Wednesday, April 27, 2005

Thomas and Scalia: Correct?!?

Obsessive Law Student and I just recently had a conversation about the intelligence of Supreme Court Justice Clarence Thomas.

While I can't say I consider Justice Thomas to be an all-time genius, his recent dissent with Justice Scalia and Kennedy in Small v. United States, decided yesterday, I believe was dead-on.

Gary Small was convicted in a Japanese court for trying to smuggle several pistols, rifles, and ammunition into Japan and served three years in prison there. After his release, Small returned to the United States where he purchased a handgun from a licensed Pennsylvania gun dealer, a week after he was paroled. Federal authorities arrested Small and charged him with violating 18 U.S.C. s 922(g), unlawful possession of a firearm by a felon.

The statute makes it "unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm."

The United States Supreme Court reversed Small's conviction, finding that when Congress used the term "any court" it did not intend to mean convictions in a foreign court. The Court found it reasonable to presume that Congress did not intend as such since foreign convictions are less trustworthy and that Congress did not consider the issue of whether foreign convictions would count.

Applying "strict textualism," Thomas, Scalia, and Kennedy take the majority to task for creating a brand-new presumption that such statutes mean only domestic convictions. For Thomas and Scalia, when Congress says "any court," they mean just that unless the statute clearly defines "any court" to mean domestic federal and state courts. They chide the majority for making presumptions of facts in which the court did not even ask the parties to brief the court concerning.

So, if you've been convicted for arming a third-world despot, don't worry, you can still buy and own a gun in the United States, but not if you were convicted of a felony in Utah.

What also troubles me is how this could be used against the Court's recent use of foreign law to interpret the Constitution. In Roper v. Simmons, 125 S.Ct. 1183, decided nearly two months ago, the Court declared all executions of minors unconstitutional under the Eighth Amendment's prohibition of cruel and unusual punishment.

The Court has been criticized for relying (on a much smaller part than conservative critics have portrayed) on foreign law to establish a growing global and national consensus against juvenile executions. Indeed, most of what the Court cited in Roper were changes done by foreign nations by statute, treaty, or pronouncements. But if the Supreme Court states that a foreign court's conviction, which is merely the application of facts to their own statute, is unreliable, then how can you rely on those same unreliable systems to determine an abstract concept like "emerging international consensus?"

That's not my view, but it could be argued.

1 comment:

OLS said...

My response is on my blog now.