Posted on 08/28/2002 5:16:11 PM PDT by 45Auto
The Bush administration is taking the most radical anti-gun position possible in the most important Supreme Court case in 60 years. The announced Bush position is that US Courts should not be allowed to even consider restoring the 2nd Amendment rights of Americans who lost those rights under the GCA 68 provision that says that your gun rights are forfeit if you were ever convicted of a felony or certain misdemeanors.
This includes domestic felonies like bringing a single round of hollow point pistol ammunition into New Jersey. The loss of gun rights is ex-post-facto and foreign felonies are included, this includes foreign felony convictions for the crime of smuggling bibles into Communist countries or teaching Christianity in certain Islamic countries.
It doesn't even take a felony like unknowingly entering Mexico with a box of ammunition (like Bean). You will also lose your gun rights if you were ever convicted of a state misdemeanor where you "could" have gotten more than two years. Until 1972 almost all Pennsylvania misdemeanors were ungraded and were punishable by up to three years. Thus almost every pre 72 Pennsylvania conviction for any misdemeanor such as a single DWI, drag racing or bastardy mandates the lifelong loss of gun rights even if no one was harmed and no jail times was involved. In Pennsylvania, with NRA support, they unsealed previously sealed juvenile records and took away the gun rights of people who were convicted of very minor offenses back in the 50's as 60's and have been model citizens ever since.
Since 1992 Congress has each year defunded the provision that allowed people to petition ATF to get their rights restored. This denial of due process caused some district courts to hear some appeals. Bush/Ashcroft/Olsen have announced an intention to argue before the Supreme Court that Unites States Courts should have no authority to even consider restoring gun rights in any case even if, like Bean the rights were taken for violating a foreign law that is no longer a felony in Mexico and is a Constitutionally protected right in the United States.
Bean is just one of the numerous anti-gun positions taken by the Bush Administration. Additional examples include disarming airline pilots, Emerson, and arguing that the total DC gun ban is a reasonable restriction on the 2nd Amendment.
Grass roots gun rights activists are aware of this and if Bush does not change soon, his anti-gun policies may harm the election chances of other establishment Republicans.
If the NRA gave Bush's actions the front page publicity that they deserve, the members would pressure Bush to get on track and he would have a better chance of being re-elected.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-40304
THOMAS LAMAR BEAN,
Petitioner-Appellee,
versus
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS; UNITED STATES OF AMERICA,
Respondents-Appellants.
Appeal from the United States District Court for the Eastern District of Texas, Beaumont
June 20, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:
The Government appeals the trial court's finding that it had jurisdiction to review the application of Thomas Lamar Bean for relief from the federal firearm disabilities resulting from a conviction in Mexico, as well as its grant of said relief therefrom.
We affirm.
BACKGROUND
The facts of this case illustrate in caps underscored why Congress added the relief provision to the Federal Firearms Act, giving certain convicted felons an avenue to regain the right to possess a firearm. They are set forth in great detail in the trial court's opinion; we merely summarize them here.
In March 1998, Bean, a Bureau of Alcohol, Tobacco and Firearms licensed firearms dealer, was in Laredo, Texas, participating in a gun show. One evening he and three assistants decided to cross the border into Mexico for dinner. He directed his assistants to remove any firearms and ammunition from his vehicle, a Chevrolet Suburban, before crossing the border; however, a box of ammunition containing approximately 200 rounds inadvertently was left in the back. The box was in plain view and Mexican customs officers saw it when they sought to enter the Mexican Port of Entry at Nuevo Laredo, Tamaulipas, Mexico. At the time importing ammunition into Mexico was considered a felony.(1) The three assistants were subsequently released but Bean, as the owner of the Suburban and the ammunition, was charged and convicted of the felony of unlawfully importing ammunition.(2)
Bean was incarcerated in Mexico for approximately six months before being released to the custody of the United States under the International Prisoner Transfer Treaty. He thereafter spent another month in federal prison before being released under supervision. As a convicted felon, under 18 U.S.C. § 922(g)(1) Bean lost all rights to possess firearms. Section 925(c) of the statute, however, provides a means for relief from the firearms disabilities. Upon completion of his period of supervision in July, 1999, Bean petitioned the BATF for such relief so that he might return to his business.
At issue herein is the action and inaction of Congress since 1992. For this nigh decade, Congress has stated in its annual budget appropriation bill that "none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C § 925(c)."(3) Because the BATF could not use any appropriated funds to fulfill its responsibilities under the statute, it sent Bean a notice that it would not act upon his request due to the congressional action. Bean then petitioned the district court, contending that the BATF's letter denied his petition and exhausted his administrative remedies.
The district court, in its detailed Memorandum Opinion, discussed the statute, congressional actions, the various circuit opinions on this issue, including our decision in United States v. McGill,(4) and determined that it did, in fact, have jurisdiction to hear Bean's appeal. In granting Bean's petition it further found that the facts of this case underscore why § 925(c) permitted not only judicial review, but judicial supplementation of the record to prevent a miscarriage of justice.
ANALYSIS
Jurisdiction
In McGill we noted that Congress, through its appropriations acts, had reflected an intent to suspend the relief provided to individuals by § 925(c). As a consequence we opined that we lacked subject matter jurisdiction. As the Government correctly notes, ordinarily an inferior court is not at liberty to disregard the mandate of a superior court.(5) But in the instance herein presented, we must examine carefully the reasons and analysis by the trial court, and our earlier decision in light of, notably, the intervening passage of time and its effect.
The trial court, as had the McGill panel, extensively detailed the legislative history of the relief provisions and reached a different conclusion, noting: "Ultimately, the Court recognizes that an advocate can find an abundance of legislative history to support his position."(6) We do not here parse the committee or floor commentary but, rather, examine congressional action/inaction and its continuing effect.
As noted in the trial court's opinion, Congress first amended the Federal Firearms Act in 1965 to provide the potential and mechanism for certain convicted felons to obtain relief from federal firearms disabilities by petitioning the Secretary of the Treasury. It amended the relief provision in 1986 to provide for judicial review of executive decisions in order to better ensure that relief was available for those felons whose convictions were based on technical or unintentional violations.
In large measure, as a result of newspaper editorials about the cost to taxpayers of performing the investigations necessary under the relief provision,(7) as well as a report published by the Violence Policy Center listing instances wherein convicted felons had their firearms privileges restored and committed violent crimes,(8) a senate bill entitled the Stop Arming Felons (SAFE) Act was introduced in 1992 to eliminate the relief provision.(9) That bill, however, was never reported out of the Senate Judiciary Committee.
Although it obviously has the power, Congress has not enacted legislation eliminating or amending § 925(c). Rather, both the House and Senate Appropriations Committees proposed language for the Treasury, Postal Service, and General Government Appropriations Act for Fiscal Year 1993 that precluded the BATF from using any appropriated funds to investigate petitions for such relief.(10) That language was incorporated in the appropriations bill ultimately passed that year and has been included in each subsequent annual appropriations act relating to BATF funding.(11)
We observed in McGill that "Congress has the power to amend, suspend or repeal a statute by an appropriations bill, as long as it does so clearly."(12) We cited Robertson v. Seattle Audubon Soc.(13) as authority for that proposition. Robertson opined "[A]lthough repeals by implication are especially disfavored in the appropriations context . . . Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly."(14)
The "especially disfavored" language hales from the high court's opinion in Tennessee Valley Authority v. Hill, et al.,(15) wherein the Court stated that the doctrine disfavoring repeals by implication "applies with ever greater force when the claimed repeal rests solely on an Appropriations Act."(16) In the subsequent Will case, upon which the Robertson Court relied, it addressed Congress' failure to fund promised federal pay raises previously authorized by statute by refusing to appropriate funds for those raises in each year's Appropriation Act. In Will the Court found Congress' actions were clear and intentional, and thus effectively rescinded the authorized raise for each year.(17) That decision led to the Court's comments in Robertson, noted above, upon which the McGill panel relied.
We find the facts at bar readily distinguishable from Will, and thus distinguishable from Robertson. Will involved authorized salary increases, a purely financial right, that Congress refused to fund. When it passed the Executive Salary Cost-of-Living Adjustment Act (18) in 1975 Congress promised certain federal employees annual cost-of-living salary increases, based upon certain financial criteria. It then changed its mind and rescinded that year's increase in each of the four years beginning in 1977.(19)
In the case at bar, Congress is not merely promising money then changing its mind and not making it available. Nor is it directly suspending a statutory provision. In enacting § 925(c) Congress granted certain persons administrative and judicial rights. The SAFE Act proposed to withdraw those rights, but Congress did not adopt that withdrawal. The Government insists, however, that Congress indirectly has abrogated those rights by necessarily recognizing same but declining expenditure of any funds for their enforcement. We find that action clearly distinguishable from the facts in the cited precedential cases and inimical to our constitutional system of justice.
In its early review of this conundrum, the McGill panel relied on Robertson. In addition to the noted factual differences of Robertson, Will, and Dickerson, we have a critical additional factor, the intervening passage of time and the resulting reality of the effective non-temporary "suspension" of statutorily created rights. We must conclude that Congress seeks to abrogate administrative and judicial rights it created, by using funding bills, after declining to address actual amendments to or revocation of the creating statute. Section 925(c) was enacted for apparently valid reasons, and citizens like Bean are entitled to the rights therein created and authorized unless and until Congress determines to change same. We must now conclude that merely refusing to allow the agency responsible for facilitating those rights to use appropriated funds to do its job under the statute is not the requisite direct and definite suspension or repeal of the subject rights. We further hold that when the BATF notified Bean that it would not act on his petition, his administrative remedies de facto were exhausted.(20) Accordingly, the trial court had jurisdiction to entertain this appeal.
The Merits
The Government cites as error the trial court's grant of relief, contending without citing any authority that when reviewing the actions of an administrative agency the court "stands in the shoes" of that agency and is bound by the applicable federal regulations. Here the Government contends 27 C.F.R. § 178.144(d) precludes relief where the petitioner is prohibited from possessing all types of firearms in the state in which he resides. It asserts that because Bean resides in Texas and under Texas law a convicted felon cannot possess firearms for five years after being released from confinement or supervised release,(21) it could not have granted his petition for relief in any event; therefore, the district court erred as a matter of law in doing so.
At the threshold we unqualifiedly reject the suggestion that a court stands in the shoes of an agency and is bound by all of its implementing regulations. Substantive federal regulations carry the force and effect of federal law; however, interpretive regulations serve merely to guide a court in applying a statute.(22) Generally, where a regulation "appears supported by the plain language of the statute and is adopted pursuant to the explicit grant of rulemaking authority," that regulation is considered as having legislative effect and accorded more than mere deference.(23) We find nothing in 27 C.F.R. § 178.144(d) that would come under such a definition. Nothing in § 925(c) authorizes the Secretary to restrict relief only to those cases where relief is available at the state level; indeed, nothing in the statute pertaining to relief even refers to the states. Section 925(c) pertains strictly to federal firearms disabilities and to relief from those federal disabilities. Absent any statutory language tying federal disabilities to state disabilities, or authorizing the Secretary to do so, we must hold that 27 C.F.R. § 178.144(d) is merely an interpretive regulation and does not bind the district court in its determination.(24) Concluding that the trial court did not err as a matter of law in granting the relief requested, we need not and do not address its determination that Bean's foreign conviction was not a predicate offense triggering the provisions of 18 U.S.C. § 922(g)(1).
CONCLUSION
We are mindful of the serious concerns articulated about convicted felons regaining the right to possess firearms, and of the need for congressional review and enhancement of the safeguards and procedures for appropriately accomplishing this apparently worthy goal, but we are faced herein with the almost incredible plight of Thomas Bean 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. We do not believe that any reasonable observer is persuaded that his offense creates a likelihood he represents a threat to the public's well-being, and it is beyond peradventure to believe that Congress, or those seeking to rescind § 925(c), intended for someone like Bean to lose his livelihood on the basis of the facts such as are before us. Neither equity nor the law require such an injustice.
The judgment appealed is AFFIRMED.
1. Purportedly because of the publicity arising from this case the offense has been reduced to a misdemeanor.
2. The record reflects the difficulties experienced by Bean during his arrest and initial incarceration, primarily based upon procedural issues which were compounded by his unfamiliarity with the Spanish language. Bean and the trial court both refer to these difficulties as raising constitutional concerns. Our disposition of this appeal does not rely thereon.
3. See Treasury, Postal Service and General Government Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992). The first year Congress denied the BATF funds to investigate any convicted felon. Beginning in Fiscal Year 1994, and in all subsequent appropriation acts applying to the BATF, a provision was added allowing funds to be used to investigate convicted corporate felons. See infra note 11.
4. 74 F.3d 64 (5th Cir. 1996)(finding that federal courts have no jurisdiction to hear appeals from individuals).
5. See e.g., Gegenheimer v. Galan, 920 F.2d 307 (5th Cir. 1991).
6. Bean v. United States, 89 F. Supp. 2d 828, 835 (E.D. Tex. 2000).
7. See, e.g., Why Are We Rearming Felons?, Washington Post, Sept. 25, 1991, at A24 (describing the relief provision as a "loophole"); and Felon Gun Program Should Be Disabled, Chicago Sun-Times, July 1, 1992, at 31.
8. Josh Sugarman, Putting Guns Back Into The Hands Of Felons: 100 Case Studies of Felons Granted Relief From Disability Under Federal Firearms Laws, Violence Policy Center (1992). The Center is a Washington, D.C. based gun-control advocacy group.
9. See 138 Cong. Rec. S2674-04, S2675 (daily ed. March 3, 1992)(floor comments on S. 2304 by its co-sponsor, Sen. Lautenberg (D-N.J.)). We note with particular irony that according to Sen. Lautenberg the original relief provision was enacted specifically to rescue the Winchester Firearms Co., whose parent corporation Olin Winchester had pleaded guilty to felony counts on a kickback scheme and whose very existence was threatened by the subsequent denial of its ability to possess and sell firearms. As previously noted, beginning in 1993 Congress amended its appropriations language to permit the BATF to process petitions for relief made by corporations. In the case at bar we are presented with a situation that is virtually indistinguishable from that used to justify those actions, i.e., absent the ability to possess and sell firearms Bean will lose his business. Bean is his "corporation," and the inequities of the situation are readily apparent. To the suggestion that a corporation, unlike an individual, cannot be a physical threat to use firearms to harm the public we note that the record is replete with testimony from legislators, law enforcement officers and BATF agents as to Bean's lawful character.
10. See H.R. Rep. 102-618 (1992); S. Rep. 102-353 (1992).
11. Treasury, Postal Service, and General Government Appropriations Act, 1994, Pub. L. No. 103-123, 107 Stat. 1226, 1228 (1993); Treasury, Postal Service, and General Government Appropriations Act, 1995, Pub. L. No. 103-329, 108 Stat. 2382,2385 (1994); Treasury, Postal Service, and General Government Appropriations Act, 1996, Pub. L. No. 104-52, 109 Stat. 468, 471 (1995); Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-319 (1996); Treasury and General Government Appropriations Act, 1998, Pub. L. No. 105-61, 111 Stat. 1272, 1277 (1997); Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat. 2681-485 (1998); Treasury and General Government Appropriations Act, 2000, Pub. L. No. 106-58, 113 Stat. 430, 434 (1999); and Treasury and General Government Appropriations Act, 2001, Pub. L. No. 106-554, 114 Stat. 2763, 2763A-129, (2000).
12. McGill, 74 F.3d at 66.
13. 503 U.S. 429 (1992).
14. Robertson, 503 U.S. at 440 (citing United States v. Will, et al., 437 U.S. 153 (1978)).
15. 437 U.S. 153 (1977).
16. Id. at 190 (emphasis in original).
17. With the exception of federal judges for two of the four years in question, where the Appropriation Act violated the Compensation Clause.
18. Pub. L. No. 94-82, 89 Stat. 419 (1975).
19. The Supreme Court considered and rejected the contention that the authorized increase remained outstanding but unfunded, concluding t
However personally, I never bring mods into my arguments. The only time you'll see me summon one is if I think a posted thread (like something from the DU or a disruptor post) is detrimental to the forum.
Heck, we don't need no steenkin' mods to for a piker like sinkspur, he deals with himself for us. I'm thinking of printing out his silly posts and mounting them on my wall as a magnificent monument to banal non-thought.
Einstein, you ain't.
This is a clear violation of the ex post facto provision of the Constitution and taken directly from the Clintigula playbook.
To apply further punishment because someone "could have been sentenced to a certain term" smacks of the nineties conundrum "the facts of the case are not relevant, only the gravity of the allegation should determine punishment suffered by the accused"
These are very dangerous precedents and can lead to all manner of mayhem. Are you "guilty" of child abuse if a seatbelt is improperly fastened? Are you guilty of "domestic violence" if you don't remove snow and ice from your sidewalk in a manner designated by the state?
Bush '41 endorsed ex post facto tax law and now Bush '43 endorses Clintigulan ex post facto gun control.
If Citizens continue to abdicate their Sovereignty their Sovereignty will continue to evaporate.
Best regards,
Miami elected Bush.
So, President Clinton acknowledged in a State of the Union address that people have the right to keep and bear arms for hunting and sporting purposes.
I am bothered by the fact that, despite their rhetoric, Bush and Ashcroft have decided to keep Emerson as a political prisoner. While I can understand some reluctance to have his case go before the Supreme Court of the United States at this time (I don't agree with it, but understand it), the just and proper means for them to let the Court off the hook would be for Bush to quietly pardon Emerson, noting specifically that Emerson had been pardoned on all state charges, and that he was not informed at the time of the "restraining order" hearing that the order would forbid him from possessing weapons.
The media would perhaps try to hound Bush about releasing a wife beater or somesuch, but Bush should be able to counter with the facts mentioned above, along with some plain-talk discussion of American "due process".
Of course, that's all supposing Bush really supports the Second Amendment in principle, and not just when politically necessary.
Funny, I was just thinking about sovereignty the other day when I happened upon a road block. They said it was a "safety check." I had to provide my dl, ins card, and registration while other officers were glaring at me checking out my car's interior. They particulary wanted to know how I could afford such a car?
Answer the question: What rights taken by CLINTON have been restored under BUSH? C'mon, even you and your little lurking buddies over at NSA can handle this one.
"You can't own a cannon either. So what?"
Even if I could, I can't afford a cannon, nor would I have a safe place to discharge it. Can't afford a PSG 1 but at least I'd have a place to shoot it safely. And I sure as hell can afford all that lovely ammo at bargain basement prices. Until Bush 41. Then Clinton made it worse. Why hasn't Bush 43 returned us to the status quo ante? This is an important question with Bush 43 claiming title to being a "strict constructionist" when it comes to the US Constitution.
Dang, someone who gets it.
Now I'm "erecting strawmen" in addition to being drunk and insane? There's nothing "straw" about the "man" I mentioned, he's very real. You're just blurting stuff out again, just as I knew you would.
I think you need some serious introspection as to why your head is getting bounced off the floor nearly everyone on this thread. You probably don't do introspection though. You have to be able to use the brain that God gave you, be halfway objective and get real in order to "introspect".
So did I. I also spent money on him, traveled all over florida protesting for him and was very active in his brothers campaign.
Bet you didn't know that did you?
Yep, and all we need is a few good laws to take care of that. Everyone knows that criminals can not get access to firearms on the street. Like the guy in the van down on Garden street, no he is not selling illegal weapons, he's selling drugs, NO WAIT, we have a law against that, so thats not possible, he's selling squirt guns, yeah thats it.
Anyone that tells you differently is just spouting viscous, anti-social, unpatriotic lies.
It was on a local conservative talk radio show yesterday afternoon here in Nashville...the Phil Valentine Show....sort of a local Hannity.
Here's a pasting of my "ridiculous facts":
US: Wire: Corrections Population At Record URL: http://www.mapinc.org/drugnews/v01/n1580/a01.html Newshawk: Randall Bart Pubdate: Sun, 26 Aug 2001 Source: Associated Press (Wire) Copyright: 2001 Associated Press Author: Jennifer Loven Bookmark: http://www.mapinc.org/prison.htm (Incarceration)
CORRECTIONS POPULATION AT RECORD WASHINGTON ( AP ) - The number of adults behind bars, on parole or on probation reached a record 6.47 million in 2000 - or one in 32 American adults, the government reported Sunday.
On the positive side, the percentage increase from 1999 was half the average annual rate since 1990.
Jails and prisons held 30 percent of the adults in the corrections system, or 1,933,503 million. People on probation accounted for 59 percent of the total, or 3,839,532 million. An additional 725,527 adults were on parole, a period of supervision following release from prison.
Over the past two decades, the number of adults in the corrections system has tripled, so they now make up 3.1 of the country's adult population, compared with 1 percent in 1980, said Allen J. Beck, a chief researcher with the Justice Department ( news - web sites )'s Bureau of Justice Statistics.
"It's just overwhelming," said Kara Gotsch, a spokeswoman for the American Civil Liberties Union ( news - web sites )'s National Prison Project, which advocates alternatives to incarceration. "It just shows that we need to put much more into prevention."
During the 1990s, the corrections population increased 49 percent. By the end of last year, there were 2.1 million more adults in the system than there were in 1990.
The rate of growth was 2 percent between 1999 and 2000, compared with an average of 4 percent during the 1990s. Beck attributed the slowing growth to the cumulative effect of a general drop in crime rates that began in the 1990s. "This could be the beginning of a peak," said James Alan Fox, a criminal justice professor at Northeastern University in Boston.
Nearly 2.5 million people were released from parole or probation in 2000. Among parolees, half successfully completed the terms of their release in 1990. By 2000, just 43 percent completed parole and stayed out through the end of the year.
Among those released from community supervision in 2000, 15 percent of probationers and 42 percent of parolees were sent back to prison or jail that year for new violations. Fox said that figure underestimates the large number who will probably be convicted again.
Beck noted that the number of Americans who have returned to prison has remained stable over time.
To Gotsch, that shows the shortsightedness of corrections policies that focus more on punishment and less on rehabilitation.
"It's no wonder that they're re-offending at incredibly high rates because we don't teach them anything else," she said. The report also showed:
- -Among those on probation, 52 percent were convicted of felonies, the most frequent of which was driving under the influence, followed by drug offenses.
- -The percentage of women in the prison population, as well as their percentages among probationers and parolees, rose.
- -The states with the largest percentage of their adult population in the corrections system were Georgia, 6.8 percent, and Texas, 5 percent. At the other end were West Virginia, New Hampshire and North Dakota, each with 0.9 percent.
On the Net: Bureau of Justice Statistics: http://www.ojp.usdoj.gov/bjs
I guessed at the one in 12-15 adult males given the fact that women are 51% of the general population . One in 12-15 may be even a bit high. It may be even lower than that. You keep mighty fine company, I'll give you that. Disenfranchising the gun rights of felons who have done their time...in particular non-violent ones....is at least in my view a back door attempt to further gun control and the penalties are draconian. Nor is the disenfranchisement an old tradition or a uniform one. There is great disparity amongst the states and the Feds only instituted uniform code in 1968 in response to urban fears after a decade of riots and ghetto unrest. I do not wish to futher the JBT's power's one more millimeter. I want to roll them back
Guess we are not on the same page here. I take "shall not be infringed' at it's word.
I never post what i can't back up and admit when I'm speculating. Any further questions about my "ridiculous facts"?
He fooled a lotta folks with that line. Heck, at this juncture, Judge Mathis is more credible.
Cut that sentence short,didn't you? It SHOULD have said "...an INDIVIDUAL right SUBJECT TO "REASONABLE RESTRICTIONS" PLACED ON IT BY THE GOVERNEMENT."
There just ain't no way around it,Bubba-2 IS his fathers's son,a statist,gun-grabbing SOB.
Both assertions are laughable but don't let that stop ya.
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