Posted on 06/12/2006 6:27:55 PM PDT by CAWats
Bang!
And here's the story on the Gary Small case:
Court: Foreign conviction no gun obstacle
By Michael Kirkland
UPI Legal Affairs Correspondent
Washington, DC, Apr. 26 (UPI) -- The Supreme Court ruled Tuesday in two cases involving foreign law: In one, a majority of the justices said even a serious conviction in a foreign court does not bar someone from possessing a firearm in the United States; in the other, a majority said a conspiracy to defraud a foreign government of tax revenue violates the U.S. wire-fraud statute.
The firearms case included at least one dissenter who only months ago wrote an opinion blistering the majority for taking foreign or international law into court. Tuesday, the same justice dissented because a conviction in a foreign court was not used as a gateway to a U.S. law.
The U.S. Criminal Code makes it unlawful for someone in this country to possess a firearm who "has been convicted in any court" of a crime punishable by more than a year. The word "any" is not defined.
In 1994 Gary Small was convicted in a Japanese court of trying to smuggle several pistols, a rifle and ammunition into Japan. He was sentenced to five years in prison.
Small returned to the United States after his release and bought a 9mm pistol from a Pennsylvania gun dealer. A search of his residence, business and car turned up a .380-caliber pistol and more than 300 rounds of ammunition, court records said.
Federal officials then charged him under the "unlawful gun possession" statute, and Small pleaded guilty, but only on the condition that he be allowed to argue on appeal that the statute did not cover convictions in foreign courts.
A federal judge ruled against him, as did a federal appeals court in Philadelphia.
But the Supreme Court reversed the lower court, with Justice Stephen Breyer writing for the 5-3 majority. Chief Justice William Rehnquist, who is fighting thyroid cancer, took no part in the case.
"The question before us is whether the statutory reference 'convicted in any court' includes a conviction in a foreign court," Breyer wrote. "The word 'any' considered alone cannot answer the question. In ordinary life, a speaker who says, 'I'll see any film,' may or may not mean to include films in another city. In law, a legislature that uses the statutory phrase 'any person' may or may not mean to include 'persons' outside the 'jurisdiction of the state.'"
Congress generally legislates with domestic concerns in mind, Breyer said, citing Supreme Court precedent, leading the court to adopt the legal presumption that Congress ordinarily intends its statutes to have "domestic, not extraterritorial, application."
There is nothing in the language of the law or in the legislative history of the firearms law to suggest the contrary, he said.
Another worry for the majority is the different types of crimes overseas. Foreign convictions can be for activities that are permitted under U.S. laws, Breyer said.
Breyer's opinion reversed the lower court and sent the case down for another hearing and a ruling in line with the Supreme Court's opinion.
Justice Clarence Thomas dissented, saying the majority "distorts the plain meaning of the statute" by "concluding that 'any' means not what it says, but rather 'a subset of any' ... "
Justices Anthony Kennedy and Antonin Scalia joined him.
Earlier this spring, Scalia wrote a blistering dissent to Kennedy's majority opinion outlawing the execution of those who committed murder before 18 as "cruel and unusual" punishment banned by the Eighth Amendment.
Kennedy said U.S. law and opinion decided the case, but also said it was good to have international law and opinion supporting the majority.
Scalia accused Kennedy and the majority of taking the advice of "foreign courts and legislatures," adding that the Constitution should not be interpreted "by the subjective views of five members of this court and like-minded foreigners."
The case is No. 03-750 Small vs. United States.
A second case Tuesday involving a foreign country was decided the other way.
The justices ruled 5-4 that a plot to defraud a foreign government of tax revenue violates the U.S. wire-fraud statute.
Carl Pasquantino, David Pasquantino and Arthur Hilts were convicted of federal wire fraud for a scheme to smuggle large quantities of liquor into Canada. Evidence showed that the Pasquantinos, while in New York, ordered liquor over the telephone from discount package stores in Maryland. Hilts and others smuggled the liquor over the Canadian border without paying excise taxes.
A federal appeals court upheld their conviction, rejecting their argument that case law bars the U.S. courts from enforcing foreign tax laws.
A Supreme Court majority agreed, with Thomas writing in the prevailing opinion that the plain language of the law supports the lower-court ruling.
Justice Ruth Bader Ginsburg dissented. She was joined in whole by Breyer and in part by Scalia and Justice David Souter.
The case is No. 03-725, Pasquantino et al vs. United States.
San Francisco .0013% (less than 100 total issued between 1990 and 2003)
Santa Clara .0112%
Alameda .0139%
Los Angeles .0141%
Santa Cruz .0175%
The five counties with the most CHL’s per capita were:
Modoc 3.5893%
Sierra 3.3409%
Trinity 3.1167%
Alpine 2.8950%
Amador 2.2939%
Oh, baloney. This was just grandstanding to keep the fire under the loonies. It was never meant to stand, just like the SF Mayor declaring that gay marriages were legal.
The pols in SF have figured out an important truth; tell the fringe Left anything they want to hear and they'll believe it, no matter how stupid it is.
Don't kid yourself. The decision had nothing to do with "Common Sense", but rather with the fact that California has a state preemption law. Probably left over from when California still part of the US. They have no RKBA provision in their state Constitution.
PA ain't so blue as you think: Kerry won it by less than 2%. It just has one very blue city (and a lesser one on the other end). The rest is quite red, I assure you.
Even more ironic in that Colorado has a reasonably strong, and explicit, RKBA provision in the state Constitution, while California has none.
BTW, the CO Supreme Court neither ruled in favor or against, the vote was tied, which had the effect of making it as if the suit by the state against Denver had never been filed. I guess the state didn't bother to argue that aspect, probably to maintain their own ability to ban guns, or otherwise restrict the people's RKBA. Bastids!
CO's RKBA provision follows:
"The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Article II, Section 13.
"No person", not persons, or even the people. No confusion with some "collect right" possible there. Nor any militia question either, the militia isn't mentioned, and the RKBA is for "defense of his home, person and property".
Only negative is that anti Black and Brown provision about concealed carry.
If NY state has a preemption law, and no "home rule" provision in their state Constitution, and you could get the NY Supreme Court to take such a case.. maybe... don't hold your breath.
Besides, even New York state laws are abominable, including as they do a ban on ugly militia guns.
Unless they adopt from outside the area covered by the chart, i.e. San Francisco. Presumably there are plenty of inner city teenagers having babies, even in San Fran, or at least in the Bay Area. If not they could ship the babies in from San Diego, or LA.
In spite of the smoke the NRA is blowing, this ruling had nothing to do with the 2-A, certainly not with any nonexistent state RKBA provision. It was strictly about state preemption of local laws. California still has plenty of anti RKBA laws at the state level, including an ban on most Ugly Militia Rifles, aka Assault Weapons.
Looks more like a three post burst. Like US M-16s.
Houston, where the local DA says he's going to ignore the new law passed by the State Legislature in regards to having a loaded firearm in your vehicle while "traveling". Of course he hasn't yet, probably is afraid the State Supreme Court would slap him into Louisiana.
In your dreams. The Court could uphold an individual right, but all the precident says it's not protected from state infringement. So you'd have to fight for "incorporation" or argue that the RKBA is one of those "privileges and immunities" protected from State infringement by the 14th amendment. However that would also violate precedent, because the Court has already ruled that only those rights unique to federal citizenship are thus protected. They've wiped out those rulings through incorporation under due process for most rights protected by the BoR, but not the second amendment, nor the specifics of the 5th and 7th.
Of course they don't mind overriding precedent when the right in question is not to be found in the Constitution itself, but rather in emanations from its penumbra. (State anti sodomy laws overturned less than a decade after they were upheld by the Court). But not so for a right explicity protected by the Federal Bill of Rights. They haven't even ruled on the federal protection since the 1930s.
That's what precedent says, however it depends on how the decision is written, states rights could be excluded because they are not specifically mentioned in 2A, only "people". Militia, at the time were not under state control, rather they were under citizen control.
I used the wording "absolute individual right" to indicate that the written decision would exclude "rights retained by the States", I see I was ambiguous.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.