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Old October 10, 2012, 03:06 PM   #30
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,549
Originally Posted by esqappellate
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 and the actual post is:

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).

Originally Posted by esqappellate
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):

The actual opinion (written by Justice Thomas) is available from Cornell: This 9-0 opinion overturned the district court and the 5th circuit court (both the panel and en banc) decisions.
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