Govt. Lawyer Argues Against Second Amendment Rights For Felons

By Robert B. Bluey | July 7, 2008 | 8:20 PM EDT

( - When Thomas Lamar Bean was convicted of a felony four years ago he had no choice but to surrender his Second Amendment right to bear arms. But when Bean went to restore that right, as he and all felons may do, he was told by the Bureau of Alcohol, Tobacco and Firearms (ATF) that the agency was no longer accepting applications under a congressional order.

Bean took his case to a federal judge, which he considered the likely next step. But after the judge approved his application, the U.S. government stepped in and said the court erred by restoring Bean's right to own and carry a gun.

The case, heard Wednesday by the U.S. Supreme Court, could have broad implications on the right of millions of Americans to bear arms. In any event, it will at least clarify how, and if, felons can get their Second Amendment rights restored.

The Justice Department maintains the federal judiciary has no place ruling on applications like the one submitted by Bean, in the absence of an investigation by the ATF. Deputy Solicitor General Edwin S. Kneedler said a judge should only intervene once the ATF officially rejects an application, which did not happen in Bean's case.

But Bean's attorney, Thomas C. Goldstein, argued that ATF's refusal to even look at his client's application amounted to a rejection. Based on that logic, Goldstein said Bean took the appropriate action by asking a federal district court to hear the case.

At the center of the debate is a congressional mandate that restricts the ATF from spending money on investigations regarding felons' applications. Under a 1965 law, felons can ask the ATF to restore their Second Amendment rights as long as they no longer pose a danger to society.

But in 1992, facing financial concerns and fears that violent criminals might gain access to weapons, Congress barred the AFT from spending money to investigate applications from felons -- essentially halting the program. At the time, the ATF was spending an average of $3,700 per investigation and processing between 3,000 and 4,000 cases per year.

Wednesday, Goldstein tried to convince Supreme Court justices that the congressional restriction did not apply to the secretary of the Department of the Treasury, whom Bean addressed in sending in his application. If the court buys into that reasoning, it could determine that the ATF's refusal to take action amounted to a denial.

But Goldstein at times found some of the justices skeptical of his argument.

Justice Ruth Bader Ginsburg doubted the treasury secretary would be inclined to act on an application when such a review was typically delegated to a subordinate division like the ATF.

Ginsburg also questioned whether courts had the authority to review such applications.

"It would be extraordinary for district courts to take up these matters," she said. "Why would Congress give them that authority?"

Goldstein acknowledged that federal trial courts should not be the first step in the application review process. But he said the ATF's refusal to take action was a denial and the court was merely acting from that base.

Kneedler countered that Congress did not give the treasury secretary or the courts the authority to act on an application. Kneedler warned that courts would have "extraordinary power" if the justices sided with Bean.

Justice Anthony Kennedy speculated about whether Congress had only intended to restrict ATF from carrying out the investigations and whether another agency under the Department of the Treasury could assume those powers.

Under that same premise, Justice John Paul Stevens asked Kneedler what would happen if the treasury secretary and ATF officials conducted the investigation on the weekend while not on the job.

"The order would still be done in the ATF's official capacity," Kneedler replied.

With no one at the AFT or treasury department able to make those decisions, Justice Sandra Day O'Connor asked Kneedler whether the refusal to address applications amounted to a de facto denial.

"Congress said the ATF is barred from acting on an application," Kneedler responded. "Congress only intended that the courts review agency actions." Since the ATF took no action, Kneedler said, the lower court should not have approved Bean's application.

Now the justices must decide if courts have the authority to restore the Second Amendment rights of felons.

Even though the Bush administration is typically aligned with supporters of the Second Amendment, the case illustrates a subtle shift in the administration's stance by opposing the rights of some individuals, albeit felons, to bear arms.

But Bean is not a typical felon. He was convicted under Mexican law when he crossed the border in Texas one evening after a gun show in 1998. When Mexican police stopped his car, the officers found 200 rounds of ammunition that had been inadvertently left in his vehicle. He was charged with smuggling ammunition.

After spending six months in a Mexican jail, he was released to the United States under a treaty. His charges were reduced to probation, but because he was convicted of a felony under Mexican law, he had surrendered his Second Amendment rights and lost his license as a gun dealer.

The case is United States v. Bean.

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