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Shotgun News, July 1, 2005, pp. 24-25

What Is a Felony?

In April, the U.S. Supreme Court made one of those decisions that continues to demonstrate that a majority of the currently sitting justices are pinheads. What makes this decision even more bizarre is that it seriously damages a significant provision of federal gun control law--and I am not happy about this.

At first glance, the decision Small v. U.S.(2005)  sounds quite reasonable. A provision of the Gun Control Act of 1968 prohibits convicted felons from possessing guns. In particular, the statute makes it unlawful for any person "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to own a gun. In this case,  the Court ruled that this law does not apply to persons convicted of felonies in other countries.

Well, okay, other countries have different laws. As the majority opinion pointed out, buying and selling goods to make a profit was a felony in the Soviet Union. Cuba made it a felony to distribute or produce "propaganda that incites against the social order, international solidarity, or the Communist State." 1 If you hid Jews from the Nazis, you committed a felony. 

Even if the crime for which you were convicted over there was still a felony here, not all countries have criminal justice systems that work as accurately and fairly as ours. In many European nations, you can be convicted with less evidence than our legal system requires, and some foreign courts ignore clear evidence of torture. Our courts require proof beyond a reasonable doubt; not so under the Napoleonic Code legal systems common in Western Europe. I am sure that there are people who have been convicted of felonies in foreign courts that no one except a gun control advocate would want disarmed.

Again, at first glance, the defendant in this case, Gary Sherwood Small, sounds like a sympathetic character. Japanese courts convicted the defendant of smuggling guns to the Japanese island of Okinawa. This was not an oversight, caused by leaving a gun in his suitcase. Small shipped three water heaters from the United States to Okinawa in the course of a year, as gifts. "Thinking it unusual for a person to ship a water tank from overseas as a present, ... Japanese customs officials searched the heater and discovered 2 rifles, 8 semiautomatic pistols, and 410 rounds of ammunition..."

Small served a three year sentence in Japan. A month after his release, he returned to America, and purchased an SWD Cobray pistol in Pennsylvania--hence his conviction under federal law.2 Obviously, I think Japanese gun control laws are stupid, and it is difficult for me to be too terribly upset with Mr. Small for his entrepreneurial activity. Smuggling--and especially smuggling of arms--is a proud part of American history. Remember, however, that a lot of those guns are not going to nice people like you and me in Japan. Think yakuza-- and you will probably be right on the money.

The Court, however, set a very dangerous precedent when they ruled that the Gun Control Act of 1968 only applies to felony convictions in American courts, and overturned Small's conviction for unlawful possession of a gun. America has many immigrants. (For those of you in Southern California, let me rephrase that: there are a few native-born Americans left.) The effect of the Small  decision is to make it lawful for any immigrant who has been convicted of murder, rape, robbery, genocide, torture, or terrorism in a foreign court, to own guns in the United States. 

At the same time, Americans who have been convicted of non-violent felonies (such as tax evasion, or fraud) are prohibited from ever owning a gun. Let me give you an example close to home. Many years ago, a friend of mine did something very stupid: he smuggled a young lady across the Mexican border--and went to federal prison for it, a convicted felon. He will never be able to own a gun because of that impetuous and foolish youthful decision--but a murderer or rapist convicted in any foreign court who immigrates here, because of the Small  decision, will be able to own a gun.

Looking at who lined up on each side of the decision is very interesting, and somewhat startling. Justices Breyer, Stevens, O'Connor, Souter, and Ginsburg--the reliably left end of the Court, and not generally friendly to gun owners--held that only domestic felony convictions prevent you from owning a gun. Justices Thomas and Scalia (most of the conservative, pro-gun wing of the Court) joined with Justice Kennedy in arguing that the statute means what it says: any felony conviction disqualifies you from gun ownership, and the Court should not second-guess Congress on this. (Chief Justice Rehnquist, as you may be aware, is dying, and did not participate in this case.)

What's what this? When you look at the argument that the majority used to exempt foreign felons from the gun ban, it is remarkably foolish. The majority points out that Congress never said that the ban on felons owning guns included foreign convictions. Very true; nor did Congress ever say that it did not. So, should you assume that Congress meant "any court" or just "any American court"?

The majority points out that another part of the same law exempts felonies that involve "antitrust or business regulatory crime" and this provision specifically says "Federal or State" laws. Why was Congress so specific about this one category of felonies? The reason was simple: Olin-Mathieson, a firearms manufacturer, had, some years before the Gun Control Act of 1968, pled guilty to felonies "involving the overseas sale of pharmaceuticals financed by U.S. aid."3 Congress said nothing about excluding foreign convictions in one part of the statute, and specifically excluded foreign convictions in another part. I think that you need a pretty strong piece of evidence that Congress did not intend the ban on gun ownership to apply to foreign felony convicts.

Justices Thomas, Scalia, and Kennedy's dissent, I think, hit the nail on the head. Justices Thomas and Scalia have generally taken the view that unless a law is specifically contrary to the Constitution, the courts should go ahead and defer to the Congress or state legislatures. I suspect that if you asked Scalia and Thomas if they thought this law was poorly worded, and should be rewritten by Congress to exempt people convicted in foreign courts of crimes that are not felonies here, they would probably agree. But that is not what the majority of the Supreme Court did in this case. The Small  decision did not rewrite the law in a more sensible manner; they exempted all persons convicted of felonies in foreign courts from a ban on gun ownership. As Justice Thomas's dissent points out, "the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnaping, terrorism, and other dangerous crimes to possess firearms freely in the United States.... Meanwhile, a person convicted domestically of tampering with a vehicle identification number, ... is barred from possessing firearms."

As I have screeched at length in previous columns, the federal courts have been taken over by a bunch that believes that its proper function is a superlegislature. Judges with this view have taken it upon themselves not simply to strike down laws that are clearly contrary to the Constitution, but to come up with interesting and sometimes quite novel rationalizations for substituting their judgment for that of the elected representatives of the people.

I do not have any great love of democracy. It makes mistakes, sometimes quite serious mistakes. I trust even less unelected judges who hold office for life. It used to be said that Congress, and the state legislatures, are like diapers. They need to be changed frequently, and for the same reason. It is often difficult, but when the population gets sufficiently riled, they sometimes turn out idiots, scoundrels, and crooks (often replacing them with a new, sweeter smelling bunch of idiots, scoundrels, and crooks). Federal judges can't be replaced for anything but the most serious of crimes--and the majority on the Supreme Court today is issuing decisions like Small that suggest the Constitution is developing a third degree diaper rash.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is

1Small  v. U.S. , No. 03-750 (2005), available at , last accessed May 11, 2005.
2Small  v. U.S. , No. 03-750 (2005), diss. , available at , last accessed May 11, 2005.
3David T. Hardy, "The Firearms Owners' Protection Act:A Historical and Legal Perspective," 17 Cumberland Law Review 585 (1986), n. 73, available at, last accessed May 11, 2005.