McCarthy Bill Reverses Supreme Court Ruling
June 1, 2005
by Joseph P. Tartaro
Executive Editor
No one knows for sure how many courageous Americans like the late Francis Gary Powers have been convicted by foreign courts for doing what someone in the US government told them to do. Maybe the CIA or the State Department knows, but they’re not broadcasting the information.
But it doesn’t matter to the absolutist anti-gunners anyway. In their minds, luckless former agents of our government like Powers or US citizens who have made easy mistakes like Thomas Lamar Bean, are lumped with drug traffickers, gunrunners, slave traders and dangerous felons when the anti-gunners seek to close more doors for would-be gunowners. When the question of rehabilitation involves guns, there is no such thing as relief or mercy in the “Zero Tolerance” minds of the anti-gunners.
At the heart of the issue of relief of disability are two seemingly simple ideas. The first deals with the widely accepted principle of prohibiting dangerous people with criminal records from legally buying and possessing firearms. The second centers on the full measure of justice with appeals in special circumstances.
What brought this issue to the fore was the fact that on Apr. 26, the US Supreme Court ruled that current federal gun law does not prohibit those with felony convictions in foreign countries from purchasing firearms in the US. The 5-3 decision in the case of Gary Sherwood Small, a Pennsylvania resident who was convicted of a firearms violation in Japan but answered “No” to the question about prior convictions on a Form 4473 during a subsequent gun purchase. Details on the court’s ruling and the issues involved were reported in the May 10 issue of Gun Week.
As soon as the court issued the Small decision, some observers expected quick action by the anti-gunners.
The very next day after the court handed down its decision, Rep. Carolyn McCarthy (D-NY), a key anti-gun activist in the US House of Representatives, introduced HR-1931, legislation to prevent individuals convicted of felonies in foreign countries from purchasing firearms in the US.
“The Supreme Court ruling opened the doors for dangerous criminals to purchase guns in this country with no questions asked,” said McCarthy in a statement released by her congressional office. “This legislation will ensure our gun laws take crimes committed in other countries into consideration before allowing a firearm purchase to go forward.”
McCarthy’s bill amends current law to state that a person “convicted in any court, including any foreign court, of a crime punishable by imprisonment for a term exceeding one year” shall not be able to possess a firearm. (Italic emphasis added to show proposed change.)
“We cannot allow convicted drug dealers, murderers, rapists, and even terrorists to purchase guns just because their crimes occurred in another country,” said McCarthy.
McCarthy’s bill allows the courts to determine the validity of foreign convictions in disputed cases. “This clause will protect individuals convicted in courts of questionable jurisdiction or legitimacy,” said McCarthy.
But therein lays the rub. It is not just a question of the jurisdiction or legitimacy of foreign courts, but whether the laws in another country are just, and whether US courts reasonably would have imposed a comparable sentence if the transgression had occurred in the US.
McCarthy’s bill attempts to drive another nail in the coffin of current law which provides for relief of disability for individuals but denies the funds to provide such relief in worthy cases—or even to discover whether any relief is worthwhile for an appellant. The anti-gunners, led by the Violence Policy Center (VPC), have been trying to eliminate relief of disability from federal law for years.
The VPC calls it a “guns for felons” program, a term which focuses on the essential difficulty in dealing with the issue in Congress. It is difficult for even staunch pro-gunners to defend the idea that any convicted felon should have his case reviewed and possibly have a disability removed.
The relief from disability program stems from a 1965 amendment to the Federal Firearms Act of 1938. The amendment was passed as a congressional favor to Winchester, then a firearms manufacturing division of Olin Mathieson Corporation. In 1962 Olin Mathieson pleaded guilty to felony counts stemming from a foreign kickback scheme. Because of its parent company’s conviction, the Winchester division could no longer ship firearms in interstate commerce. That first relief law was enacted to allow Winchester to stay in business and specifically excluded those convicted of firearms crimes. Because of its broad wording and “loose” interpretation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the law soon became what the VPC called “a convicted felons’ second-chance club.”
Some people were granted relied, and the vast majority never again posed a threat to anyone. Applications for relief of disability for individuals were processed but not in great numbers.
In 1986, when the McClure-Volkmer Firearms Owners Protection Act was passed, a process for relief of disability clearly was extended to individuals who had been convicted of crimes or were otherwise prohibited from acquiring or possessing firearms. The Act also added wording expanding the ability of federal courts to review decisions by ATF to deny relief.
But the idea of any prohibited person being rehabilitated and given relief, or of spending tax dollars on the necessary relief process, rankled many people, not just the anti-gunners. The latter view still applies to using judicial funds to grant relief, an option that many pursued with mixed jurisdictional results after ATF was first prohibited from acting on individual relief applications in 1992.
As the result of a Fall 1991 VPC study on the ATF relief program which claimed that it allowed convicted felons to regain their gun rights, Rep. Larry Smith (D-FL), Rep. Ed Feighan (D-OH), Sen. Frank Lautenberg (D-NJ), and Sen. Paul Simon (D-IL) introduced a measure that would prohibit ATF from granting convicted felons relief from disability.
At the Capitol Hill press conference announcing the introduction of the bill, the VPC released a nine-page excerpt from its then forthcoming March 1992 study, “Putting Guns Back Into the Hands of Criminals: 100 Case Studies of Felons Granted Relief From Disability Under Federal Firearms Laws.” The excerpt described 10 selected case studies obtained by the VPC from ATF under the Freedom of Information Act (FOIA). According to figures contained in the study, from 1985 to 1991, ATF spent more than $21.7 million to investigate those requesting relief from disability. From 1985 to 1990, of the 7,261 who sought restoration of their firearms rights, VPC said 2,307 were eventually granted relief. Of the 386 granted relief in 1985, 14 were eventually rearrested for unspecified crimes (3.6%). Of the 491 granted relief in 1986, 23 were eventually rearrested (4.7%).
But even the VPC study showed that the relief was probably justified in over 90% of the cases.
After Congress denied the use of ATF funds in 1992, it continued the prohibition in every subsequent appropriations bill. Attempts to restore the funds on Capitol Hill during the mid- and late 1990s failed to win approval. VPC and other anti-gunners produced further studies and continued to address the issue in public forums as a proposal to arm felons.
Court Relief Sought
Because there was nowhere else to turn, several people who believed that they had just cause for relief turned to the courts under the review of denial concept. Among them was Thomas Lamar Bean, a former federally licensed firearms dealer who was convicted in Mexico of having a box of shotshells in his truck when he crossed into that country from Laredo, TX, for dinner after a gun show. Bean was convicted of a felony in Mexico and later obtained some relief when his sentence was reduced and he was returned to the US under court supervision in a special deal. (The controversy in Bean’s case later caused the Mexican government to downgrade Bean’s crime to a misdemeanor. But that didn’t help Bean who had been convicted of a felony in a foreign court.)
Bean’s case eventually went all the way up to the US Supreme Court, the same tribunal that later said Small’s felony conviction in Japan didn’t count. But in Bean’s case, the court reversed lower courts which had granted the luckless Texan relief.
The two case decisions are confusing to many because they answer different parts of the same question, and neither fully addressed the issue of relief of disability itself. In the Bean decision, the high court ruled that power to grant relief was vested in the executive branch and not the courts, which had no authority to grant relief, only to review denials. In the Small case, the high court found that Congress did not spell out foreign courts as part of the “any court” language in the Gun Control Act.
Essentially, Small had falsified his answer on the Form 4473, and Small won. Bean made a simple mistake, and he lost.
Back in 1962 espionage became big news as the “U2 Incident” grabbed world headlines. CIA pilot Gary Powers was shot down as he flew the U2 high-altitude plane designed for covert surveillance, over Soviet territory, sparking one of the biggest international crises of the Cold War. The US demanded his safe return. The USSR wanted to know what he was doing up there in the first place. The Eisenhower Administration was embarrassed and put at a diplomatic disadvantage at a crucial time in geo-political affairs.
Shot down on May 1, 1960, Powers was convicted by a Soviet court and imprisoned for two years until 1962, when he was exchanged for Soviet Col. Rudolf Abel in the most dramatic East-West spy swap ever to occur in Cold War Berlin. Powers stepped on to the eastern end of the Berlin’s Glienicke Bridge on Feb. 10, 1962. At the other end of the bridge, stood Col. Rudolf Abel, a Soviet master-spy seized earlier by US security agents after setting up a spy network in New York City in the late 1950s.
At a precisely arranged signal, the two men strode onto the bridge, marching purposefully towards one another, Powers heading westward, Abel eastwards, according to American U2 Spy Plane. In the middle of the bridge they passed each other silently, with barely a nod of their heads. That spy-swap operation was to be the forerunner of many such East-West prisoner exchanges to take place on the Glienicke Bridge over the next 27 years in Berlin.
Criticized when he returned to the US for not ensuring the then-revolutionary plane was destroyed or killing himself with poison, Powers was cold-shouldered by his former employers at the CIA and eventually died in 1977 at the age of 47 when a television news helicopter he was piloting crashed in Los Angeles.
Had Powers lived and wanted to purchase a firearm legally in the US after 1992, there was no way he could have sought relief from the government he served. While US law provided the authority to conduct investigations on applications for relief of disability for firearms purchases, it could not even accept such applications.
While relief of disability is shut down for individuals, and McCarthy is trying to close a loophole created by the Supreme Court in the Small case, relief of disability as in the 1960s Olin case is still available. Ccorporations may fund the investigations for relief, but other federal laws prohibit individuals from paying fees for their relief investigations.
On May 1, 2000, US officials presented Powers’ family with the Prisoner-of-War Medal, the Distinguished Flying Cross and the National Defense Service Medal during a 30-minute ceremony held at the Beale Air Force Base, in California, home to the modern U2 force. It marked the 40th anniversary of the incident.
“The mind still boggles at what we asked this gentleman and his teammates to do back in the late 1950s—to literally fly over downtown Moscow—alone, unarmed and unafraid,” Brig. Gen. Kevin Chilton, the 9th Reconnaissance Wing Commander told the some 350 people gathered at the Beale Base ceremony.
CIA and Air Force officials presented the awards, something the pilot’s son, Francis Gary Powers Jr., saw as an important step in recognizing those who served their country during the Cold War. The ceremony ended with a fly-by of a lone U2 plane.
But if McCarthy’s bill passes, latter day Gary Powerses will not be able to buy a firearm, no matter how many medals and generals honor him.
Return to Archive Index
