SCOTUS Cert filed: Schrader, et al v. Holder, et al

[Al Norris]

The case of Schrader v. Holder is a particularly endangering case, should the actions of the FBI be upheld (see the Current 2A Cases thread for links and other details).

In July of 1968, Jefferson Schrader got into a fistfight with another man. Schrader was observed by a Annapolis, MD LEO, who arrested Schrader for assault and battery, and disorderly conduct. Both charges were simple misdemeanor offenses.

Schrader was found guilty of misdemeanor assault and battery. He was fined $100 and $9 court costs, or in the alternative, 30 days in jail. Schrader paid the fine. At that time, MD did not have any maximum sentence for the crime of misdemeanor assault. Nor any maximum sentencing for any misdemeanors, except for a general limitation imposed by the 8th amendment of the U.S. Constitution.

Schrader was enlisted in the U.S. Navy at this time and shortly thereafter, was deployed to Vietnam. Following that tour, Schrader was honorably discharged from the Navy. Schrader has had no other contact with the criminal law system, since that time, except for the problem that surfaced in 2008.

Jefferson Schrader has been a resident and citizen of Georgia for the last 20 years. He was an avid hunter all during this time.

A few years ago, MD changed its laws to reflect a general maximum of 2 (or 3 - depends upon which authority you read)

Schrader's problems became extent in 2008 when he was denied a purchase of a shotgun by the NICS system. Even though it appears that MD has no record of this prior misdemeanor conviction, the denial was based upon his 1968 misdemeanor conviction of assault.

The danger here is quite obvious. Any anti-gun legislature could simply reword its misdemeanor statutes to permit a maximum sentence of one year and one day, and anyone and everyone who had ever been convicted of any misdemeanor in that State, would become instantly a prohibited person, by the manner in which 18 U.S.C. § 922(g)(1) is worded, interpreted and acted upon.

[Aguila Blanca]

This is essentially a slightly more ridiculous example of the same thing that happened to a lot of people who pled guilty to misdemeanor charges of domestic violence and paid a fine to "resolve" a situation, and were subsequently made into "prohibited persons" by the Lauter amendment, which made conviction of misdemeanor domestic violence a disqualifying crime.

Ex post facto, baby. Ya gotta love it.

[vranasaurus]

Ex post facto, baby. Ya gotta love it.

It's not ex post facto because it doesn't criminalize conduct prior to it's enactment. It criminalized post enactment possession of firearms by certain persons.

You can't criminalize or increase the punishment for an act I did today by changing the law tommorow but you can change the law today to criminalize or increase the punishment for an act I might do tommorow.

I don't agree with the lautenberg amendment but it is not an ex post facto law.

In this case you are generally tried under the laws in effect at the time the offense was committed.

The GCA excludes misdemeanors punishable by two years or less. I would argue that the GCA imposes on the government a requirement to prove the offense he was convicted of was punishable by more than 2 years in prison at the time he was convicted.

This case is completely different from Lautenberg as the amendment changed the definition of a qualifying crime. In this case the state changed the maximum punishment for the offense after the fact thus the feds considered it a qualifying offense.

[Al Norris]

The GCA excludes misdemeanors punishable by two years or less.
Nope. The actual wording under 18 U.S.C. § 922(g)(1):
(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;
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.

The law does not use the terms, misdemeanor or felony. The law is applied, based upon the maximum length of possible sentencing.

As I said, under current interpretation (by the feds), any State that changes its maximum penalty for a misdemeanor to one year and one day (or more) will place anyone convicted of said misdemeanor (at any time previous to such an enactment), into the prohibited persons category.

Stripping a person of a fundamental constitutional right is in fact, a punishment. Before McDonald, we could quibble about the legal meaning of ex post facto. Post McDonald, it is most certainly changing the punishment for an act committed prior to the legislated Act.

That is precisely what the State of MD did. Should this law be upheld, it is what any State legislature might do in the future.

[RDak]

Well, barring anything else.......why doesn't the 30 days alternative in his original conviction carry the day?

[KLRANGL]

Well, barring anything else.......why doesn't the 30 days alternative in his original conviction carry the day?
Because its not what you are sentenced with, it's what you could be sentenced with...

who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

[MTT TL]

I have seen more than one guy get hung for a second drunk driving offense. Most states the first offense is a year or less. The second offense could be longer.

[44 AMP]

Wouldn't it be to have one of our legislators include a line (in any bill) reading something like...amend
18 U.S.C. § 922(g)(1):

Quote:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable at the time by imprisonment for a term exceeding one year;



adding the words "at the time" would make any future changes to penalties irrelevant as far as gun ownership is concerned, wouldn't it?

[Aguila Blanca]

44 AMP -

That's a rather marginal improvement, isn't it? Suppose the potential term HAD been on the books as more than a year at the time. This guy paid a fairly small fine and served NO time in prison. He was such a dangerous individual that he went directly from the incident to serve honorably in the defense of the country, and for FORTY YEARS since the incident he has led a clean life.

How would your proposed amendment in any way make it right, ethical or moral for this man to be deprived (actually, "stripped") of his RKBA?

[vranasaurus]

Nope. The actual wording under 18 U.S.C. § 922(g)(1):

You need to read the definitions included in the statute.

18 USC 921(a)(20) reads:



(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

So yes misdemeanors punishable by two years or less are excluded.

Also my comments on ex post facto were mostly related to lautenberg.

You can't change the maximum punishment for an offense after the fact but you can change the definition of a qualifying crime and prohibit future conduct.

The poster was comparing this situation to lautenberg and it is different.

If convicted of an offense punishable by 6 months in prison and then three years later the state changes the maximum punishment to 3 years in prison you were still convicted of a crime punishable by less than a year.

[44 AMP]

That's a rather marginal improvement, isn't it? Suppose the potential term HAD been on the books as more than a year at the time. This guy paid a fairly small fine and served NO time in prison. He was such a dangerous individual that he went directly from the incident to serve honorably in the defense of the country, and for FORTY YEARS since the incident he has led a clean life.

How would your proposed amendment in any way make it right, ethical or moral for this man to be deprived (actually, "stripped") of his RKBA?

It wouldn't do anything for the poor man who's case is currently in court. That will be handled under current law. And yes, I do feel that if he is found guilty that it would be a serious violation of both moral and ethical law.

My proposal to modify the USC would be with the intent to avoid a case like this one ever being brought again, no matter how rabidly zealous the prosecution.

The key here is that what is being changed (and appearing to be ex post facto, but actually isn't) is not the "punishment" applied to a crime, but using the defintion of that punishment to determine who is a prohibited person.

Say, for example you were convicted of a small crime decades ago, and the max punishment was 6mo. Your sentance was suspended, you paid a fine. Under the law, today, you are not a prohibited person. Now say they change the punishment schedule for that same crime to say, 3 years max.

You did your sentance years ago, they cannot now say you must do 3 years. And they are not saying that. What they are trying to say now (if the court rules their way) is that now, today, since the crime is now up to 3yr, you are now a prohibited person.

No, it isn't right. And it is NOT just. But that hasn't seemed to stop zealous antigun forces from trying.

There are many things that are not right, and not just, but our court system has ruled as legal for the govt to do. Look at the (fairly) recent decisions over eminent domain and our private property rights, for one.

[maestro pistolero]

I swear I think Gura keeps getting better. The way he layers his arguments, the clarity, the matter of fact style, the subtle (or sometimes not) sarcasm, all make for a compelling read. He exposes and exploits the omissions and misdirections from the opposing side. He doesn't shrink from any case law the might first appear to undermine his arguments, and goes on to reveal deeper meaning that bolster them.

Just for fun:
First, while the government expressly concedes that it “do[es] not dispute that Plaintiff Schrader ‘presently intends to purchase and possess a handgun and long gun for self-defense it nonetheless demands that his motion also spell out “[w]hat specific type(s) of firearms (including but not limited to the manufacturer, model, and any modifications) Plaintiff Schrader intends to purchase and possess and the details concerning when, where, or how Plaintiff Schrader would purchase these firearms in the future.”

But this demand lacks merit. “[T]he Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” District of Columbia v. Heller, 554 U.S. 570, 582 (2008). At the time of the founding, “all firearms constituted ‘arms.’” Id. at 581 (citation omitted). And the government’s firearms ban against Schrader in this case is absolute—it does not ban Schrader from having only particular firearms, nor does it prevent him from buying arms at certain times, buying arms from certain vendors, or using particular methods of payment to do so. Thus, it is of no relevance what particular gun model Schrader would choose, where he would buy it, whether he would do so on a Wednesday or Thursday, or whether he would use Visa, Mastercard, or a jar of pennies as payment.

[maestro pistolero]

Perhaps it's obvious, but Gura is laying bricks here for a facial challenge to Lautenberg, IMO.

[Al Norris]

Yesterday in Schrader v. Holder, the Judge granted the defendants MTD (http://www.archive.org/download/gov.uscourts.dcd.144464/gov.uscourts.dcd.144464.30.0.pdf) and denied the plaintiffs MSJ as moot.

Alan Gura was ready for this, as he immediately filed the the appeal (http://www.archive.org/download/gov.uscourts.dcd.144464/gov.uscourts.dcd.144464.32.0.pdf).

[ltc444]

The lesson in this thread is.

On any misdemenaor charge Keep your mouth shut, do not participate in the "interview" until you get a lawyer who can work a deal to

1. get charges dismissed.
2. plead to a charge which will not cause you to loose your 5A rights. Explain to the lawyer your concerns about your guns.

My own situation involved a politically connected developer who has finiacial connections to a County supervisor. His intent was to force me to sell my property to him. AZ can no longer use eminent domain to for the sale of a property to a third party.

With the assistance of the Sheriff he fabricated a charge against me which would have caused me to loose my 5A rights and possibly my pension.

My lawyer negotiated a deal which allowed dismissal of the charges after a nominal restitution.

The Judge, bless her, saw me barely able to walk on crutches, understood the situation and dismissed the charges with prejudice. This means the SO and County Attorney could not refile.

Under stand that LEOs lie. In every department there is a group of "Officers" who will obey the Political will of their Masters and total an unsuspecting citzen. 4 Cops on a misdemenaor beef on a Sunday morning is a sure sign that you are in trouble.

[MTT TL]

2. plead to a charge which will not cause you to loose your 5A rights

:confused: 2A?

As another complication to this issue I know of a few service members who after multiple tours in Iraq and Afghanistan have developed alcohol problems. This has led in some cases to two arrests for DUI, which in many states is punishable for up to two years. A second DUI conviction makes them a prohibited person.

In the old days (pre-war) they would have been tossed out on their ear. These days under the guise of taking care of soldiers and the need for battle hardened NCOs they keep them around. Generally (although not always) these are top performing guys when you get them away from the booze and in theater (where booze is almost impossible to get). I knew one guy who earned a bronze star for valor on his tour and got a DUI the night he got back. :(

The Military does seem blissfully unaware that these are prohibited persons however.

[ltc444]

Actually the Army is very much aware of lautenburg. Soldiers and recurits who are convicted and fall under this act are discharged and/or barred from enlisting.

[nate45]

If convicted of an offense punishable by 6 months in prison and then three years later the state changes the maximum punishment to 3 years in prison you were still convicted of a crime punishable by less than a year.

This was my first thought. The man was convicted of a misdemeanor that carried a possible 30 day sentence.

Strict definition of ex post facto or not, it certainly seems to me to be stripping someone of their second amendment rights retroactively.

[MTT TL]

Actually the Army is very much aware of lautenburg. Soldiers and recurits who are convicted and fall under this act are discharged and/or barred from enlisting.

Lautenburg yes, everywhere else a little murky. This is not a Lautenburg case however.

[ltc444]

If a soldier is convicted in a civilian court of a crime which prevents him from possessing a firearm, The army will discharge him. Their may have been some "blind eye" while the wars were hot. Now that the Military is being downsized, SMs who have such convictions on their record will be discharged in an expiditious manner.

[MTT TL]

If a soldier is convicted in a civilian court of a crime which prevents him from possessing a firearm, The army will discharge him.

You would think that. The number of felony waivers that the Army processed to allow people in was in the thousands 2005-2008. Some people convicted of arson, B&E, assault and various other things. We wonder now why we have former soldiers wandering around MT. Rainer with a rifle? I don't wonder why; we do this to ourselves every war.

The Army took these people in without any attempt to restore their rights and then stuck a rifle in their hands. Now the same government is saying that they can't be trusted to own a gun. In some cases they are right.

[ltc444]

Really no need to argue this point but, I have just reviewed the current Army recuriting and retention policies. The practices which may have occurred in 2008 when the army was winking at the law, no longer apply.

[Al Norris]

I forgot to check the docket, last Friday.

The opening brief has been filed. Since I just down loaded it, I can't as yet comment.

[Al Norris]

05/14/2012 Open Document CONSENT UNOPPOSED MOTION filed [1373498] by Jefferson Wayne Schrader and Second Amendment Foundation, Inc. to extend time to file brief to 06/19/2012. [Service Date: 05/14/2012 ] Pages: 1-10. [11-5352] (Gura, Alan)

05/14/2012 Open Document CLERK'S ORDER filed [1373646] granting appellant's consent motion to extend time to file the briefs [1373498-2], The following revised briefing schedule will now apply: APPELLEE Brief due on 06/05/2012. APPELLANT Reply Brief due 06/19/2012 [11-5352]

Appellee's (Defendant Holder) response brief was due today, however... On May 14th, the Appellant (Plaintiff Schrader) filed a consent motion to extend time to file, by 2 weeks.

Considering everything that is on Gura's plate, this should not surprise anyone.

[Al Norris]

Appellee (Defendant US Atty General's Office) Response Brief was filed in Schrader.

What the government is saying is that because at common law, any misdemeanor offense could have been punished by a term of imprisonment exceeding two years, 18 U.S.C. § 922(g)(1) applies.

According to the government, it makes no difference if you could prove that no simple assault & battery (fistfight) ever received such a sentence, it could have.

The government is also arguing that once convicted of a crime, however slight, you are a criminal for life... Even after 40 years of an otherwise exemplary life.

[JustThisGuy]

I wonder how many of our Honorable Senators and Congresspersons are not eligible to own a gun due to this law?

A photo of our President as a young man smoking pot is evidence of a misdemeanor, isn't it? Should he be disallowed from owning a gun? Would that ban him from being Commander and Chief of the largest collection of weapons in the world?

I'm not ranting, just pointing out the extended logic of the law.

[Al Norris]

And... Right on schedule, Schrader files the reply brief.

I'll read it tomorrow, time for bed.

[Gary L. Griffiths]

Hope for Schrader: Gowder v. Chicago on the horizon! :cool::D:D:D

[Al Norris]

Oral Args are set for Oct.10th, 2012.

08/06/2012 Open Document CLERK'S ORDER filed [1387705] scheduling oral argument before Judges TATEL, WILLIAMS, RANDOLPH Wednesday, 10/10/2012 AM [11-5352]

David S. Tatel - 1994, Clinton
Stephan F. Williams - 1986, Reagan (Senior Status)
A. Raymond Randolf - 1990, G.H.W. Bush (Senior Status)

[Al Norris]

Oral argument was held today in the D.C. Circuit. Argument time vastly exceeded 15 minutes per side. Gura was up for a good 30 minutes and gov. counsel was up well past her time. While the court did not appear to buy Gura's argument that 922(g) should be narrowly construed to exclude common law offenses categorically, at least two members of the panel appeared to be very uncomfortable with a holding that 922(g) could be constitutionally applied to Mr. Schrader specifically in his unique circumstances. They were looking at ways to avoid the constitutional holding, perhaps with a remand to the district court with instructions to apply 18 usc 925(c). However, that would require a judicial rewrite of 925(c), as it permits the district court to review a denial of a decision of the AG, not to conduct de novo proceedings in the absence of such an AG denial, and 925(c) has been defunded by Congress so the AG has no money to apply it. As Judge Tatel said to gov. counsel "assume that we have a major constitutional problem with applying 922(g) to Schrader personally so give us a way to avoid the constitutional issue" Gov. counsel declined the invitation (and honestly there does not appear any easy way to avoid the constitutional issue if the court does not rewrite the statute to avoid application to common law crimes). Bottom line prediction (don't hold me to it): 2-1 (Judges Tatel and Williams) for Schrader in *some* manner, if only a remand for a factual hearing. As Judge Tatel suggested: The Court may be forced to make a constitutional ruling that application of 922(g) "as applied" to Schrader is unconstitutional under the 2A.

The above is a direct quote from MDShooters member esqappellate, who attended the Orals for Schrader. The thread is: Schader Oral argument 10/10/2012 (http://mdshooters.com/showthread.php?t=91671) and the actual post is: http://mdshooters.com/showpost.php?p=1884714&postcount=22

Esqappellate is a retired appellate attorney and has been a great help in understanding both the district court proceedings and the appeals courts... When asked for his permission to quote him, he made the following statement, in order to qualify what the circuit court cannot do (the bolded part, above).

Note that the SCT has already held that under 18 usc 925, the district court is limited to reviewing an administrative denial of a request for relief of the possession disability. See United States v. Bean, 537 U.S. 71, 123 S.Ct. 584 (2002) (holding that actual denial of relief from firearms disabilities was prerequisite to judicial review). Since 925(c) proceedings have been defunded there is no possibility of administrative proceedings and hence no right of action in district court under 925(c). The D.C. Circuit knows that. So, the possibility of an actual ruling on the 2A is quite real.

This is what I remembered about the Bean case. For those that are unaware, but interested in this decision, the Berkeley Press has a 2003 article available for download (75pg PDF @ 2.4MB): http://law.bepress.com/expresso/eps/87/

The actual opinion (written by Justice Thomas) is available from Cornell: http://www.law.cornell.edu/supct/html/01-704.ZS.html This 9-0 opinion overturned the district court and the 5th circuit court (both the panel and en banc) decisions.

[Al Norris]

During orals, Judge Randolf asked questions that the plaintiff's counsel have responded via a Rule 29j letter.

[Al Norris]

In their decision today, the CADC affirmed the lower court's dismissal of the case.

—and given that plaintiffs raised no as-applied challenge with respect to Schrader in their district court briefs, we view this more specific claim as simply derivative of the broader claim that the statute is unconstitutional as applied to common-law misdemeanants as a class. And although plaintiffs referred to the specific circumstances of Schrader’s offense, they did so in the context of arguing that common-law misdemeanants as a class can be expected to share Schrader’s sympathetic characteristics.

In other words, the court rejected the arguments but said that because an as-applied argument was not made at district, it could not now be made and rejected Gura's implied arguments.

[esqappellate]

attached. Filed today.

[JimDandy]

How would your proposed amendment in any way make it right, ethical or moral for this man to be deprived (actually, "stripped") of his RKBA?

Knowledge aforethought. He plead guilty to a crime that he knew, or should have known would have this affect.



It wouldn't do anything for the poor man who's case is currently in court. That will be handled under current law. And yes, I do feel that if he is found guilty that it would be a serious violation of both moral and ethical law.

My proposal to modify the USC would be with the intent to avoid a case like this one ever being brought again, no matter how rabidly zealous the prosecution.

Can you imagine if IL decided that speeding XY miles over the speed limit constituted a Criminal negligence so they tacked on a sentence to prevent gun ownership and skirt their recent SCOTUS defeat?

[esqappellate]

Actually not. The Gun Control Act of 1968 was not enacted until *after* he was convicted of this common law crime.

[JimDandy]

Wikipedia definition of ex post facto:

... is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions that were legal when committed; it may aggravate a crime by bringing it into a more severe category than it was in when it was committed; it may change the punishment prescribed for a crime, as by adding new penalties or extending sentences; or it may alter the rules of evidence in order to make conviction for a crime likelier than it would have been when the deed was committed.

How does this not change the legal consequences, and/or aggravate the crime?

If losing his 2A rights is a legal consequence, and how can it not be...?

[Spats McGee]

To which crime do you refer, JimDandy?

[JimDandy]

I kept looking and found Cummings v. Missouri, 71 U.S. 4 Wall. 277 277 (1867) (http://supreme.justia.com/cases/federal/us/71/277/case.html)

That defines Ex Post Facto in a SCOTUS decision-

An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed, or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required.

Doesn't the combination of laws here constitute ex post facto? He plead guilty to the crime at Point A before two laws that combined have imposed an additional punishment to "that then prescribed" - and as mentioned earlier in the same case point 2 of the syllabus "Deprivation or suspension of any civil rights for past conduct is punishment for such conduct."

[Spats McGee]

To be honest, JimDany, I don't have a good answer for that question. I'll have to look into it. At first blush, your argument (where I think you're headed, anyway) has some appeal.

[JimDandy]

Now if only I could get some billable hours out of it ;)

[esqappellate]

Ex post facto bar applies only to criminal punishments. A firearms disability is not considered to be criminal.

[Spats McGee]

esqappellate, has the firearms disability ever been challenged as ex post facto? I simply haven't delved off into that area.

[JimDandy]

Ex post facto bar applies only to criminal punishments. A firearms disability is not considered to be criminal.

But this same case says a deprivation of civil rights IS a punishment?

[Al Norris]

And in the current iteration of Enos v. Holder, the Government insists, and the lower court upheld, that this is not a civil right, as described in 18 U.S.C. SS 921, 922, and 925.

[JimDandy]

And yet, when you get a pardon, it can lead to having your civil rights restored? And I was just reading something somewhere on the subject that you could get a pardon that wasn't a full pardon and retained the lack of a 2A civil right?

Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866)
A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. While this does separate penalties and disabilities, there is only one category of civil rights restored, and "penalties and disabilities" appears in a recurring theme phrase manner consistent with "The People" in certain other writings.

[Al Norris]

Wednesday, the petition for re-hearing en banc was denied.

[maestro pistolero]

So it gets in line with a cert petition, i presume?

[Al Norris]

I confess to not knowing what Alan Gura might do.

I do know that the specificity of this case will not be helped by any other case currently in the pipeline.

[Al Norris]

If anyone noticed, I updated some cases yesterday. Among those were #32, the Schrader case. On June 11th, Alan Gura field a petition for certiorari with the SCOTUS.

Not having heard of this anywhere else, I emailed Mr. Gura last night for a request for a copy of the cert petition, not expecting anything until Monday (as this was the start of the weekend). Just got home for lunch and the PDF was in my inbox, so I haven't had a chance to read it, as I wanted to get it out ASAP.

The PDF is 90+ pages, but only the first 45 are the actual petition (the rest are underlying lower court opinions).

Thank you, Mr. Gura.

[Al Norris]

Alan Gura is asking the Court to answer 2 questions. The first question is:

1. Whether a common law misdemeanor offense lacking any statutory sentencing range is “a crime punishable by imprisonment for a term exceeding one year” per 18 U.S.C. §§ 921(a)(20)(B) and 922(g)(1).

Should the Court answer, No, then the next question is:

2. Whether an individual may be barred from exercising Second Amendment rights upon conviction of a non-aggravated common law misdemeanor.

What should follow is another "No" answer.

These two questions are the entire basis that this litigation was premised upon, starting with the suit at District Court.

The problem is that both the District and the Appeals Courts refused to answer even the first question. Instead, it presumed that the government had sufficient reason to impose the lifetime ban, based solely upon an extremely broad interpretation of statute in question. At no time, did the lower courts actually require the government to justify the law, they merely presumed that the justification was already present and required the plaintiffs to prove otherwise.

That is rational basis, at its core. Alan Gura shows this, in no uncertain terms. Calling the Courts attention to the myriad forms of "intermediate" scrutiny used, which was merely rational basis in disquise.

Alan Gura goes on to show that the lower courts have varied widely in how they have struck the right to keep and bear arms, until it has been stripped of all meaning, contrary to the Courts pronouncement in McDonald that the right is not a second class right and should be accorded the dignity of other enumerated and fundamental rights:

And on balance, it is not unfair to claim that “the lower courts’ decisions strongly reflect the pragmatic spirit of the dissenting opinions that Justice Stephen Breyer wrote in Heller and McDonald.” Id. at 707. If the Second Amendment is to retain its substantive meaning, this case presents an ideal vehicle for this Court to examine whether the lower court’s methodology here comports with the majority opinions in those cases.



Here is the timeline at DCCA:

12-28-2011 - Appeal officially filed.
02-29-2012 - CLERK'S ORDER filed setting briefing schedule: APPELLANT Brief due 04/20/2012. Appendix due 04/20/2012. APPELLEE Brief due on 05/21/2012. APPELLANT Reply Brief due 06/04/2012.
04-20-2012 - Opening Brief filed.
06-05-2012 - The governments response filed.
06-19-2012 - The reply brief is filed. Awaiting a date for orals.
08-06-2012 - Oral arguments are scheduled for October 10th.
01-11-2013 - Decision against Schrader. Lower Court Affirmed.
02-25-2013 - Petition for en banc filed.
03-13-2013 - Petition denied.
06-11-2013 - Petition for Certiorari Filed. SCOTUS Docket #12-1443. Response due July 15, 2013.

[press1280]

Another well written petition by Gura. Could this be the 2A low hanging fruit that SCOTUS is looking for?

[hermannr]

And the total of this thread shows why there should be no, none, zero person that are not in custody that should be "prohibited".

To deny any person the right to bear arms in his/her own personal self defense basically states that the prohibited person's life is less valuable than any other person that may bear arms in their own personal self defense. (I do think there is an "equal protection" clause...no?

There were no "prohibited persons" prior to 1968, and it wasn't a problem. That there are persons who probably should not have firearms is not argued, but as everyone here knows and understands, those with criminal intent do not care what restrictions the law may place on them and will obtain their firearms illegally...but they will still obtain them.

[Al Norris]

All the filings have been done. The case is set for conference on Nov. 1, 2013. You can read the response and the reply at SCOTUSblog: http://www.scotusblog.com/case-files/cases/shrader-v-holder/

[JERRYS.]

Schrader's problems became extent in 2008 when he was denied a purchase of a shotgun by the NICS system. Even though it appears that MD has no record of this prior misdemeanor conviction, the denial was based upon his 1968 misdemeanor conviction of assault.


this doesn't make sense. MD has no record of this but somehow the feds do?

[leadcounsel]

These laws, and their application (especially retroactively) are what really aggravate me about my profession and our system.

Ask 100 people in the abstract and 99 of them will tell you that these things are unfair, and don't make sense. But then you get 1 person who makes some obscure argument and, as applied to some political hot topic like gun control, and suddenly you get unjust results.

Change it from 'gun control' to 'right to get married, or free religion, or speech, or whatever,' and suddenly you'd get a different outcome.

Thanks for posting all of this...

[JimDandy]

To deny any person the right to bear arms in his/her own personal self defense basically states that the prohibited person's life is less valuable than any other person that may bear arms in their own personal self defense

It may be a little cold, but I'd say people who have committed a felony serious enough to become a prohibited person have made their live less valuable than the people who have been good enough members of society not to do so. You're welcome to disagree, of course.

[raimius]

Perhaps not "less worthy" but less trustworthy to wield the rights of citizens.

I'm not opposed to restricting those who have been proven to abuse their rights. That said, I don't think tax fraud or similar non-violent crimes are a good reason to make someone a prohibited person.

[Al Norris]

Conference was held yesterday. At about 9:30 EST, Monday, Nov. 4, we may find out if cert was granted or denied.

[gc70]

Cert was denied (www.supremecourt.gov/orders/courtorders/110413zor_bj37.pdf#page=2).

[maestro pistolero]

Very disappointing. It is becoming very difficult to remain optimistic in light of each new denial.

The court can only rule on the matter at hand for any particular case, and its hard to imagine identical facts to Schrader that could be addressed in any other upcoming case in the foreseeable future.

Could it be that NONE of these cases would have gone our way, and the Heller majority is merely exercising damage control via denials?

[speedrrracer]

Could it be that NONE of these cases would have gone our way, and the Heller majority is merely exercising damage control via denials?

I had hopes along those lines, but they seem pretty ridiculous.
Correct me if I'm wrong:

Assuming the Heller 5 no longer exist (because otherwise they'd just take the case and win it, right?) the bedtime story is that there's a Heller 4 who are preventing "permanent" damage to the 2A.

How are they preventing SCOTUS, with (now) a majority that will vote against the 2A? The thought is that these Heller 4 are not granting cert to cases? That doesn't make sense, since only 4 votes are required to grant cert, so the 4 anti-2A Justices from Heller, McDonald can simply grant cert without any Heller 4 involvement, and then use the (now-swinging-anti) swing vote to claim a majority and destroy the 2A.

[JimDandy]

From what I've heard in (I think the article ramping up the DOMA challenge) it's something of a naughty no-no to vote to grant cert on a case you already decided to uphold.

In other words, I'm under the impression it's not "illegal" but it's not very kosher to vote to grant cert to something, if you have no intention of changing the decision, but you just want to rubber stamp the lower court's decision.

ETA: I suspect that the swing vote in this case has a very narrow path they swing on. A right to bear arms, but not out in public. And only for people more pure than driven snow. We can be thankful they're holding the line, but we shouldn't expect a whole lot more. At this point, I suspect the only cases we have a reliable shot at winning would be procedural over activistic. I think we have more of a chance (re-)challenging the lack of ability to redress grievances in the 2A/closed office scenario than trying to get the judges to say someone who is prohibited shouldn't be prohibited. And that won't be a cakewalk.

Part of me wishes the judges were given LESS information- or were better at separating their politics from the law.

[speedrrracer]

From what I've heard in (I think the article ramping up the DOMA challenge) it's something of a naughty no-no to vote to grant cert on a case you already decided to uphold.

In your view, how does that mesh with Scalia's interview in which he says he "already know[s] the law", i.e., already knows the correct way (in his view, obviously) to vote on a case?

If he already knows how he'll vote on all of these cases, how can he, in good conscience, grant cert to any? OTOH, why would it be a naughty no-no to grant cert when you already know your vote but there's a circuit split and our rights need clarification? The nation needs a unifying decision for consistent application of law, doesn't it?


ETA: I suspect that the swing vote in this case has a very narrow path they swing on. A right to bear arms, but not out in public. And only for people more pure than driven snow.

Let's assume you're correct. Is there a likely explanation for why wasn't this mentioned in Heller? Why then the language in Heller implying a right to bear in public, when they could have clearly stomped it out, right then?

[JimDandy]

In the case of a circuit split, they would vote for cert on the circuit case they plan/suspect to overturn, not uphold.

As for why this wasn't mentioned in Heller- the fact that you read Carry into Heller doesn't make it there. There was quite a bit of fence sitting language in Heller people attribute to "consensus building" or whatever you want to ascribe it to. I think the Justices made it pretty clear they were willing to draw a line in the sand, but that line is far behind where many people would have liked.

To be fair both sides are trying to twist that fence sitting language to their benefit. Dangerous and Unusual for assault weapons bans for example. That was nothing more than SOP to NFA, GCA and FOPA. Sensitive places-schools, jails, etc.