3 replies to this topic

[mauserme]

http://www.wnd.com/i...w&pageId=215381

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State accused of stripping 2nd Amendment rights

Case is 'great example of why gun owners cannot trust government bureaucrats'

Another lawsuit over gun rights has been launched by the Second Amendment Foundation, the group that won the landmark Supreme Court decision affirming that the right to bear arms applies to individual Americans.

The newest lawsuit, filed on behalf of a Georgia resident who is an honorably discharged veteran from the Vietnam War, names as defendants  Attorney General Eric Holder and the Federal Bureau of Investigation.

It was filed in U.S. District Court for the District of Columbia on behalf of Jefferson Wayne Schrader of Cleveland, Ga. The plaintiffs are represented by attorney Alan Gura, who was successful in his Supreme Court arguments in the McDonald case out of Chicago in which the court determined the Second Amendment applies to individuals, not just to state National Guard units or others in the U.S. military. The case struck down far-reaching gun bans.

Gura also argued and won the 2008 Heller case in the Supreme Court that eliminated the blanket ban on handguns in Washington, D.C.

The question at hand is whether a state, in this case Maryland, can deprive an individual of the right to possess a weapon over a misdemeanor.

According to the Second Amendment Foundation, it was in 1968 when Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, Md.

The organization said the altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man with whom he fought was in a street gang whose members had attacked him for entering their "territory," according to the complaint.

Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged, the organization said.

However, in 2008 and again in 2009, Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He even was told by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.

"Schrader's dilemma," explained SAF Executive Vice President Alan Gottlieb, "is that until recently, Maryland law did not set forth a maximum sentence for the crime of misdemeanor assault. Because of that, he is now being treated like a felon and his gun rights have been denied.

"No fair-minded person can tolerate gun control laws being applied this way," he said. "Mr. Schrader's case is a great example of why gun owners cannot trust government bureaucrats to enforce gun laws."

...

A .pdf of the complaint is attached.

Attached Files

•  Schrader v Holder.pdf   246.73K   73 downloads

[Buzzard]

This case could have as effect on people convicted of domestic battery, could it not?

[lockman]

About time. Hopefully this will address the domestic violence "exception" to simple battery (perceived, fabricated or real).

[mauserme]

An interesting analysis of this case:

http://constitutiona...r-v-holder.html

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Missing from Schrader v. Holder

The case of Jefferson Wayne Schrader and Second Amendment Foundation v. Eric Holder and Federal Bureau of Investigation is on facts well-selected for rolling back the unconstitutional provisions of 18 USC 922. However, it is missing several claims for relief that need to be included in the petition to establish a predicate for eventual appeal.

The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.

To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.

Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.

I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.

It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?

How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre? Posted by Jon at 11:56