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Praise the Constitution and Pass the Ammunition
The Supreme Court stands up for America's felons.
By Dahlia Lithwick
Updated Wednesday, October 16, 2002, at 3:45 PM PT


Two different cases come before the U.S. Supreme Court today, but both are united by some common themes. Theme No 1: Bad facts can break your heart. Both cases offer facts so sympathetic to the defendant, one's half-tempted to toss out years of doctrine to fix it. Theme No. 2: If everyone would just say what they mean, the world would be a lot less stupid. The first case involves a gun law Congress wanted to repeal but didn't; the second involves prospective jurors that prosecutors wanted to bounce for being black and probably did.

But before we even get to the gun case, let me put this out there: Look, gun freaks that lurk in my "Fray" and rant maniacally when I say there's no personal Second Amendment right to bear arms, I have no expectation of changing your minds here, so why don't you skip the whole column and tune into next week's? I'll even provide you with a handy target to take along to your gun club for practice instead.





If I'm a little less than charitable toward the gun freaks today, perhaps it's because I find myself too fearful of a bullet wound to the head to purchase gas anymore.

United States v. Bean happened because Tommy Bean loves his guns. He was an authorized gun dealer until, one night after a gun show, he drove to dinner in Mexico with 200 rounds of ammunition in his back seat. The ammunition was supposed to have been removed by his assistants. The Mexican authorities arrested him for the felony of importing ammunition. He was sentenced to five years in jail, of which he served six months in Mexico before being returned to Texas, where he served a month before being released on probation.


Section 922(g)(1) of Title 18 makes it unlawful for anyone convicted of a felony to possess a firearm. But Section 925(c) of the same federal statute allows the secretary of the treasury (who oversees the Bureau of Alcohol, Tobacco, and Firearms) to restore guns to former felons in cases, like Bean's, where he determines that the applicant poses no danger to public safety. The statute allows for judicial review in cases where applications are denied.

So, Bean promptly sent a letter to the ATF asking for his guns back ("Please excuse Mr. Bean from Section 922(g)(1) as he was having a bad day ...") but was advised by the ATF that Congress had defunded the gun-restoration program in 1992 in the wake of some embarrassing statistics about the vast numbers of guns that had been restored to rapists, murderers, and robbers, all at a terrific expense to the public. Since Congress had simply defunded, but not repealed, Section 925(c), a federal district judge in Texas took it upon himself to rule that Bean was entitled to judicial review under the program and that Bean was also entitled to gun relief. The 5th Circuit Court of Appeals—coming to a different result than the five other federal appellate courts that ruled on this issue—was so moved by the "incredible plight of Thomas Bean" that they affirmed the lower court's decision.

Bean can only really be said to have a "plight" as opposed to, say, a "problem" if one believes that the inability to get one's guns back is tragic in the way that La Traviata is tragic. And the unspoken irony behind this entire appeal is that Bean, his amicus supporters from the gun lobby, and his opponents in the Justice Department all agree that the right to own a gun is personal and profound. So, while Deputy Solicitor General Edwin Kneedler argues on behalf of the government today, what he's not saying is that his boss, John Ashcroft, would like nothing better than to give Mr. Bean back a gun he'd macraméd himself at home.

Kneedler argues that a congressional decision not to fund an entire program is not the same as a "denial" of an appeal that could trigger judicial review. Chief Justice William Rehnquist asks why Congress didn't just repeal the law instead of shutting off the funding.

Then Thomas Goldstein, one of my favorite court regulars, argues on behalf of Bean. And Goldstein is having a strange day, characterized by repeated insistence that the justices are "wrong, and here's why." He is also having a strange day in that he appears to be advancing perplexing theories: The first is that it's the job of the secretary of the treasury to reinstate guns to former felons, despite the lack of funding and, evidently, to do so by himself. Rehnquist is astonished: "Are you saying that the secretary, on the way to an International Monetary Fund meeting, will grant applications?" And Justice Ruth Bader Ginsburg wonders what kind of bizarre regime he's setting up, wherein judges get to hold spontaneous hearings, without adverse parties, to examine evidence that guns should be restored to ex-felons. Finally, Justice Stephen Breyer says, "I agree, you've found a literal way around the statute. But, my goodness, everyone knows what Congress wants." Congress wanted to stop the program. Is it enough that Goldstein has a loophole with which to reinstate it? Even Justice Antonin Scalia says he can't get past the fact that Bean went to the district court for help, rather than appealing the decision of the secretary.

Translation: I'm too much of a weak willed pussy to be able to handle repeated doses of the truth hurled in my direction, so be kind and leave me to my blissfully misguided ignorance.

The rest can simply be translated as this: I don't like the law, so it shouldn't be enforced even though it is on the books.

Typical democrap mindlessness...

The responses:

[url]http://slate.msn.com/?id=2072329[/url]

Jumping Bean: Responses to Dahlia Lithwick's attack on Fray gun freaks have been predictable—there are both the intemperate responses she would expect and thoughtful critiques of the ad hominem, especially Will Allen's here. There is also a terrific response from Eric, "the anonymous Congressional staffer that wrote the amendment to the appropriations bill that de-funded the ATF program that decided which felons get their guns back." He provides ample evidence here of the Congressional intent Justice Breyer (and Lithwick) assume "everyone knows":

To answer (the) Chief Justice's question about why we de-funded the program as opposed to eliminating the section of law that created the program, I have an analogy about the making of laws and the making of sausages. Passing laws is hard. Passing gun laws is almost impossible. Congress's intent was to get rid of this program without stirring up the firestorm that usually comes with gun law debates. It was simply easier to do this in the Postal and Treasury Appropriations bill than as a stand-alone bill.

In my mind, the irony is that the Chief Justice, and most of the conservative members of the court, get upset when Congress avoids its responsibility for passing laws and leaves it to the courts to decide. In this case, Congress acted clearly it did not want any money spent by the ATF to put guns back in the hands of convicted felons. If Congress decided that it did not want any more money spent on the construction of the Space Station, nobody would bother to sue NASA saying that there were previous laws on the books to authorize the construction of the Space Station. Congress acts by making laws and it acts by allocating money. One action is not intrinsically more powerful than the other.

As for poor Mr. Bean, it was exactly Congress' intention to deny him his gun rights. As the NRA often puts it "Don't get tough on guns, get tough on criminals." This issue (which is admittedly symbolic in nature) sought to take the NRA at its word. The only people who this law affected were convicted felons. It was fun passing a gun restriction law AND putting the NRA in the position of defending criminals.

I quote at length because Eric's blandly titled post has received no responses as yet, and because judicial theories about intent rarely hinge on mischievousness. ... 7:50 a.m.