Gelf Magazine - Looking over the overlooked

Law

April 27, 2005

No Small Matter

Say what? The Bush administration teams up with Scalia and Thomas to try to take away your guns and allow international courts to influence American law.

Aaron Zamost

Gary Small, an American citizen, was convicted in a Japanese court for trying to smuggle firearms and ammunition into Japan. After serving five years in prison, he returned to the United States and purchased a gun. U.S. prosecutors successfully convicted Small of violating a federal law which forbids any person, "convicted in any court," from possessing a firearm. Small appealed the decision, and argued that a conviction in an international court shouldn't affect his ability to possess a gun in the United States. Conservative gun advocates lamented international "kangaroo justice," and called the case a "test of the American right to arms (Bloomfield Press)."

Small v. United States certainly sounds like a perfect conservative talking point: A liberal court attempts to deprive an American of his right to bear arms while at the same time trying to allow international courts to influence American law.

After hearing Small, the Supreme Court agreed Tuesday with conservative assessments. It ruled that "any court" means only any domestic court, and precluded foreign convictions from being considered in the prosecution of an American gun law. So why isn't Small getting the attention it deserves? Because the three most important things to come out of the decision stand contrary to most preconceived opinions.

The National Rifle Association's beloved justices Antonin Scalia and Clarence Thomas voted to take away Small's right to bear a firearm.

True story. By a vote of 5-3 (an ailing Chief Justice Rehnquist abstained), anti-gun liberals Stevens, Breyer, Souter, Ginsburg, and O'Connor ruled for Small, and held that the phrase "convicted in any court" applies domestically, not extraterritorially. It was the court's more liberal justices who decided that international criminal records should be no barrier to an American citizen's desire to purchase and possess firearms in the U.S. (The blog Vote for Judges was one of the few to note this.)

Isolationist justices Scalia and Thomas voted to let an international criminal conviction affect a case in U.S. courts.

Before the case was decided, Terry Eastland, publisher of the conservative Weekly Standard, voiced his opinion: "Our federal courts accepted the Japanese verdict—relying on a legal process that is not ours—and indeed which should not be ours. The Supreme Court ought to say no to this threat at our border." Scalia disagreed—even though last month in Roper v. Simmons (the juvenile death penalty case) he decried the "so-called international community" as having no business influencing national affairs.

The Bush administration argued on behalf of applying the law to foreign convictions.

Yep, the same administration that refuses to enter the U.S. into the International Criminal Court, for fear of foreign governments binding U.S. citizens to judgments for crimes in violation of international law, has no problem whatsoever with allowing an alien court conviction to affect federal prosecutions of those same individuals in the U.S. By arguing against Small, the Bush administration asked that international law play a role in the American legal system, and sought to restrict the gun rights of U.S. citizens.

(It's still unclear, at least to me, why Scalia and Thomas voted the way they did. It's unlikely, based on their past statements, that they believe what Thomas wrote in the dissent: "And it is eminently practical to put foreign convictions to the same use as domestic ones; foreign convictions indicate dangerousness just as reliably as domestic convictions." More persuasive is the argument that, as strict interpreters of statutory language, the dynamic duo could not bear to ascribe any nuanced meaning to the term "any court." Some also believe that the Bush administration was hoping to use this case—had it gone the other way—to use foreign convictions with the Patriot Act to deport/prosecute foreign nationals in the United States suspected of terrorist acts.)

In politics, people conveniently forget facts and events that don't help them push their agenda. For example, when White House Press Secretary Scott McClellan stated that the late Pope John Paul II, like President Bush, believed in a "culture of life," he deflected several questions/comments that highlighted that Bush, unlike the Pope, supported the death penalty. "I don't think now is the time to talk about where they may have differed on one or two areas," McClellan protested. (Jon Stewart referred to this specific instance on the Daily Show two weeks ago. Check out a clip at Democratic Underground.) Similarly, when President Bush asked Congress to pass a constitutional ban on gay marriage, no one remembered that a then-Texas Governor Bush mentioned in the 2000 campaign that he thought gay marriage was a matter for the states. And when some day soon we return to a conservative rhetoric of "protecting family privacy," everyone will have forgotten how Congress famously "protected" family privacy by enacting legislation specifically affecting the Schiavo family's personal dispute. (A hypocrisy I noted at the time.)

Terry Eastland would probably love to champion the Supreme Court's successful defense of gun rights and its rejection of the influence of foreign law in American courts—but he can't, because no one can introduce Small as a talking point without acknowledging that conservatives only got what they wanted by opposing the viewpoints of Scalia and Thomas. The NRA won't cheer the Court's defense of Second Amendment rights, because doing so means acknowledging that they are in disagreement with the Bush administration. Nor will Senator John Cornyn (R-TX) applaud the Court's decision—this, the same Senator Cornyn who (1) condemned the judiciary on the Senate floor for allowing American law and American policy to be "outsourced to foreign governments and foreign courts," and (2) was given an A-grade by the NRA for his pro-gun rights voting record—because doing so would be an endorsement of the "liberal" justices, and a disagreement with Republican deity Justice Scalia.

There has been so much recent conservative criticism of the judiciary—what with Cornyn's remarks, Tom Delay's veiled threats at the judges in the Schiavo case, and Senator Bill Frist's nuclear option—that it would be nice if Republican leadership conceded that, every once in awhile, liberal justices can actually help further a conservative agenda. And, you know, sometimes Scalia and Thomas can be equally "outrageous", and write decisions based on international law.

Convenient forgetfulness is by no means only a Republican phenomenon. But with anti-judiciary rhetoric more spiteful than ever, is it too much to ask that Republican commentators acknowledge that liberal "judicial activists" sometimes help conservatives when Scalia and Bush refuse to do so?

Aaron Zamost

Aaron Zamost has been writing for Gelf since 2005.







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- Law
- posted on Apr 17, 07
Karl Maher

Thanks for the link. I'm not sure that giving guns to ex-cons is part of the conservative agenda, however...


Article by Aaron Zamost

Aaron Zamost has been writing for Gelf since 2005.

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