Posted by Juan Non-Volokh: Justice Breyer Defends Gun Possession: Well, kinda. In [1]Small v. United States, Justice Breyer writes the majority opinion holding that the federal prohibition on gun possession by any person "convicted in any court" of a crime punsishable by more than one year in jail does not apply to foreign convictions. Joining Justice Breyer on the side of the gun owner were Justices Stevens, O'Connor, Souter and Ginsburg. Justice Thomas dissented, joined by Jsutices Kennedy and Scalia, holding that a conviction in a Japanese court would qualify as "any court."
The case is quite interesting on two levels. First, the justices one would expect to be most "pro-gun" ruled against the gun owner, while the justices one might expect to be most anti-gun came out the other way. On the other hand, the ideological line-up is precisely as one would expect if one focuses solely on the quesiton of statutory interpretation. Justice Thomas and the more conservative justices read the statute quite literally -- "any court" means any court -- even if it produced a non-conservative result; while the more liberal justices read "any court" in a broader context to determine its meaning apart from the literal meaning of the words. I also think the Small decisions are interesting because they completely avoid the elephant in the room: the Second Amendment. Even though the petitioner did not challenge the statute on Second Amendment grounds, or even suggest that the statute should be given a narrow reading so as to avoid potential Second Amendment problems, I might of thought one of the justices might have dropped a footnote to note the opinion did not address any potential Second Amendent concerns. Justice Thomas did this in his [2]Printz v. United States concurrence, so I found it interesting that neither Justice Thomas nor any other Justice did so here. References 1. http://a257.g.akamaitech.net/7/257/2422/26apr20050800/www.supremecourtus.gov/opinions/04pdf/03-750.pdf 2. http://supct.law.cornell.edu/supct/html/95-1478.ZC1.html _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
