- The Washington Times - Thursday, October 17, 2002

A Supreme Court case that both sides in the war over gun rights call a potential turning point in Second Amendment law was argued yesterday without mentioning the linchpin issues surrounding individual gun ownership.
The government seeks to overturn a federal court order restoring Texas gun dealer Thomas Bean's right to own firearms and, thereby, his eligibility to regain a gun-dealer's license lost after a felony conviction in Mexico.
In order to stop felons from regaining gun rights, Congress in 1992 cut off the $4 million a year the Treasury Department's Bureau of Alcohol, Tobacco and Firearms spent pondering applications to restore gun rights. When ATF returned Mr. Bean's file without acting, he went to court. The 5th U.S. Circuit Court of Appeals upheld a district judge's ruling restoring his gun rights.
Instead of the predicted forum on the scope of gun rights, yesterday's debate hinged on a jurisdictional matter whether the ATF's refusal to consider the request was a denial that may be appealed to federal court and other mundane aspects of the complex Administrative Procedures Act.
"We think it is not a denial," Deputy U.S. Solicitor General Edwin Kneedler said in arguing against letting Mr. Bean own guns. "ATF is not granting or denying relief."
Mr. Kneedler seized on Justice Anthony M. Kennedy's suggestion that restoring a felon's right to own a gun is a gift, like a pardon.
"A matter of grace that may be withheld," Mr. Kneedler agreed, likening it also to the Justice Department prerogative not to deport aliens despite a removal order.
Washington lawyer Thomas Goldstein argued that the government cannot simply let applications stack up without acting upon them.
"This is a safety valve," he said, arguing for court intervention in extraordinary cases like Mr. Bean's.
"The plain meaning of the word 'denial' is a refusal to grant the relief requested," he said.
Mr. Kneedler's only overt reference to the underlying issue employed the phrase "restoration of firearms ability."
That usage normally is preferred by such gun-ownership opponents as the Violence Policy Center, whose research spurred the original law and whose friend-of-the-court brief supports what it calls an appeal by "the most pro-gun attorney general in history, John Ashcroft."
"A case that had never been about the Second Amendment became a Second Amendment case thanks to John Ashcroft," said Mathew Nosanchuk, litigation director for the Violence Policy Center.
In May the Bush administration said in two unrelated Supreme Court cases that the Second Amendment right to own guns is an individual one.
"The current position of the United States is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms," Solicitor General Theodore Olson wrote then. But he also said the Justice Department would defend existing gun laws as it did yesterday.
Mr. Olson did not argue the Bean case, but sat nearby taking notes throughout.
Another of three friend-of-the-court briefs citing constitutional issues came from the Second Amendment Foundation, whose spokesman Dave LaCourse called the case a potential "blockbuster" to clarify the "fundamental individual right to own a firearm."
Mr. Goldstein defended Mr. Bean's lower-court victory with rhetoric that Justice Stephen G. Breyer called "powerful" despite lack of enthusiasm for the objective.
"I agree with you that you found a literal way around it," said Justice Breyer, who nonetheless said he opposed Mr. Goldstein's argument that Congress had not blocked the courts in its order withholding ATF from using any funds to process applications for restored gun rights.
Mexico since has downgraded Mr. Bean's offense taking 200 bullets across the border and back in what Mr. Bean calls an oversight to the equivalent of a misdemeanor. Federal and state courts in Texas have ruled that Mr. Bean is not a felon.


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