"This court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to "keep and bear arms", a colorable argument exists that the Federal government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections....Perhaps at some future date this court will have the opportunity to determine whether Justice Story was correct when he wrote that the RKBA "has justly been considered as the palladium of the liberties of a republic..."
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.