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DOJ fighting to deny veteran right to own a firearm based on 40-year old misdemeanor

DOJ fighting to deny veteran right to own a firearm based on 40-year old misdemeanor

More prosecutorial indiscretion

Really, why does our government waste its resources on cases like the fight to prevent Jefferson Wayne Schrader from purchasing a firearm?

This case demonstrates what happens when a bureaucracy deprives someone of a right just because the bureaucracy can, and then the full force of the U.S. government goes to bat against the individual for no reason other than it can.

The case is Schrader v. Holder.  In a January 11, 2013 decision, the D.C. Circuit Court of Appeals upheld the government’s position, but the question is why is the government exercising such a ridiculous discretion?

The short version is that Schrader got into a fistfight when he was in the Navy in 1968. Schrader was convicted of a misdemeanor and received no jail time.

That conviction prevented Schrader from clearing a background check for shotgun and handgun purchases in 2008 because federal law prohibits anyone convicted of a crime which carries a potential penalty of more than two years from owning a firearm. Maryland law at the time in 1968 carried no maximum penalty for a misdemeanor, but the feds construed the lack of a maximum penalty as being a potential penalty more than two years.

I’ll discuss the case below, but first a video of an interview with Schrader this morning on Fox News:

I’ve uploaded both the D.C. Circuit Court’s January 11, 2013 decision upholding the government’s position, and the February 25, 2013 Petition for Rehearing.

As the Court framed the issue in its January 11 decision:

Due to a conviction some forty years ago for common-law misdemeanor assault and battery for which he served no jail time, plaintiff Jefferson Wayne Schrader, now a sixty-four-year-old veteran, is, by virtue of 18 U.S.C. § 922(g)(1), barred for life from ever possessing a firearm. Together with the Second Amendment Foundation, Schrader contends that section 922(g)(1) is inapplicable to common-law misdemeanants as a class and, alternatively, that application of the statute to this class of individuals violates the Second Amendment. Because we find plaintiffs’ statutory argument unpersuasive and see no constitutional infirmity in applying section 922(g)(1) to common-law misdemeanants, we affirm the district court’s dismissal of the complaint.

In upholding the government, the court noted that at the time even very violent crimes in Maryland were treated as misdemeanors with no maximum penalty (other than as limited by the Constitution), and hence the government’s reading of the statute as it related to the Maryland misdemeanor law was appropriate. The Court then rejected 2nd Amendment arguments, finding that the firearm possession ban was connected to crime prevention and passed constitutional muster:

Plaintiffs acknowledge that disarming felons and other serious criminals bears a substantial relationship to the prevention of gun violence. They emphasize, however, that they challenge the constitutionality of section 922(g)(1) as applied to common-law misdemeanants and insist that no substantial fit exists between disarming such individuals and preventing gun violence. But as explained above, at the time of section 922(g)(1)’s enactment, common-law misdemeanors included a wide variety of violent conduct, much of it quite egregious. See supra at 7–9. And although the category of common-law misdemeanors has since been narrowed through codification, plaintiffs have offered no evidence that individuals convicted of such offenses pose an insignificant risk of future armed violence. To be sure, some common-law misdemeanants, perhaps even Schrader, may well present no such risk, but “Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.” United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc).

Accordingly, because disarmament of common-law misdemeanants as a class is substantially related to the important governmental objective of crime prevention, we reject plaintiffs’ constitutional challenge.

In an interesting twist, the Court found that while the statute passed muster as generally applied, there might have been a more viable claim if Schrader had preserved his claim that it was unconstitutional as applied to him:

At several points in their briefs, plaintiffs appear to go beyond their argument that section 922(g)(1) is unconstitutional as applied to common-law misdemeanants as a class and claim that the statute is invalid as applied to Schrader specifically. Were this argument properly before us, Heller might well dictate a different outcome. According to the complaint’s allegations, Schrader’s offense occurred over forty years ago and involved only a fistfight. Second Am. Compl. ¶ 10. Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, has had no encounter with the law since then. Id. ¶¶ 11–12. To the extent that these allegations are true, we would hesitate to find Schrader outside the class of “law-abiding, responsible citizens” whose possession of firearms is, under Heller, protected by the Second Amendment. Heller, 554 U.S. at 635.

But we need not wade into these waters because plaintiffs never argued in the district court that section 922(g)(1) was unconstitutional as applied to Schrader.

In the Petition for Rehearing, Schrader’s counsel, famed litigator Alan Gura, vigorously disputes that the individual claim was not preserved. That Petition has not been acted on yet by the Court.

But for our purposes, consider the government’s position.

Even though Schrader poses no threat to anyone, has been law abiding since 1968, and Maryland law was indefinite at the time creating a somewhat unique circumstance, the government took the most aggressive position it could. And the government sought to — and did — take advantage of an alleged procedural litigation failure of Schrader to preserve his individual constitutional claim, a claim the Court felt might have prevailed.

This is the government taking the 2nd Amendment rights from an individual because the government could based on the most aggressive reading of the statute and taking advantage of alleged procedural missteps by the individual.

It’s cases like Schrader v. Holder which make us rightly suspicious of putting more gun control power in the federal government’s hands.


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It is cases like this one that provoke me to NEVER allow people to use the term “justice” WRT our system.

Rather than follow a very common-sensical reading of the law’s intent to keep guns out of the hands of people who cannot control themselves, this strains to justify the outcome realized here.

An entire life is ignored in deference to a very tortured interpretation of law.


    creeper in reply to Ragspierre. | March 4, 2013 at 8:24 pm

    But…but…but, Rags…you said the system always works.

      Ragspierre in reply to creeper. | March 4, 2013 at 10:16 pm

      That is a lie, and you are a liar.

      Unless you forgot the sarc tag.

        creeper in reply to Ragspierre. | March 5, 2013 at 7:40 am

        Resorting to name-calling hardly furthers the discussion and it makes me disinclined to spend the time gathering all your previous comments claiming the system works.

        Still, it’s nice to know the scales have fallen from your eyes.

          Ragspierre in reply to creeper. | March 5, 2013 at 8:00 am

          Observing and reporting what you did is not “calling you names”. If you don’t like the report, don’t be that.

          I would never say something as stupid as “the system always works”.

          Our system is a good system, by comparison with others, but it is composed of people. Hence, as highly flawed as people.

          You’ll find I’ve said that consistently.

Over time, bureaucrats become drunk with the power they can wield over the common citizen. It can happen in any organization of size, but at least with business bureaucrats you can take your business elsewhere and pretty much ignore them. Of course there are exceptions to this, notably with state sanctioned monopolies.

But government bureaucrats? They thrive under this administration. Obama is breeding them like rabbits, and the insidious little buggers will make our lives miserable for generations. Long after Bobo the Clown has left office, his legacy of bureaucrats will be making us miserable.

    RickCaird in reply to Paul. | March 6, 2013 at 7:43 am

    That is why we have to radically reduce the size of the bureaucracy so the bureaucrats will stay busy with useful activities and have no time for the frivolous like this one.

Another reason to reduce government spending. They shouldn’t have excess funds to chase small infractions such as this. Government is big for several reasons, one of which is the excessive confiscation of our money that funds our demise.

Samuel Keck | March 4, 2013 at 7:49 pm

I’m reliably informed that, as a convicted Watergate felon, Mr. G. Gordon Liddy is also barred by federal statues from personal ownership of any firearms what-so-ever.

I’ve also heard that Mr. Liddy’s wife, Mrs. Liddy, owns and maintains a small arsenal of firearms in their home. 🙂

    Good for her. I’m sure she is ready to protect her husband from the long line of nutjob proggies who probably day dream about doing him physical harm.

Note the appeals court CONVENIENTLY left unchallenged the argument as it pertains to the violation of the 2nd Amendment.

In other words, “This is too big for a silly appeals court, let’s boot it up to the Supreme Court.”

Every one of the judges who sat on that decision should be barred from the Bar for life.

Evidently they will try to disarm us one man at a time.

This administration is hell bent on disarming all law abiding citizens in an action that Jefferson warned us on the perils of tyranny.

Never mind that this corrupt, incompetent and beholding gang of liars is just getting started. One wonders on just how much damage to liberty they can inflict within the next four years.

Sleep well my friends but be sure to keep one eye open…

This case demonstrates what happens when a bureaucracy deprives someone of a right just because the bureaucracy can, and then the full force of the U.S. government goes to bat against the individual for no reason other than it can…<snip>…the question is why is the government exercising such a ridiculous discretion?

Maybe—I’m not a lawyer—the aggregate of such prosecutorial (in)discretions creates a body of precedent that expands the power of the government at the expense of the individual.

The process isn’t necessarily sinister, except maybe in its ultimate stages. It can be created in an emergent manner by bureaucrats seeking to create administrative latitude, to curry favor with superiors & special interests, and to justify their turf & budgets.

The more things an average citizen can be tagged as guilty of, the easier life is for the ruling class.

“why does our government waste its resources on cases like…”
So, you didn’t get the memo? “Waste” is when you spend (or save) your own earnings because of “wasteful loopholes” or government “spending on tax breaks.” Whenever the government spends your money — I mean “its resources” — that is, by definition and the laws of metaphysics, not wasteful.

At some point down the road, there will be a powderkeg incident and all hell will break loose. The gubmint is merely trying to accelerate that date.

“At some point down the road, there will be a powderkeg incident”

That is exactly what they are striving for! That is, unless we are all willing to meekly march to our internment camps.

At some point it would probably not hurt the cause of justice to just replace about 75% of the appellate courts with dartboards that have alternating targets of “yes” and “no”.

Cheaper too.

Mr. Schrader would have an excellent chance at getting a firearm out of Holder’s Justice Department if he were only a narco-terrorist working along the U.S.-Mexican border.

BTW: did the FBI under Holder ever discover what happened to veteran state department employees working in Benghazi. You know. The ones who where murdered because guns weren’t there to defend them?

At some point all of us will be law breakers and the mere suggestion that we could possibly be violent will be used as an excuse to take away our rights.

    casualobserver in reply to Roux. | March 5, 2013 at 10:29 am

    Worse, can you imagine how many guns could be denied to those in the armed forces simply for fighting in public? (Assuming that is a primary goal of the Justice Department) This has the feeling that the Department has found a huge opportunity.

SoCA Conservative Mom | March 5, 2013 at 10:31 am

As former Police Chief of San Diego Lansdowne said, “we can disarm Americans within a Generation.” One at a time may take more than a generation, but there are laws already in place to get started. But not to worry, they aren’t coming after your guns.