by Matt Barr

Mr. Justice Thomas relies on foreign law!

I doubt I'm the first and am sure I won't be the last to make this clever observation about two opinions delivered by the Court today.

In Small v. U.S., Thomas dissented, joined by Scalia and Kennedy. Federal law prohibits any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" from possessing a firearm. The majority held this did not apply to a man who had served three years for a firearms violation in Japan. Thomas disagreed:

The broad phrase "any court" unambiguously includes all judicial bodies with jurisdiction to impose the requisite conviction -- a conviction for a crime punishable by imprisonment for a term of more than a year. Indisputably, Small was convicted in a Japanese court of crimes punishable by a prison term exceeding one year. The clear terms of the statute prohibit him from possessing a gun in the United States.

Writing for a 5-4 majority in Pasquantino v. U.S., a case involving avoidance of Canadian duties on American liquor, Thomas wrote that a plot to defraud the Canadians of tax revenue violates federal wire fraud law.

Marty Lederman notes that "Pasquantino was the only case from the (now-completed) November sitting in which the Chief Justice voted in order to break a tie."

On Small: How's that again about Thomas and Scalia voting according to their personal views of the constitution when it suits them? If you read the Associated Press lead, "The Supreme Court ruled Tuesday that people convicted of a crime overseas may own a gun in the United States," and not who voted where, which side would you immediately think Thomas and Scalia were on?

Browse books from Amazon.com: