The Supreme Court’s Decision in Ali v. Federal Bureau of Prisons

Portends an Individual Right to Keep and Bear Arms

The U.S. Supreme Court’s 5-to-4 opinion on January 22, 2008, in Ali v. Federal Bureau of Prisons, No. 06-9130, (“Ali”) strongly suggests that the Court’s upcoming ruling on gun ownership will favor individuals over militias. I will explain the reasoning in the Ali opinion, and then seek to demonstrate how an identical thought process may foretell the Court’s interpretation of the Sixth Amendment to the U.S. Constitution.

In Ali, the Supreme Court interpreted a portion of the Federal Tort Claims Act enacted in 1946. The relevant portion of the Act states:

“[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued for “any claim rising in respect of the assessment or collection of any tax or customs duty or the detention of any … property.”

A Federal inmate being transferred between prisons lost some religious articles being shipped for him by the Federal Government, and brought suit for damages. The question on appeal was whether or not prison employees were liable for his a loss since they were not customs or excise officers. (Six Federal appeals courts had found the statute offered broad immunity including prison employees, while another five had ruled it did not.)

Applying statutory construction, the Court declared that the phrase “any other law enforcement officer” included prison workers. Therefore, it followed that those Federal employees could not be sued for losing prisoners’ property. The legal principle is that an interpretation according meaning to all the words of a statute is preferable to only providing meaning to some of the words.

The alternative meanings in this case were:

1. “[A]ny officer of customs or excise or any other law enforcement officer” cannot be sued;

Or;

2. “[A]ny officer of customs or excise” cannot be sued.

In the majority opinion by Justice Clarence Thomas, the first option – including law enforcement officers other than customs or excise officers — was deemed correct; otherwise, the phrase “any other law enforcement officer” added nothing to the already-established meaning of the sentence.

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This is where we receive a fascinating indication of how the Supreme Court may confirm an individual right to keep firearms.

The Sixth Amendment to the U.S. Constitution provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In a decision –already much debated –expected later this year, the question before the Supreme Court is whether District of Columbia law prohibiting individual gun ownership violates the Sixth Amendment to the U.S. Constitution.

Here, our alternative constructions are:

1. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Or;

2. “A well regulated Militia, being necessary to the security of a free State, the right of the people serving in the militia to keep and bear Arms, shall not be infringed.”

[Emphasis supplied.]

In Ali, Justice Thomas said Congress could have provided “any other law enforcement officer acting in a customs or excise capacity;” but chose not to. He added “We are not at liberty to re-write the statute to reflect a meaning we deem more desirable:”

In the case involving personal ownership of firearms, I predict a Supreme Court majority will rule that the framers of the Constitution could have written “[T]he right of the people serving in the militia to keep and bear arms shall not be infringed,” but chose not to. Applying the same rule of statutory construction utilized in Ali, the Supreme Court must necessarily conclude that the right to keep and bear arms belongs to individuals and not to militias alone.

Olivier Denier Long, Esquire

Wednesday, January 23, 2008

Captiva Island, Florida