Debate Over the Patriot Act
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Small v. United States

The Court recently granted cert. in Small v. United States (03-750). Small concerns the interpretation of 18 U.S.C. 922(2)(1) - the felon in possession law, which makes it a federal offense for any person convicted of a felony to posses a firearm.

The specific statutory language reads: "[It is unlawful] for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one possess ... a firearm."

The petitioner, who was convicted of a felony by Japanese authorites in Japan, possessed a firearm. Thus, the question presented is whether "any court" includes Japanese courts.

Now, before you chortle out, "Well, any court means any court," do recognize that there is a longstanding presumption against the extraterritoriality of statutes. Also note that the rule of lenity governs in criminal cases.

The rule of lenity is a canon of statutory construction, which says that criminal statutes must be construed narrowly. The rule of lenity also comports with due process since a citizen must be put on notice that his conduct is criminal before he can be punished. When a law is unclear or ambiguous, that citizen has not properly been put on notice. We should give him the benefit of the doubt. Also, the government bears the burden of putting a citizen in prison. We when let them do so based on anything less than a crystal clear law, we improperly relieve them of that burden.

Well, this case presents a great vehicle for the Court to affirm (or, dare we say, disavow) those canons. In Sabri the Court stuck a tack in the criminal defense bar's chair when it wrote: "We add an afterword on Sabri's technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent." Sabri v. United States, 124 S.Ct. 1941, 1949 (2004). Lopez and Morrison were facial attacks to federal laws.

However, you will also recognize that the argument that we possess a 2nd Amendment right to individual firearm ownership might also inform the Court's statutory interpretation. To wit, statute so be construed to avoid a constitutional question.  Thus, the Court could avoid the constitutional question whether a felon should be entitled to own a firearm by saying Small's conduct is not covered. Unfortunately, the Court has never said that the 2nd Amendment recognizes our natural law right to keep and bear arms. (The Ninth Circuit says we don't have a right to gun ownership. The Fifth Circuit disagrees.)  However, it would be better for the Court to avoid the potential constitutional question by holding that Japanese convictions are not covered by the statute.  If Congress disagrees, it can amend the law.

The petitioner's merits brief is here. One of Small's attorneys, Stephen P. Halbrook is an expert on all things gun-related

The government's reply brief is here.