Posted on 10/03/2002 8:17:10 AM PDT by Atlas Sneezed
Thomas Lamar "Tommy" Bean is selling used cars in south Texas right now, and to him, that's the fault of Congress.
It's Congress, after all, that won't allow him to regain his license to sell guns. On Oct. 16, his case comes before the U.S. Supreme Court. And if he gets his way, Bean, a convicted felon, will be dealing guns again.
At issue in United States v. Bean, No. 01-704, is a provision in federal law that allows felons to obtain a permit to own and sell firearms. The case has placed gun-rights advocates in the unusual position of disagreeing with Attorney General John Ashcroft's Justice Department and an administration that has been arguably more gun-friendly than any in recent history.
While convicted felons generally are not permitted to own guns, a provision in the federal firearms laws allows someone who has served his time and been released to apply to the Bureau of Alcohol, Tobacco and Firearms for permission to own a weapon.
But the ATF hasn't green-lighted any felon's request for relief in a decade. It can't. In 1992, Congress eliminated the funds that enabled the bureau to do it and has refused to restore them ever since.
That came after a report prepared by the Washington, D.C.-based Violence Policy Center blasted the ATF, showing that one-third of the felons granted gun privileges by the bureau had been imprisoned for a violent or drug-related crime.
"There were some very dangerous people [regaining gun rights]," says Mathew Nosanchuk, litigation director of the Violence Policy Center. "Congress showed that it wasn't willing to roll the dice."
All of that left Tommy Bean without a remedy and without a business when he got in trouble at the Mexican border in March 1998.
NO TENGO PISTOLAS
Bean, a firearms dealer, was in Laredo, Texas, participating in a gun show. One evening he and three assistants decided to travel into Mexico for dinner. Bean says he directed his assistants to remove any firearms and ammunition from his Chevrolet Suburban.
Upon reaching the border, Mexican customs officers discovered a box of ammunition containing approximately 200 rounds in the back of Bean's truck. Bean, as owner of the vehicle, was arrested on a felony charge of importing ammunition and sentenced to five years in a Mexican prison. As part of an international prisoner exchange agreement, Bean was transferred to the United States six months later and soon released.
In July 1999, Bean petitioned the ATF for relief to recover his license to sell firearms. Bean received a notice that the bureau would not act upon his request because funds for investigating his background under the relief program had been eliminated.
So Bean sued in federal court. U.S. District Judge Joe Fisher of the Eastern District of Texas first ruled that he had the authority to review Bean's petition in place of the ATF. Second, he granted Bean's request, restoring his gun rights.
The case went up to a sympathetic panel on the 5th U.S. Circuit Court of Appeals, which affirmed the decision, creating a split with other circuits that had come to different conclusions.
"[W]e are faced with the almost incredible plight of Thomas Bean," the 5th Circuit stated in its affirmance, "who, at most, was negligent in not ensuring that his associates completely performed the simple task directed and who served months in Mexican and U.S. prisons for a simple oversight."
The Supreme Court granted certiorari earlier this year.
Before the high court, the Justice Department has taken the stance that a federal court holds no power to make the determination that a felon can regain gun privileges. In doing so, the government cites congressional language in support of its funding ban, saying the decision to grant relief in a given case "is a very difficult and subjective task which could have devastating consequences for innocent civilians if the wrong decision is made." In its brief, the Justice Department says there "is no reason to expect that judicial proceedings could reduce that risk."
Nosanchuk agrees. "It's judicial activism at its worst," he says. "It's really bizarre to think of judges spending their time doing this."
'MOST IMPORTANT CASE IN 60 YEARS'
But Thomas Goldstein, a D.C. lawyer who will argue the case on behalf of Bean, says the case is about providing an avenue for relief for felons who can make a legitimate case for recovering their right to own and sell guns.
"We agree that Congress didn't want a lot of people getting their guns back," Goldstein says. "But these clearly are incredibly deserving cases. They're totally out of luck. A remedy is an important part of the statute."
That the Justice Department would stand in Bean's path at all has angered some gun rights advocates.
"The Bush administration is taking the most radical anti-gun position possible in the most important Supreme Court [gun rights] case in 60 years," says Harry Schneider, the chairman of the Pennsylvania Sportsmen's Association, on the "Keep and Bear Arms" Web site.
But others are pragmatic. Alan Gottlieb, president of the Second Amendment Foundation, which has filed an amicus brief in the case in support of Bean, says the Justice Department had no choice but to back a congressional action.
"Like it or not, DOJ has to support the law," Gottlieb says. In fact, Gottlieb says, the Justice Department brief provides case law that he claims supports Bean's contention that federal courts have the power to restore gun rights.
Gottlieb says his organization views Bean as the perfect vehicle for taking this issue before the Court. "You've got somebody who was not a danger to society," he says. "We really think we are going to win."
The Second Amendment Foundation is also asking the Court to affirm that gun ownership is an individual right granted under the Constitution. "We want it -- even if it's in dictum," Gottlieb says. "I think they probably will do it."
Besides this flaw, the article is poorly written.
That said, there seems to be a conflict in the law - language that provides a process, yet a lack of funding for it.
Read the entire article, dummy.
In other words, a bureau of political appointees should not be required to be answerable to a federal court?
I don't like that precedent one bit.
In other words, a bureau of political appointees should not be required to be answerable to a federal court?
I don't like that precedent one bit.
In other words, a bureau of political appointees should not be required to be answerable to a federal court?
I don't like that precedent one bit.
In other words, a bureau of political appointees should not be required to be answerable to a federal court?
I don't like that precedent one bit.
Sorry.
When they came for the wrongly convicted felons, I said nothing, for I wasn't a wrongly convicted felon. The facts in this case are that the "conviction" wasn't even in the US, and the "crime" wouldn't be a crime in the US. Not only that, but as I understand it, it's not even a felony in Mexico any longer.
Besides the most amazingly trivial transgressions are often felonies these days. The law also applies to certain misdomeaners, where the *potential* penalty, as opposed to the one imposed by the court, is heavy enough, something like a year or more in jail, IIRC.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.