Washington, D.C. – U.S. Senator Dianne Feinstein (D-Calif.) has introduced legislation to prevent people convicted of felonies and domestic violence in foreign countries from possessing firearms in the United States.

The “No Firearms for Foreign Felons Act of 2009” closes a loophole that exists in federal law. The loophole, created by a 2005 Supreme Court decision, allows foreign convicts to possess firearms in the United States even though federal law restricts Americans convicted of identical crimes from possessing firearms.

“Foreign felons actually have greater gun rights than Americans convicted of felonies or crimes of domestic violence in our own courts.” Senator Feinstein said. “We cannot keep in place a policy that allows felons convicted overseas to possess firearms. It simply makes no sense. In a country filled with senseless gun violence, we cannot continue to give murderers, rapists and other violent criminals convicted in foreign countries an unlimited right to buy firearms and assault weapons in the United States.”

The legislation was drafted to close a loophole created in a 2005 Supreme Court decision, Small v. United States, which declared that a 1968 federal law prohibiting felons from possessing firearms did not apply to foreign felony convictions.

The Supreme Court justices warned in their dissent that the majority’s decision would allow “those convicted overseas of murder, rape, assault, kidnapping, terrorism and other dangerous crimes to possess firearms freely in the United States.” But the majority said that if Congress wanted to keep people with these foreign convictions from buying firearms, it needed to pass a new law and state that clearly.

The legislation, introduced late Tuesday, is co-sponsored by Senators Richard Durbin (D-Ill.); Frank Lautenberg (D-N.J.); Sheldon Whitehouse (D-R.I.); Charles Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.). This bill was originally introduced in the 110th Congress.

No Firearms for Foreign Felons Act of 2009

• Closes a loophole created by a 2005 Supreme Court decision, Small v. United States, which declared that the law prohibiting felons from possessing firearms did not apply to foreign felony convictions; 
  
• Treats foreign convictions the same as domestic convictions for purposes of purchasing firearms from licensed dealers; 
  
• Provides an exemption only if a person can show that their foreign conviction is invalid because:
  
• The defendant was denied due process;
• The conduct on which the foreign conviction was based would be legal if committed in the United States.

Following is Senator Feinstein’s statement for the record:

“Today, I am pleased to introduce the ‘No Firearms for Foreign Felons Act of 2009.’  This bill would close a loophole that currently exists in law by ensuring that people convicted of foreign felonies and crimes involving domestic violence cannot possess firearms.  I imagine that most Americans may be surprised – as I was – to learn that foreign felons actually have greater gun rights than American citizens convicted of felonies and crimes of domestic violence in our own courts. 

In 1968, Congress passed the landmark Gun Control Act, ensuring that it was illegal for felons to possess firearms.  I have been working since 1994 to build upon that legacy and protect American families from senseless gun violence. 

Unfortunately, in 2005 the Supreme Court created a gaping loophole in this longstanding felon-in-possession law.  In the case of Small v. United States, a majority of the Court held that a foreign felony conviction is not a bar to gun possession when those felons come to the United States.

At the time, the Supreme Court was very much aware that its ruling could lead to unintended consequences.  Justice Clarence Thomas noted in his dissent, ‘the majority's interpretation permits those convicted overseas of murder, rape, assault, kidnapping, terrorism and other dangerous crimes to possess firearms freely in the United States.’

The majority of the Court identified a fundamental flaw in the Gun Control Act of 1968.  Simply put, Congress was not clear enough.  Although the law states that a person convicted of a felony ‘in any court’ could not possess a firearm, the Court said that the phrase, ‘any court,’ applied only to American courts. 

The federal felon-in-possession laws outlined in the Gun Control Act of 1968 had been applied to foreign felons from 1968 until the Small decision in 2005.  However, the Court found these arguments unpersuasive.

In their dissent, Justices Thomas, Scalia and Kennedy accused the majority of creating a novel legal construction that would ‘wreak havoc’ with established rules of extraterritorial construction.  But whatever we may think of the Court's legal analysis, there is no doubt that the Small decision is now the law of the land.

We must now make every effort to close this dangerous loophole and the only way to do that is to pass the ‘No Firearms for Foreign Felons Act of 2009.’  The bill I am introducing today would do just that.  Under this bill, the Gun Control Act of 1968 is amended to ensure that convictions in foreign courts are included.  Similar changes would be made in other sections of the Gun Control Act, where there are references to ‘state offenses’ or ‘offenses under state law’ – the bill would expand these terms to include convictions for felony offenses committed abroad. 

In other words, the bill would make it clear that if someone is convicted in a foreign court of an offense that would have disqualified him from possessing a firearm in the United States, the same laws relating to gun possession would be applied. 

As introduced, the only exception would involve a conviction in a foreign court that was invalid.  In that specific situation, this bill would allow a person convicted in a foreign court to challenge its validity.  Under the bill, a foreign conviction will not constitute a ‘conviction’ for purposes of the felon-in-possession laws, if the foreign conviction either:

1. Resulted from a denial of fundamental fairness that would violate due process if committed in the United States, or 
   
2. If the conduct on which the foreign conviction was based would be legal if committed in the United States.

I expect that these circumstances will be fairly rare, but the bill does take them into account, and will provide a complete defense to anyone with an invalid foreign conviction under these specific circumstances. 

The need for action is clear.  In 2001, U.S. law enforcement agents outfitted in bulletproof vests raided the New York City hotel room of Rohan Ingram.  Ingram was found with 13 different firearms, had an extensive criminal background, including at least 18 convictions for crimes such as assault and use of deadly weapon.  He was known to law enforcement as ‘armed and dangerous’ and they rightfully took all of the necessary precautions to protect themselves.  However, because all of his crimes had occurred in Canada, his felon-in-possession of a firearm charge was eventually thrown out of court.  This is a direct result of the Supreme Court case and illustrates a very dangerous loophole in our criminal justice system.

What we need to do as an institution is clear.  We cannot keep in place a policy that allows felons convicted overseas to possess firearms.  It simply makes no sense.  In a country filled with senseless gun violence, we cannot continue to give murderers, rapists and other violent criminals an unlimited right to buy firearms and assault weapons in the United States.  I urge my colleagues to support this important legislation.”

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