In Any Way, Shape, or Form? What Qualifies As “Any Court” under the Gun Control Act?
Legal Sidebari
In Any Way, Shape, or Form? What Qualifies
As “Any Court” under the Gun Control Act?
November 14, 2017
The mass shooting that took place at the First Baptist Church in Sutherland Springs, Texas has raised
questions about whether a required background check should have blocked the assailant, Devin P. Kelley,
from purchasing the semi-automatic rifle used to kill more than two dozen and injure many more
attendees. Preliminary reports reveal that Kelley may have been barred from purchasing and possessing a
firearm for two possible reasons related to criminal activity: (1) a felony conviction and/or (2) a domestic
violence conviction. This speculation is based on reports that Kelley, while serving in the U.S. Air Force,
had been convicted of crimes related to domestic abuse against his wife and stepchild, yet those
convictions never made it into the FBI’s firearm background check database, the National Instant
Criminal Background Check System (NICS).
The Uniform Code of Military Justice (UCMJ) is a body of criminal law applicable to members of the
U.S. Armed Forces. Created by Congress through its Article I, Section 8 war powers, UCMJ crimes are
tried in military tribunals called “courts-martial.” Because Kelley was convicted by a court-martial, it is
necessary to determine whether convictions from those courts qualify to create a firearm disability under
the Gun Control Act of 1968 (GCA), as amended. Specifically, 18 U.S.C. § 922(g) prohibits firearm
possession by a person who has been convicted in any court of a crime punishable by a term of
imprisonment exceeding one year, as well as by a person who has been convicted in any court of a
misdemeanor crime of domestic violence. The GCA does not define “any court,” but federal courts have
construed the term to cover U.S. military courts.
Initially, federal courts took a widely expansive view of the term “any court” as used in the GCA. For
instance, in holding that a court-martial is a court within the meaning of the GCA, a 1997 opinion from
the Seventh Circuit Court of Appeals used the dictionary definition of the term “any”:
Looking to section 922(g)(1), we find nothing that defines or limits the term "court," only a
requirement that a conviction have been "in any court" in the course of prohibiting possession of
firearms by a felon. Certainly "any court" includes a military court, the adjective "any" expanding
the term "court" to include "one or some indiscriminately of whatever kind"; "one that is selected
without restriction or limitation of choice"; or "all."
Additionally, some federal courts had concluded that a conviction in “any court,” for the purposes of
determining a firearm disability, included convictions in foreign courts. In resolving a circuit split over
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this issue, the Supreme Court interpreted the phrase to cover only domestic convictions in its 2005 ruling,
Small v. United States. In a 5-4 ruling, the Court adopted a more limited interpretation of the GCA’s
reference to “any” court than employed by the Seventh Circuit and other lower courts, commenting that
“[i]n ordinary life, a speaker who says, ‘I’ll see any film,’ may or may not mean to include films shown in
another city,” and, likewise, “[i]n law, a legislature that uses the statutory phrase ‘any person’ may or may
not mean to include persons outside the jurisdiction of the state.” In reaching its conclusion, the Court
applied the legal presumption that “Congress ordinarily intends its statutes to have domestic, not
extraterritorial application.” The Court ruled that this presumption against extraterritorial application was
particularly relevant to the GCA, given the many potential differences between foreign and domestic
convictions and “the potential unfairness of preventing those with inapt foreign convictions from
possessing guns.” The Court additionally reasoned that nothing in the GCA’s text or legislative history
suggests that the Act was intended to allow foreign convictions to give rise to a firearms disability.
Although the Supreme Court’s opinion in Small abrogated lower court rulings holding that foreign
convictions serve as predicate offenses for the GCA’s firearm ban for felons, the opinion did not directly
disturb earlier rulings holding that military convictions count for the ban. Indeed, a conviction by a court-
martial does not appear to raise any of the concerns mentioned by the Supreme Court in Small about
foreign convictions. Federal courts have noted no tension with Small when analyzing the related issue of
whether a court-martial conviction is encompassed by the term “any court” in statutes that provide
heightened penalties for certain repeat offenders. For instance, the Eighth Circuit opined that courts-
martial proceedings maintain a connection to the U.S. government, given that they were created by
Congress and are governed by federal statute. And the Fourth Circuit reasoned that, although there are
some differences between courts-martial and civilian courts, they do not “rise to the level of contrasts
between domestic and foreign courts that Small highlighted,” and, further, expressed “doubt [that] the
Supreme Court would interpret Small to prevent court-martial convictions from qualifying as predicate
offenses” for the heightened penalties. Accordingly, a conviction by a court-martial for a crime punishable
by a term exceeding one year or a misdemeanor crime of domestic violence likely would qualify as a
conviction in “any court” for the purposes of the GCA’s firearm disqualifiers.
Author Information
Sarah Herman Peck
Legislative Attorney
Congressional Research Service
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