Most Read
    Image 01 Image 02 Image 03

    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.


    Donations tax deductible
    to the full extent allowed by law.


    arnonerik | March 4, 2013 at 10:18 pm

    “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.

    Anchovy | March 4, 2013 at 10:43 pm

    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.

    Leave a Comment

    Leave a Reply

    You must be logged in to post a comment.

    Notify me of followup comments via e-mail (or subscribe without commenting.)

    Font Resize
    Contrast Mode
    Send this to a friend