Supreme Court Rules Only U.S. Arrests Matter
When Gary Small walked into a sports store in his hometown of Delmont, Pa., to buy a pistol, he probably did not see himself as the central figure in a Supreme Court case. But that is what he became. Before walking out of the store with his 9-millimeter pistol on June 2, 1998, he filled out the mandatory federal form. It asked whether he had ever been convicted “in any court” of a crime punishable by a year or more in prison. Fatefully, he answered “no.”
In fact, Mr. Small had never been convicted of any crime – in the United States. He had, however, run afoul of the law in Japan. The Customs authorities there became suspicious of him in 1992, when he shipped three electric water heaters from the United States to Japan, supposedly as gifts. When he picked up the third water heater at the Okinawa airport, the authorities opened it and found two rifles, eight pistols and more than 400 rounds of ammunition, according to court papers. Mr. Small was convicted in Japan in 1994 of smuggling guns and sentenced to five years in prison there. Paroled in the spring of 1998, he returned to the United States and his rendezvous with legal history.
A federal district court rejected his argument, and Mr. Small entered a conditional plea of guilty, receiving an eight-month sentence but remaining free on bail while he appealed the district’s court’s refusal to dismiss the charge. The United States Court of Appeals for the Third Circuit, based in Philadelphia, agreed with the district court. But today, the Supreme Court sided with Mr. Small, ruling 5 to 3 that the phrase “convicted in any court” applies only to convictions in the United States. “Congress ordinarily intends its statutes to have domestic, not extraterritorial, application,” Justice Stephen G. Breyer wrote for a majority that also included Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg.
To include foreign convictions, the majority reasoned, would raise the possibility of tainting a person who had been caught up in a legal system lacking American standards of fairness. Singapore imprisons people for up to three years for vandalism, the majority noted by way of example. In dissent, Justices Clarence Thomas, Antonin Scalia and Anthony M. Kennedy said, among other things, that “any” means what it says. “Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year,” Justice Thomas wrote. “The clear terms of the statute prohibit him from possessing a gun in the United States.”
For once, I’m in agreement with Stevens and disagree with Thomas and Scalia. The idea that one would have to disclose convinctions in foreign courts is simply mindboggling. That the Justices who rail against the use of international judicial precedent see it differently is rather stunning, too.
As an aside, I should note that Chief Justice Rehnquist did not participate in the voting. Given his poor health of late, that can’t be a good sign.
Update: Apropos the above, the Washington Times coverage of the forum featuring Scalia, O’Connor, and Breyer last week is particularly instructive.
Justices argue international law (Apr. 24)
Supreme Court Justices Antonin Scalia, Sandra Day O’Connor and Stephen G. Breyer clashed last week over the role of international law and foreign judges at a rare group discussion in Washington. At the forum, broadcast on C-SPAN television last week, Justice Breyer appeared the most sympathetic to justices citing international law and foreign court decisions, saying the high court is faced with “more and more cases” in which the laws of other countries are relevant. “Where there is disagreement is how to use the law of other nations where we have some of those very open-ended interpretations of the word ‘liberty’ or ‘cruel and unusual punishment,'” he said. “It’s appropriate in some instances to look to how other courts might have decided similar issues,” although laws of other countries “do not bind us by any means.”
Justice Scalia said “foreign law is totally irrelevant” on most issues, such as the original meaning of the Constitution or what Americans now see as fundamental rights. “It doesn’t show what the Constitution originally meant, and it doesn’t show what is fundamentally important to Americans today,” he said. “It shows what’s fundamentally important to somebody else today.”
Justice O’Connor, in her first public remarks on the issue, called the debate over the role of foreign law “much ado about nothing.” “There are areas where we look to foreign law to interpret treaties that other nations and we have joined,” she said. “Of course we look to foreign law.” Although it may not help to consult foreign law in interpreting the meaning of the First Amendment, she said, it does not hurt to be aware of what other countries have done when weighing such evolving concepts as “cruel and unusual punishment.”
Amusingly, Breyer wrote the opinion for the Court saying that international convictions are irrelevant, with O’Connor joining. Scalia dissented, even though he thinks foreign opinions worthless.
Now, granted, convictions in foreign courts are somewhat different from the judicial philosophy of overseas judges. Still, my position is at least consistent: Neither should have any bearing in American law. Even with respect to treaties, all that’s relevant is the text of the treaty and the debate that took place in the U.S. Senate. The rest is perhaps interesting from an intellectual view but irrelevant from a judicial standpoint.