April 27, 2005

Small v. US Decided (tip to VC)

The Supreme Court has ruled on Small v. US, and Breyer wrote a decision for Stevens, O'Connor, Souter and Ginsburg that sided with Small. Scalia and Kennedy joined with Thomas in dissent (Rehnquist took no part).

Small was arrested for possessing a firearm after being convicted in "any" court of a gun charge - specifically, he was convicted of a gun charge in a Japanese court. The crux of the case came down to whether "any court" means "any US court." I side with the left Justices here and with Small: the phrase "any court" has to mean "any US court." This is for two related reasons.

One, if we have to be literalist and assume that "any court" could include foreign courts, then it could include non-governmental courts. This would mean that para-state institutions like Pakistani or Sudanese shari'a courts in backwoods Islamist areas count in "any court." It would mean that a group of East german radical college students convening a mock court count in "any court." If you cannot infer that it means American courts then you can't infer that it means government courts. That would be absurd by itself, but it's unconstitutional for a very clear reason - which is my second point (next).

Two, convictions in non-US courts often cannot be reviewed and often involve weaker guarantees of freedom and due process. Japan, for instance, is notorious for having a near-perfect conviction rate, aided by weaker civil protections, occasional use of very tough interrogation (torture, basically) and a general societal impulse to value obedience and order over freedom and due process. It's still basically a free and prosperous country, and one Americans should not be afraid to live, work or travel in, but it doesn't have all our laws, rights and customs.

What about, say, North Korea or Cuba? Those are courts, too. There's very little chance that Papa Fidelito is going to give us access to review a case in Cuban courts, let alone protect due process rights of the accused. This is true to some degree for any country. Even if the country in question has a good recored on due process, can we really expect review and appeals in US courts of foreign convictions? That's not going to happen.

I would argue it's simply unconstitutional in most cases to use a foreign conviction in US courts, unless every trial protection and due process right given in the US is guaranteed in those proceedings. This is effectively impossible, and the rights of appeal and so forth are imperfect. In at least most and maybe all cases, a foreign conviction ought not result in lost rights in the US. The exemption might be immigration proceedings and foreign nationals in the US. My sense is that keeping out immigrants based on conviction in foreign courts of certain crimes might be a good idea and is almost certainly acceptable from a constitutional standpoint.

However, absent that, I believe it's safe to infer the "US" modifies the word "court." Why? Because they wouldn't have meant literally any court that any single person could fake. It wouldn't mean the mock trials of Bush and Blair and Howard for war crimes, and it wouldn't mean the travesties of justice that go on in North Korea and so forth. It wouldn't mean some bigoted shari'a court (as opposed to say, a run of the mill marriage-focused Islamic court) and it certainly wouldn't include Stalin's show trials.

Yet if we accept the literalist interpretation, then Stalinist show trials and college radical mock courts would be included as "any court." Since it's obvious they didn't mean these stupid or criminal conventions in the phrase "any court" the logical alternative is they meant the US court system, so that they could eliminate the distinction between federal and state convictions. It would be silly to assume they implicitly meant "any legitimate court" or "any court that protects due process" but not assume they meant "any US court." All three are implicit assumptions, and therefore non-literalist.

And again, I'm not entirely clear on the full boundaries, but it seems unconstitutional in my eyes that we might allow in convictions from other countries where various trial protections and due process rights were not protected. Maybe it would be okay as long as Japan or France or England or wherever else in question followed US protections to an acceptable threshold (meaning the same expectations held of US criminal trials) but I doubt that situation is common if it exists at all. We can't take away Small's rights if his original trial didn't conform to all US expectations of our home-grown criminal trials (possible exceptions being foreign nationals).

As noted elsewhere, it is interesting that the pro-gun Justices took the literalist position against Small and the anti-gun (pro-control?) Justices took the implicit position for Small. Of course, the Second Amendment was not played up really at all. That strategy seems to have worked, considering Small won the case.

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