Is a Misdemeanor Sufficient Reason to Deny Second Amendment Rights?


The Second Amendment Foundation and its legal paladin Alan Gura continue their wave of post-McDonald lawsuits challenging laws that might violate Second Amendment weapon possession rights (although this challenge is to a federal law that did not require the McDonald innovation of applying the Second Amendment to states and localities). Details on the latest from an SAF press release:

Acting on behalf of a Georgia resident and honorably discharged Vietnam War veteran, the Second Amendment Foundation today filed a lawsuit against Attorney General Eric Holder and the Federal Bureau of Investigation over enforcement of a federal statute that can deny gun rights to someone with a simple misdemeanor conviction on his record.

The lawsuit was filed in United States District Court for the District of Columbia. SAF and co-plaintiff Jefferson Wayne Schrader of Cleveland, GA are represented by attorney Alan Gura, who successfully argued both the Heller and McDonald cases before the U.S. Supreme Court.

In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, MD. The altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man he fought with was in a street gang that had attacked him for entering their "territory," according to the complaint.

Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged. However, in 2008 and again in 2009, Mr. Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He was advised by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.

The lawsuit charges that the FBI applied an illegitimate reading of 18 U.S.C. 922 (g) (1) in declaring that this mere misdemeanor should disqualify him from being able to own a gun under federal law. Apparently because Maryland did not have a statutorily set maximum possible punishment for that misdemeanor, the FBI believes it can treat Schrader for the purposes of federal denial of gun possession rights as if he "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

SAF thinks this is an improper application of the law, and that, as the lawsuit (not online) states, that his conviction "cannot be the basis for a firearms disability under 18 U.S.C. 922(g)(1) because Schrader was not actually sentenced to a term of imprisonment exceeding two years. Maryland's failure to codify a statutory penalty for a simple common law misdemeanor does not create a firearms disability under federal law for conviction of such common law misdemeanor offense."

My October Reason cover story on SAF and Gura's last big gun rights victory, the Supreme Court case McDonald v. Chicago.