[Congressional Record Volume 155, Number 115 (Tuesday, July 28, 2009)]
[Senate]
[Pages S8201-S8202]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Durbin, Mr. Lautenberg, Mr. 
        Whitehouse, Mrs. Gillibrand, and Mr. Schumer):
  S. 1526. A bill to establish and clarify that Congress does not 
authorize persons convicted of dangerous crimes in foreign courts to 
freely possess firearms in the United States; to the Committee on the 
Judiciary.
  Mrs. FEINSTEIN. Mr. President, 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 foreign felony is not 
a bar to gun possession when those felons come to the U.S.
  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 has 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 Fellons 
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 U.S. 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: resulted from a denial of fundamental 
fairness that would violate due process if committed in the United 
States, or, if the conduct on which the foreign conviction was based 
would be legal if committed in the U.S.
  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 outfitted 
in bullet proof 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 foreign-convicted murderers, 
rapists and even terrorists an unlimited right to buy firearms and U.S. 
assault weapons in the U.S. I urge my colleagues to support this 
important legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Recordd, as follows:

                                S. 1526

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``No Firearms for Foreign 
     Felons Act of 2009''.

     SEC. 2. DEFINITIONS.

       (a) Courts.--Section 921(a) of title 18, United States 
     Code, is amended by adding at the end the following:
       ``(36) The term `any court' includes any Federal, State, or 
     foreign court.''.
       (b) Exclusion of Certain Felonies.--Section 921(a)(20) of 
     title 18, United States Code, is amended--
       (1) in subparagraph (A), by striking ``any Federal or State 
     offenses'' and inserting ``any Federal, State, or foreign 
     offenses'';
       (2) in subparagraph (B), by striking ``any State offense 
     classified by the laws of the State'' and inserting ``any 
     State or foreign offense classified by the laws of that 
     jurisdiction''; and
       (3) in the matter following subparagraph (B), in the first 
     sentence, by inserting before the period the following: ``, 
     except that a foreign conviction shall not constitute a 
     conviction of such a crime if the convicted person 
     establishes that the foreign conviction resulted from a 
     denial of fundamental fairness that would violate due process 
     if committed in the United States or from conduct that would 
     be legal if committed in the United States''.
       (c) Domestic Violence Crimes.--Section 921(a)(33) of title 
     18, United States Code, is amended--
       (1) in subparagraph (A), by striking ``subparagraph (C)'' 
     and inserting ``subparagraph (B)''; and
       (2) in subparagraph (B)(ii), by striking ``if the 
     conviction has'' and inserting the following: ``if the 
     conviction--
       ``(I) occurred in a foreign jurisdiction and the convicted 
     person establishes that the foreign conviction resulted from 
     a denial of fundamental fairness that would violate due 
     process if committed in the United States or from conduct 
     that would be legal if committed in the United States; or
       ``(II) has''.

     SEC. 3. PENALTIES.

       Section 924(e)(2)(A)(ii) of title 18, United States Code, 
     is amended--
       (1) by striking ``an offense under State law'' and 
     inserting ``an offense under State or foreign law''; and
       (2) by inserting before the semicolon the following: ``, 
     except that a foreign conviction shall not constitute a 
     conviction of such a crime if the convicted person 
     establishes that the foreign conviction resulted from a 
     denial of fundamental fairness that would violate due process 
     if committed in the United States or from conduct that would 
     be legal if committed in the United States''.

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