GUEST COMMENTARY: By Leslie Field
18 U.S.C. Sec. 922 (g)(1) forbids “any person . . . convicted in any court
. . . of a crime punishable by imprisonment for a term exceeding one year . .
.to . . . possess . . . any firearm.” (Emphasis added.)
In Small vs. United States, 544 U.S. _____, the United States
Supreme Court held that a Japanese Court’s conviction of a U.S. citizen for
smuggling guns onto the Japanese controlled Island of Okinawa, being a foreign
conviction, fell outside the scope of Sec.922 (g)(1).
The Supreme Court in the Small case divided almost evenly over
the meaning of the words “any Court,” which, at first glance, might seem to be
a simple matter of interpretation. The Majority, lead by the more liberal
members, ruled that “any Court” meant any Court within the U.S. or its
possessions, and not any Court or Tribunal in the world, when it came to the
issue of gun rights, which the Majority appears to have tacitly acknowledged is
of fundamental importance, given the language of the Second Amendment of the
United States Constitution.
It might serve us well, before proceeding further, to examine the assumptions
prevailing in the world to understand where the rights of any individual
citizen originate. There are two views: according to our basic documents,
individuals are endowed “by their Creator” with “inalienable rights”--that is,
the rights pre-exist and are vested in the individual before the governmental
process commences; the government may be able to logically limit the exercise
of rights, but cannot deprive the citizen of the substance of that right with
which he (or she) comes naturally equipped. Thus, the Second Amendment states
that the right to arms “shall not be infringed,” meaning it pre-existed. The
second and more prevalent view of the governments of the world is that it is
the state (i.e., the government) which is the repository of all rights, some of
which the government in question may graciously grant, in the nature of
privileges, to the no-doubt grateful citizenry. Needless to say, what the
government giveth, the government can taketh away, or limit in what it
perceives in its sole judgment as being necessary to its own security, or
desirable for its convenience.
The importance of the above distinction is that under the rule of most
governments currently existing, the Courts are not independent of the political
will of the government upon which they depend for their relatively limited
existence. For the theory of operation of such Courts, the reader is referred
to the extreme advocacy of such a position in the writings of Hans Frank, the
sometimes highest legal authority in Germany during the period 1933-45, or the
voluminous commentaries that accompanied the promulgation of legal codes in
Russia between 1917 and 1990. While most governments now in power are not as
extreme in their naked assertion of power over courts as the Nazis and
Communists may have been, they still reserve the ultimate decision on
fundamental issues to themselves through basic practical mechanisms of court
Only a minority of present governments, mainly in the Anglo-American legal
tradition, are able to exercise the right to question the propriety of a
criminal statute being considered—by measuring such a law against the rights
purportedly guaranteed to the citizen. The right of judicial review, discovered
by John Marshall in MARBURY v. MADISON in 1803, developed and enlarged down to
the present day, was an unprecedented development which caused consternation to
Jefferson and many of the then-surviving signatories of the original draft of
the Constitution, as being something they had certainly not anticipated.
However, after two centuries, such a right of review appears to be an
inescapable necessity to the American system of government.
All of these realities must have weighed heavily in the decision of the
majority, While the minority (lead by Justice Thomas) in its dissenting opinion
focused upon Mr. Small’s previous career as an arms smuggler, in which he had
been caught attempting to bring guns into the Japanese-ruled Island of Okinawa,
convicted and imprisoned by judgment of a Japanese Court.
Justice Thomas is, by and large, considered one of the stalwarts of the
“originalist” wing of the Supreme Court, which means that he believes in the
literal Constitution as it was originally written, and that constitutional
provisions and statutes are to be given their plain meaning. In this case that
means “any court” is “any court in the world,” without limitation. The majority
is more subtle, advancing in this decision the qualification that “any court”
means domestic courts which recognize those rights which are available to
defendants in the United States and its possessions. The majority is reluctant
to cut off a citizen’s right under the Constitution if he has not received “Due
Process” -- the term used to describe the sum total of those rights properly
available to a defendant tried by a U.S. court.
In 1945 and thereafter, Japan received a bright new Constitution and revised
Rules for Criminal Proceedings, drafted by experts working for the occupation
forces of General McArthur. However, the people who manned the police
departments and the courts were, for the most part, the same people who were
used to the pre-1945 police departments and judiciary, and Japan has had 50
years to gradually revert to some of the practices familiar before World War
Further, the older judgments of patently unfair courts remain, and are being
delivered outside the U.S down to the present day. As an example, the author
knows of a Dutch adolescent who was sentenced to the death penalty for stealing
a rifle from the Wehrmacht in the early 40’s, who had his sentence commuted and
survived the second world war and is still alive. If this gentleman, now in his
high 70’s and honored in Holland for his attempt to obtain arms for the
resistance, met immigration standards and should wish to become a U.S. Citizen,
should he then be denied Second Amendment rights based upon the judgment of an
SS court? I think the Minority would be uncomfortable with that.
What about the Minority’s argument that the “mistake.” if any, is the
Congress’s responsibility? One cynical wit has opined that people who respect
either sausage or laws should not be around to see them made! The average
congressman or senator voting for the “any court” provision probably had no
idea that this question of the meaning of these words might arise, and simply
didn’t consider it. So, the Majority tries to extract from the other language
of the statute a reasonable result, and the position of the Minority would give
a result verging on absurd injustice.
GUEST COMMENTARY: By Leslie Field
re: People v. Travis Smith 346 Ill. App. 3d 146, 803 N.E. 2d 1074.
The Opinion rendered by the 2nd District Illinois Appellate Court in
reversing the Trial Court ruling in the case of People vs. Travis Smith (supra)
must, of necessity, rest upon the discovery of a new "exigent circumstances"
exception to the defendant’s right to be free of "pat-down" searches when he is
not under arrest and has been both cooperative and courteous to the
officer(s) conducting the search, and when no reasonable suspicion for such
search has arisen.
The officer testified that he determined by a field test that the defendant was
intoxicated and that he could not operate a motor vehicle to leave the scene of
the traffic stop, and, further, that in his opinion the defendant in his
intoxicated state could not be a safe pedestrian on the side of the highway.
Therefore, the officer determined that there was an exigent necessity that he
transport the defendant in a Department vehicle, subject to the Department’s
rule that the defendant be searched.
Defendant might have remained where he was until his sobriety returned, or he
might have proceeded to exit the highway via a ride in the tow truck that was
called to the site, or he may have walked to the next highway exit--the Trial
Court having determined that there was no testimony that defendant was so
intoxicated that he could not walk safely--but none of these alternatives was
offered to defendant by the officer. The Appellate Court cites with approval
the concurring opinion in a Wisconsin Supreme Court case to lay bare the
previously hidden necessity that defendant be transported, thus, giving rise to
part two of the exigent necessity to search him contrary to the ordinary case
under the Fourth Amendment, all in the interest, of course, of the defendant,
for whom the officer exhibits such solicitous care and consideration.
It appears that the 2nd District Appellate Court now adds the new
offense of simply being a passenger in a vehicle driven by an alleged
drunken driver to that old and well-established offense of driving while Black.
The current zeal to expand the power of police to detain and search citizens
has, of course, been given tremendous impetus by the tragic events of 9/11. It
seems better, in the estimation of the distinguished jurists of the 2nd
District to prevent the "guilty" defendant from escaping conviction than accord
him the Constitutional Right he might previously have reasonably supposed he
The problem with the "exigent circumstances" exception is that--when applied by
Courts eager to use this exception in the factual circumstances before
them--like a malignant cancer, the exception as it is more and more employed
will become larger than the host, and effectively end the life of the
Constitutional Right purportedly guaranteed--all by a process of nibbling away
in a multitude of "small" cases in which the Courts cannot resist the impulse
to construct a solution which somehow achieves a result that may seem just in a
particular case, but cannot be reconciled to the Constitution as previously
Leslie Field is a semi-retired attorney, having practiced in Illinois
for many years, and for quite some time has been a Constitutional Rights
activist. He is the former legislative representative for the Illinois Gun
Collectors Association, and worked with this website’s author, Vic Quilici,
during the years of litigation of the Morton Grove, Illinois, handgun ban. He
has rendered pro bono services for the American Legion, which included
proposing legislative responses to the anti-flag proponents who were heaping
abuse on the American Flag in the late 80’s and early 90’s. Mr. Field has
served as both a testifying and consulting expert in litigated firearm matters.
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