[url]http://www.slate.com/?id=2072561[/url]
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.