-Caveat Lector-
------- Forwarded message follows -------
Date sent: Mon, 28 Jan 2002 12:46:57 -0500
To: Matthew Gaylor <[EMAIL PROTECTED]>
From: Matthew Gaylor <[EMAIL PROTECTED]>
Subject: Bush Administration seeks to gut power of courts to restore
rights to Americans
[Note from Matthew Gaylor: Republican Rep. Tom Brinkman, Jr
represents part of Cincinnati.]
Date: Mon, 28 Jan 2002 12:12:50 -0500
Topic: Bush Administration seeks to gut power of courts to restore
rights to Americans
Importance: high
From: "Kara Joseph" <[EMAIL PROTECTED]>
To: Matthew Gaylor <[EMAIL PROTECTED]>
This article is being forwarded to you simply for your information from
the office of Rep. Tom Brinkman, Jr.
I do not know any additional details other than what I have read in this
e-mail, so please do not contact me in regards to this information as I
would not be able to answer your questions. Mr. Harry Schneider, the
sender of this original e-mail, has told me that you may contact him at
the attached e-mail address if you so desire.
Kara Joseph
Administrative Assistant
Office of Rep. Tom Brinkman, Jr.
--------------------------------------
Phone: (614) 644-6886
Fax: (614) 644-9494
-----Original Message-----
From: Harry [mailto:[EMAIL PROTECTED]]
Sent: Thursday, January 24, 2002 6:09 PM
To: [EMAIL PROTECTED]
Subject: Bush Administration seeks to gut power of courts to restore
rights to Americans
Importance: High
The case is United States v. Bean, 01-704.
COMMENTARY BY HARRY SCHNEIDER
The Bush administration has announced, in effect, that it intends to
argue the following position before the United States Supreme Court:
When American citizens have been convicted of violating the law in a
foreign country, they should automatically lose the right to own
firearms in the United States. American citizens should also be denied
the right to ask American Courts to restore their rights even if the so
called foreign crimes are legal activities in the United States and the
American citizens are of excellent character and merit the restoration
of their rights.
The AP article that follows describes the case, but this commentary will
demonstrate the importance of this case to all Americans.
Mr. Bean was convicted in a Mexican court of an act that is not a crime
in the United States. That Mexican conviction caused Bean to suffer the
lifelong loss of his rights and livelihood in the United States. This
happened because the Gun Control Act of 1968, 18 USC Sec 178.32(1) is
interpreted to recognize "all" convictions by "all courts" domestic and
foreign, including Nazi, Communist and Islamic courts. The United
States government uses those foreign convictions to deny Americans the
exercise of constitutionally protected rights in America, ex post facto.
Our government's interpretation of 18 USC Sec 178.32(1) denies 2nd
Amendment rights to every American convicted of any felony, at any time,
at any place where the sentence imposed could possibly be over one year.
This includes foreign crimes which are not crimes in the United States -
such as the
Mexican case now before the Supreme Court or, Americans found guilty of
giving away Bibles in certain Islamic or Communist countries - even
decades ago.
Naturally, a law that sweeping, had a safety valve - a "relief from
disability" provision (18 USC Sec 925) that allowed Americans to
petition the Secretary of the Treasury to have their Constitutional
rights restored.
Every year since 1992, Congress has completely shut off that Safety
Valve. Telling ATF that they may not even consider the restoration of
rights to any American regardless of merit.
Please don't tell Saddam Hussein that he can use American law to legally
get back at General Norman Schwarzkopf. Stormin Norman clearly violated
Iraqi law and the retired general likes shotgun shooting sports. All
that Saddam has to do is to formerly notify the United States Government
that Iraq has convicted Schwarzkopf in absentia of a felony in Iraq.
The next time the general shoots sporting clays he will be guilty of
felony possession of firearms under 18 USC Sec 178.32(a).
The fact that Congress shut off the safety valve prompted some Federal
courts to begin hearing appeals. Now the Bush Administration wants to
stop the courts from delivering justice to those Americans who deserve
to have their rights restored. The administrations argument is that no
American should have a day in court because the courts might restore
rights to a bad person. This advocacy of denial of due process is a
serious ethical and political mistake that cuts the heart out of core
values of American jurisprudence.
While the press only talks about felonies, 18 USC Sec 178.32(1) ALSO
denies 2nd Amendment rights to every American who was ever convicted of
state misdemeanors where the sentence could have exceeded two years even
if there was no jail sentence at all (USC 18 Sec 921(20). In the
1990's, Congress took away the rights of hundreds of thousands of
additional Americans ex post facto, by expanding the disqualifying state
misdemeanors to include conviction for certain misdemeanors where the
maximum penalty was less than one year 18 USC Sec 178.32(9). Many of
those people were convicted because years ago it was cheaper to pay a
small fine and plead to a minor misdemeanor that (at that time) didn't
have serious consequences.
In Pennsylvania the Federal 1968 law interfaced with state law in an
unintended way: because of a lack of misdemeanor grading in
Pennsylvania, almost every person who had ever been convicted of almost
any misdemeanor committed prior to 1972 (including a single DWI that
harmed no one) lost their right to own firearms. This also includes
non-violent 1950's era convictions for drag racing and crimes that
aren't even crimes anymore such as bastardy. (I wonder if in other
states this includes violations of segregation laws?)
Many of these people fell through the cracks, living good lives, unaware
that GCA-68 had made them second-class citizens. As the "instant check"
involves more and more Americans, many good Americans have been shocked
to find that they have no gun rights, having lost them ex post facto,
for very minor transgressions that occurred decades before. Often these
misdemeanors are decades old minor juvenile convictions that they were
assured would remain sealed forever (until the Pennsylvania Legislature
unsealed them in the 1990's). I have many times consoled respectable
senior citizens who are in shock, having just learned that they have
unknowingly been subjected to prosecution as a felon in possession of
firearms.
We had great respect for Solicitor General Theodore B. Olson. However,
we are particularly dismayed by Mr. Olsen's statement that to restore
the constitutional rights of a convicted felon would be to "re-arm"
people who are a threat to good order. Now, a convicted felon who would
wait years for a restoration of his 2nd Amendment rights doesn't strike
me as a threat to good order; I would think that the threat would issue
from those convicted felons who don't wait to have their rights
restored, who just go out and steal any weapon they want.
We believe that if Mr. Olsen becomes fully aware of the facts, he will
conclude that if he argues this case before the Supreme Court, he will,
in effect, be arguing to empower the rogue states that may have
sponsored the terrorists who killed his wife.
We hope that the Bush administration will wake up and stop thwarting
attempts to find justice in Congress and in the Federal Courts. If the
case was United States v. Schwarzkopf instead of United States v. Bean,
would Ted Olsen take the same position that Norm has to suffer because
American courts should not have the right to restore rights unjustly
taken?
How safe are any Constitutional rights if American law allows foreign
governments to take away the rights of Americans in America and denies
ATF and our Federal Courts the ability to restore those rights where
merited?
Harry Schneider
Legislative Chairman
Pennsylvania Sportsmen's Association
http://www.foxnews.com/story/0,2933,43639,00.html
Supreme Court to Consider Barring Judges From Restoring Felon Gun Rights
Associated Press
Tuesday, January 22, 2002
WASHINGTON - The Supreme Court agreed Tuesday to consider stopping
federal judges from restoring gun rights to convicted felons.
The intervention comes at the request of the Bush administration, angry
that a Texas man convicted of a felony in Mexico convinced a court that
he should be able to own a gun.
Felons are barred from carrying guns after their release from prison,
but they can ask the government for an exception.
Those requests have been stalled, however, for nearly a decade because
Congress ordered the Bureau of Alcohol, Tobacco, and Firearms to stop
spending money to process them.
In the gun-rights case, the logjam at the ATF has prompted lawsuits,
like the case won by a former gun dealer. The Supreme Court will
consider whether to reverse Thomas Lamar Bean's victory.
Bean, a well-known businessman, was arrested by Mexican authorities who
found a box of ammunition in his sport utility vehicle. The box had been
left there by one of his co-workers, court records show, and Bean was
convicted after being ordered to sign a confession in Spanish, which he
didn't know.
In 2000 when he petitioned to get his gun rights - and livelihood -
back, the 60-year-old father of two adult children was supported by two
police chiefs, a sheriff, a judge, a prosecutor, and a Baptist preacher.
Solicitor General Theodore B. Olson said the case was not about Bean,
but other felons who will now expect courts to restore their gun
privileges.
"There is a significant risk that persons who pose a real danger to
public safety might be rearmed," Olson wrote in court filings.
Each year since 1992, Congress has included in the ATF's budget a ban on
using money for background checks, which cost an estimated $3,700 each.
Still on the books is the law allowing people to petition for gun
rights, and permitting them to appeal to federal court if they are
dissatisfied with the outcome.
Olson said the ATF, not judges, have the resources to handle requests.
He said Texas could produce many such cases. In 1999, 80,000 people were
convicted in Texas of felonies, he said.
Bean's lawyer told the Supreme Court that Olson's argument "paints an
eye-catching image of federal district judges dispensing gun permits
like candy to tens of thousands of marauding Texas felons."
Larry C. Hunter wrote in filings that the "hyperbolic claim is provably
false." Judges can require witnesses and evidence, he said, and "the
in-person adversarial format of a court hearing is ideally suited to
credibility determinations."
Since Bean's conviction, Mexico has reduced the charges for importing
ammunition to a misdemeanor, Hunter said. The federal judge who ruled in
his favor on the gun privileges also found that the Mexican conviction
did not classify him as a U.S. felon.
A Texas state court has determined that he is not considered a felon.
Olson argued that someone who is denied gun privileges by the federal
government can file suit, but that they cannot sue over inaction.
Similar cases have had opposite outcomes in other courts, he said.
Bean served about five months of a five-year prison sentence.
The night he was arrested, he had attended a gun show in Laredo, Texas,
and was crossing the border to have dinner in Mexico.
A panel of the 5th U.S. Circuit Court of Appeals in New Orleans said he
was imprisoned for a "simple oversight."
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