Updated: 01-07-16
GUEST COMMENTARY: By Leslie Field
18 U.S.C. Sec. 922 (g)(1) 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 Small vs. United States, 544 U.S. _____, the United States Supreme Court held that a Japanese Court’s conviction of a U.S. citizen for smuggling guns onto the Japanese controlled Island of Okinawa, being a foreign conviction, fell outside the scope of Sec.922 (g)(1).
The Supreme Court in the Small case divided almost evenly over the meaning of the words “any Court,” which, at first glance, might seem to be a simple matter of interpretation. The Majority, lead by the more liberal members, ruled that “any Court” meant any Court within the U.S. or its possessions, and not any Court or Tribunal in the world, when it came to the issue of gun rights, which the Majority appears to have tacitly acknowledged is of fundamental importance, given the language of the Second Amendment of the United States Constitution.
It might serve us well, before proceeding further, to examine the assumptions prevailing in the world to understand where the rights of any individual citizen originate. There are two views: according to our basic documents, individuals are endowed “by their Creator” with “inalienable rights”--that is, the rights pre-exist and are vested in the individual before the governmental process commences; the government may be able to logically limit the exercise of rights, but cannot deprive the citizen of the substance of that right with which he (or she) comes naturally equipped. Thus, the Second Amendment states that the right to arms “shall not be infringed,” meaning it pre-existed. The second and more prevalent view of the governments of the world is that it is the state (i.e., the government) which is the repository of all rights, some of which the government in question may graciously grant, in the nature of privileges, to the no-doubt grateful citizenry. Needless to say, what the government giveth, the government can taketh away, or limit in what it perceives in its sole judgment as being necessary to its own security, or desirable for its convenience.
The importance of the above distinction is that under the rule of most governments currently existing, the Courts are not independent of the political will of the government upon which they depend for their relatively limited existence. For the theory of operation of such Courts, the reader is referred to the extreme advocacy of such a position in the writings of Hans Frank, the sometimes highest legal authority in Germany during the period 1933-45, or the voluminous commentaries that accompanied the promulgation of legal codes in Russia between 1917 and 1990. While most governments now in power are not as extreme in their naked assertion of power over courts as the Nazis and Communists may have been, they still reserve the ultimate decision on fundamental issues to themselves through basic practical mechanisms of court manipulation.
Only a minority of present governments, mainly in the Anglo-American legal tradition, are able to exercise the right to question the propriety of a criminal statute being considered—by measuring such a law against the rights purportedly guaranteed to the citizen. The right of judicial review, discovered by John Marshall in MARBURY v. MADISON in 1803, developed and enlarged down to the present day, was an unprecedented development which caused consternation to Jefferson and many of the then-surviving signatories of the original draft of the Constitution, as being something they had certainly not anticipated. However, after two centuries, such a right of review appears to be an inescapable necessity to the American system of government.
All of these realities must have weighed heavily in the decision of the majority, While the minority (lead by Justice Thomas) in its dissenting opinion focused upon Mr. Small’s previous career as an arms smuggler, in which he had been caught attempting to bring guns into the Japanese-ruled Island of Okinawa, convicted and imprisoned by judgment of a Japanese Court.
Justice Thomas is, by and large, considered one of the stalwarts of the “originalist” wing of the Supreme Court, which means that he believes in the literal Constitution as it was originally written, and that constitutional provisions and statutes are to be given their plain meaning. In this case that means “any court” is “any court in the world,” without limitation. The majority is more subtle, advancing in this decision the qualification that “any court” means domestic courts which recognize those rights which are available to defendants in the United States and its possessions. The majority is reluctant to cut off a citizen’s right under the Constitution if he has not received “Due Process” -- the term used to describe the sum total of those rights properly available to a defendant tried by a U.S. court.
In 1945 and thereafter, Japan received a bright new Constitution and revised Rules for Criminal Proceedings, drafted by experts working for the occupation forces of General McArthur. However, the people who manned the police departments and the courts were, for the most part, the same people who were used to the pre-1945 police departments and judiciary, and Japan has had 50 years to gradually revert to some of the practices familiar before World War II.
Further, the older judgments of patently unfair courts remain, and are being delivered outside the U.S down to the present day. As an example, the author knows of a Dutch adolescent who was sentenced to the death penalty for stealing a rifle from the Wehrmacht in the early 40’s, who had his sentence commuted and survived the second world war and is still alive. If this gentleman, now in his high 70’s and honored in Holland for his attempt to obtain arms for the resistance, met immigration standards and should wish to become a U.S. Citizen, should he then be denied Second Amendment rights based upon the judgment of an SS court? I think the Minority would be uncomfortable with that.
What about the Minority’s argument that the “mistake.” if any, is the Congress’s responsibility? One cynical wit has opined that people who respect either sausage or laws should not be around to see them made! The average congressman or senator voting for the “any court” provision probably had no idea that this question of the meaning of these words might arise, and simply didn’t consider it. So, the Majority tries to extract from the other language of the statute a reasonable result, and the position of the Minority would give a result verging on absurd injustice.



GUEST COMMENTARY: By Leslie Field
re: People v. Travis Smith 346 Ill. App. 3d 146, 803 N.E. 2d 1074.
The Opinion rendered by the 2nd District Illinois Appellate Court in reversing the Trial Court ruling in the case of People vs. Travis Smith (supra) must, of necessity, rest upon the discovery of a new "exigent circumstances" exception to the defendant’s right to be free of "pat-down" searches when he is not under arrest and has been both cooperative and courteous to the
officer(s) conducting the search, and when no reasonable suspicion for such search has arisen.
The officer testified that he determined by a field test that the defendant was intoxicated and that he could not operate a motor vehicle to leave the scene of the traffic stop, and, further, that in his opinion the defendant in his intoxicated state could not be a safe pedestrian on the side of the highway. Therefore, the officer determined that there was an exigent necessity that he transport the defendant in a Department vehicle, subject to the Department’s rule that the defendant be searched.
Defendant might have remained where he was until his sobriety returned, or he might have proceeded to exit the highway via a ride in the tow truck that was called to the site, or he may have walked to the next highway exit--the Trial Court having determined that there was no testimony that defendant was so intoxicated that he could not walk safely--but none of these alternatives was offered to defendant by the officer. The Appellate Court cites with approval the concurring opinion in a Wisconsin Supreme Court case to lay bare the previously hidden necessity that defendant be transported, thus, giving rise to part two of the exigent necessity to search him contrary to the ordinary case under the Fourth Amendment, all in the interest, of course, of the defendant, for whom the officer exhibits such solicitous care and consideration.
It appears that the 2nd District Appellate Court now adds the new offense of simply being a passenger in a vehicle driven by an alleged drunken driver to that old and well-established offense of driving while Black. The current zeal to expand the power of police to detain and search citizens has, of course, been given tremendous impetus by the tragic events of 9/11. It seems better, in the estimation of the distinguished jurists of the 2nd District to prevent the "guilty" defendant from escaping conviction than accord him the Constitutional Right he might previously have reasonably supposed he had.
The problem with the "exigent circumstances" exception is that--when applied by Courts eager to use this exception in the factual circumstances before them--like a malignant cancer, the exception as it is more and more employed will become larger than the host, and effectively end the life of the Constitutional Right purportedly guaranteed--all by a process of nibbling away in a multitude of "small" cases in which the Courts cannot resist the impulse to construct a solution which somehow achieves a result that may seem just in a particular case, but cannot be reconciled to the Constitution as previously understood.
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Leslie Field is a semi-retired attorney, having practiced in Illinois for many years, and for quite some time has been a Constitutional Rights activist. He is the former legislative representative for the Illinois Gun Collectors Association, and worked with this website’s author, Vic Quilici, during the years of litigation of the Morton Grove, Illinois, handgun ban. He has rendered pro bono services for the American Legion, which included proposing legislative responses to the anti-flag proponents who were heaping abuse on the American Flag in the late 80’s and early 90’s. Mr. Field has served as both a testifying and consulting expert in litigated firearm matters.





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