me the 9th and 10th Amendments contradict that notion.

Keeping felons from owning guns is quite reasonable as a regulation, and furthermore is defensible on the ground that we remove rights from felons all the time as part of the punishment...

Sure, but the 5th Amendment states that the Federal government cannot, and the 14th Amendment states that the state governments cannot, deprive anyone of life, liberty, or property without due process of the law. That isn't "reasonable regulation;" it's much more restrictive of the government than that.

 

[shanek]

But it would be correct to say that I am ready to think his posts are based on his own highly irregular interpretations, often leading to illogical conclusions.

Funny, then, that I have been able to quote the Federalist and anti-Federalist papers, various founding fathers, and Joseph Story's commentaries, supporting my arguments, and you have been able to present...nothing at all.

Like the President having the ability to refuse to execute a law that, in his conclusion, violates the Constitution.

 

[Suddenly]

Well, not exactly...in this case, we have Congress passing a law saying that people convicted of a crime cannot carry a firearm. If they apply that to people who were convicted before that law was passed, it would be ex post facto. That applies to making additional or lengthier punishments for existing crimes as well as for new crimes.

Must be a miscommunication... That is exactly what I thought you were saying...

Funny; I thought Article VI Section 2 says that the Constitution is the Supreme Law of the Land, and therefore supercedes lesser laws, judicial precedents, etc.

As a practical legal matter, the Supreme Court interprets the constitution, and it has interpreted the text to restrict such a right to militia context... While you may disagree with both the interpretation and perhaps their ability to interpret, this doesn't change what the practical state of the law is at present, and explains why the Second really isn't an issue here.

Really? Where does the Constitution say that? Seems to me the 9th and 10th Amendments contradict that notion.

Just the general idea that the Constitution is not a suicide pact. A right to possess weaponry seems to present rather vivid examples of this concept, in that I'm unwilling to conceed that, for example, the clinically insane have a right to own anti-tank guns, and so forth. After we agree that there are some limits to this right then the argument is where the line is drawn, not whether the line gets to be drawn.

Sure, but the 5th Amendment states that the Federal government cannot, and the 14th Amendment states that the state governments cannot, deprive anyone of life, liberty, or property without due process of the law. That isn't "reasonable regulation;" it's much more restrictive of the government than that.

Well, these people would be given due process (outside of ex post facto problems in some cases). The legislature has passed a law stating that certain people cannot engage in a certain behaviour. The executive has charged an individual with falling under the statute, and under the direction of the judicial branch has presented evidence that a jury found proved guilt beyond a reasonable doubt. In theory anyway...

So I don't see due process as an issue, except that the federal due process right is generally held to include an equal protection component, but as I stated above I have a feeling that "people guilty of a felony" is hardly a suspect classification on par with race or gender...

It could be attacked on 2nd amenment grounds, but as per earlier precident there needs to be a militia component. Then there is the "reasonable regulation" problem.


I think the bigger problem is much simpler: Where does the Federal Government draw the power for such a law in the first place?

The commerce clause? Seems like a stretch to me....

 

[shanek]

Just the general idea that the Constitution is not a suicide pact. A right to possess weaponry seems to present rather vivid examples of this concept, in that I'm unwilling to conceed that, for example, the clinically insane have a right to own anti-tank guns, and so forth. After we agree that there are some limits to this right then the argument is where the line is drawn, not whether the line gets to be drawn.

The only place I can find that makes any sense consistent with the Constitution is that of a clear and present danger to the person or property of others.

Well, these people would be given due process (outside of ex post facto problems in some cases).

Even if the conviction happened totally outside of US jurisdiction?

So I don't see due process as an issue, except that the federal due process right is generally held to include an equal protection component,

Shouldn't the states also be held to equal protection, as per the 14th Amendment?

I think the bigger problem is much simpler: Where does the Federal Government draw the power for such a law in the first place?

The commerce clause? Seems like a stretch to me....

The commerce clause has been stretched so much anyway it could get a job as a contortionist.

But you're right: the relevant question is, indeed, where in Article I Section 8 is the government given the power to do this?