BATF Claims
Restored Rights
Aren't Restored Unless They Say So
And urges the court to continue prosecuting Bob Stewart
from Angel Shamaya
KeepAndBearArms.com
September 6, 2001
The day before the federal
government's trial against Bob Stewart was to begin, a
judge in Arizona restored Mr. Stewart's rights and signed a "nunc pro tunc"
order backdating his firearms rights restoration to August of 1998.
Mr. Stewart was originally assaulted by the BATF over a matter they conveniently
dropped -- a gun kit they claimed was "readily converted" even though
they have no definition of the term in their unconstitutional list of
regulations -- but because they allegedly found firearms in his home and because
he had a prior felony conviction over allegedly having been "caught"
keeping and bearing arms, they charged him with being a felon in possession of
firearms.
The BATF wants to lock Mr. Stewart
away in prison for years, partly for allegedly being a felon in
possession of firearms. And because the feds invaded his home, assaulted him and
his family and stole their possessions nearly two years later than the
date to which his firearms restoration was ORDERED retroactive, the retroaction
of the judge's ORDER, if upheld, would bear heavily in Mr. Stewart's
favor.
But according to the lawyer
working for the feds, a Mr. Joseph C. Welty, the restoration of rights by an
Arizona judge has no impact on this case, and the prosecution can continue,
because:
"...the restoration of
civil rights and right to possess firearms by the state of Arizona, has no
impact on the federal government's ability to investigate or prosecute the
defendant under Title 18 U.S.C. 922(g). As the defendant was convicted in the
United States District Court for the District of Utah, that federal court must
restore the defendant's civil rights and the right to possess firearms, in
order for the defendant not to run afoul of Section 922(g). Because that has
not taken place, this prosecution may proceed." (Source: Page
1 of BATF's 5-page motion, available below.)
On Page
4 of his response to Stewart's Motion to Dismiss, Mr. Welty cites the actual
text of United
States Code Title 18, Part I, Chapter 44, Section 921(a)(20), as follows:
"What constitutes a
conviction of such a crime shall be determined in accordance with the law of
the jurisdiction in which the proceedings were held. Any conviction which has
been expunged, or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess, or
receive firearms."
And then tells us, also on
Page 4:
"...the section has also
been held to mean that any expungement, pardon, or rights restoration must
come from the 'jurisdiction in which the proceedings were held' in order to
nullify a conviction for purposes of Section 922(g)."
Citing Beecham
v. United States (1994), Welty says the court held that:
"...the restoration of
civil rights by a state could not remove the firearms disability
imposed as a result of a federal conviction." [emphasis mine]
However, Beecham's conclusion,
issued from Justice O'Connor, says exactly this:
"Petitioners can take
advantage of §921(a)(20) only if their civil rights have been restored under
federal law, the law of the jurisdiction where the earlier proceedings were
held."
That isn't quite the same as Mr.
Welty's interpretation, now is it? Or is it? (Legalese mumbo jumbo over a wholly
unconstitutional act by armed government thugs is ridiculous.)
Also noteworthy is the fact that
there is not a means of restoring firearms rights through the federal
government. The BATF admits this on
their own website, where they label rights as "privileges"
and say:
"Q. How can a person convicted of a
federal felony have their gun privileges restored?
"A. Under the provisions of the Gun
Control Act of 1968 (GCA), convicted felons and certain other persons are
prohibited from possessing firearms. (See 18 U.S.C. section 922(g).) The GCA
provides the Secretary of the Treasury with the authority to grant relief from
this disability where the Secretary determines that the person is not likely
to act in a manner dangerous to the public safety. (See 18 U.S.C. section
925(c).) The Secretary delegated this authority to ATF.
"Since October 1992, however, ATF's
annual appropriation has continuously prohibited the expending of any funds to
investigate or act upon applications for relief from Federal firearms
disabilities. This restriction is located in Pub. L. No. 106-554, 114 Stat.
2763, which contains ATF appropriations for fiscal year 2001. As long as this
provision is included in current ATF appropriations, the Bureau cannot act
upon applications for restoration of Federal firearms privileges submitted by
individuals. Consequently, we cannot entertain any individual's request for
firearms restoration while this prohibition on the processing of such
applications remains in place.
"Furthermore, the restriction contained in Pub. L. No. 106-554 does
not change the status of prohibited persons. They are still prohibited from
possessing, receiving, transporting, or shipping firearms under Federal law."
[emphasis theirs]
Interestingly, Beecham, a 1994 case, also
addresses the issue of firearms prohibitions due to felony convictions, by
saying:
"Moreover, even if there is no federal
law procedure for restoring civil rights to federal felons, nothing in §921(a)(20)
supports the assumption that Congress intended all felons to have access to
all the procedures specified in the exemption clause, especially because there
are many States that do not restore civil rights, either. Because the
statutory language is unambiguous, the rule of lenity is inapplicable. See Chapman
v. United States, 500
U.S. 453, 463 464. Pp. 3-7."
Perhaps "nothing in §921(a)(20) supports
the assumption," but that doesn't mean the issue of rights restoration
cannot be addressed elsewhere in the endless mire of legal code that makes up a
Constitution-trampling federal bureaucracy -- especially when the issue was a
non-violent offense and there is no way to get help from these gun-grabbers to
affect a rights restoration.
We could use some legal input from a few
patriotic legal-minded allies.
IF AND ONLY IF you are an attorney, a
paralegal, a legal scholar or a darn good legal researcher, please email Bob
Stewart and I your analysis of this situation. The BATF was given 10 days
to respond to Stewart's Motion to Dismiss; Bob was given just 5 days to respond
to the above. We've got until September 10th to get a strong reply filed in
response to the Waco Killers.
Bob Stewart Robert.Stewart@mindspring.com
Angel Shamaya Director@KeepAndBearArms.com
If you fit the above criteria and do send us
email, please use a subject of BOB STEWART CASE INPUT -- and do not add our
email addresses to any distribution lists without express written permission
to do so. Thank you.
Related Documents
BATF's Motion to Continue
Prosecution of an American citizen who was exercising his right to keep and
bear arms: Page 1 Page
2 Page 3 Page
4 Page 5.
Related Links
U.S.C.
Title 18, Section 921
U.S.C.
Title 18, Section 922
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