Felons, guns, and funding -- Oh My!

It seems that a pair of Democratic senators are trying to get an anti-gun bill through the Senate. It's an obscure bill covering an obscure area of law, and it probably won't make much difference to anyone's life whether it passes or not. So why are they pushing for it? And why should we consider letting them pass it?

Sens. Jon Corzine and Frank Lautenberg (both D-N.J.) said yesterday they have proposed legislation aimed at dissolving a program that allows convicted felons to purchase guns if they obtain a federal waiver.

The senators said such a waiver has not been granted in the past 12 years because they have managed to cut off funding for the program, administered by the U.S. Bureau of Alcohol, Tobacco and Firearms.

What they are talking about is a program, run by the BATFE, that allows a convicted felon who has been released from prison to apply for a restoration of firearms rights from the federal government, if they meet certain criteria. The program is intended to operate for non-violent felons who are not career criminals, or who have re-established life as a law-abiding citizen and regain the respect of their community.

The article describes this provision as having been created to allow Winchester (a firearms manufacturer) to continue in that business after their parent company was convicted of a felony. I'm not sure that the program was created explicitly for that purpose, but the intent of Congress was to allow for special cases like that, rather than to provide a general restoration of rights for all felons after release. So, bear that in mind: we're talking about a small program not intended for widespread use, but rather to allow the special cases and the victims of a legal technicality to regain their rights.

Well, if it's such an innocuous law, why do the anti-gun forces want it struck down, rather than inserting a provision to de-fund it each year? Obviously, they are a little concerned that a pro-gun Congress might not include their provision defunding the program. That's OK as far as it goes, but still, why make an issue of it? It's not like gun owners are eager to make use of a program for felons; most gun owners are not felons and do not anticipate ever becoming felons. Most felons do not deserve to have their gun rights restored. So, it's not really a big issue on either side.

The gun control crowd is pushing this issue for political reasons. If they can get their opponents in the Senate to vote on something that the papers will spin as "granting criminals access to firearms!", then they may be able to use that against pro-gun members of Congress; either by misrepresenting the issue to the general public, or by discouraging pro-gun people from voting if their candidate goes the wrong way on the issue. Either way, if there's a vote, we lose.

The political solution would be to handle it like the assault weapons ban. Let it go by without an vote, and continue not funding the program. That's a minor loss for our side, but it denies the anti-gun politicians any effective ammunition. I'm willing to let that happen. But there's also a more interesting possibility, and that is to let the issue come up for a vote -- and vote to kill the program.

Why should we even consider such a thing? Let's examine the case of US v Bean. The case was decided in 2002, and involved an attempt by Bean to obtain a restoration of his rights. Because the BATFE has no funding for processing these requests, he filed a lawsuit seeking a judge's order restoring his rights.

As described in his lawsuit, Bean crossed the border into Mexico while in possession of 200 rounds of .22 ammunition (one box, in plain sight). He had instructed his subordinates to remove all firearms and ammunition from his vehicle before the trip, but that one box had been missed. In Mexico, possession of ammunition is a felony; he was coerced into signing a confession (in Spanish, a language which he does not speak) and jailed. For that simple mistake, something which is not a crime in the United States, he is considered a felon in the United States and is thus forbidden to own firearms.

In the district court and the Fifth Circuit appeals court, he won. But Ashcroft's Department of Justice appealed the ruling to the Supreme Court. The Supreme Court granted certiori and ruled unanimously against Bean, overturning the 5th Circuit and denying Bean's firearms rights. (This is one reason not to take claims that Bush is pro-gun very seriously; had the DoJ let the 5th Circuit ruling stand, we would be much better off).

From US v Bean:
The absence of an actual denial by ATF of a felon s petition precludes judicial review under §925(c). The Secretary of the Treasury is authorized to grant relief from a firearms disability if certain preconditions are met, and an applicant may seek federal-court review if the Secretary denies his application. Ibid. Since 1992, however, the appropriations bar has prevented ATF, to which the Secretary has delegated this authority, from using appropriated funds to investigate or act upon the applications. Section 925(c) s text and the procedure it lays out for seeking relief make clear that an actual decision by ATF on an application is a prerequisite for judicial review, and that mere inaction by ATF does not invest a district court with independent jurisdiction.

In other words, there is an explicit catch-22 here. The BATFE cannot act on the application for relief, and the courts cannot act on the ATF's inability to act, even though the provisions for relief remain law. To break the catch-22, one of two things must happen: the BATFE must be granted funding to process applications, or the program must be completely repealed.

If the program is funded again, we gain very little. Some firearms enthusiasts or businesspeople will regain their firearms rights at the pleasure and discretion of the BATFE. We'll take a PR hit any time one of those people whose rights were restored commits a crime with a firearm.

If the program is eliminated completely, however, we gain something a little different. We gain the ability to make court challenges to felon-in-possession laws that won't fall victim to the catch-22. Why? Well, instead of a law that provided for due process review of felony convictions allowing for a restoration of a Constitutional right, we are instead left with explicit denial of a Constitutional right in cases like the Bean case; that is, cases where justice clearly was not served.

Given another case like Bean's, and with no due-process review permitted by the law, we are suddenly in a different situation. On the one hand, we have a Constitutional right; on the other hand, a law that denies exercise of that right without due process of law in cases like Bean's. Rather than oh-sorry-there's-no-funding, we have the chance to strike directly at the law, and potential secure a ruling that acknowledges the 2nd Amendment as an individual right, which places corresponding restrictions on government. And Bean has already proven that cases like his can be won.

It's a gamble, make no mistake about that. We can't be sure we'll get a good case; even if we do, we can't be sure we'll win. We'd be trading away a relatively easy fight to restore funding to the program for a risky gamble in the court system. Yet, Congress has already proven remarkably fickle regarding our 2nd Amendment rights. We need judicial recognition of an individual right to keep and bear arms more than we need this program funded.

Do I know that I'm right about this? No, of course not. But it's an interesting thought. And with a Bush win in November, and several justices potentially retiring during his term, we may be able to press our case before a Supreme Court better inclined to hear our arguments. It might be worth taking the hit now in order to improve our case later.