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

[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!

[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]

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: http://mdshooters.com/showpost.php?p...4&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).

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): 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)

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.