NAAS Legislative Report - May 2005

By Mark Barnes

Federal 

Reckless Lawsuit Preemption Bills S.  397 and H.R. 800

 S. 397 has 57 United States Senators as co-sponsors and H.R. has at least 237 co-sponsors.  With those numbers the passage of this legislation should be assured.  However, it is necessary to remember that the anti-gun politicians in both Houses, but especially the U.S. Senate, have the power to add unfriendly amendments that could negate all the hard work by the majority of both Houses.  It is important that any correspondence with your elected officials include the idea that this should be a clean bill – a bill with no other amendments.

Law Affirming State Authority over hunting signed by President George W. Bush

 On May 12, 2005, President George W. Bush signed the emergency appropriations bill that included an amendment upholding the right of state Fish & Game Departments to set limits on hunting permits for our-of state residents that differ from those of in-state residents.

The measure’s origins date back to a lawsuit brought by a group of New Mexico outfitters, who sued the state of Arizona over the discrepancy in big game permits available to residents over non-residents.  They alleged that it was illegal to discriminate against non-residents under the Commerce Clause of the U.S. Constitution. The case went to the Ninth Circuit Court of Appeals, which decided in 2002 that the Arizona Department of Wildlife must set limits on hunting permits available to non-residents in the “least discriminatory way.”  With the success of the Arizona case the outfitters subsequently sued the Department of Wildlife in the Nevada last July.  As a result the permits available to residents for the 2005-2006 season were restructured to give more permits on all hunts to non-residents and less to residents.

 In response to these developments, Senators Harry Reid (D-NV) and Ted Stevens (R-AK) introduced legislation in July 2004 to give back the authority over hunting to the respective states.  That legislation failed to be enacted in 2004, so in early 2005 those Senators and others from the Western states reintroduced the same legislation.  It was added as an amendment to the emergency appropriations bill and has now been enacted into law.

 It was a victory for states rights as well as for the continuing state management of wildlife.  Senator Mike Enzi (R-WY) summed up the feeling of western hunters by saying, “The people of Wyoming know how to manage the wildlife in our state better than the 9th Circuit Court or the federal government."

Judiciary

Small v. United States

 In 1998, Gary Sherwood Small filled out a federal firearms form 4473 but did not include a prior conviction on a gun charge in Japan.  As a result he was arrested and indicted on one count of making a false statement and was charged on three counts of possessing firearms despite the previous Japanese conviction.  He was sentenced to eight months in prison by a federal judge.

 Small appealed unsuccessfully to the U.S. Court of Appeals for the Third Circuit arguing that the federal law did not include foreign courts in its definition of “any courts.”  On April 26, 2005, the U.S. Supreme Court overturned Small’s conviction by a vote of 5-3.

 The issue turned on the language in Section 922(g)(1), which prohibits any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess any firearm.  The trial court, the appellate court, and the prosecuting Government all argued that foreign courts are covered by the term “any court.”

 The five Supreme Court Justices in the majority (Steven G. Breyer, John Paul Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg), however, determined there was “no convincing indication” the law ever indicated that foreign convictions were to be considered, and thus held that that the act does not include foreign convictions.

 Justice Clarence Thomas, joined by Antonin Scalia and Anthony M. Kennedy, authored the dissent that accused the majority of changing “established principles of statutory construction” and “the plain meaning of the statute.”  Thomas argued the this section of the law suggests there is no “geographic limit” to the language “any court.”

City of New York v. Beretta USA 

In this ongoing case the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) was ordered by U.S. Magistrate Judge Cheryl L. Pollak to provide New York City (NYC) with information on guns used in crimes.  After the data had been sent to NYC, city officials discovered information was not available on approximately 19,000 non-confidential traces.  The city also alleged that BATFE did not provide “data code tables” that it could use when analyzing the data.  The city filed a motion with the court to compel BATFE to supply the “missing” data.

 During the intervening time the U. S. Congress passed an amendment to the Continuing Appropriations Act that prohibited any release of gun tracing data under "subpoena or other discovery in any civil action in a state or federal court."   BATFE told the city that it has prohibited from giving NYC any further gun-trace information, and any such information already provided the city would have to be returned.

 Judge Jack B. Weinstein rejected the BATFE argument and ordered that all the data withheld be supplied to NYC.  It must be remembered that Judge Weinstein has a record of siding with the plaintiffs against the firearms industry in other cases.  Thus the trial will continue and BATFE has been ordered to supply the information.

City of Washington v. Beretta USA Corp

 The DC Superior Court and a three-judge panel of the DC Court of Appeals both agreed that this case should be dismissed.  However, on April 21, 2005, the DC Appellate Court sitting en banc upheld the trial court’s dismissal of negligence and public nuisance claims, but reversed the “absolute” liability claims of the nine local plaintiffs.  Thus the nine plaintiffs may each seek claims against the manufacturers of firearms and the District of Columbia is free to seek the unreimbursed medical and public service costs incurred by the nine plaintiffs.      

 Chief Judge Annice Wagner did not agree in totality with her colleagues.  She stated that even during the January 11, 2005 en banc hearing the counsel for the individual plaintiffs agreed that the could not identify any weapon that was specifically tied to any of the defendants.