GUN CONTROL
Government regulation of the manufacture, sale, and possession of firearms.
Assault Weapons Ban Expires
In September 2004, the federal government's ban on the sale and distribution of certain classes of assault weapons ended. Gun-control advocates and those opposed to gun control viewed the law, which went into effect in 1994, as being so porous as to be ineffective. Nevertheless, the issue continues to draw heated debate as both sides argue over whether to reinstate the ban.
The NATIONAL RIFLE ASSOCIATION (NRA), which called the ban "misguided," cheered its demise. Other groups predicted that allowing the ban to expire would have tragic consequences for the country.
The ban took effect in September 1994, under the signature of President BILL CLINTON. The law contained a provision that it would expire in ten years unless Congress specifically reauthorized its extension.
The 1994 ban outlawed 19 weapons by name, including TEC-9s, Uzis, and AK-47s. Some of the banned weapons had already been banned by a 1989 firearms-importation law. That law made it illegal to possess semiautomatic weapons that had been manufactured after the ban went into effect if they accepted detachable magazines and had at least two features from a list of banned items.
Manufacturers increased production prior to the ban's implementation. When the ban went into effect, it exempted more than 1.5 million privately owned assault weapons. Moreover, throughout the duration of the ban, manufacturers legally produced more than 1 million assault weapons, and they were able to do so because of various loopholes in the law. For example, they made non-collapsible stocks rather than collapsible ones. They added muzzle brakes and sawed off bayonet lugs. The changes turned the weapons from illegal military-style weapons to legal sports weapons, but these so-called post-ban assault weapons were not significantly different from their now-illegal predecessors.
Since expiration of the ban, many gun manufacturers and sellers claimed that they saw a slight, temporary spike in sales but that they had seen no sustained surge in sales of the weapons. Gun-control advocates question the gun industry's self-reported information.
The use of assault weapons in gun crimes is estimated to be between two and eight percent of the total, but the weapons make widespread headlines when they are used, such as in the 2002 Washington, D.C., sniper attacks. Since the early 1990s, gun crime in the United States has dropped dramatically. Some observers credit the ban; others cite stiffer criminal sentences.
On March 14, 2005, Senators Diane Fein-stein (D-CA.), John W. Warner (R-VA), Charles Schumer (D-NY), and Mike DeWine (R-OH) introduced legislation to reestablish the assault
weapons ban. In a congressional press release, Feinstein said the expiration of the ban has brought "open season for criminals who want the most dangerous types of military-style assault weapons" and that the weapons are valued by "terrorists, gang members, and grievance killers."
Senator Schumer credited the drop in gun crime in the United States during the 1990s in part to the ban. He stated, "There is no legitimate use for these weapons, period. They are designed to kill people in great numbers and have been used to target our police officers around the country. The SECOND AMENDMENT can thrive while we take limited and reasonable measures to protect American families from gun violence."
The 2005 version is identical to the 1994 version. Feinstein has said that she would like to toughen the assault weapons ban. She has not done so because she believes that doing so would make congressional approval even more difficult to obtain.
The Senate's proposed ban exempts 670 hunting and recreational rifles by name. It also exempts certain other types of weapons, such as antique and bolt-action weapons.
Feinstein's proposed ban retains the 19 specifically named weapons that originally were banned in 1994. It also "bans the importation of large capacity ammunition feeding devices" and "all semiautomatic pistols that can accept a detachable magazine and have at least two listed features, including a pistol grip or thumbhole stock; folding stock or telescopic stock; flash suppressor or a threaded barrel capable of accepting a flash suppressor; bayonet mount; or grenade launcher." Other semiautomatic pistols that are banned include those that "…have at least two listed features, including an ammunition magazine that attaches outside of the pistol grip; a threaded barrel; a shroud that permits the shooter to hold the firearm with the nontrigger hand without being burned; or a manufactured weight of at least 50 ounces (unloaded)."
As many as 70 per cent of Americans support the ban, according to many polls. President Bush has said that he would approve the renewal of the assault weapons ban if Congress were to pass it. He has been criticized, however, for not encouraging Congress to reinstate the ban. In 2004, when asked why Congress has not reinstated the assault weapons ban, Senator John McCain (R-AZ) stated, "The NRA rules here." According to Senator Schumer, the problem stems from the fact that those who support the ban do not base their voting decisions on the issue, but those who oppose the ban do, and thus the latter have a powerful voice.
Several states, including California, Massachusetts, Hawaii, and New York, have enacted their own bans on assault weapons. National police organizations have typically endorsed these bans.
Small v. United States
In April 2005, the U.S. SUPREME COURT rendered a decision that limited the application of a federal gun-control law. The case focused on the prosecution of Gary Sherwood Small, who had been convicted by a Japanese court on charges of smuggling firearms into Japan. After he returned to the United States, he was charged with possessing a firearm in violation of a federal statute that forbids anyone with a criminal conviction from possessing a firearm or ammunition. The Court held that the Japanese conviction did not count for purposes of the federal statute. The ruling resolved a split of opinion among the lower federal courts.
On April 12, 1994, a Japanese district court convicted Small of violating the Japanese Act Controlling the Possession of Firearms and Swords, the Gunpowder Control Act, and the Customs Act. These convictions were punishable by terms of imprisonment of more than one year each. The court in Japan sentenced Small to prison for five years, of which he served two. After Small served time in Japan, he returned to the U.S. In June 1998, he purchased a pistol at a gun shop in Pennsylvania but did not disclose the history of his Japanese conviction on the federal form. He purchased the gun from a federally licensed firearms dealer.
A federal statute forbids any person "who has been convicted in any court of…a crime punishable by imprisonment for a term exceeding one year" to possess a firearm or ammunition. 18 U.S.C. §922(g)(1) (2000). The statute also forbids anyone from making a false statement to a federally licensed firearms dealer. 18 U.S.C. §922(a)(6). Small was indicted by a federal grand jury on August 30, 2000 on four counts related to these statutes.
Small, a decorated Vietnam combat veteran and former police officer, filed a motion with the U.S. District Court for the Western District of Pennsylvania to dismiss the indictment against him. He argued that his conviction by a Japanese court should not count as a predicate offense under 18 U.S.C. §922(g)(1). The court, in an opinion by U.S. District Judge Robert Cindrich, reviewed the meaning of the language "any court" in the statute. After reviewing precedent from other jurisdictions, the court held that the Japanese conviction should count for purposes of the statute. "'Any' court means any court and there is nothing in the plain and unambiguous language of Section 922 indicating that Congress intended to exclude foreign convictions from such a broad term," Cindrich wrote. United States v. Small, 183 F. Supp. 2d 755 (W.D. Penn. 2002).
Small also argued that even if a foreign conviction should count under the statute, the Japanese conviction should not count because the court in Japan had deprived him of a fundamentally fair trial. He alleged numerous violations of rights that he would have had in a domestic court, including: denial of the right to bail, interrogation for a period of 25 consecutive days, denial of a right to a speedy trial, replacement of a judge in the middle of the proceedings, and numerous other allegations. The district court reviewed each of these contentions but found that the trial in Japan had been fundamentally fair. Thus, the court denied Small's motion. United States v. Small, 183 F. Supp. 2d 755 (W.D. Penn. 2002).
Small entered a conditional guilty plea with the district court on March 14, 2002. The district court sentenced Small to eight months in prison, pending an appeal of his motion to dismiss. Small appealed the district court's decision on the motion to the U.S. Court of Appeals for the Third Circuit. In a relatively short opinion, the appellate court affirmed the district court's ruling. According to the Third Circuit, the district court did not err in holding that convictions in foreign courts should count for purposes of 18 U.S.C. §922(g)(1). It also held that the district court had properly reviewed the Japanese conviction to determine that the process had been fundamentally fair. United States v. Small, 333 F.3d 425 (3d Cir. 2003).
The Third Circuit ruled consistently with the Fourth Circuit and the Sixth Circuit, each of which found that foreign convictions should count for purposes of Section 922(g)(1). United States v. Atkins, 872 F.2d 94 (4th Cir. 1989); United States v. Winston, 793 F.2d 754 (6th Cir. 1986). However, the Second Circuit and the Tenth Circuit reached the opposite conclusion. United States v. Gayle, 342 F.3d 89 (2d Cir. 2003); United States v. Concha, 233 F.3d 1249 (10th Cir. 2000).
The Supreme Court granted certiorari to resolve the split in the lower courts. In an opinion by Justice STEPHEN BREYER, the Court disagreed that the term "any court" was unambiguous. The Court instead investigated whether Congress could have intended to include both foreign and domestic convictions when it drafted the statute. According to Breyer's opinion, "The statute's language does not suggest any intent to reach beyond domestic convictions. Neither does it mention foreign convictions nor is its subject matter special, say, immigration or terrorism, where one could argue that foreign convictions would seem especially relevant. To the contrary, if read to include foreign convictions, the statute's language creates anomalies." After citing numerous instances in which the inclusion of foreign convictions would render the application of the statute difficult, the Court held that the statute should only apply to domestic convictions. Accordingly, the Court reversed the Third Circuit's decision. Small v. United States, No. 03-750, 2005 WL 946620 (U.S. 2005).
Justice Clarence Thomas dissented, admonishing the majority for its method of statutory construction. "The Court never convincingly explains its departure from the natural meaning of §922(g)(1)," Thomas wrote. "Instead it institutes the troubling rule that 'any' does not really mean 'any'…"
