BATF Claims Restored Rights Aren't Restored Unless They Say So
Date: 9/6/2001 3:00:00 AM Written By: Angel Shamaya
BATF Claims Restored Rights Aren't Restored Unless They Say So
And urges the court to continue prosecuting Bob Stewart
from Angel Shamaya KeepAndBearArms.com
September 6, 2001
The day before the federal government's trial against Bob Stewart was to
begin, a judge in Arizona restored Mr. Stewart's rights and signed a "nunc
pro tunc" order backdating his firearms rights restoration to August of 1998.
Mr. Stewart was originally assaulted by the BATF over a matter they
conveniently dropped -- a gun kit they claimed was "readily converted" even
though they have no definition of the term in their unconstitutional list of
regulations -- but because they allegedly found firearms in his home and
because he had a prior felony conviction over allegedly having been "caught"
keeping and bearing arms, they charged him with being a felon in possession
of firearms.
The BATF wants to lock Mr. Stewart away in prison for years, partly for
allegedly being a felon in possession of firearms. And because the feds
invaded his home, assaulted him and his family and stole their possessions
nearly two years later than the date to which his firearms restoration was
ORDERED retroactive, the retroaction of the judge's ORDER, if upheld, would
bear heavily in Mr. Stewart's favor.
But according to the lawyer working for the feds, a Mr. Joseph C. Welty, the
restoration of rights by an Arizona judge has no impact on this case, and the
prosecution can continue, because:
"...the restoration of civil rights and right to possess firearms by the
state of Arizona, has no impact on the federal government's ability to
investigate or prosecute the defendant under Title 18 U.S.C. 922(g). As the
defendant was convicted in the United States District Court for the District
of Utah, that federal court must restore the defendant's civil rights and the
right to possess firearms, in order for the defendant not to run afoul of
Section 922(g). Because that has not taken place, this prosecution may
proceed." (Source: Page 1 of BATF's 5-page motion, available below.)
On Page 4 of his response to Stewart's Motion to Dismiss, Mr. Welty cites the
actual text of United States Code Title 18, Part I, Chapter 44, Section
921(a)(20), as follows:
"What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings were
held. Any conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms."
And then tells us, also on Page 4:
"...the section has also been held to mean that any expungement, pardon, or
rights restoration must come from the 'jurisdiction in which the proceedings
were held' in order to nullify a conviction for purposes of Section 922(g)."
Citing Beecham v. United States (1994), Welty says the court held that:
"...the restoration of civil rights by a state could not remove the firearms
disability imposed as a result of a federal conviction." [emphasis mine]
However, Beecham's conclusion, issued from Justice O'Connor, says exactly
this:
"Petitioners can take advantage of �921(a)(20) only if their civil rights
have been restored under federal law, the law of the jurisdiction where the
earlier proceedings were held."
That isn't quite the same as Mr. Welty's interpretation, now is it? Or is it?
(Legalese mumbo jumbo over a wholly unconstitutional act by armed government
thugs is ridiculous.)
Also noteworthy is the fact that there is not a means of restoring firearms
rights through the federal government. The BATF admits this on their own
website, where they label rights as "privileges" and say:
"Q. How can a person convicted of a federal felony have their gun privileges
restored?
"A. Under the provisions of the Gun Control Act of 1968 (GCA), convicted
felons and certain other persons are prohibited from possessing firearms.
(See 18 U.S.C. section 922(g).) The GCA provides the Secretary of the
Treasury with the authority to grant relief from this disability where the
Secretary determines that the person is not likely to act in a manner
dangerous to the public safety. (See 18 U.S.C. section 925(c).) The Secretary
delegated this authority to ATF.
"Since October 1992, however, ATF's annual appropriation has continuously
prohibited the expending of any funds to investigate or act upon applications
for relief from Federal firearms disabilities. This restriction is located in
Pub. L. No. 106-554, 114 Stat. 2763, which contains ATF appropriations for
fiscal year 2001. As long as this provision is included in current ATF
appropriations, the Bureau cannot act upon applications for restoration of
Federal firearms privileges submitted by individuals. Consequently, we cannot
entertain any individual's request for firearms restoration while this
prohibition on the processing of such applications remains in place.
"Furthermore, the restriction contained in Pub. L. No. 106-554 does not
change the status of prohibited persons. They are still prohibited from
possessing, receiving, transporting, or shipping firearms under Federal law."
[emphasis theirs]
Interestingly, Beecham, a 1994 case, also addresses the issue of firearms
prohibitions due to felony convictions, by saying:
"Moreover, even if there is no federal law procedure for restoring civil
rights to federal felons, nothing in �921(a)(20) supports the assumption that
Congress intended all felons to have access to all the procedures specified
in the exemption clause, especially because there are many States that do not
restore civil rights, either. Because the statutory language is unambiguous,
the rule of lenity is inapplicable. See Chapman v. United States, 500 U.S.
453, 463 464. Pp. 3-7."
Perhaps "nothing in �921(a)(20) supports the assumption," but that doesn't
mean the issue of rights restoration cannot be addressed elsewhere in the
endless mire of legal code that makes up a Constitution-trampling federal
bureaucracy -- especially when the issue was a non-violent offense and there
is no way to get help from these gun-grabbers to affect a rights restoration.
We could use some legal input from a few patriotic legal-minded allies.
IF AND ONLY IF you are an attorney, a paralegal, a legal scholar or a darn
good legal researcher, please email Bob Stewart and I your analysis of this
situation. The BATF was given 10 days to respond to Stewart's Motion to
Dismiss; Bob was given just 5 days to respond to the above. We've got until
September 10th to get a strong reply filed in response to the Waco Killers.
Bob Stewart [EMAIL PROTECTED]
Angel Shamaya [EMAIL PROTECTED]
If you fit the above criteria and do send us email, please use a subject of
BOB STEWART CASE INPUT -- and do not add our email addresses to any
distribution lists without express written permission to do so. Thank you.
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