Bunker Mulligan "Let us endeavor so to live that when we come to die even the undertaker will be sorry." ~Mark Twain

April 26, 2005

Convicted Felon Buys Gun

Filed under: Government — Bunker @ 5:37 pm

Bogey is interested in my opinion on this conclusion drawn by the US Supreme Court.

The basis of the suit was that Gary Small had been convicted of smuggling in Japan, and after release from prison there returned to the US–where he bought a pistol. In filling out the Federal paperwork for the purchase, he claimed not to have been convicted of a felony.

But today, the Supreme Court sided with Mr. Small, ruling 5 to 3 that the phrase “convicted in any court” applies only to convictions in the United States. “Congress ordinarily intends its statutes to have domestic, not extraterritorial, application,” Justice Stephen G. Breyer wrote for a majority that also included Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg.

I agree. But I find it odd in this situation that O’Conner, Ginsburg, and Kennedy often cite foreign laws in their positions. Kennedy, this time, held to that sense of “world jurisdiction” along with two other justices deemed to be conservative. The majority argued the same thing I would have:

To include foreign convictions, the majority reasoned, would raise the possibility of tainting a person who had been caught up in a legal system lacking American standards of fairness.

Of course, that leaves open the screams that he might now commit a gun crime.

Well, when you come right down to it, nothing in the Constitution gives Congress the power to restrict gun ownership whatsoever, not even for convicted felons.

This, my friends, is a perfect example of getting the Federales involved in your life in some way, with consequences you might never have considered. The anti-gun folks would love to see all rights to gun ownership revoked. The true dyed-in-the-wool gun owners and supporters of the Second Amendment would agree with this ruling by the court.

In between are those faint of heart who want to see certain people not allowed to own guns.

Actually, the right “to keep and bear arms” means I don’t even need a concealed-carry permit to “bear arms.” But that kind of law is “tolerated” by those who will carry a gun themselves, but believe certain citizens really don’t have the same rights. I don’t have a concealed-carry permit.

Bogey, did that shock you?


  1. Very interesting, I’d have probably missed that piece of news if I hadn’t happened by your blog. Thanks for posting that.

    Comment by GunTrash — April 26, 2005 @ 5:42 pm

  2. As I understand the carry permit concept – you do have the right to bear arms without one. The permit is to allow you to carry it concealed – not bear it openly. Not that I like the concept – just pointing out the difference.

    Sometimes I think of Heinlein’s ‘Beyond this Horizon’, and wonder what it would be like if we tried such a system…

    Comment by Barb — April 26, 2005 @ 11:16 pm

  3. Shock me? By stating that you’d like to see our laws and policies follow the Constitution to the letter? What rock do you think I’ve been under? ;^) In fact, I wonder if I could’ve written your response for you on this one. And I couldn’t agree more, really — leaning on the literalty of the phrase “in any court” as Thomas, Scalia, and Kennedy did here seems almost juvenille to me (though I’m sure they prettied up the language so as not to sound quite that way — and I must confess I didn’t bother to read the entire opinion).

    I’m still a little bemused at the apparent contradiction that comes with some of the so-called conservative judges opining that foreign convictions should count for something, when so many conservative commentators complain regularly (sometimes loudly/bitterly/annoyingly as well) that certain other justices have considered or mentioned foreign laws in their own opinions.

    The other thing that sticks with me on my mind is why Gary Small didn’t have any charges to face here in the US at any point on the offense that led to his conviction in Japan. Is it perfectly legal to export guns and ammo hidden in water heaters? Is it legal to export anything when you’re purporting it to be another thing entirely? Should it be?

    I also wondered for a moment how someone who’s enough of a gun enthusiast to name his blog Guntrash could possibly have missed this news except for catching it here… but then I figured this case really is less about guns than it is about the boundaries of American law. Plus, now that I have a kid, it’s much easier for me to undestand how anyone with any kids could miss any piece of news at any given time. The distractions from the outside world are constant, and most welcome…

    Comment by Bogey — April 27, 2005 @ 12:04 am

  4. Barb,

    Just try walking down any city street with a .45 strapped on your hip. And while folks like James Madison didn’t carry a pistol in that way, they certainly didn’t envision a difference between open and concealed.

    Bogey, I wondered the same thing about the conviction since it was for smuggling into Japan. From the US? obviously there should have been some form of investigation.

    As to conservatives citing foreign law, they didn’t do that in this case. They simply equated a conviction in another country to one here in the US.

    Comment by Bunker — April 27, 2005 @ 5:37 am

  5. The smuggling was from the US. Maybe he was granted pity for his time served in Japan.

    As to conservatives citing foreign law, they didn’t do that in this case. They simply equated a conviction in another country to one here in the US.

    Yep, and though you seem to be saying that in their defense, it seems less acceptable than simply citing a foreign law. The Supreme Court justices are sometimes required to rule on the intent of a law when that law is incomplete or poorly written, and citing any example of what may be a more thoroughly-worded law — from another state OR another country — is simply a way of supporting one’s own opinion. In this ruling, three justices essentially stated that we should not only consider foreign law but actually honor certain outcomes of foreign judiciaries and treat them as if they were are own.

    But it’s not like they won the decision, so there’s no great need to dwell on the subject, I guess.

    Comment by Bogey — April 27, 2005 @ 8:07 am

  6. The danger of using foreign law as an example for our own is that the legislature should be doing that rather than the judiciary. I have no issue with the Court throwing this out and telling Congress they must be clearer. In fact, I believe we would be better served if the Court reviewed proposed legislation prior to it going to the President for signature.

    Comment by Bunker — April 27, 2005 @ 10:33 am

  7. Bunker – You are correct, of course, because some helpful gun-hating citizen would call the cops on your for whatever imagined infraction they could dream up. The law and the reality are definitely two different things.

    However – I have seen people openly carrying … in Texas. This was several years ago – but I was walking about 20 feet behind a man on the way into a K-Mart, and realized he had a revolver of some sort in a hip holster. The person I was with saw me look surprised and pointed out that it was legal to carry as long as it was not concealed. It wasn’t the only time I saw it while in Texas (lived for 3 months in Austin), either.

    Comment by Barb — April 27, 2005 @ 11:21 am

  8. Barb, just adding to your “status report”… I’ve been in Austin about 3 years now and have seen a handful of citizens carrying openly displayed holstered pistols, but all of them were pawnshop proprietors.

    Comment by Bogey — April 27, 2005 @ 4:33 pm

  9. I have to admit I’ve never seen it in Texas. I’ve seen many with a gun on their hip, but not in town.

    See…I told you I didn’t need no stinkin’ concealed-carry permit.

    Actually, I asked this of a cop in Tyler. I was curious how a police officer would handle someone with a gun in their car. He told me that it was okay carrying it to and from some specific location. He then added, “Of course, this is Texas. I’d probably fuss at you and tell you to take your gun home.”

    Comment by Bunker — April 27, 2005 @ 7:20 pm

  10. Bogey – Thanks for the update, I haven’t been to Austin in years, not since I left the employment on TI. I am not at all surprised that pawn shop (and likely, gun shop) proprietors carry openly.

    I understand that here in WA it sometimes occurs outside of the cities – more so east of the mountains. The key is that any property owner can ask you to leave, and if you refuse, you would be considered trespassing – so of course, you leave. That implied threat is what keeps people from carrying openly in the city.

    The good news is that this is a ‘shall issue’ state. As soon as I take some defensive handgun class (my rule, not the states) and feel qualified to do so, I will acquire my carry permit.

    Here’s a strange one for you… A past co-worker of mine asked about local gun ranges and their rules on renting guns for shooting. Turns out he had already gotten his carry permit, and wanted to go to the range to Learn.To.Shoot! He had Never held a gun and fired it before…yet he had a carry permit. *sigh*

    Comment by Barb — April 27, 2005 @ 8:01 pm

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