Updated: 01-07-16
Firearm Laws
Search & Seizure


In the last five years our U.S. Supreme Court has taken to citing decisions by foreign Courts, either applying a rule or decision for a case, or, in some instances, embracing an argument made by a foreign Court to buttress its position on a given issue. One commentator has pointed out that because “legal principles are not instantiations of a universal moral law, but the product of local, political, cultural and historical circumstances, without a deep study of foreign legal, political and social systems--a study that few U.S. judges or justices, or for that matter academics, have made or are capable of making—it is impossible to determine whether a foreign decision . . . is the product of a reasoning process, values, ideology, or other circumstances that are the same or similar in the U.S.”(1)
For centuries U.S. citizens who have learned of or experienced the unfairness of foreign laws, and the injustices attributed to foreign courts, have thanked God that our constitutional safeguards, coupled with the values and ideology of the “American way,” provide us with the best judicial system in the world. Notwithstanding our criticism of some court decisions, especially those failing to support our Second Amendment “right to keep and bear arms” and our Fourth Amendment right to be free of unlawful search and seizure, most of us would agree that any decision affecting a U.S. citizen’s rights should be free of the taint of foreign influence of any kind.
Another question that legal scholars have addressed is the import of convictions in foreign Courts. If we cannot trust the application of foreign laws to support a decision in a U.S. Court, should we grant extraterritorial effect to a foreign decision which may have a deleterious impact on a U.S. citizen’s rights?
This question has been addressed to some extent in a recent U.S. Supreme Court decision construing 18 U.S.C. Sec. 922 (g)(1), which forbids “any person . . . convicted in any court . . . of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm.” (Emphasis added.) In this case, the reverse side of the issue was addressed—that is, in the process of enforcing a specific federal statutory provision, should it be given extraterritorial application to a conviction of a U.S. citizen rendered in a foreign jurisdiction.
Small v. United States, In the Supreme Court of the United States. Certiorari to the United States Court of Appeals for the Third District. 127 S. Ct. 1311. Decided 4/26/05.
History: The Petitioner, Small, was convicted in a Japanese Court of attempting to smuggle firearms and ammunition into Japanese controlled Okinawa. After serving five years in prison he returned to the United States and purchased a gun. Sometime thereafter he was charged with a violation of the federal statute prohibiting the possession of any firearm by a person convicted in any court . . . of a crime punishable by imprisonment for a term exceeding one year (18 U.S.C. Sec. 922 (g)(1).
Small pleaded guilty in federal district court, and reserved his right to challenge his conviction on the ground that his earlier ‘foreign’ conviction fell outside the scope of the illegal gun possession statute. His argument was rejected both by the Federal District Court and the Court of Appeals for the Third Circuit, 183 F. Supp. 2d at 759; 333 F. 3d at 427, n.2. Because of the disagreement among the 2d, 4th, 6th and 10th Circuits, the U.S. Supreme Court granted certiorari.
Breyer, J., delivered the opinion of the Court, in which Stevens. O’Connor, Souter and Ginsberg, J.J., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Kennedy, J.J., joined. Chief Justice Rehnquist took no part in the decision of this case.
The Court began its analysis with a view to the scope of the phrase “convicted in any court” by assuming that Congress had domestic concerns in mind when the law was enacted. The following are some highlights of Justice Breyer’s opinion (with various omissions not noted in the quoted text):
Citing Foley Bros., Inc. v. Filardo, 336 U.S. 281, the Court noted that “[t]his assumption is similar to the legal presumption that Congress ordinarily intends its statutes to have domestic, not extraterritorial application. . . .That presumption would apply for example were we to consider whether this statute prohibits unlawful gun possession abroad as well as domestically. And, although the presumption against extraterritorial application does not apply directly to this case, we believe a similar assumption is appropriate when we consider the scope of the phrase ‘convicted in any court’ here.
[ The opinion goes on to note that the subject phrase describes one necessary portion of the “gun possession” activity that is prohibited as a matter of domestic law, while on the other hand past foreign convictions for crimes punishable by more than one year’s imprisonment may include a conviction for conduct that that domestic laws would permit, e.g., economic conduct that our society may encourage, such as private entrepreneurial activity. Also, foreign criminalization of buying and selling of goods for profit ( “Speculation” under the Soviet criminal statute), and conviction for conduct that domestic law punishes far less severely ( three years for an act of vandalism under the statutes of the Republic of Singapore).]
“. . . The statute’s language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute’s language creates anomalies.
“ For example, the statute creates an exception that allows gun possession despite a prior conviction for an antitrust or business regulatory crime 18 U.S.C. Sec. 921(a) (20)(A). In doing so, the exception speaks of ‘Federal or State’ antitrust or regulatory offenses. ibid. If the phrase ‘convicted in any court’ generally refers only to domestic convictions, this Language causes no problem. But if ‘convicted in any court’ includes foreign convictions, the words ‘Federal or State’ prevent the exception from applying where a foreign antitrust or regulatory conviction is at issue. An individual convicted of, say, a Canadian antitrust offense could not lawfully possess a gun. Combines Investigation Act, 2 R.S.C., 1985 ch. C-34, Secs. 61(6)(9) (1985), but a similar individual convicted of, say, a New York antitrust offense, could lawfully possess a gun.
[The opinion points out the apparent senseless distinction between covered misdemeanors committed within the U.S. and those uncovered committed abroad, adding to the anomalies caused by the phrase were it to apply to foreign convictions. Also, that “. . . those who use legislative history to help discern congressional intent will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue.”]
“. . . The statute’s purpose does offer some support for a reading of the phrase that includes foreign convictions. As the Government points out, Congress sought to ‘keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.’ [Citations omitted] . . . And, as the dissent properly notes . . . one convicted of a serious crime abroad may well be as dangerous as one convicted of a similar crime in the United States.
“The force of this argument is weakened significantly, however, by the empirical fact that, according to the Government, since 1968, there have probably been no more than ‘10 to a dozen’ instances in which such a foreign conviction has served as a predicate for a felon-in-possession prosecution. . . . This empirical fact reinforces the likelihood that Congress, at best, paid no attention to the matter.
“. . . Given the reasons for disfavoring an inference of extraterritorial coverage from a statute’s total silence and our initial assumption against such coverage, we conclude that the phrase ‘convicted in any court’ refers only to domestic courts, not to foreign courts. Congress, of course, remains free to change this conclusion through statutory amendment. (Emphasis added.)
“For these reasons, the judgment of the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”

[The Chief Justice took no part in the decision of this case.]

[See the guest commentary by Les Field regarding this case.]

1/ Leiter Reports by Bryan Leiter. Leiterreports.typepad.com

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