Sunday, January 13, 2013

Schrader V. Holder: DC Court Of Appeals Upholds Ban On Jefferson Schrader Owning Guns Because Of 1968 Misdemeanor Fistfight With Gangbanger

On January 12th, 2013, Newsmax reports that the United States Court of Appeals for the District of Columbia Circuit upheld a lower-court ruling banning Jefferson Wayne Schrader from owning firearms because of a misdemeanor conviction for assault and battery in 1968. The appeals court affirmed the lower court's ruling that there was no constitutional impediment to including common-law misdemeanants within the federal firearms ban and that the right to bear arms secured by the Second Amendment is not unlimited. Alan Gura, Schrader’s attorney, said that a further appeal is likely.

-- Read the 21-page appeals court ruling on Schrader v. Holder, 11-cv-5352 HERE.

The case was triggered by an unfavorable 2008 NICS background check. On November 11th, 2008, Schrader's companion attempted to purchase a shotgun for him as a gift; shortly thereafter on January 14th, 2009, Schrader attempted to purchase a handgun for personal protection. However, a subsequent National Instant Criminal Background Check (NICS) query flagged Schrader as being prohibited under federal law from purchasing firearms, cancelling the shotgun transaction. On June 3rd, 2009, the FBI advised Schrader that the shotgun transaction had been rejected pursuant to 18 U.S.C. § 922(g)(1) because of a July 1968 Maryland misdemeanor assault conviction. The FBI agent also advised Schrader to get rid of any firearms he already possessed or face criminal prosecution; this led to Schrader cancelling his handgun order. The strange thing about this is that, according to Schrader, before 2008 he had bought guns from dealers at least five times without encountering difficulties with background checks.

So what happened in 1968? For the most detailed story, we go to No Lawyers - Only Guns And Money. In July 1968, Jefferson Schrader was serving in the U.S. Navy when he was attacked by a street gang while stationed in Annapolis, Maryland. The gang claimed Schrader was "in their territory". A few days later, Schrader was again accosted by one of the original assailants; a fight ensued and Schrader punched the gang member. Unfortunately, this was seen by a local police officer and Schrader was arrested for assault and battery and disorderly conduct. In court, Schrader was found guilty of misdemeanor assault and battery despite the fact that it seems like a case could have been made for self-defense. He was fined $109 including court costs which he paid; the alternative would have been 30 days in jail. Schrader subsequently shipped out for a tour of duty in Vietnam and then was honorably discharged upon his return. Since that time, Schrader has not had any further brushes with the law with the exception of one traffic ticket. Schrader contacted the Second Amendment Foundation, and on October 13th, 2010, filed suit in U.S. District Court for the District of Columbia, naming Attorney General Eric Holder and the Federal Bureau of Investigation as defendants. Relief sought included the following (after the jump):

-- Requested that the Attorney General correct the erroneous NICS information under his authority from 18 USC §925A and remove Schrader from the prohibited person's list. The relevant part of that section of the code reads:

A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

-- Requested a permanent injunction barring enforcement of 18 USC §922(g)(1) by the Defendants and all of those under their power on the basis of simple common-law misdemeanor offenses which have no statutory penalties.

Here's the kicker; at the time, Maryland law did not set any maximum sentence for the crimes for which Schrader was convicted. This is important because one of the disqualifying factors is conviction of a misdemeanor punishable under state law by more than two years in prison. But even though Schrader spent no time in prison, the Department of Justice contended that because of Maryland's lack of a maximum sentence at the time, he could have been sentenced to more than two years in prison, so they maintained Schrader should be disqualified from owning firearms. Both the lower court and the appeals court agreed with the Department of Justice, and so Schrader is still banned from owning a firearm.

Analysis: First of all, this exposes the draconian nature of the law, failing to provide any forgiveness for youthful indiscretions long in the past. There is no logical reason to deny a person the right to bear arms because of a misdemeanor fistfight 45 years ago, particularly when the account of the incident shows a strong possibility that Schrader was acting in self-defense. Furthermore, Schrader has had a clean record since that time. Secondly, the interpretation of Maryland's law by the Justice Department is bogus, presuming the worst. Since Schrader served no time in prison, then actual time served must be the only standard of evaluation. The fact that Schrader could have been sentenced to more than two years is irrelevant; we sanction people for what they actually do, NOT for what they could have done.

It is decisions like this that breed honest and healthy hatred for the federal government. No red-blooded American who values life, liberty, and pursuit of happiness can read this story without a sense of outrage welling up in his or her bosom.


  1. You are absoulety correct. This is total BS.

  2. There are classes of people in the same boat, with the flash of the pen! Who knows? Even you may be on the list and just not know it! ...

  3. This is what happens when commies run our government.