Byline: Frank J. Murray, THE WASHINGTON TIMES
A Supreme Court case that both sides in the war over gun rights call a potential turning point in Second Amendment law was argued yesterday without mentioning the linchpin issues surrounding individual gun ownership.
The government seeks to overturn a federal court order restoring Texas gun dealer Thomas Bean's right to own firearms - and, thereby, his eligibility to regain a gun-dealer's license lost after a felony conviction in Mexico.
In order to stop felons from regaining gun rights, Congress in 1992 cut off the $4 million a year the Treasury Department's Bureau of Alcohol, Tobacco and Firearms spent pondering applications to restore gun rights. When the ATF returned Mr. Bean's application without acting, he went to court. The 5th U.S. Circuit Court of Appeals upheld a district judge's ruling restoring his gun rights.
Instead of the predicted forum on the scope of gun rights, yesterday's debate hinged on a jurisdictional matter - whether the ATF's refusal to consider the request was a denial that may be appealed to federal court - and other mundane aspects of the complex Administrative Procedures Act.
"We think it is not a denial," Deputy U.S. Solicitor General Edwin Kneedler said in arguing against letting Mr. Bean own guns. "ATF is not granting or denying relief."
Mr. Kneedler seized on Justice Anthony M. Kennedy's suggestion that restoring a felon's right to own a gun is a gift, like a pardon.
"A matter of grace that may be withheld," Mr. Kneedler agreed, likening it also to the Justice Department prerogative not to deport aliens despite a removal order.
Washington lawyer Thomas Goldstein argued that the government cannot simply let applications stack up without acting upon them.
"This is a safety valve," he said, arguing for court intervention in extraordinary cases like Mr. Bean's.
"The plain meaning of the word 'denial' is a refusal to grant the relief requested," he said.
Mr. Kneedler's only overt reference to the underlying issue employed the phrase "restoration of firearms ability."
That usage normally is preferred by such gun-ownership opponents as the Violence Policy Center, whose research spurred the original law and whose friend-of-the-court brief supports what it calls an appeal by "the most pro-gun attorney general in history, John Ashcroft. …