Diligent federal prosecutors, believing that a convicted gun smuggler caught with even a fledgling arsenal just might pose a threat to society, prosecuted Mr. Gary Small... Supreme Court Rules Certain Convicted Felons May Have Guns:
So Where’s the Liberal Outrage?

According to several recent U.S. Supreme Court decisions that have outraged conservatives, foreign court decisions should have a bearing on U.S. jurisprudence. Most of us contrarily believe that the job of U.S. judges, hard enough as it is, is to apply and interpret U.S. statutes and the U.S. Constitution, which do not in them say refer to the Most Excellent High Court of Tergoolistan to interpret this.

Now, in a U.S. Supreme Court statutory ruling, five justices on that esteemed court have held the law of the land permits gun possession by convicted felons … provided the convictions were in foreign courts. Liberals — who have on occasion ventured that "any" support for gun ownership limited to law-abiding citizens is itself akin to criminality — should be, shall we say, up in arms. But that would require accepting that a dissenting opinion written by Justice Thomas (and joined by Justices Scalia and Kennedy) has validity, so don’t hold your breath for too very long.

The case is Small v. United States, but we suspect that it will soon be writ large as an example of muddle-headed justice, making "judicial gobbledygook" as much a concern as judicial activism.

The case, you see, hinges on the meaning of the word "any," frequently used in our language and even in our statutes. In fact, the statute in question forbids "any person … convicted in any court … of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm." That was the law, our law. As laws go, it was a good one, as plainly stated as "any" handed down to us.

Come we then to one Mr. Gary Small. In 1992, Mr. Gary Small "shipped a 19-gallon electric water heater from the United States to Okinawa, Japan." It was a "present," that followed two other 19-gallon electric water heater "presents" sent by Mr. Small that very same year. "Thinking it unusual for a person to ship a water tank from overseas as a present, Japanese customs officials searched the heater and discovered 2 rifles, 8 semiautomatic pistols, and 410 rounds of ammunition."

Mr. Gary Small was subsequently tried and convicted of violating Japanese weapons-control and customs laws and sentenced to five years in prison. Back in the U.S., one week after doing time and completing parole, Mr. Gary Small bought a 9-millimeter pistol. "Some time later, a search of his residence, business premises, and automobile revealed a .380 caliber Browning pistol and more than 300 rounds of ammunition."

Diligent federal prosecutors, believing that a convicted gun smuggler caught with even a fledgling arsenal just might pose a threat to society, prosecuted Mr. Gary Small under the aforementioned U.S. statute. Mr. Gary Small copped a guilty plea but reserved the right to appeal on the basis that his foreign conviction fell outside the scope of the U.S. law.

In an opinion written by Justice Breyer and joined by Justices Stevens, O’Connor, Souter and Ginsburg, the U.S. Supreme Court has now concurred with Mr. Gary Small.

Justice Breyer instructs us thusly: "The question before us is whether the statutory reference ‘convicted in any court’ includes a conviction entered in a foreign court. The word ‘any’ considered alone cannot answer this question."

Justice Thomas, in his plain language dissent, believes that "any" does indeed mean "any" and suggests that the majority opinion is "guesswork-as-interpretation."

There is, in fact, some interpretation that goes well beyond guesswork. Noting that there have "been no more than ‘l0 to a dozen’ instances in which such a foreign conviction served as a predicate for a felon-in-possession prosecution," Justice Breyer next decides, "this empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter." By that unsupported logic, Congress has paid no attention to acts of sedition, attempts to assassinate a president and a host of other crimes the incidence of which does not approach the attention with which Congress wrote laws against them.

Most intriguing in Justice Breyer’s opinion is his discussion of foreign law, including the following: "They [past foreign convictions] would include a conviction from a legal system that is inconsistent with an American understanding of fairness." But isn’t that, in those words and others, one of the reasons many of us believe that decisions of foreign courts should have no bearing on court decisions in the United States? Keep in mind that Justice Breyer has been one of the leading proponents of considering foreign court opinions (as distinct from convictions) here. Until now.

It is impossible, in a brief article, to deconstruct a decision and a dissent that together run 23 pages. We can only hope that every member of the U.S. Senate, particularly those on the Judiciary Committee, will read both, because read together, they are sufficient to indicate why it is so important to confirm judges who, if nothing else, are more consistent than some now sitting.

April 28, 2005
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