April 27, 2005


The Supreme Court on Tuesday curbed the reach of a federal law that prohibits convicted felons from possessing guns, ruling 5 to 3 that the law does not apply to those who were convicted by courts in foreign countries.

The majority arrived at that conclusion by interpreting the statute’s reference to a conviction in “any court” to mean “any court in the United States.” Justice Stephen G. Breyer’s majority opinion said that in the absence of any indication that Congress even considered the issue when it enacted the law in 1968, the court should apply a legal presumption that “Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.”

Justice Breyer said the gun law would create anomalies if applied to foreign convictions, because foreign legal systems have made different choices of what conduct to regard as criminal. Citing the Russian criminal code as an example, he said that someone might be regarded as a felon “for engaging in economic conduct that our society might encourage.” A foreign conviction does not necessarily indicate that a person is dangerous, Justice Breyer said.

That’s true, and I’m delighted to see such a forthright acknowledgment that American values differ sharply from those of other countires.

On the other hand, quite a few domestic felony statutes have nothing to do with dangerousness, and I wonder if the promiscuous designation of crimes having no significant moral or dangerousness component as “felonies” might itself be a due process violation.

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