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October 17, 2010, 04:11 PM | #1 |
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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. |
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. |
October 18, 2010, 12:59 PM | #3 | |
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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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October 18, 2010, 01:39 PM | #4 | ||
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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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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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October 19, 2010, 09:00 AM | #6 | ||
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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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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
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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? |
October 20, 2010, 07:44 AM | #10 | ||
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Quote:
18 USC 921(a)(20) reads: Quote:
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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October 20, 2010, 10:08 PM | #11 | |
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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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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:
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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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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. |
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. |
December 30, 2011, 09:56 AM | #16 | |
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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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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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December 30, 2011, 05:13 PM | #18 | |
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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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December 30, 2011, 06:32 PM | #19 | |
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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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January 2, 2012, 10:26 AM | #21 | |
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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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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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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. |
May 21, 2012, 07:35 PM | #24 | |
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Considering everything that is on Gura's plate, this should not surprise anyone. |
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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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