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Posted on 01/12/2003 10:48:33 PM PST by missileboy
A potentially earth-shaking Supreme Court ruling went largely unnoticed this month.
Back in 1998, Thomas Bean, a Texas resident and licensed firearm dealer, traveled across the border into Mexico for dinner — not an unusual activity for those living along the border.
Stopping Mr. Bean's car for a search when he tried to re-cross the border, Mexican authorities found 200 rounds of ammunition — a modest enough quantity for a firearms dealer (who will often sell 500 rounds to a single customer) to have lying about his car unnoticed ... which Mr. Bean explains is just what happened.
But possession of cartridges is a felony in Mexico — a typical slave state on the European model, where only the government police are allowed to pack heat.
Bean was convicted.
America's federal Bureau of Alcohol, Tobacco and Firearms holds Bean is now a convicted felon, who should not be allowed to even possess firearms and ammunition here in the States, let alone continue his livelihood as a gun shop owner.
Bean and his attorneys argue the Mexican conviction doesn't make him a felon in the United States, since he violated no U.S. law. They applied to the BATF to have his constitutional rights restored.
But Congress in each year since 1992 has included in the BATF's budget a ban on using tax money to do background checks on felons, which cost an estimated $3,700 each. So the BATF told Mr. Bean he was out of luck.
He went to court. A lower court ordered the BATF to restore Mr. Bean's Federal Firearms License. But on Dec. 10 Justice Clarence Thomas — supposedly one of the high court's most "conservative" justices and also the only descendant of slaves currently serving on that bench — issued a ruling which blocks victims like Bean from going straight to court to have their rights "restored."
The BATF, not a judge, is in the best position to look into whether an applicant could be a danger to public safety, Judge Thomas held.
"Justices didn't get into the constitutional arguments," reported Gina Holland of The Associated Press, in an iceberg of understatement.
Nelson Lund, a law professor at George Mason University, says this "tough luck" ruling by the high court moves the debate back to the Capitol.
"Congress created this situation, and they can fix it," Lund said.
Mathew Nosanchuk, top lawyer for the pro-victim-disarmament Violence Policy Center, was left positively chortling by the decision. "I don't think any member of Congress wants to be standing up in favor of restoring gun privileges to convicted felons," he said.
Everyone cited so far in this report has been wrong, of course, though weirdly enough Mr. Nosanchuk the rape enabler turns out to be least wrong, since the bulk of his statement merely predicts members of Congress will act out of political cowardice rather than principle, which is generally a pretty safe bet.
The only part Mr. Nosanchuk got wrong was that "privilege" part, actually.
The Second Amendment does not say "The privilege of some of the people to keep and bear arms shall not be infringed." As we all recall — no matter how much Mr. Nosanchuk (and apparently Justice Thomas) wish they could rewrite it — the Founders referred to the whole "people"; they properly used the word "right"; and they added no exception for "people who shall be found by agents of the central government to be a danger to public safety" ... since that would eventually turn out to include pretty much all of us, of course.
Can the government ever deprive us of our rights? Yes. Convicted of a felony, we can be sent to prison, where many of our civil, political, and constitutional rights are routinely infringed for the duration of our incarceration.
But wait a minute. If sent to prison, aren't we reduced, in effect, to a condition of slavery or involuntary servitude? And wasn't a ban on slavery made part of the highest law of the land, when the 13th Amendment was added to the Constitution?
No. The authors of the 13th were very careful. It reads: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
So the government can deprive us of our rights as a punishment for a crime of which we stand convicted. Plain common sense.
But what about the day we're released from prison? What becomes of our rights then? Does the ex-convict have to apply to the governor, or the BATF, or the courts, or anyone else, to have "restored" his right to read the Bible or the Koran, or to enter and worship in a church or temple, as guaranteed under the First Amendment?
No.
To have "restored" his right to speak out in public or pen a letter-to-the-editor, rights also guaranteed by the First Amendment?
No. Everyone knows he regains the right to do these things the moment he walks back out that prison gate.
Does he have to apply to the governor, or the BATF, or the courts, or anyone else, to have "restored" his right to a jury trial, as guarantee by the Sixth Amendment, should he face some subsequent new charge? His right to be free of unreasonable searches and seizures without being shown a proper warrant, as guaranteed by the Fourth Amendment? His right not to be compelled to incriminate himself on subsequent charges, or not to be held on excessive bail if re-arrested, as guaranteed by the Fifth and the Ninth?
No, no, no, and no. Everyone knows these rights reattach themselves to him the moment he walks out that prison door, the same way his shadow reattaches itself to his feet on a sunny day.
So what's this business about his having to have some authority "restore" his right to keep and bear arms, as guaranteed by the Second Amendment?
Well, presumably that's just a "gray area" not covered by any part of the Constitution — you know, like the right to vote — a shadow or penumbra of ambiguity in which Justice Thomas and his brethren are free to allow the BATF or your state legislature to exercise their "best judgement." Right?
Just this once, will someone please get out the document and read it?
Americans may not be deprived of the right to vote simply because they've been in prison. The Fifteenth Amendment to the U.S. Constitution — an integral part of the highest law of the land — advises all public officeholders, who swear a sacred oath to protect and defend not the enactments of Congress, but rather the Constitution — that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude."
Gee, where have we seen that term "servitude" used before? Why, it was in granting the exception to the ban on slavery in the Thirteenth Amendment, which allows the government to imprison convicts, wasn't it? Someone who's been in jail has been in "servitude," the Constitution tells us. Now, once again — shall we read it together, class? — what is it no one can do to any American based on his "previous condition of servitude"?
Ex-felons automatically recover their right to vote the minute they walk out of prison, the same way ex-slaves and their descendants had their right to vote guaranteed the moment the 13th Amendment was ratified. Hallelujah, twice over. If your local registrar of voters thinks otherwise, it's the duty of George Bush and Clarence Thomas to see to it he or she is busted and convicted.
In fact, the Fourteenth Amendment tells us "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Unites States; nor shall any state deprive any person ... within its jurisdiction of the equal protection of the law."
Immunities like the immunity granted to the entire "people" from any "infringement" of their right to keep and bear arms, a protection which must be applied "equally" to all — save those who are actually in prison.
Mr. Bean — and every other "ex-convict" and "ex-felon" in America who is no longer in prison — has a right to keep and bear arms, right now. No government agency — federal, state or local — is allowed to "make or enforce any law which shall abridge the privileges or immunities" of such citizens — including their "immunity" from any "infringement" of "the people's ... right ... to keep and bear arms" — regardless of race, color, "or previous condition of servitude."
All that is required is a Supreme Court that is willing to read the Constitution and so confirm, based not just on the Second Amendment (though that would be sufficient), but also on the 13th, 14th, and 15th — the "anti-slavery and Civil Rights" amendments.
How sad that Clarence Thomas, a black man, to prevent whose ancestors from being disarmed and thus deprived of the right to vote by racist white Southern sheriffs the Fourteenth and Fifteenth Amendments were enacted and ratified, either can't see that, or lacks the political courage to so declare.
Courage, Justice Thomas: Have courage.
And I used to live on the border- I know what I'm talking about. When their gangbangers (AKA "Policia" ) get you, there is NO recourse- you are a done duck, a gone goose, a cooked turkey.
I have good friends who go to Mexico on vacation- they can't understand why I am not anxious to visit Cabo San Lucas or Mazatlan...
If I wanted to spend a lot of time around Mexican criminals, I would move to L.A.
Of course, but one must include their time on probation too. That's part of their sentence.
On second thought, if they can't be trusted with a gun, they probably shouldn't be out on probation in the first place.
I am more and more becoming an adherent to Heinlein's exposition in Starship Troopers regarding the utility to society and the convicted of flogging instead of incarceration for many "crimes".
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