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BATF Claims Restored Rights
Aren't Restored Unless They Say So


And urges the court to continue prosecuting Bob Stewart

from Angel Shamaya
KeepAndBearArms.com

September 6, 2001

The day before the federal government's trial against Bob Stewart was to begin, a judge in Arizona restored Mr. Stewart's rights and signed a "nunc pro tunc" order backdating his firearms rights restoration to August of 1998.  Mr. Stewart was originally assaulted by the BATF over a matter they conveniently dropped -- a gun kit they claimed was "readily converted" even though they have no definition of the term in their unconstitutional list of regulations -- but because they allegedly found firearms in his home and because he had a prior felony conviction over allegedly having been "caught" keeping and bearing arms, they charged him with being a felon in possession of firearms.

The BATF wants to lock Mr. Stewart away in prison for years, partly for allegedly being a felon in possession of firearms. And because the feds invaded his home, assaulted him and his family and stole their possessions nearly two years later than the date to which his firearms restoration was ORDERED retroactive, the retroaction of the judge's ORDER, if upheld, would bear heavily in Mr. Stewart's favor. 

But according to the lawyer working for the feds, a Mr. Joseph C. Welty, the restoration of rights by an Arizona judge has no impact on this case, and the prosecution can continue, because:

"...the restoration of civil rights and right to possess firearms by the state of Arizona, has no impact on the federal government's ability to investigate or prosecute the defendant under Title 18 U.S.C. 922(g). As the defendant was convicted in the United States District Court for the District of Utah, that federal court must restore the defendant's civil rights and the right to possess firearms, in order for the defendant not to run afoul of Section 922(g). Because that has not taken place, this prosecution may proceed."  (Source: Page 1 of BATF's 5-page motion, available below.)

On Page 4 of his response to Stewart's Motion to Dismiss, Mr. Welty cites the actual text of United States Code Title 18, Part I, Chapter 44, Section 921(a)(20), as follows:

"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

And then tells us, also on Page 4:

"...the section has also been held to mean that any expungement, pardon, or rights restoration must come from the 'jurisdiction in which the proceedings were held' in order to nullify a conviction for purposes of Section 922(g)."

Citing Beecham v. United States (1994), Welty says the court held that:

"...the restoration of civil rights by a state could not remove the firearms disability imposed as a result of a federal conviction."  [emphasis mine]

However, Beecham's conclusion, issued from Justice O'Connor, says exactly this:

"Petitioners can take advantage of 921(a)(20) only if their civil rights have been restored under federal law, the law of the jurisdiction where the earlier proceedings were held."

That isn't quite the same as Mr. Welty's interpretation, now is it? Or is it? (Legalese mumbo jumbo over a wholly unconstitutional act by armed government thugs is ridiculous.)

Also noteworthy is the fact that there is not a means of restoring firearms rights through the federal government. The BATF admits this on their own website, where they label rights as "privileges" and say:

"Q. How can a person convicted of a federal felony have their gun privileges restored?

"A. Under the provisions of the Gun Control Act of 1968 (GCA), convicted felons and certain other persons are prohibited from possessing firearms. (See 18 U.S.C. section 922(g).) The GCA provides the Secretary of the Treasury with the authority to grant relief from this disability where the Secretary determines that the person is not likely to act in a manner dangerous to the public safety. (See 18 U.S.C. section 925(c).) The Secretary delegated this authority to ATF.

"Since October 1992, however, ATF's annual appropriation has continuously prohibited the expending of any funds to investigate or act upon applications for relief from Federal firearms disabilities. This restriction is located in Pub. L. No. 106-554, 114 Stat. 2763, which contains ATF appropriations for fiscal year 2001. As long as this provision is included in current ATF appropriations, the Bureau cannot act upon applications for restoration of Federal firearms privileges submitted by individuals. Consequently, we cannot entertain any individual's request for firearms restoration while this prohibition on the processing of such applications remains in place.

"Furthermore, the restriction contained in Pub. L. No. 106-554 does not change the status of prohibited persons. They are still prohibited from possessing, receiving, transporting, or shipping firearms under Federal law."

[emphasis theirs]

Interestingly, Beecham, a 1994 case, also addresses the issue of firearms prohibitions due to felony convictions, by saying:

"Moreover, even if there is no federal law procedure for restoring civil rights to federal felons, nothing in 921(a)(20) supports the assumption that Congress intended all felons to have access to all the procedures specified in the exemption clause, especially because there are many States that do not restore civil rights, either. Because the statutory language is unambiguous, the rule of lenity is inapplicable. See Chapman v. United States, 500 U.S. 453, 463 464. Pp. 3-7."

Perhaps "nothing in 921(a)(20) supports the assumption," but that doesn't mean the issue of rights restoration cannot be addressed elsewhere in the endless mire of legal code that makes up a Constitution-trampling federal bureaucracy -- especially when the issue was a non-violent offense and there is no way to get help from these gun-grabbers to affect a rights restoration.

We could use some legal input from a few patriotic legal-minded allies.

IF AND ONLY IF you are an attorney, a paralegal, a legal scholar or a darn good legal researcher, please email Bob Stewart and I your analysis of this situation.  The BATF was given 10 days to respond to Stewart's Motion to Dismiss; Bob was given just 5 days to respond to the above. We've got until September 10th to get a strong reply filed in response to the Waco Killers.

Bob Stewart Robert.Stewart@mindspring.com

Angel Shamaya Director@KeepAndBearArms.com

If you fit the above criteria and do send us email, please use a subject of BOB STEWART CASE INPUT -- and do not add our email addresses to any distribution lists without express written permission to do so. Thank you.

Related Documents

BATF's Motion to Continue Prosecution of an American citizen who was exercising his right to keep and bear arms:  Page 1   Page 2   Page 3   Page 4   Page 5.

Related Links

U.S.C. Title 18, Section 921

U.S.C. Title 18, Section 922


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