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Old October 17, 2010, 04:11 PM   #1
Al Norris
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SCOTUS Cert filed: Schrader, et al v. Holder, et al

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.
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Old October 17, 2010, 09:13 PM   #2
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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.
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Old October 18, 2010, 12:59 PM   #3
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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.
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Old October 18, 2010, 01:39 PM   #4
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Quote:
Originally Posted by vranasaurus
The GCA excludes misdemeanors punishable by two years or less.
Nope. The actual wording under 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 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.
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Old October 19, 2010, 06:48 AM   #5
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Well, barring anything else.......why doesn't the 30 days alternative in his original conviction carry the day?
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Old October 19, 2010, 09:00 AM   #6
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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...

Quote:
who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
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Old October 19, 2010, 11:01 AM   #7
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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.
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Old October 19, 2010, 12:31 PM   #8
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So, what would be the best course to correct the injustice?

Wouldn't it be to have one of our legislators include a line (in any bill) reading something like...amend
Quote:
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?
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Old October 19, 2010, 10:40 PM   #9
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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?
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Old October 20, 2010, 07:44 AM   #10
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Quote:
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:



Quote:
(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.
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Old October 20, 2010, 10:08 PM   #11
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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.
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Old September 5, 2011, 12:57 AM   #12
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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:
Quote:
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.”
Quote:
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.
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Old September 5, 2011, 12:59 AM   #13
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Perhaps it's obvious, but Gura is laying bricks here for a facial challenge to Lautenberg, IMO.
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Old December 24, 2011, 06:50 PM   #14
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Yesterday in Schrader v. Holder, the Judge granted the defendants MTD and denied the plaintiffs MSJ as moot.

Alan Gura was ready for this, as he immediately filed the the appeal.
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Old December 26, 2011, 07:57 PM   #15
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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.
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Old December 30, 2011, 09:56 AM   #16
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Quote:
2. plead to a charge which will not cause you to loose your 5A rights
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.
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Old December 30, 2011, 04:55 PM   #17
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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.
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Old December 30, 2011, 05:13 PM   #18
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Quote:
Originally Posted by varanasaurus
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.
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Old December 30, 2011, 06:32 PM   #19
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Quote:
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.
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Old January 2, 2012, 12:51 AM   #20
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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.
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Old January 2, 2012, 10:26 AM   #21
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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.
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Old January 2, 2012, 04:27 PM   #22
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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.
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Old April 25, 2012, 11:25 PM   #23
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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.
Attached Files
File Type: pdf 11-5352 Schrader Opening Brief.pdf (340.1 KB, 18 views)
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Old May 21, 2012, 07:35 PM   #24
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Quote:
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.
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Old June 5, 2012, 08:54 PM   #25
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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.
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File Type: pdf Schrader CADC Appelle Response Brief.pdf (142.8 KB, 2 views)
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