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Most Americans would be astounded and offended to learn that the federal government used to spend millions of dollars a year to restore the gun privileges of convicted felons. They would be happy to know that Congress chose to defund that program. And they would be flummoxed to hear that the U.S. Supreme Court must now step in to prevent federal judges from arrogating themselves the power to rearm those felons. Under federal law, those convicted of a felony may not possess, ship, or receive firearms or explosives that have traveled in interstate commerce. In United States v. Bean, the Court will decide whether a convicted felon, having otherwise paid his penalty, can petition a federal judge to relieve him of this firearms “disability” in the absence of any administrative determination. At issue is a program run by the Bureau of Alcohol, Tobacco, and Firearms, under which the ATF reviewed applications from felons and, in selected cases, restored their gun privileges. The law provides that a felon can petition the ATF for relief; if his application is denied, he can appeal the denial to a federal court. Ten years ago, in the face of devastating evidence that dangerous people were having their gun privileges restored, Congress defunded the ATF’s program. As lawmakers wished, the ATF stopped reviewing applications from individuals. Felons like Thomas Lamar Bean are now asking the courts to step into an executive role. THOUSANDS OF FELONS Congress authorized the relief-from-disability program in a 1965 amendment to the Federal Firearms Act. It was essentially a favor to firearms manufacturer Winchester, then a division of the Olin Mathieson Corp. In 1962, Olin Mathieson had pleaded guilty to felony counts stemming from a kickback scheme involving pharmaceutical importers. Under the law at the time, Winchester could no longer be licensed as a firearms manufacturer. The relief-from-disability program allowed Winchester to remain in business. The program soon mushroomed beyond its original narrow purpose. Over the years, thousands of individual people with felony convictions had their gun privileges restored. In 1986, the Firearms Owners’ Protection Act, backed by the National Rifle Association, made even those convicted of crimes involving a firearm eligible for “relief.” In a 10-year period from 1982 until 1992, some 40 full-time ATF employees processed more than 22,000 applications, granting relief in approximately one-third of the cases. Between 1985 and 1991, the program cost taxpayers $21.7 million. One of the felons granted relief was Alan Gottlieb, head of the Citizens’ Committee for the Right to Keep and Bear Arms. Gottlieb was convicted of tax evasion in 1984 and was granted relief in 1986. When our organization, the Violence Policy Center, learned that Gottlieb had successfully petitioned for his gun privileges, the VPC began to investigate the relief program and discovered that dangerous criminals, not just tax cheats, were getting their guns back. Consider another beneficiary, Jerome Sanford Brower. In 1981, Brower pleaded guilty to conspiracy to transport explosives in foreign commerce in furtherance of an international terrorist plot masterminded by former CIA agents Edwin Wilson and Francis Terpil. But he got his gun privileges back four years later. Yet another beneficiary was Jon Wayne Young, who pleaded guilty to aggravated assault and aggravated robbery in 1976. Young had a history of sex-related offenses dating back to the age of 13. At sentencing, the judge observed that Young probably would have killed the girl had she resisted and that Young didn’t “have enough control of [his] own actions to prevent that sort of thing.” Young obtained relief in 1989. Through the Freedom of Information Act, the VPC obtained access to 100 randomly selected files of felons granted relief. Among those 100 cases were four homicide convictions, five convictions for felony sexual assault, 11 burglary convictions, and 13 convictions for distribution of narcotics. One-third involved either violent crimes (16 percent) or drug-related crimes (17 percent). Furthermore, despite exhaustive ATF interviews with the applicant, neighbors, employers, and probation officers, and despite an ATF finding “that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of ‘relief’ would not be contrary to the public interest,” many felons granted relief went on to commit new crimes. The VPC found that of those who obtained relief from 1985 to 1992, 69 were subsequently arrested for crimes that included attempted murder; first-degree sexual assault; abduction/kidnaping; child molestation; illegal possession of a machine gun; trafficking in cocaine, LSD, and PCP; and illegal firearms possession. The VPC published its research in 1992 in a study entitled “Putting Guns Back Into Criminals’ Hands.” Many members of Congress expressed outrage, and many editorial pages — including that of The Washington Post — condemned the program, calling for its immediate end. Lawmakers acted quickly and decisively. Language was inserted into the relevant appropriations bill prohibiting any spending to process applications from individual felons. Every year since 1992, Congress has again barred the use of any funds appropriated to the ATF “to investigate or act upon applications for ‘relief’ from Federal firearms disabilities.” The clear purpose of the bar, and the intent of its sponsors, has been to ensure that no individual felon is able to get his gun privileges back. (The funding prohibition does contain a de minimis exemption for corporations, the original beneficiaries of the program.) The 1995 House Report for the Treasury, Postal Service, and General Government Appropriations Act stated simply: “There is no reason to spend the Government’s time or taxpayers’ money to restore a convicted felon’s right to own a gun.” Enter Thomas Lamar Bean. Bean sought relief after serving a sentence for illegally transporting ammunition into Mexico. Upon learning that the ATF was unable to act on his application, he filed suit in federal district court in Texas, asking the court to step into the ATF’s shoes and conduct its own inquiry into whether he was fit to possess a gun. The District Court concluded that it had the power to grant “relief.” The court reasoned that the ATF’s failure to act on Bean’s application constituted a de facto denial of the application and was subject to review. Following a hearing, the court ruled that Bean met the statutory standard for relief and entered judgment relieving him of his gun disabilities. Overturning circuit precedent that a district court lacked authority to grant such relief, the 5th U.S. Circuit Court of Appeals affirmed. Although the court acknowledged Congress’ intent to “abrogate” the right to seek both “administrative and judicial relief,” the court reasoned that Congress had to be more “direct and definite” if it wanted to suspend the program by defunding it. Ruling that the ATF’s refusal to act on Bean’s application constituted an exhaustion of administrative remedies, the 5th Circuit upheld the lower court’s jurisdiction as well as its ultimate decision to grant Bean relief. CONGRESS WAS CLEAR The 5th Circuit’s decision directly conflicts with those of six other circuits. Less than three weeks ago, the en banc 3rd Circuit, aware that the Supreme Court had decided to hear United States v. Bean, issued a forceful decision in Pontarelli v. U.S. Department of the Treasury, overruling an earlier 3rd Circuit decision that agreed with the 5th Circuit and criticizing United States v. Bean because it “ignored” the statutory language, departed from Supreme Court precedent, and “distorted” the appropriations ban’s legislative history. Hence, the need for Supreme Court review. The Supreme Court will review the 5th Circuit’s ruling in argument scheduled for next fall. The Court’s decision likely will turn on the clarity of both the statutory language and congressional intent. Since it is well-settled that Congress has the power to amend substantive law in appropriations legislation, the question is whether Congress’ unambiguous suspension of the ATF’s ability to act also precludes district courts from reviewing the ATF’s inaction. The answer is yes. United States v. Bean is an easy case. The plain meaning of the statutory language unambiguously limits judicial review under 18 U.S.C. � 925(c) to cases where the ATF has denied, not failed to consider, an application. At the same time, Congress cannot have spoken more plainly about the program’s limits. It has added straightforward language to 10 consecutive appropriations bills prohibiting the ATF from expending any funds to restore the firearms privileges of individuals with felony convictions. The risks of the guns-for-felons program far outweigh its benefits, and Congress did not intend to shut it down at the ATF simply to let activist judges revive it. Even justices subscribing to very different ideologies should agree that reinstatement of this program would be unwarranted judicial activism. Mathew S. Nosanchuk is litigation director and legislative counsel, and M. Kristen Rand is legislative director at the Violence Policy Center, a national advocacy and research group based in Washington, D.C. The VPC filed an amicus brief in the Supreme Court in support of the United States in United States v. Bean .

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