Senator Dianne Feinstein's (D-CA) latest attack on gun rights (unless she has attacked them again in the last few hours--a not at all implausible scenario) would impose a life sentence of state mandated defenselessness in the U.S. for "foreign felons." What is a "foreign felon"? Someone convicted of a felony in a foreign country. Feinstein describes S. 261, the "No Firearms for Foreign Felons Act," this way (emphasis in original):
“Under current federal law, individuals convicted in the United States of violent felonies like rape, murder and terrorism are prohibited from possessing firearms,” said Senator Feinstein. “However, federal law does not bar criminals convicted of those same violent crimes in foreign courts from possessing guns. This legislation closes that loophole.”
There are several concerns here. The most obvious, probably, is that many foreign courts do not afford the accused anything approaching the kinds of protections Americans generally take for granted. These protections include the presumption of innocence pending proof of guilt, an impartial jury, competent defense counsel even if the accused cannot afford an attorney on his/her own, etc.
Another obvious concern is that many charges that are a "felony" in many countries would not be even a misdemeanor in the United States. Preaching Christianity in Saudi Arabia, for example, is a very serious crime.
Granted, the text of the bill (pdf file) appears to address both of these concerns:
. . . except that a foreign conviction shall not constitute a conviction of such a crime if the convicted person establishes that the foreign conviction resulted from a denial of fundamental fairness that would violate due process if committed in the United States or from conduct that would be legal if committed in the United States.
Sure, that sounds good, but how many countries are there whose justice systems provide every protection that in the U.S. is considered necessary for a fair trial? In the U.S., convictions have been overturned because the accused was not read his or her rights at the time of arrest. It seems doubtful, though, that Feinstein intends to exempt every "foreign felon" convicted without getting his or her Miranda Act warning.
A "jury of one's peers" is another concern. In the U.S., trials have been moved to different counties, when the defense made a compelling case for the argument that an impartial jury would be impossible to assemble in the original county. In a foreign country (many of which have very little affection for this nation and its citizens), is it not fair to cast doubt that an impartial jury can be found anywhere?
The bill also addresses the objection that many "felonies" in many foreign countries are not felonies here, with the language exempting "conduct that would be legal if committed in the United States."
Again, that sounds good, but how would that work when, say, an Iranian court convicts the person in question of "spying"? Spying is certainly a felony in the U.S., but, to be charitable, the Iranian "spy hikers" conviction falls rather short of looking very convincing, by U.S. standards. Also, that exemption says "legal," not "not a felony." That would seem to imply that conviction of a foreign "felony," for behavior that would be illegal, but only a misdemeanor (and not a domestic violence misdemeanor, which also carries the lifetime disarmament sentence), in the U.S., would still carry the lifetime disarmament sentence.
Finally, the accused is to bear the burden of establishing that either the trial was unfair, or that the conviction was for behavior that is legal in the U.S.--so much for the presumption of innocence. On top of that, the bill makes no effort to explain how the accused is to "establish" either of those exemptions--what the procedure is for doing so. Does it involve another trial (this one in the U.S.)? Will the accused be provided a court appointed attorney if he or she cannot afford one? Must the prosecution share its evidence with the defense? These details are kinda important.
That a person cannot suffer a life sentence of disarmament, for a conviction won by foreign prosecutors without the accused having enjoyed every single protection demanded by the U.S. justice system, is not a "loophole," as Feinstein calls it. It's justice.
Note: This is without even getting into the fact that the author very much agrees with National Gun Rights Examiner David Codrea's oft-stated position that, "anyone who can't be trusted with a gun can't be trusted without a custodian." Feinstein's bill is utterly unacceptable even without agreeing with that position. Also, the intent here is not to imply that accused "criminals" are never railroaded into prison in the U.S. courts. That happens, too. Still, the accused in the U.S. has at least theoretical protection from being falsely convicted.
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- S. 261: A bill to establish and clarify that Congress does not authorize persons convicted of dangerous crimes in foreign courts to freely possess firearms in the United States. (Gun rights advocate Chris Woodard's Constitution Watch website provides a valuable service with its centralized database of federal gun related legislation, as it's introduced--definitely worth bookmarking)
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