The Washington Post

May you possess a gun notwithstanding a foreign felony conviction?

In Small v. United States (2005), the Supreme Court held that the law making it “unlawful for 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” only applies to domestic convictions, not foreign ones. (Before criticizing this result, please read the opinions; the majority has plausible arguments on its side, though so does the dissent.) The decision was 5-3, with the four then-sitting Justices who are considered “liberals” joined Justice O’Connor in the majority, arguing for the narrower reading of this gun control law, and the rest of the conservatives (minus Chief Justice Rehnquist, who was ill and did not participate) in the dissent, arguing for the broader reading.

Last month, the Washington Attorney General took a different view as to the Washington law that bans gun possession by any person who has “been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense,” a subset of all felonies (and thus a narrower range of crimes than that which trigger the federal law); the Washington statutory scheme, the Attorney General argues, is different in important ways from the federal scheme, so that the Supreme Court’s reasons for reading “any court” to mean “any domestic court” don’t apply to the Washington law. I’m inclined to say the Attorney General’s position is at least plausible, given the breadth of the Washington law, and probably correct; but I thought I’d note the issue, and point interested readers to both the U.S. Supreme Court opinions and the Washington Attorney General’s opinion.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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