She’s introducing a bill to prohibit foreign felons from possessing firearms, regardless of whether the foreign country in question has the same due process protections as American Court. Recall that in 2005, in the case of Small vs. US, the Court said that “convicted in any court” did not apply to foreign courts. Just thinking of some famous cases where DiFi’s prohibition would apply:
- Alexander Solzhenitsyn, served time in a Soviet gulag for being an enemy of the State.
- Francis Gary Powers. convicted in a Soviet Court and sentenced to hard labor for spying after his U2 was shot down over the Soviet Union in 1960.
- Laura Ling and Euna Lee, convicted of spying on North Korea after being kidnapped from China.
I, for one, am glad that finally DiFi is protecting us against enemies of the State, and welcome our new police state overlords. Of course, Feinstein’s bill has an exception in it:
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’.
And how exactly does the convicted person establish this? In court after he’s been arrested and charged for being a felon in possession? After a NICS denial? Is the Attorney General empowered to create a process here? No. This is a meaningless exemption without some kind of idea of how the exemption is asserted. DiFi isn’t stupid. She wouldn’t write up a bill with an actual process, because that wouldn’t create an ever growing class of people who can’t exercise their Second Amendment rights.
UPDATE: Thinking more about it, if DiFi is so peeved at Small, why is she passing a law where Small would have eventually fallen under the exemption anyway. In fact, it’s hard to say what foreign convictions would qualify, since many Civil Law jurisdictions don’t do trial by jury, and don’t allow, for instance, confronting your accusers in all circumstances. Even in other Common Law jurisdictions, there can be some limitations on jury trials that don’t exist in the United States. How much deviation would be considered enough to render the foreign conviction moot?
This really opens up a rather large can of worms for the courts when it comes to someone brought to trial for felon-in-possession where the felony is from a foreign court. Taken literally, it would actually require American Courts to stand in judgment of the legal process of foreign courts. It will be very difficult for people in this category to know whether they are prohibited or not, so the likely practical effect will be they are prohibited, unless they can establish as an affirmative defense that they fall under the exception when brought up on charges and brought to trial.
But I suppose that’s the idea. Which is why I will argue the exception is virtually meaningless, and still largely amounts to a prohibition in practice, if not in strict legal fact. Doing this “correctly” would be a significant regulatory effort, in order for people to understand what foreign convictions are prohibiting and which ones aren’t. Aside from that, anyone with any foreign conviction, whether legitimate or not, runs the risk of being arrested, jailed, and put on trial — forced to explain why his conviction falls under the exemption.  That might be good government in DiFi’s world, but not mine.
