TriggerFinger


Can a conviction in a foreign court bar gun rights?


This is a fairly surprising opinion in favor of gun rights.  It's surprising simply because it is a pro-gun ruling, but also because the conservative justices tended to oppose the gun-rights position, while the liberal justices argued that a conviction in a foreign court could not be trusted.

This issue isn't an easy one.  It's reasonable and almost necessary for someone convicted of a violent felony in another country to bear the consequences of that choice even when they move to the United States, so long as they had a fair trial and their crime would also be a felony in the US.  That makes it more of a case-by-case thing than anything else to my view.  

This is exactly the sort of problem that would be solved by a functioning (ie, funded) program to restore firearms rights.  There used to be one, where convicted felons could apply to the BATFE to have their rights restored if they had served their time and been upstanding citizens.  But Congress dropped funding for it.  The lack of a program for this has generated other cases as well (US v Bean).

What are the advantages of a program for the restoration of rights? 

It recognizes that people can reform.  A violent criminal may reasonably be forbidden the possession of arms, for fear he will pose a greater danger to society and his fellow citizens armed than unarmed.  But a reformed man with a violent past still possesses his right to self-defense, and may no longer pose a danger to the community.  Present law and general practice considers a felony conviction to be, in essence, a mark of cain -- making it almost impossible to live a peaceful and honest life.   This is counterproductive.

It allows the unusual cases like this one a hearing that does not expose a citizen to unnecessary criminal liability.  The case here concerns a man who bought a firearm after being convicted, in Japan, of smuggling firearms.  Japan's laws are much stricter than our own concerning firearms, and it's entirely possible that the individual concerned was convicted for conduct that is perfectly legal in the United States.  Since the conviction occurred in Japan, it wasn't entered into the NICS system.  There's no way for an individual in this situation to know whether he is allowed to possess a firearm or not.  Applying for a restoration of rights would provide a clear answer without actually purchasing a firearm and being charged with its possession.

This principle has appeared in the Parker v DC and Seegars v Gonzalez cases as well.  Simply put, it should not be necessary to violate the law and await prosecution in order to determine whether a particular course of action is lawful.

Finally, it would allow an administrative remedy to manifestly unjust cases.  As an example, I'll take US v Emerson, a 2nd-Amendment case that generated a lot of attention in the Fifth Circuit and briefly looked as if it might see Supreme Court review.  Emerson was involved in a divorce, allegedly threatened his wife's boyfriend with a handgun, and on the basis of that allegation a restraining order was issued.  This is evidently a routine practice in less-than-amiable divorces (and, as far as I'm concerned, that's one more reason that marriage is not for me).  The restraining order made it a felony for Emerson to possess a firearm.  Not realizing this, he tried to purchase a firearm and got in trouble as a result. 

The problem was the lack of due process in the case.  Emerson was convicted of the firearms possession charge on the basis of the restraining order, which he had never had opportunity to dispute.  A restoration process would enable him to regain his firearm rights.

Instead, because Congress is afraid of the issue, we get cases like this one.

Lots of people have written about this one:

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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