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Judges can't review gun rights inaction

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   Dec. 10, 2002 at 11:23 AM
WASHINGTON, Dec. 10 (UPI) -- The Supreme Court Tuesday made it harder, if not impossible, for federal courts to restore gun rights to felons who have served their time.

The action came in the case of a Texas gun dealer.

The case before the justices contains what may be a textbook example of congressional split-personality.

Congress gave the authority to the Treasury Department in 1965 to restore gun rights to convicted felons. But for the last decade, in annual appropriations laws, Congress has explicitly prohibited Treasury from acting to restore those gun rights.

The case put the Bush administration in the unusual position of arguing for a limitation on an American's right to own a firearm.

In two recent non-related cases, the U.S. Solicitor General's Office has told the Supreme Court in briefs that individuals have a Second Amendment right to keep and bear arms.

Though the Supreme Court has never ruled on that purported constitutional right, the administration's position represented a departure from those of past administrations.

In the Texas gun rights case, however, a top Justice Department lawyer argued in October that Congress has shown an express desire not to let felons have weapons, even if the felons represent no threat to the public safety and even if Congress has not revoked the law giving the Treasury Department the authority to restore firearms rights.

Since Congress has made its will clear, the administration argued, the courts have no right to interfere.

For many years, federal law has made it illegal for convicted felons to transport, possess or receive firearms and ammunition.

In 1965, Congress enacted a federal law authorizing the Treasury secretary, through the Bureau of Alcohol, Tobacco and Firearms, to restore firearms rights to felons if they were not "dangerous to public safety" and if the restoration of such rights was not "contrary to the public interest."

However, in 1992 the non-profit Violence Policy Center released a study showing that ATF had approved about a third of the 22,000 requests from felons for restoration of gun rights.

The ATF later conceded that 69 of the felons who had been granted restoration of gun rights had been re-arrested for crimes such as attempted murder; first-degree sexual assault; abduction or kidnapping; child molestation; illegal possession of a machine gun and drug trafficking.

Since that revelation, Congress has told the Treasury Department in annual appropriations laws that it may not spend money to act on requests from felons who want their firearms rights restored.

Then came the case of Thomas Lamar Bean.

A Treasury-licensed gun dealer, Bean attended a gun show in Laredo, Texas, in March 1998. Afterward, Bean and three associates decided to have dinner across the border in Nuevo Laredo, Mexico.

Bean asked his assistants to remove all guns and ammunition from his car. Unfortunately, they forgot to remove about 200 rounds of ammunition in the back seat.

The car was stopped at the border, and Mexican officials charged Bean with introducing ammunition into Mexico, a felony.

After being held in custody for nearly two months, Bean was tried and sentenced to five years in prison. He only remained in a Mexican prison for four months because of a treaty between the United States and Mexico allowing for the exchange of each country's imprisoned nationals.

Under the treaty, Mexicans are allowed to serve out their time in Mexican prisons and U.S. nationals are allowed to serve out their time in this country.

Bean was transferred to a prison in Texas, where he was released by a federal judge and placed on 10 months probation.

When he applied to have his firearms rights restored, however, he received a form letter from Treasury saying it did not have the authority to act on his request.

Bean took his case to federal court. There the same federal judge who had freed him from prison ruled that just because Congress had tied the ATF's hands, it did not mean that firearms rights could not be restored.

The judge ruled that the prohibition was not meant to be used against like Bean, who should never have lost his rights in the first place.

The judge ruled that ATF's inaction in response to Bean's request was equivalent to a denial of his request. Under federal law, a U.S. court can review denials by federal agencies.

The judge also concluded that Bean, then 60, was no threat to anyone and restoring his rights would not be "contrary to the public interest."

When a federal appeals court agreed, the Bush administration asked the Supreme Court to review, and the justices heard argument in October.

Tuesday, a unanimous Supreme Court reversed the lower courts.

Speaking for the entire court, Justice Clarence Thomas said the absence of a application denial by the ATF "precludes judicial review" by a federal judge, according to U.S. law.

Federal gun law "leads us to conclude that an actual adverse action on the application by ATF is a prerequisite for judicial review," Thomas said.

--

(No. 01-704, United States vs. Bean.)

© 2002 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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