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.

Comments

[fish]

It really comes down to this-

Justice Department = Tone Deaf Dickhead!

and seemingly in all cases!

[fish]

Sorry....should have been in the plural; Dickheads!

[Tim]

If the FBI thinks it, it must be true. They had their own TV show you know...

[Old Mexican]

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."

Even if one commits a crime that lands you in jail for more than two years, the federal law clearly violates the second amendment as there is NO proviso for such circumstances in the amendment.

And before some halfwit starts quoting case "law," please be reminded that, unless the amendment is somehow modified or repealed, any decision that is NOT PURSUANT of the constitution cannot be constitutional.

Article 6
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[...]"

[P Brooks]

In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight

----

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.

Forty years.

I hope one of them at least took the time to ask, "Kid- have you rehabilitated yoreself?"

[Tim]

+1

[Xenocles]

I wanna kill.

[bumblefoot2004]

That's 42 years. Math. It's a good thing.

[Bigjeep0930]

uh. 1968 to 2008 is 40 years. 1968 to 2010 is 42 years. Reading is a really good thing.

[J sub D]

Believing in rehabilitation, I conclude that after somebody has exited the justice system (prison, jail, probation, parole) even violent felons should have the same right to bear arms as anyone else.

I'm just a bleeding heart liberal when it comes to ex-cons.

[zoltan]

Soft on crime!

[Matrix]

right. why should they be denied the right to defend their life, liberty or property?

[Paul]

Felons can regain the right to bear arms in certain conditions and, alas, only certain states.

[Not THAT Joe]

There's a mechanism for firearm rights to be restored after a federal felony as well, but the determination has to be made by the ATF and Congress has repeatedly refused to allocate funds for that purpose.

[Michael Ejercito]

There's a mechanism for firearm rights to be restored after a federal felony as well, but the determination has to be made by the ATF and Congress has repeatedly refused to allocate funds for that purpose.
Does not a pardon take care of that?

[rac]

I was going to say the same thing. Rehabilitation is in the eye of the beholder, no pun intended. Everyone is entitled to self-protection.

[Yes]

you are right JSD

[T]

Wait, shouldn't Brian be out "sucking that baboon cock" instead of posting? I thought the wonkettes were very clear on this point.

[Enjoy Every Sandwich]

The federal government doesn't have the Constitutional authority to interfere with gun ownership. Not that that has ever stopped them.

[Episiarch]

Ergo the 1934 NFA.

[Not THAT Joe]

Commerce Clause FTW!

Although NFA was justified under the taxing power, since the NFA (and US v. Miller) was pre-Wickard v. Filburn.

[TrickyVic]

"""(g) It shall be unlawful for any person?
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ""

It says the crime is punishable by X, it does not say you must be sentenced to X. Just sayin.

Here's all of (g)

(g) It shall be unlawful for any person?
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien?
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that?
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

[TrickyVic]

Formatting is a little odd. Here's the link.

http://www.law.cornell.edu/usc.....-000-.html

[Manuel LaBor]

Hey, wait just a doggone minute! If I'm reading this correctly, undocumented workers can't possess firearms!! I'm hoping it's just that I don't understand what "possess in or affecting commerce" means.

[Not THAT Joe]

"In or affecting interstate commerce" is Congress's way of saying "Under Gonzales v. Raich we can do whatever the hell we want."

[Douglas]

Undocumented workers?!? I'm so tired of that term. They are ILLEGAL ALIENS! Illegal! As in, in our country illegally. When you do something illegal, you are a criminal. What part of illegal don't people understand? It's not fair to the immigrants who went through the process to get in legally.

What does that have to do with the price of tea in China anyway? We're talking about misdemeanors and 2nd amendment rights. Not felonies or illegal aliens or omelet recipes.

I think that if a man has paid the penalty of his misdemeanor crime then the punishment should be over. Leave the man alone. A man that can't control his violent nature (rapists, killers, etc) is another story. These guys shouldn't be walking around among civilized people anyway so the 2nd amendment thing should be moot.

[Matrix]

Well, if you serve your time, why should ANY right be denied you? If you are let out of prison, is your right to free speech stripped from you? No.

Anyway, this was a misdemeanor. And I also don't think non-violent felonies should be an automatic revocation of your right to own a firearm after time served.

[TrickyVic]

I agree. But that's government for you. Paying your debt to society isn't good enough, you must continue to pay until death. But if they do something wrong, they want us to forgive and forget.

[Paul]

Well, yes, you lose a lot of rights, actually. I have mixed feelings about it to some degree, but a felon can regain some of his rights-- right to vote, for example-- if they go through a process of being reinstated.

[Colonel_Angus]

Why should there even be a process of reinstatement? Why should it only be some rights? Fuck that shit.

[Jack of All Threads]

Harry Reid last night on why insurance companis should be forced to cover mammograms and colonoscopies (pure comedy gold):

"We need them to be forced to do mammograms. That's why you see breast cancer awareness month. You see the baseball players wearing pink shoes, and you the football players having pink, uh, uh, helmets. It's because people dread breast cancer, and you don't get breast cancer, you can ? correct breast cancer ? you detect it if you do mammograms. Colonoscopies, if you do colonoscopies, colon cancer does not come because you snip off the ? things they find when they go up and ? no more, and we need to have insurance companies do this?"

[Colonel_Angus]

Insurance policy mandates are the number one reason why the health insurance market has been fucked up.

[Some Dork]

Was he allowed to carry a gun in Vietnam?

[Paul]

Because he didn't have a right not to.

[Pablo]

The law which supposedly prevents him from possessing a gun did not exist at that time. IIRC it was in some federal domestic violence bill (commerce clause, ya know)or maybe the "crime bill," both of which were passed under Clinton.

[Not THAT Joe]

This actually doesn't sound like the domestic violence exclusion (the Lautenberg Amendment), which came into being in 1997.

He is excluded because federal law prohibits possession of firearms if the conviction was punishable by more than a year in prison, which apparently includes some misdemeanors in some states. I believe that was prohibition was created by the 1968 Gun Control Act.

[sage]

Is a Misdemeanor Sufficient Reason to Deny Second Amendment Rights?

Maybe, if it was a felony misdemeanor.

[Eric Holder]

sage, I like the cut of your jib.

[TrickyVic]

That's not a jib.

[Binky]

the FBI believes it can treat Schrader ... as if he "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

IOW, they "deem" him a convict.

[TrickyVic]

""In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery ""

He wasn't deemed convicted, he was convicted. The point I made in an earlier post is that the law, as written, does not say that you must be sentenced to more than a year in jail, it just says "(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;"

Was the crime for which he was convicted carry a punishment of imprisonment for a term exceeding one year?

Not that I agree with it, just sayin.

[Colonel_Angus]

Don't bother with foids. Fuck the ATF.

[sim]

All we need is one good solar flare, and everybody starts packin. Prepare.

[Bengie]

Personally, I think most crime is because society has failed someone.

If a person is pushed into a corner, they will act out very irrationally. Most people in jail/prison is because society pushed them into a corner. They're just as much a victim as the person the committed a crime against.

Even I would like to think that people are rational and make their own choices, but even a few basic psychology classes will teach you that people are mostly just victims of circumstance.

[bumblefoot2004]

So Jefferson Wayne Schrader was allowed to carry a weapon during the Vietnam War, effectively acting as an agent of the US government, honorably discharged, but then denied for 42 years to claim his 2nd Amendment right to protect himself with a firearm. That's a load of crap.