Wednesday, November 3, 2004


The Supreme Court considered yesterday whether people convicted of a crime overseas can be barred from owning a gun in the United States, with the argument at times centering on how the absent Chief Justice William H. Rehnquist might rule.

U.S. law forbids felons from owning guns, with a few exceptions for antitrust and trade violations. At issue in the case is whether Congress meant to include foreign convictions when it criminalized firearm possession by anybody convicted in “any court.”

“I’m going to ask a question the chief justice would ask if he were here because he always asked it,” said Justice Antonin Scalia. “If you had to pick your best case in interpreting the word ‘any,’ what would it be?”

Government lawyer Patricia Millett responded that the Supreme Court had always given the word “any” a broad meaning to help promote gun safety. Then Justice Ruth Bader Ginsburg jumped in, citing a case Chief Justice Rehnquist authored that she said suggested otherwise.

“When Congress legislates, it usually is thinking only about the United States,” she said, contending that lawmakers never contemplated foreign convictions. “The chief [justice] made the point.”

Chief Justice Rehnquist missed a third day of work after revealing Monday he is undergoing treatment for thyroid cancer, news that has prompted intense retirement speculation.

However, the chief justice has reserved the right to rule on the cases heard this week based on the written briefs and transcripts of the oral argument. Still, some Supreme Court observers have said a Bush re-election might speed up the conservative justice’s decision to retire after 32 years on the high court.

The case involves Gary Sherwood Small of Pennsylvania, who answered “no” to a felony conviction question on a federal form when he bought a handgun in 1998, even though he was convicted in Japan for violating weapons laws.

Small was indicted in 2000 for lying on the form and for illegally owning two pistols and 335 rounds of ammunition. He later entered a conditional guilty plea pending the outcome of the Supreme Court ruling.

Small’s attorney, Paul D. Boas, argued that the gun law shouldn’t apply to foreign crimes, noting that other sections in the statute referred only to U.S. convictions when it created the exceptions for antitrust and trade violations.

“We can’t ignore the entire statutory scheme here, which time and time again refers to domestic matters,” Mr. Boas said.

To Justice Scalia’s question about the best case that Chief Justice Rehnquist would want to know, Mr. Boas said he would have to think about it. “He asked a good question,” Mr. Boas jokingly responded.

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