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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."
If you don't like that precedent, what do you think the Supremes would think of it? Think they would agree to such a thing? No way.
I think the DOJ purposely chose this case because they KNEW that they couldn't win it. If the Supremes decide to hear this case, there is essentially no chance that they will find that they don't have the right to review BATF activity or inactivity, especially when the BATF actions are based on foreign law. The Supremes will then have opened the door to let every two bit judge in every town restore gun rights based on judicial review.
"bad cases make bad law," goes the saying. In other words, particularly compelling fact patterns can cause courts to issue rulings that they might not have otherwise issued. Those rulings then become precedent, and change the law.
I think the DOJ is on the pro-gun rights side on this, and they're just playing a game to advance gun rights. Too bad Mr. Bean has to get caught in the middle.
You sure don"t sound like it. There is no gray area in the 2nd amendment. Like it or not, once a felon has paid his debt to society by serving his sentence and making whatever restitution is required by his sentence, then his rights should be restored...all of them.
I don't disagree with you philosophically, but if we don't uphold all of our rights, to the letter, it will lead to the kinds of "living document" interpretation that has gotten us into this mess in the first place.
There is no good reason to deny them the right to self defense.
Agreed, with one provision:
If a convicted felon regains his RKBA and is later convicted of ANY firearm related crime, he receives the death penalty .... no appeal ..... no exceptions.
Molon Labe !
Are you always so pleasant?
Then you'll never go to bat for a 2nd Amendment case. If you haven't been convicted, you can't challenge the law.
Oh,there are people in federal prisons now who have even less reason to be there than Bean. Did you know that in some states it is legal for a former felon to possess firearms? Did you know that thanks to the NRA and their RINO friends (Project Exile),the feral gooberment is now prosecuting these people who are otherwise totally legal under federal regulations that make them felons? The feds are even hiring additional prosecutors to handle the increased work load,and Bubba-2 has increased their budget so they can do this hiring.
You're right. The truth is it's not even about guns or gun rights. It's about the rights of individuals,period. NO government has the moral or legal right to deny someone the basic human right of self-defense. Is a former felon's family less worthy of being protected than your family? Is his life any less valuable to him than yours is to you?
I agree. If he forgets and walks into a bank or post office with his gun,or he has a rifle in his trunk when he's stopped for speeding or drunk driving,he and his whole family should be immediately executed. (sarcasm)
What's with you people who want the type of tool used to have any effect on crime punishment? You sound as bad as the gun-grabbers. Is a man beaten to death with a shovel any less dead than one shot with a gun?
The definition of "felony" has been extended to the point of incredulity. Consider how many are labeled "felons" for the simple practice of exercising their consitutional and natural right to keep and bear arms? In other words, if you exercise your right to keep and bear arms, except as specifically proscribed by a bewildering blizzard of federal and state laws, then you are a felon. My opinion is this: if ones does not support 2nd Amendment rights for this gentleman, then one does not support the 2nd Amendment, period.
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