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Blindfolded Lady Justice
Justice Blindfolded is Good ... but Always?
Jefferson Schrader just wanted to buy a gun. The government wouldn't let him.

Schrader, an honorably discharged Navy veteran, went to a dealer to buy a shotgun and a handgun. But then the mail came, a letter from the FBI saying he did not pass a Federal background check. Why? In 1968 when he was 20, he had been convicted of assault and battery for punching a street gang member who had assaulted him earlier that month. In accordance with latitude the Maryland law allowed for such misdemeanors, the judge fined Schrader $100 plus $9 in court costs but did not sentence him to jail time. Mr. Schrader went back to the Navy and served in Viet Nam.

District and appellate courts upheld the ban imposed by Federal law. With no place else to go, Schrader took his case to the US Supreme Court. In the law language of this case, here are the issues:

(1) Whether a common law misdemeanor lacking any statutory sentencing range is “a crime punishable by imprisonment for a term exceeding one year” under 18 U.S.C. §§ 921(a)(20)(B) and 922(g)(1); and (2) whether an individual may be barred from exercising Second Amendment rights upon conviction of a non-aggravated common law misdemeanor.
The Supreme Court decided on November 4 not to take briefs and hear oral arguments in the case of Schrader v. Holder. As customary, SCOTUS gave no reason for refusing to take the case. Therefore, the opinion of the Federal Court of Appeals stands.

Those are the facts. Beneath the squiggle cometh the law.

[Disclaimer.  What follows is general information. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice.]

THE GUN CONTROL ACT, passed in 1968 and amended from time to time thereafter, lists several categories of people who are not allowed to buy guns and ammunition.

The FBI's notice said

Schrader had "been matched with the following federally prohibitive criteria under Title 18, United States Code, Sections 921(a)(20) and 922(g)(1): A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year or any state offense classified by the state as a misdemeanor and ... punishable by a term of imprisonment of more than two years." (Italics and underlining added.)
So, you ask, what was the penalty under Maryland law for Mr. Schrader's  assault and battery, a misdemeanor, back in 1968? Schrader had been convicted of a "common law" offense and the Maryland statutes of the time did not specify a minimum or maximum jail sentence, or any sentence at all.

IN THIS CASE, Schrader's counsel pointed out that he wasn't imprisoned for any length of time. He argued that the Maryland legislature's failure to set specific penalties shouldn't disable an individual from buying a gun. But in any event, counsel concluded, the law should be invalidated because it impinged on the Second Amendment's right to keep and bear arms.

The Court of Appeals rejected it all. It fastened on the word "punishable" in the Federal law, holding that what was important was the potential punishment. The sentence for common law misdemeanors could have extended under state law for more than two years and apparently, Maryland's courts sometimes did. However, rather than getting hung up on whether "misdemeanants" qualified for Second Amendment protection, the Court assumed they did and moved on to ...

THE BIG CONSTITUTIONAL ISSUE.

The Court recited J. Scalia's carefully crafted and repeated disclaimers in his opinion for the majority in Heller v. DC, the mother of all gun rights cases:

… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
[Small point: The Federal law talks about both felons and "misdemeanants". Scalia's Heller opinion mentions only felons. Big deal or just shorthand? Keep reading.]

Schrader's case tests whether a statute complies with the US Constitution. A threshold question in such cases is what "level of scrutiny" will the courts employ to test the statute and its application? How high the court hearing the case decides to set its level of scrutiny depends on how fundamental the right is and what governmental interest is at stake. Simply stated, from easy to hard, the choices are:

(1) the easiest test - is there a rational basis to achieve a proper government purpose?, or
(2) an intermediate test - is there a substantial relationship to such a purpose or objective? or
(3) the strict scrutiny test: is the law narrowly tailored to achieve a compelling governmental purpose?

How high or low a court decides to set the bar can win or lose any given case. Courts are not free to be arbitrary with the level of scrutiny they use. Precedence comes from other courts and other decisions, but this is still early in the development of Second Amendment gun rights cases, so precedent is less settled than one might think.

Schrader's counsel is Alan Gura, who is very familiar with gun rights advocacy and an accomplished advocate having successfully argued the Heller and McDonald cases before SCOTUS. Gura argued that restrictions on Second Amendment rights should be under "strict scrutiny" and a Federal law which "disarms" classes of people like Schrader can't pass that test.

The Court of Appeals dispatched Gura's argument with this conclusion: "common-law misdemeanants as a class cannot be considered law-abiding and responsible." In other words, people who commit misdemeanors are not - for this purpose - to be treated differently than felons. The Court declared that it would apply the intermediate test:

"Intermediate scrutiny requires the government to show that disarming common-law misdemeanants is 'substantially related to an important governmental objective.' Section 922(g)(1) easily satisfies this standard."
The purpose of the Gun Control Act was to curb crime, the Court held, and Congress's ban on firearms in Sec. 922(g) was "to keep guns out of the hands of presumptively risky people." Other Courts had employed the intermediate scrutiny standard in Second Amendment cases so the DC Appeals Court felt it was on firm ground.

At this point, the Appeals Court had decided the constitutional question presented to it.

And then the Court offered TANTALIZING ALTERNATIVES THAT MIGHT HAVE BEEN.

Instead of - or addition to - raising Big Constitutional Questions, the case could have been argued as a Littler Constitutional Question:

At several points in their briefs, plaintiffs appear to go beyond their argument that section 922(g)(1) is unconstitutional as applied to common-law misdemeanants as a class and claim that the statute is invalid as applied to Schrader specifically. Were this argument properly before us, Heller might well dictate a different outcome. According to the complaint's allegations, Schrader's offense occurred over forty years ago and involved only a fistfight. Schrader received no jail time, served honorably in Vietnam, and, except for a single traffic violation, has had no encounter with the law since then. To the extent that these allegations are true, we would hesitate to find Schrader outside the class of "law-abiding, responsible citizens" whose possession of firearms is, under Heller, protected by the Second Amendment. (underlining added)

But we need not wade into these waters because plaintiffs never argued in the district court that section 922(g)(1) was unconstitutional as applied to Schrader.

... Given this, we believe the wisest course of action is to leave the resolution of these difficult constitutional questions to a case where the issues are properly raised and fully briefed.

So ... if at the beginning in the District Court, Schrader's lawyer had also raised the littler question - is the government's action constitutional as applied to Schrader in particular? - the appellate court, at least, says it "might well" have decided differently. Ouch!

And then, the Court went on to another point. Sec. 925(c) allows individuals to apply to the Attorney General for relief from adverse determinations under the Gun Control Act. However, Congress has not appropriated funds to process such applications. Hence, the Court made this invitation to Congress and a cautionary note to the Attorney General:

Leaving these questions for their proper day has an added benefit: it gives Congress time to consider lifting the prohibition on the use of appropriated funds for the implementation of section 925(c), which, as explained above, permits individuals to obtain relief from section 922(g)(1) by demonstrating that they no longer pose a risk to public safety. Without the relief authorized by section 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge brought
by an individual who, despite a prior conviction, has become a "law-abiding, responsible citizen" entitled to "use arms in defense of hearth and home." (quoting language from Heller).
In other words, the law describes a good remedy available to individuals aggrieved by the government's treatment of them. If Congress would appropriate money to fund the process, resort to the courts might not be necessary.

So WHY DID SCOTUS REFUSE TO REVIEW Schrader v. Holder?

Because it felt the result was just? Maybe because the DC Court of Appeals' advice to Congress seemed sound? Perhaps SCOTUS denied review because it didn't want to delve into Congress's prohibitions on sales, at least not this particular prohibition? Or do the facts cry out for a process for individual treatment of - literally - exceptional cases and SCOTUS doesn't want to take this on? Are other, better cases on the Second Amendment coming along this term? Stay tuned!

PERSONALLY, I couldn't help but state the case in Jefferson Schrader's favor. Not because I believe that Sec. 922(g)(1) of the Gun Control Act is invalid but because this case feels to me like a Gotcha!

Second guessing how a case could have been handled is alluringly easy, but ... in my view, the Department of Justice could have exercised some discretion and released Schrader from the ban, doing justice (!) without disturbing the Federal statute. Or, the district or appellate courts could have encouraged both counsel to consider an "as applied" approach to Schrader individually. Nevertheless, it looks like all parties wanted to position the case in a Big Picture framework and the Federal courts rose to the occasion.

What do you think?

~~~~~~~


The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

[Disclaimer.  What follows is general information. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice.]

Originally posted to Firearms Law and Policy on Tue Nov 05, 2013 at 03:59 PM PST.

Also republished by Shut Down the NRA and notRKBA.

Poll

Should Mr. Schrader have been allowed to buy a gun?

24%23 votes
11%11 votes
1%1 votes
29%28 votes
1%1 votes
12%12 votes
12%12 votes
6%6 votes

| 94 votes | Vote | Results

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Comment Preferences

  •  Good job with this complex case, TRPChicago (14+ / 0-)

    You really broke it down for us.

    Republished to Shutdown the NRA.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 04:12:18 PM PST

    •  Thanks! It's actually not a complicated case, (7+ / 0-)

      ... but I think we should be "building a record" of cases, early on this SCOTUS term, that informs what's happening in gun rights law.

      And the advocates will press all manner of Second Amendment challenges. Understandably, for there is ground there for them to explore.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 04:40:52 PM PST

      [ Parent ]

      •  There are cases percolating up (4+ / 0-)

        that challenge every single paragraph of section 922. No matter whether we think the challenges or have merit or whether this is settled law, we all have an interest in understand this part of gun law.

        If any part of this law is struck down many states will follow suit and change their laws.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Tue Nov 05, 2013 at 04:58:12 PM PST

        [ Parent ]

      •  TRPC - very thoughtful and informative diary (6+ / 0-)

        Thank you for writing it and publishing it here. I wish we had more like it.

        "let's talk about that"

        by VClib on Tue Nov 05, 2013 at 06:22:46 PM PST

        [ Parent ]

        •  Follow us (4+ / 0-)

          There will be more diaries like this. We plan to cover petitions that are granted as well as those that are denied cert. IANAL but it seems to me that this term SCOTUS is willing to look at Federal Law.

          For readers who are new to gun law, Heller was decided in 2008, and it was limited to a firearms law in Washington D.C. McDonald was decided in 2010 and that extended the Heller decision to all the states.

          Sooner or later the SCOTUS must clarify how the lower courts should evaluate federal gun laws, and the hundreds of state and local laws affected by the Heller decision.

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Tue Nov 05, 2013 at 07:38:58 PM PST

          [ Parent ]

          •  SCOTUS has set two gun-related cases ... (5+ / 0-)

            ... for argument.

            Argument is scheduled for November 12 in Rosemond v. U.S., which deals with how much proof is required to tie one perp to the acts of another who used a gun to commit a crime.

            In January, SCOTUS will hear Abramski v U.S., on straw purchases from gun dealers.

            Both of these cases could be decided without resort to going head-on with Second Amendment issues. Nevertheless, they'll be instructive.

            Petitions for the Court to hear others are in the pipeline. In particular, many do raise direct challenges to the Gun Control Act and related legislation that was at issue in the Schrader case.

            2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Tue Nov 05, 2013 at 07:56:40 PM PST

            [ Parent ]

  •  I think (5+ / 0-)

    anyone who has demonstrated a propensity to violence should lose their right to own a gun for life.

    •  Would a single act... (5+ / 0-)

      of violence be a demonstrated propensity?

      This makes about as much sense as Mike Huckabee on mescaline. - Prodigal 2-6-2008

      by Tonedevil on Tue Nov 05, 2013 at 04:55:37 PM PST

      [ Parent ]

      •  Yes (2+ / 0-)
        Recommended by:
        polecat, earlybird

        As long as gun owners are going to push for laws to allow a 12 year old to strap on a gun in an Arizona airport, I'm figuring this is the only we're going to get any semblance of gun control.

        •  One-Strike, Zero-tolerance Laws? (6+ / 0-)

          Damn disgusting on a progressive website.

          Your hate-mail will be graded.

          by PavePusher on Wed Nov 06, 2013 at 03:47:43 PM PST

          [ Parent ]

          •  Coming from a guns advocate (3+ / 0-)

            you can call me disgusting all you want. I relish it.

            I'm sick of kids and other innocent people getting killed and I'm sick of many responsible gun owners not taking responsibility for coming up with solutions.

          •  Welcome your thoughts about Mr. Schrader's case (5+ / 0-)

            Feel free to explain why you think one-strike, zero-tolerance laws are wrong, or link to comment threads where you already have explained why.

            We want to have a conversation here.

            Please refrain from insulting fellow Kossacks for daring to express their views.

            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

            by LilithGardener on Wed Nov 06, 2013 at 05:05:53 PM PST

            [ Parent ]

            •  an excerpt from the article I posted above (3+ / 0-)
              Felons Granted "Relief" Commit New Crimes

              The costs associated with the "relief" process were generated partly from a background investigation including interviews with employers and neighbors. This process, however, failed to weed out all of the applicants prone to future criminal conduct. The VPC found that of those granted "relief" from 1985 to 1992, 69 were subsequently re-arrested for crimes that included: attempted murder; first degree sexual assault; abduction/kidnapping; child molestation; illegal possession of a machine gun; trafficking in cocaine, LSD, and PCP; and, illegal firearms possession or carrying.

              •  So, are we to assume the quoted section (6+ / 0-)

                is the way to legitimize your position as stated previously that one arrest/conviction is sufficient for the denial of the RKBA forever?

                Is this really the standard we must adopt to satiate your desires?  Can we do it for all "rights"?  If one is convicted of plagiarism, should we deny them their right to a free press, forever?  Could we do it for speech as well?  Say you are convicted of purgery? Should you be denied the right to speak freely???  What if the purgery occurs when "petitioning for redress", a double-whammy, right???

                This "standard" you espouse is what I'd define as: unreasonable.

                The argument you've quoted above has many aspects and many points attempting to be made.  Cost, failure to "weed out applicants prone" and recidivism.

                Let's address these:

                1. Costs-  This is simply a moot "point".   We accept the costs when we pass laws, statutes and regulations.  If costs are a deciding factor, then we surely must deny any and all court claims.  Shut them down and we'll save billions.  Alas, our created government must follow certain procedures, included in said is "due process", and I'm not referencing Eric Holder's definition of it either.  

                Oddly, as the law is/was written. it actually complies with our Constitution and has a "due process" procedure for redress of grievances. YET, Congress then went about defunding that same lawful obligation.  

                2.  Failure to "weed out those prone"-  Sadly, I actually wrote a diary that touched on this very point.  It seems that the actual professionals that train to understand the human mind can't and won't accept that as a legitimate "standard" anyone could attain.

                http://www.thenewyorkworld.com/...


                “'Likelihood’ isn’t a standard that we work with. We are not very good at predicting violence at any point in the future,” said Dr. Glen Martin, president of the New York State Psychiatric Association. The association has submitted a complaint to the U.S. Department of Health and Human Services Office for Civil Rights, charging that the New York law may violate HIPAA.

                To expand this a bit further.  What was the stated goal of this agency's program?  Was it charged with deciding, after investigation, whether a person's request for relief was valid or not?  Or was there some unspoken "read between the lines" in the policy they were supposed to divine out, implement and then didn't to the satisfaction of this Violence Policy Center???

                If we could know or predict future events, then there would be no need for jails, courts or our government.

                3.  Recidivism-  Half the listed offenses could be negated by the legalization of drugs and ending the war on the 2nd Amendment.  The violent acts against others cannot not be predicted, by anyone, as stated in #2 above.  The only legitimate path forward would be for us to take responsibility, as a society, and stop creating violent citizens.

                And I have to point out the absurdity of the last couple "offenses", owning a machine gun and illegal firearms possession or carrying.  

                Ummmm, weren't they denied the right and ignored the law and did it anyways?  Was the crime just owning or carrying in these instances?  If so, then how about we restore their rights already?  See, then no crime would have been committed.  Those "offenses" seemed a bit circular, IMO.

                -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                by gerrilea on Wed Nov 06, 2013 at 11:29:04 PM PST

                [ Parent ]

              •  69 of "1/3" of applicants granted relief (2+ / 0-)
                Recommended by:
                PavePusher, gerrilea

                22,000 divided into thirds: 7333

                0.094 rate of recidivism, defined as re-arrested.

                Not convicted.  Just arrested.  I note several "dismissed" in your VPC citation.

                I'd wager ANY Parole/Probation Officer would be thrilled with that rate, compared to the average rate of recidivism experienced in most jurisdictions.

                Bureau of Justice Statistics:

                Summary findings

                During 2007, a total of 1,180,469 persons on parole were at-risk of reincarceration.  This includes persons under parole supervision on January 1 or those entering parole during the year. Of these parolees, about 16% were returned to incarceration in 2007.

                Among nearly 300,000 prisoners released in 15 states in 1994, 67.5% were rearrested within 3 years. A study of prisoners released in 1983 estimated 62.5%.

                Of the 272,111 persons released from prisons in 15 states in 1994, an estimated 67.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.9% were reconvicted, and 25.4% resentenced to prison for a new crime.
                These offenders had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges within 3 years of release.

                Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).

                Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide.

    •  I was pretty nonviolent as a 20 year old. But ... (8+ / 0-)

      ... should a push/shove fist fight doom someone for the rest of his (or her) life? Schrader served in 'Nam, where "a propensity to violence" was the norm and under in-the-field circumstances, it was required.

      I don't diss your point, but I am trying to get it in context.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 04:56:25 PM PST

      [ Parent ]

      •  No, but it's hard for me to see mere... (1+ / 0-)
        Recommended by:
        fcvaguy

        ...restrictions on gun privileges as dooming somebody.

        should a push/shove fist fight doom someone for the rest of his (or her) life?
        It's not like we're talking about taking away anybody's right to vote here.
        •  Ah, some rights.... (5+ / 0-)
          Recommended by:
          DavidMS, gerrilea, 43north, ER Doc, Kasoru

          is more equal than other rights.

          Got it.

          Your hate-mail will be graded.

          by PavePusher on Wed Nov 06, 2013 at 03:48:13 PM PST

          [ Parent ]

          •  You mean like voting? (2+ / 0-)
            Recommended by:
            LilithGardener, Miggles

            Yeah, the right to vote is more important than the supposed "right" to guns.

            That's why I support encouraging everybody to vote, including inmates convicted of felonies and currently serving time in prison, and am in unalterable opposition to felony disenfranchisement laws, while at the same time I still do not support things like arming those same inmates with AR-15s and 30 round magazines.

            •  But you'd have no issue with sending (5+ / 0-)

              those inmates to war, as an alternative to sentencing?

              My guess given the era, is Mr. Schrader would have been given that option, if not already enlisted in the US Navy.

              •  How about a mandatory draft instead ? n/t (2+ / 0-)
                Recommended by:
                43north, LilithGardener

                "Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself." —Twain, Mark

                by not4morewars on Thu Nov 07, 2013 at 04:35:54 AM PST

                [ Parent ]

                •  2 years of some form of mandatory service? (3+ / 0-)
                  Recommended by:
                  PavePusher, LilithGardener, Kasoru

                  I think it's a great idea.  
                  Military, social services to the homeless, forestry fire-fighting, the opportunities are endless.
                  This should impact every teen, regardless of economic status.
                  Start college when you're 20 or 21, and have outgrown some of your youthful idiocy.

                  •  I really love the idealism but didn't we outlaw (2+ / 0-)
                    Recommended by:
                    LilithGardener, 43north

                    forced enslavement?

                    Fundamentally it boils down to what is the purpose of my existence? Do I exist to benefit the State/society or am I free individual whom gets to decide my fate for myself?

                    I truly must come down on the side of freedom, especially freedom of choice.

                    As for this:

                    This should impact every teen, regardless of economic status.
                    The history of the draft shows us the wealthy elite do not have to send their children into war to die and if they end up "doing the right thing", they are given special privileges like GW was.

                    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                    by gerrilea on Thu Nov 07, 2013 at 09:15:15 AM PST

                    [ Parent ]

            •  The right to self-defense.... (1+ / 0-)
              Recommended by:
              gerrilea

              and effective tools for same, is just as important as every other right.  

              And if you don't think poor voting causes far more deaths than civilian gun ownership, you aren't doing the math.

              Why should criminals get to vote, but be deprived of defensive tools?  Justify this, please.

              Your hate-mail will be graded.

              by PavePusher on Thu Nov 07, 2013 at 06:06:06 AM PST

              [ Parent ]

              •  Voting rights are highly regulated (2+ / 0-)
                Recommended by:
                coquiero, Miggles

                and registration is required.

                Time, manner, and place restrictions are really pretty tight for voting.

                If you're sure you want to make that analogy I could elaborate.

                "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                by LilithGardener on Thu Nov 07, 2013 at 07:01:37 AM PST

                [ Parent ]

                •  This subject might make for a good Open Thread, (2+ / 0-)
                  Recommended by:
                  PavePusher, LilithGardener

                  ... perhaps headlined by two or three opposing views of limited length to tee up the subject and focus the discussion.

                  "Which" subject?

                  Ah, well I'd propose something like - are the Second Amendment's gun rights as important as other rights in the Bill of Rights? Or more? Or less?
                  The internet's lines may sizzle for a while, but it will raise interesting perspectives and hopefully, be a vehicle for us all to think more and deeper than just a gut reaction.

                  2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Thu Nov 07, 2013 at 08:45:28 AM PST

                  [ Parent ]

                  •  Bring it! (1+ / 0-)
                    Recommended by:
                    Miggles

                    Great idea!

                    That sounds a bit broad and fuzzy to me, but I'll assume you have some specific ideas in mind. And our readers will have suggestions no doubt.

                    I'll have to go hunt to find the comment where I broke down the restrictions on voting.

                    If RKBA advocates (a group in which I include myself) really want to propose that gun ownership and use should be as easy as voting I'm prepared to go there and develop that analogy fully.

                    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                    by LilithGardener on Thu Nov 07, 2013 at 10:05:38 AM PST

                    [ Parent ]

                •  "Highly regulated", I'm missing that part honest. (2+ / 0-)
                  Recommended by:
                  PavePusher, LilithGardener

                  All I have to do to vote in New York, is register in the district I live in, a couple weeks later I'll be sent a voter registration card.

                  Heck, if I register a car, on the forms the DMV provides are voter registrations.

                  Voters do not need to have background checks, get 5 sworn statements attesting to their good moral character, get pre-safety training proving their efficiency in reading, understanding the political issues or how to handle a pen/pencil, prove to a judge they have a need to vote and then wait almost 2 yrs for a decision to be made  before they are granted said privilege.

                  -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                  by gerrilea on Thu Nov 07, 2013 at 09:23:31 AM PST

                  [ Parent ]

                  •  Except to politicians, voting isn't as dangerous (2+ / 0-)
                    Recommended by:
                    gerrilea, LilithGardener

                    ... as a firearm.

                    Or, is it?

                    2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                    by TRPChicago on Thu Nov 07, 2013 at 09:25:20 AM PST

                    [ Parent ]

                    •  Humm...I guess it depends if you're (0+ / 0-)

                      "one of those people" or not.

                      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                      by gerrilea on Thu Nov 07, 2013 at 09:33:33 AM PST

                      [ Parent ]

                      •  What I want to know is.... (2+ / 0-)
                        Recommended by:
                        LilithGardener, gerrilea

                        where are all these resources we are accused of stealing?  Where is the flood of oil, gold, etc, we are supposed to be benifiting from?  

                        As a U.S. military member, I'd really like to be able to slap people like this.  

                        I'll also note that we aren't the ones causing most of those civilian casualties.  Usually we're trying to stop such.  But fuck the facts, I guess....  

                        Sorry, but if this woman wants to do more than merely complain, maybe she should put skin in the game.

                        Fuck her and her Kissinger quote.

                        Your hate-mail will be graded.

                        by PavePusher on Thu Nov 07, 2013 at 09:49:16 AM PST

                        [ Parent ]

                        •  Recced for convo even though it's getting (4+ / 0-)
                          Recommended by:
                          gerrilea, SoCalSal, coquiero, PavePusher

                          pretty far off the topic of the diary.

                          I recced both your comments and gerrilea's because the concept of collateral damage has relevance more narrowly too. What level of carnage is "acceptable collateral damage"?

                          People who hate guns don't hate gun owners "for their freedoms" or for their RKBA. They hate the carnage that our loose gun policy, loopholes and lack of enforcement enable.

                          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                          by LilithGardener on Thu Nov 07, 2013 at 10:00:43 AM PST

                          [ Parent ]

                          •  Lilith, I'd hope you could see what I see on these (1+ / 0-)
                            Recommended by:
                            PavePusher

                            issues.  The "collateral damage" is created by a society that exports war and Imperialism.  I've understood this for a very long time.

                            Our society has been manipulated and dehumanized by the Military Industrial Complex's utter control over all things.  They need cannon fodder for their wars and they've done a good job of destroying this society so that the only "opportunities" any American has that has been forced into perpetual poverty is military service or selling drugs.  

                            Once in the clutches of our military system they are further dehumanized to see everyone and everything as the enemy.  This fact destroys a part of my very own soul, to think that we are creating this and doing it to our brethren.

                            And be clear, I do not blame the soldier.  They are as much a victim as the rest of us.

                            Until we face this reality, I don't care what object is banned or regulated into oblivion tomorrow, we are manufacturing violence into commodity to be used as the elite's so decree.

                            -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                            by gerrilea on Thu Nov 07, 2013 at 10:55:48 AM PST

                            [ Parent ]

                          •  Mr. Schrader served in Vietnam (2+ / 0-)
                            Recommended by:
                            SoCalSal, PavePusher

                            I'm a veteran and I know that Pave is in the Air Force, currently serving. I get what you're driving at and agree with part of it. BUT! This diary is really not the right place to press the point. If you write a diary on it and think it's relevant to Firearms Law and Policy please do send us an invite.

                            Even though TRPChicago opened the door I would like to redirect the discussion back to Mr. Schrader's case, and stay focused on the general problem of a lifetime firearms disability based upon nothing more than a stupid mistake when he was young.

                            Isn't it interesting that the DC Court points out the failure of Congress to fund an administrative appeal, and the failure of the Executive branch (DOJ) to demand funding for it? Those judges were telling the other 2 branches of government to do their fucking jobs and enact the laws that are already passed!

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Thu Nov 07, 2013 at 12:31:20 PM PST

                            [ Parent ]

                          •  How is any point not valid in an Open Thread (0+ / 0-)

                            Diary?????

                            Disgusting, and I won't waste any more of my time in your echo chamber.

                            -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                            by gerrilea on Thu Nov 07, 2013 at 05:00:28 PM PST

                            [ Parent ]

                          •  The Open Thread Diary is (0+ / 0-)

                            HERE.

                            This diary is about the Schrader v. Holder petition to SCOTUS that was denied cert on Monday. I know how easy it is to post in the wrong thread, have been there, done that.

                            Have a good evening.

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Thu Nov 07, 2013 at 05:36:59 PM PST

                            [ Parent ]

                          •  The link shows the diary was deleted (1+ / 0-)
                            Recommended by:
                            LilithGardener

                            Was that snark?

                            -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                            by gerrilea on Thu Nov 07, 2013 at 10:09:55 PM PST

                            [ Parent ]

                          •  Sorry about that (1+ / 0-)
                            Recommended by:
                            gerrilea

                            I'm not nearly that clever, must have screwed up copy/paste - how hard can it be?

                            Here's the link without any fancy attempt to embed it.

                            http://www.dailykos.com/...

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Thu Nov 07, 2013 at 10:18:42 PM PST

                            [ Parent ]

                          •  I apologize for the harsh statement. (3+ / 0-)
                            Recommended by:
                            LilithGardener, FarWestGirl, gerrilea

                            That post really hit a nerve.

                            Your hate-mail will be graded.

                            by PavePusher on Fri Nov 08, 2013 at 10:55:44 AM PST

                            [ Parent ]

                          •  We know there are strong opinions (1+ / 0-)
                            Recommended by:
                            PavePusher

                            We cover contentious issues, and we try to give wide latitude for people to express their frustration. We even tolerate some comments that are over the line if the intent is communication rather to stifle people. Perfection is not required. Apology accepted.

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Fri Nov 08, 2013 at 11:17:22 AM PST

                            [ Parent ]

                          •  Additional explaination.... (3+ / 0-)
                            Recommended by:
                            LilithGardener, FarWestGirl, gerrilea

                            A retired-military friend, comrade-in-arms and former mentor of mine died this week, so I'm not at my most tolerant when it comes to baseless accusations against the military right now.

                            Your hate-mail will be graded.

                            by PavePusher on Fri Nov 08, 2013 at 10:58:42 AM PST

                            [ Parent ]

                          •  Condolences on your loss. n/t (3+ / 0-)
                            Recommended by:
                            LilithGardener, gerrilea, PavePusher

                            Information is abundant, wisdom is scarce. ~The Druid.
                            ~Ideals aren't goals, they're navigation aids.~

                            by FarWestGirl on Fri Nov 08, 2013 at 11:45:37 AM PST

                            [ Parent ]

                          •  Great sigline! (1+ / 0-)
                            Recommended by:
                            FarWestGirl
                            Ideals aren't goals, they're navigation aids.~

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Fri Nov 08, 2013 at 12:13:12 PM PST

                            [ Parent ]

                          •  Thank you! I kept getting sick of people saying (1+ / 0-)
                            Recommended by:
                            LilithGardener

                            that ideals were silly because they weren't achievable. :-)

                            The pic is by a friend.

                            Information is abundant, wisdom is scarce. ~The Druid.
                            ~Ideals aren't goals, they're navigation aids.~

                            by FarWestGirl on Fri Nov 08, 2013 at 12:55:30 PM PST

                            [ Parent ]

                          •  Sorry to hear that (1+ / 0-)
                            Recommended by:
                            PavePusher

                            Losing a friend who is also a mentor is a double whammy. Peace be with you.

                            I'm not at my most tolerant when it comes to baseless accusations against the military right now.
                            You and me both! I'll elaborate elsewhere.

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Fri Nov 08, 2013 at 12:12:27 PM PST

                            [ Parent ]

                        •  This wasn't meant as an insult to any active or (0+ / 0-)

                          former service members, really.

                          We The People have yet to benefit from any of the Imperialism our government is engaged in.  In fact, when the Congress continues to fund our military to the tune of 53 cents per tax dollar raised, we all are forced further into perpetual poverty.

                          Your reaction is what I've come to understand as "normalcy bias".  

                          And you really didn't see the whole video, what was provided above was a cut and reposting of this:

                          http://www.youtube.com/...

                          I purposely sought out one where her words were not prefaced by the vulgar images that may lead others to hate our service members.  

                          Sadly, you didn't hear all her words either:

                          "Our soldiers don't sacrifice for duty, honor, country.  They sacrifice for Kellogg, Brown and Root.  They don't fight for America, they fight for their lives and the lives of their buddies besides them because we put them in a warzone.  They're not defending our freedoms, they're laying the foundation for fourteen permanent military bases to defend the freedoms of Exxon-Mobil and British Petroleum.  They're not establishing democracy. They're establishing the bases for an economic occupation to continue after the military occupation has ended."
                          As for the Kissinger quote, it rubs doesn't it?  Keep in mind the man we voted for as POTUS has him as a personal adviser, to this day.

                          Dahlia S. Wasfi, M.D.

                          Does have skin in the game sir.  Her family is in Iraq.

                          -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                          by gerrilea on Thu Nov 07, 2013 at 10:41:33 AM PST

                          [ Parent ]

                          •   This whole line of comments (5+ / 0-)

                            This whole line of comments has nothing to do with any definition of a "propensity to violence" which is what this thread was discussing. Nor does it have anything to do with any of the currently lawful ways we strip voting and gun rights from people with a criminal record, people who are considered to have a heightened risk for violent behavior.

                            TRPChicago's question was in the context of the prior comment about stripping rights, about Mr. Schrader's lifetime firearms disability. It was not an open door to press a political argument about the MIC, or take cheap shots at President Obama.

                            Stop this persistent threadjacking, please.

                            This is an example of commenting behavior that is not welcome in our diaries.

                            "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                            by LilithGardener on Thu Nov 07, 2013 at 01:23:49 PM PST

                            [ Parent ]

                          •  Okay, then you are honestly and truly ignoring (0+ / 0-)

                            what I have already explained and do not wish to discuss it.

                            And "threadjacking" this is not in a stated "Open thread" diary.

                            If you didn't want it to be "open thread Wednesdays" then please stop promoting it as such.

                            -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                            by gerrilea on Thu Nov 07, 2013 at 04:59:09 PM PST

                            [ Parent ]

                          •  That part is partially true.... (2+ / 0-)
                            Recommended by:
                            LilithGardener, gerrilea

                            and partially not.  

                            See my replies to LG above as to why it grates right now.

                            My apology to you as well for my harshness right now.

                            Your hate-mail will be graded.

                            by PavePusher on Fri Nov 08, 2013 at 11:01:09 AM PST

                            [ Parent ]

                  •  Are you commenting from experience re (0+ / 0-)

                    NY's gun licensing? Links to references would be appreciated.

                    And I agree, 2 years for a gun permit is effn ridiculous.

                    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                    by LilithGardener on Thu Nov 07, 2013 at 10:55:09 AM PST

                    [ Parent ]

                    •  Nope, never owned a gun...friends have... (2+ / 0-)
                      Recommended by:
                      PavePusher, LilithGardener

                      Here's a link:

                      NY Pistol Permit Wait Time: 18 Months

                      And this depends on what county you're in.

                      The counties in and around NYC will not grant you a permit unless you can prove you have "need" and not even then.

                      http://www.oregonherald.com/...

                      But state licensing officers denied their applications, saying they had failed to show special need for self-protection.

                      A unanimous three-judge panel of the 2nd Circuit upheld the state's licensing law, ruling the Second Amendment guarantees the right to keep arms for self-defense in the home, but does not extend to a right to carry concealed handguns in public.

                      -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                      by gerrilea on Thu Nov 07, 2013 at 10:25:26 PM PST

                      [ Parent ]

                  •  Let's leave that for another day (2+ / 0-)
                    Recommended by:
                    Miggles, FarWestGirl

                    I don't want to go further off topic in Tom's beautiful diary on the Schrader case and SCOTUS' decision to pass on reviewing it.

                    I think Schrader is a very sympathetic plaintiff. Don't you think his case makes people stop and think about the arbitrariness of a lifetime loss of rights?

                    And that part about the unfunded administrative appeal process that was passed into law some time ago... that was news to me, and reading the opinion, it's like the DC Federal Circuit Court of Appeals was educating the voters and giving a little ahem encouragement to the Congress and the Executive branch that they should do their fucking jobs.

                    I almost think the court was subtly telling us voters to demand that our elected leaders do more than vote on bills and the piss in the wind instead of fund them and execute them according to law.

                    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                    by LilithGardener on Thu Nov 07, 2013 at 11:01:10 AM PST

                    [ Parent ]

    •  So you believe people can change? (6+ / 0-)

      I thought we are a country that believes people can learn from their mistakes as they grow up.

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Tue Nov 05, 2013 at 05:02:05 PM PST

      [ Parent ]

    •  and what else? (6+ / 0-)

      So, what other rights do they lose for the rest of their life?  Voting? Work near children?  Just curious.  If one act as a young man makes a person too violent to never ever own a firearm again, there must be a whole list of other things they cannot do.  So?  What are they?

      I went into science for the money and the sex. Imagine my surprise.

      by Mote Dai on Tue Nov 05, 2013 at 06:37:22 PM PST

      [ Parent ]

      •  Well, convicts do carry special burdens when it... (3+ / 0-)

        ... comes to employment. A few kinds of jobs and employers explicitly bar persons convicted of crimes, and at least the first job or two after prison is an uphill road for most convicts.

        Felons are disenfranchised from voting in many states for various periods of time after release. Only in two states, I believe, is the disqualification for life.

        If the offense deals with children, yes, many states and localities have requirements for disclosure. Some may have expiration periods but I doubt that all do.

        I can't be more comprehensive than this, sorry.

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Tue Nov 05, 2013 at 06:48:52 PM PST

        [ Parent ]

        •  is "propensity to violence" the same as felon? (6+ / 0-)

          The poster didn't say felon.  The poster said someone with a "propensity to violence."  Huge difference.

          I went into science for the money and the sex. Imagine my surprise.

          by Mote Dai on Tue Nov 05, 2013 at 07:07:10 PM PST

          [ Parent ]

          •  True, good point. Misdemeanants (what a term!) ... (3+ / 0-)

            ... may not be subject to burdens society puts on felons. Then again, most jail time is a matter of record. And misdemeanors can be violent offenses. Just being a member of a group or gang involved in violence, even if the individual is not the violent one, can tar that person's record.

            As for "propensity," I don't know what the commenter had in mind but the phrase certainly seems to cover a range of types of violent behavior - even that which involves no conviction at all, such as some domestic abuse - as well as the frequency of it.

            I think a gun in the hands of someone with a "propensity to violence" represents empowerment and enablement. It makes further violence easier. I can understand a legislative policy to ban with a broad brush and let the exceptions rationalize themselves.

            All that said, typecasting us for life for what we've done as a 20 year old is pretty harsh and unrealistic.

            2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Tue Nov 05, 2013 at 07:39:03 PM PST

            [ Parent ]

            •  Yeah - and we are (or we used to be) (2+ / 0-)
              Recommended by:
              Glen The Plumber, DavidMS

              a society that believes in second chances, and in the possibility for people to grow up and change their lives for the better.

              Now we live in the United States of ALECAmerica where we lock em up and throw away the key.

              "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

              by LilithGardener on Tue Nov 05, 2013 at 08:07:36 PM PST

              [ Parent ]

              •  Suppose (3+ / 0-)

                You were the judge who was restoring this person's civil rights and tomorrow that person went out and killed someone with his newly restored right to own a gun. Not many judges willing to take that risk, especially elected ones.

                •  You have a point but it's not consistent with (2+ / 0-)
                  Recommended by:
                  Glen The Plumber, BlackSheep1

                  current reality. Every day judges let violent men keep their guns even when they have a recent and sustained and documented pattern of violence toward their partners and kids (and sometimes toward their parents).

                  But that's off topic. Thanks for coming back to the convo. We need to have these conversations.

                  "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                  by LilithGardener on Tue Nov 05, 2013 at 08:40:04 PM PST

                  [ Parent ]

                •  I believe that (2+ / 0-)
                  Recommended by:
                  43north, gerrilea

                  Violent outburst in the past or not is a poor predictor of psychotic break or certain other reasons for mass killings or individual killings. People who "snap" do it the first time for the first time.

                  "I dreamed I saw Joe Hill last night..."

                  by Killer on Wed Nov 06, 2013 at 05:26:22 PM PST

                  [ Parent ]

                  •  Seldom without "tells" which people ignore (2+ / 0-)
                    Recommended by:
                    LilithGardener, gerrilea

                    Physical and emotional changes.

                    "Well, he...
                    ...but we didn't pay it much attention, 'cuz he said to me
                    'I'm fine' and that's that."

                    •  People don't just snap (1+ / 0-)
                      Recommended by:
                      43north

                      E.g. A man doesn't go from loving husband to angry husband to threatening to kill the kids at school in 2 short steps.

                      See Tomorrow my son's school will have armed guards for a real life example.

                      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

                      by LilithGardener on Thu Nov 07, 2013 at 07:07:52 AM PST

                      [ Parent ]

                    •  As an RN with background in psych and chemical (0+ / 0-)

                      dependency, I can tell you that those 'tells' look an awful lot like a lot of other things. And many people who are vulnerable to those breaks are in situations where they have no close friends or family capable of monitoring or properly assessing them. And obviously many don't have access to adequate mental health assistance, support or treatment.

                      Projecting 'likelihood' of violence is dicey, by experts, on good days.

                      Information is abundant, wisdom is scarce. ~The Druid.
                      ~Ideals aren't goals, they're navigation aids.~

                      by FarWestGirl on Fri Nov 08, 2013 at 11:56:31 AM PST

                      [ Parent ]

            •  TRPChicago: (2+ / 0-)
              Recommended by:
              LilithGardener, gerrilea

              I'm fond of the term "propensity to violence" as it defines those persons with poor boundary skills.  That's a pleasant way of saying "sociopath" without a determinate diagnosis.

              There are persons who get away with being detained but not arrested.  Arrested but not convicted.  Often for incidents which would have resulted in an physical assault conviction, for any other person.

              The children of the politically connected.
              Those persons employed exactly for having poor boundary skills.  Bouncers at a club for-example.
              Certain Police Officers, protected by the Thin Blue Line - yet broadly recognized as abusive by the rest of the force, and at-times abusive to members of the force.

              These people should not have guns, as it's only a matter of time before something goes wrong.
              Aaron Hernandez, former New England Patriot, as an example.
              I'd put Ndamukong Suh on that list, given his on-field performance.
              Just two examples of persons we often imbue with certain 'liberties' - until it's too late.

              •  Poor boundary skills ... and violence? Hmm. (3+ / 0-)
                Recommended by:
                LilithGardener, 43north, gerrilea

                I think a poor sense of boundaries makes people (certainly in our culture) nervous, but for me, that doesn't coincide well enough with a "propensity to violence."

                And Yes, we all run into people with a strong sense of entitlement or who are drawn to authoritarian jobs and situations where they can assert themselves. Guns may be a factor in the lives of a higher proportion of these folks than the rest of us, but I don't think it follows that society should try to keep everyone in these categories away from guns.

                2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

                by TRPChicago on Thu Nov 07, 2013 at 05:06:09 AM PST

                [ Parent ]

      •  Never. Under no circumstances should... (2+ / 0-)
        Recommended by:
        LilithGardener, Glen The Plumber

        ...any adult citizen ever be denied their right to vote.

        So, what other rights do they lose for the rest of their life?  Voting?
        Inmates should be encouraged to vote, either via absentee ballot in polling places set up in prison.

        It's one thing to restrict gun privileges, but restrictions on the basic human right to vote are simply unacceptable.

    •  Thanks for expressing your point of view in (2+ / 0-)
      Recommended by:
      suesue, Glen The Plumber

      such clear terms. And thanks for participating.

      Seriously.

      This is the conversation we do need to have with one another. I'm rather conflicted.

      I certainly don't think he deserves to lose his RKBA for his whole life. But I'm thinking the loss of an enumerated civil right for a crime that involved no jail time, should be something along the lines of 5 or 10 years loss of RKBA for a violent misdemeanor conviction. And then after that an appeal, where he could present his life since the conviction and convince an administrative judge that he had learned his lesson and doesn't have a "propensity to violence." And like New York's law, it could include a mental health review. If he had continued to have altercations and violent incidents (such as George Zimmerman), even if not convicted, then he would not deserve to have his rights restored.

      Bear in mind this is DC, one of the two most strict jurisdictions for gun rights in the whole country. No concealed carry. No open carry. This man just wanted to keep a gun in his his home for self defense, not carry it around in public.

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Tue Nov 05, 2013 at 06:48:24 PM PST

      [ Parent ]

      •  I look at it diffrently (4+ / 0-)
        Recommended by:
        43north, ER Doc, LilithGardener, gerrilea

        Someone disqualified from firearms ownership should be apply to apply for an end of this basic rights disability 7 years after the end of state supervision.  They wold petition the court in the jurisdiction that they have lived for the last 3 years and serve notice to the office of the prosecutor that convicted them.  There are tools to analyze parolee risks:  http://www.boston.com/...

        The prosecutor would be able to challenge the petition on court.  

        I would also require that statistics be kept to assure that any racial and class disparities can be studied with the goal of assuring that every petitioner gets treated equitably.  

        I'm a 4 Freedoms Democrat.

        by DavidMS on Wed Nov 06, 2013 at 06:12:43 PM PST

        [ Parent ]

        •  That sounds about right (0+ / 0-)

          Some felonies are for non-violent offenses and IMO they are much less serious re gun risk than misdemeanor convictions for domestic violence offenses, partly because by the time a domestic abuser is in court there is usually a long pattern of incidents with a gradual escalation of violence.

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Thu Nov 07, 2013 at 07:13:54 AM PST

          [ Parent ]

  •  Great diary, thanks! (4+ / 0-)

    Tipped and Reced.

    •  Thanks, suesue. A lot of law is built up in cases (6+ / 0-)

      ... like this one.

      Sure, there's posturing by the clients and preening by the advocates and plumping by the judges ... but in many lawsuits, after delays and confusions and oddities of all kinds, a result is reached ... and litigants move on.

      There is real life in these pages. People are affected by outcomes. Unlike most of us who might want to have a gun for self defense or sport - and that is the law of the land! - Mr. Schrader cannot legally buy one.

      I guess I am what they used to call us, a bleeding heart liberal ... for the right cause.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 05:12:33 PM PST

      [ Parent ]

  •  first...thank you for a very well written diary... (7+ / 0-)

    very informative.

    normally would never consider returning guns to violent offenders...but agree...this is not a black and white case...one reason I dislike 'minimum penalties'...no nuance...this case needs it.

    We are not broke, we are being robbed...but we can fight back...#KosKatalogue

    by Glen The Plumber on Tue Nov 05, 2013 at 05:06:41 PM PST

    •  It is really messed up that far too many (4+ / 0-)

      jurisdictions allow violent domestic abuser to keep their guns, "because they haven't been convicted" of any crime...

      Most jurisdictions don't even serve the PO or go to collect the guns; they have no mechanism except to let someone subject to PO voluntarily surrender their guns. We see women shot every effing day because of that part of the law.

      This case may be straightforward for a retired attorney, but it's not straightforward for me. When I first looked at it, which was last night after TRP had put a draft in the queue, I thought it was too complicated, too many different intersecting issues. I thought he should just make a brief announcement that the petition was denied and leave the more substantive story for a later diary.

      I'm really glad he ignored me!

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Tue Nov 05, 2013 at 05:28:01 PM PST

      [ Parent ]

      •  Domestic abusers are in a special category. (5+ / 0-)

        That's an amendment to the Federal law that deserves a very complete exploration, on the law, of course, but even more on the underlying policy and the enforcement of it.

        Now we're in the category of the legendary "Brandeis Brief", wherein the great justice - earlier, in his advocacy days as a lawyer - would pull together sources of wisdom and insight from many areas like sociology, science and economics and relate them to the narrowly parochial law learning of his time.

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Tue Nov 05, 2013 at 05:49:11 PM PST

        [ Parent ]

  •  whether the prior was violent is not the point (7+ / 0-)

    for purposes of this law.  the prior conviction need not be in any way violent, just be punishable by >1 yr imprisonment and thus a "felony" under the fed definition.  welfare fraud or a small dope bust would be enough.

    NOW....ya ready to puke?  EXCLUDED from the definition of "crime punishable by > 1 year" are "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offense relating to the regulation of business practices."
    18 U.S.C. sec 921(a)(20)(A).

  •  I'm a little unclear about this FBI letter? (3+ / 0-)
    Recommended by:
    WakeUpNeo, suesue, Glen The Plumber

    Does that mean he passed a background check of the NICS at the FFL, and then when he went to register his guns in Washington, D. C., which, if I understand correctly, doubles as a gun license to have a gun in your home in DC....

    Does this mean it was a DC law that did a further background check and picked up the misdemeanor?

    I'm just confused about whether and/or why his misdemeanor would have been in the NICS to begin with.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 05:20:00 PM PST

  •  Thank you, TRPChicago. (4+ / 0-)

    Both for your diary and for your follow-up throughout the comments.

    •  Yeah, well, it infringed on my cocktail hour... (5+ / 0-)

      ... but these dialogs are worth it.

      Kidding aside, this case and the ones in the pipeline to SCOTUS this term, whether accepted by the high court or not, raise perspectives that can make advocates on both/all sides of Second Amendment issues smarter.

      Congenitally, I'm opposed to absolutism. A few really important matters may be black and white but a lot of life - in my experience, at 72 - does not yield to clear bright lines and unmovable polar positions.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 06:58:24 PM PST

      [ Parent ]

  •  My opinion, for what it's worth: (6+ / 0-)

    It's probably the fact I grew up during Viet Nam, but wtf! The dude isn't eligible to buy/own a gun but no one thought twice about putting a gun in his hand and sending him to kill people in an undeclared war.

     IMHO, I think this guy should be able to buy/own a gun. As I understand, he was charged with a misdemeanor without a weapon and has had no criminal history since that time. Although I wish he were able to clear this up through an (not going to happen) administrative appeal, for his crime I don't believe he should have to. I'm glad an appeal process exists but it seems pointless at this time.

     Good diary. Thank you.

  •  There are a few issues here (5+ / 0-)

    Firstly, does blanket disqualification for persons convicted of an offense that carries the penalty of at least two years in jail under GCA68 infringe on the 2nd amendment?  

    Secondly, does this disproportionately affect any protected class?  

    Third, does the inability to apply for relief because congress has not funded these activities infringe on the right to due process of law or privileges and immunities clause that has been largely read out of our Constitution?  

    Fourth, how does the permissible time, place and manner restrictions on all rights reflect on this case?  

    I would argue that had the court took the case, the law would have failed strict scrutiny.  However under lesser degrees of scrutiny it would have survived a rational basis test.  To attack it from a different angle, given the New Jim Crow, I would argue that the law regardless of the author's intent it disproportionately impacts minorities.  At this point, its Brandeis Brief time.  Alternatively arguing that the failure of congress to fund 925(c) infringes on the 2nd amendment would have merit.  

    The time, place and manner argument is a weak one because its hard to argue that a 60 or 70 year old that has lead an otherwise boring life is prohibited from owning firearms because of an event 40 years ago.  

    I can't think of a good reason to not either order the AG to for fill the requirements of the law, resurrect privileges and immunities and apply it to Maryland's legal code, or to require that inability legally own a firearm must be decided on a more scientific basis.  

    I believe that at this point, the Supreme Court is ducking 2nd Amendment cases and waiting for the lower courts to hear arguments on many of these issues.  I suspect in a few years there will be a few more cases that reach the high court.  

    I'm a 4 Freedoms Democrat.

    by DavidMS on Tue Nov 05, 2013 at 07:43:19 PM PST

    •  You've packed a lot in here! It's food for more... (3+ / 0-)

      ... thought than just a single comment in response. I'm pretty sure that some of this will get ventilated as SCOTUS hears argument in some pending cases, perhaps even this term.

      As for ordering the AG to conduct reviews, the Court of Appeals opinion strongly suggests that Congress stop refusing to fund this part of the responsibilities Congress itself assigned to DOJ in the gun statutes. If DOJ should do reviews on its own without respect to an appropriation for it - and whether it could if it wanted to - is beyond my ken.

      On your last point - that SCOTUS is ducking Second Amendment cases - absolutely! It's been five years since the Supreme Court's decision in Heller and three since McDonald. By one calculation, it's turned down 60 cases that raised gun rights issues already.

      The Court emphasized that many restrictions and regulations on gun possession and ownership would pass the standards set in Heller. I think the Court is perfectly willing to let a variety of cases percolate, particularly at the state level where gun laws and political conditions vary widely. As for challenges to provisions in Federal law, Heller said it did not mean to prohibit "... laws imposing conditions and qualifications on the commercial sale of arms ...," for example. I'm thinking the most likely fodder for the next SCOTUS gun case is Federal, not state, law but obviously that's just a guess.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 08:18:45 PM PST

      [ Parent ]

      •  TRPChicago: Roberts signaled this years ago. (2+ / 0-)
        Recommended by:
        LilithGardener, gerrilea

        When before the Senate Judiciary Committee, candidate Roberts repeatedly stated the Courts - and the SCOTUS particularly - should not be doing the work of Congress.

        Excerpts (h/t to DavidMS) from your diary:

        And then, the Court went on to another point. Sec. 925(c) allows individuals to apply to the Attorney General for relief from adverse determinations under the Gun Control Act. However, Congress has not appropriated funds to process such applications.
        Neither Congress, nor any recent AG, would be interested in doing so, purely on politics.  They are now so-directed to do so:
        Hence, the Court made this invitation to Congress and a cautionary note to the Attorney General:
        As DavidMS pointed-out, failing to undertake the following opens the door to decisive legal action:
        Leaving these questions for their proper day has an added benefit: it gives Congress time to consider lifting the prohibition on the use of appropriated funds for the implementation of section 925(c), which, as explained above, permits individuals to obtain relief from section 922(g)(1) by demonstrating that they no longer pose a risk to public safety. Without the relief authorized by section 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge brought by an individual who, despite a prior conviction, has become a "law-abiding, responsible citizen" entitled to "use arms in defense of hearth and home." (quoting language from Heller).
        In other words, the law describes a good remedy available to individuals aggrieved by the government's treatment of them. If Congress would appropriate money to fund the process, resorting to the courts might not be necessary.
        So WHY DID SCOTUS REFUSE TO REVIEW Schrader v. Holder?
        Asked and answered.  See bold.  Pertaining to italicized.

        A "gun to the head" of Congress, and the DOJ.

        The SCOTUS, as you pointed-out, is often a blunt instrument.  They're dancing around a wholesale gutting of the GCA '68, based on the political firestorm it would create.
        In ignoring due-process remedies for much the same reason, Congress and the DOJ open the door to a drastic re-write of the nation's gun laws.

        Given the legal counsel of the plaintiff, I'm not entirely certain, this wasn't a desired outcome.

    •  Thanks for dropping by David (1+ / 0-)
      Recommended by:
      Glen The Plumber

      And giving us some homework. I see a series of at least a dozen diaries outlined right there in your comment.

      This unfunded appeal process was news to me today. Would you unpack this a bit for use n00bs?

      Third, does the inability to apply for relief because congress has not funded these activities infringe on the right to due process of law or privileges and immunities clause that has been largely read out of our Constitution?  

      "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

      by LilithGardener on Tue Nov 05, 2013 at 08:43:38 PM PST

      [ Parent ]

      •  From the horse itself: (3+ / 0-)

        http://www.atf.gov/...

        This has been the case since '92 and as you can imagine infuriating for people affected.  I am at work enjoying lunch so I can't go into great detail but what this means is that as part of FOPA86, there is a path to rights restoration.  I can think of a few reasons the door got shut.  

        1.  Republicans are happy that blacks who are disproportionately arrested permanently lose a basic right.

        2.  Gun control favoring democrats are happy to let Republicans keep guns away from blacks (who use street drugs at the same rate as the rest of us but go to jail at much higher rates).  

        3.  No one is brave enough to touch it because they don't want someone who is a prohibited person get white listed again and then kill someone.  

        4.  Until Heller, there was no framework to attack this injustice.  

        I'm a 4 Freedoms Democrat.

        by DavidMS on Wed Nov 06, 2013 at 10:29:17 AM PST

        [ Parent ]

        •  Thanks (0+ / 0-)

          Assignment accepted! I have a soft spot for people post their notes in numbered lists. Will add your comments to my pile of notes on "firearms disability."

          In this evening's open thread, we're going to start introducing the NICS at the beginner's level (people who never purchased or transferred a gun through an FFL). If you have time, please drop by. I'm sure there will be questions that I can't answer.

          "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

          by LilithGardener on Wed Nov 06, 2013 at 10:47:42 AM PST

          [ Parent ]

        •  Thanks for the reference! (1+ / 0-)
          Recommended by:
          LilithGardener

          I don't view Federal gun laws as having a racial motivation. But as for results ...

          ... you're right, prosecution and conviction rates for blacks and other minorities are higher in many categories of crimes. Drug offenses are a prime example - a Federal prohibition that bars an individual from buying or possessing firearms which has a racially unbalanced result.

          As for using Heller to address the law's policy choices, it is one vehicle, but it's a blunt instrument in this sense - a decision grounded in the Constitution leaves little room for adjustments. If you believe gun rights are absolute, you probably would toss out the whole Gun Control Act. Yet few things in life - including common sense applications of the Bill of Rights! - are that absolute.

          There is plenty of room to work within Heller's basic right, but that's the kind of thing a legislature should be able to do better. Of course, that would take a Congress - on both sides of the aisles - less beholden to the NRA.

          2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Wed Nov 06, 2013 at 11:18:42 AM PST

          [ Parent ]

    •  DavidMS: tipped (seen to late to hit the button) (3+ / 0-)
      Recommended by:
      ER Doc, LilithGardener, gerrilea

      You're onto an important point, which I'll flesh-out in a separate comment.

  •  Tantalizing alternatives (2+ / 0-)
    Recommended by:
    CenPhx, Glen The Plumber

    I had to vote that I pass because my choice is not in the poll.

    I would vote no, he can't buy a gun under current Federal Law, but the law should be amended to allow for an appeal process wherein he can petition for restoration of rights after a certain period of time, say 10 years after a conviction.

    I prefer to view federal gun law as settled for the most part except that it should be tightened with respect to alcohol and guns (that's a subject for another day). But that's just my current view and my admittedly limited understanding of its complexities.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 07:57:23 PM PST

    •  You passed?! We better work on the next set ... (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      ... of poll questions!

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Tue Nov 05, 2013 at 08:20:26 PM PST

      [ Parent ]

    •  The law already allows for a appeals process (3+ / 0-)

      Unfortunately, congress forbids BATFE from spending any monies to review disqualifications, IIRC.  

      The legal magic will be to get a court to order to either review the application or to toss the laws disqualifying firearms buyers but stay the decision for 180 days for congressional action, much like what happened in Illinois after Moore v. Madigan.

      Any process for gun rights restoration including time frames, must be evidence based because otherwise its capricious.  

      I'm a 4 Freedoms Democrat.

      by DavidMS on Tue Nov 05, 2013 at 08:35:34 PM PST

      [ Parent ]

      •  This is a key point IMO (1+ / 0-)
        Recommended by:
        Glen The Plumber
        Any process for gun rights restoration including time frames, must be evidence based because otherwise its capricious.
        It's really hard to know where to draw the line.

        Do you think most states are waiting for SCOTUS to clarify the standard of review before passing any new laws.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Tue Nov 05, 2013 at 09:08:19 PM PST

        [ Parent ]

        •  No. (2+ / 0-)
          Recommended by:
          ER Doc, gerrilea

          At least from what I am seeing in MD, most states will either attempt to have the fewest gun laws or see how much they can ban.  For elected officials that don't trust citizens, its ban whatever they can without getting tossed out off office and then ask the AG to corrupt the English language to make it legal.  

          http://thinkprogress.org/...

          An AK, while not ideal for defense of self and home would be very effective when loaded with quality soft point or hollow point ammunition.  The deficiencies of the rifle make it slower to bring into action and reload.  On the upside, its very reliable, more than accurate enough, and hits hard.  

          I'm a 4 Freedoms Democrat.

          by DavidMS on Wed Nov 06, 2013 at 05:50:47 PM PST

          [ Parent ]

      •  The Moore case bounced IL's concealed carry ban. (1+ / 0-)
        Recommended by:
        LilithGardener

        ... Illinois did not allow concealed carry (very few exceptions), the last state I believe to have an outright ban.

        Moore is the 7th Circuit Federal Court of Appeals decision that the right of self defense that was the basis of the Heller case extended beyond the home. Judge Posner wrote the 2-1 opinion with these quotable lines:

        "A Chicagoan in a good deal more likely to be attacked in a rough neighborhood than in his apartment on the 35th floor of the Park Tower."

        and a line straight from NRA speeches ...

        "The other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid."

        The court gave the Illinois legislature 180 days to write a better law. Whether it did is open to debate, but ... it did. This meshing of Court and state legislature was, in my view, a good - and necessary - idea because the change the Court decreed was fundamental.

        I do disagree with J. Posner's very considerable extension of Heller. The effect was to let Posner (and Judge Flaum, a very good judge who joined Posner's opinion) and the Illinois legislature with its sizable cadre of "downstate" Republicans decide Chicago's gun carry future. As a resident of Chicago's Near North side with a lot of bars a short distance away, I worry a lot about citizens packing guns around. To load the question, one drinking perp bent on violence would be preferable to 20 drinking vigilantes.

        This case should have been appealed to SCOTUS but Illinois' AG, Lisa Madigan, decided not to.

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Wed Nov 06, 2013 at 06:12:20 AM PST

        [ Parent ]

  •  Couple of points (3+ / 0-)

    I can't help but wonder why he didn't file a motion to have his conviction expunged before he tried to buy his gun? Given the facts of his case, I think a judge would have done it.

    Also, I know this test, misdemeanors with a possible sentence over one year, is designed to be easy to apply but it is poor metric for achieving the goal-- keeping guns of of the hands of potentially violent offenders. Not every misdemeanor is the same. A domestic violence stalking misdemeanor is more serious to me than even a felony level possession of marijuana. So the test does not do what it was designed to do; it excludes some violent offenders and sweeps up some people like as Schrader which it should not.

    You see things; and you say “Why?” But I dream things that never were; and I say “Why not?” --George Bernard Shaw, JFK, RFK

    by CenPhx on Tue Nov 05, 2013 at 09:13:47 PM PST

    •  Great diary (3+ / 0-)

      I meant to say that before but I'm so tired I can barely type! Very clear and easy to follow explanation of the case and brief. If someone has never tried to explain to nonlegal readers a legal issue like this, they would be surprised at how hard it is. So I know lot of thought and work went into this diary. Good job!

      You see things; and you say “Why?” But I dream things that never were; and I say “Why not?” --George Bernard Shaw, JFK, RFK

      by CenPhx on Tue Nov 05, 2013 at 09:17:02 PM PST

      [ Parent ]

      •  Thank you. Law cases, to me, are stories. (2+ / 0-)
        Recommended by:
        CenPhx, LilithGardener

        Mostly, important substance is at stake, litigants are deeply invested in the outcome, lawyers are at their best and their worst, and judges are human, too. Well, most of them.

        It's tough to recite the facts that count and no more and to summarize and shorthand discussions of law and policy that the participants labored over to say their way. But it is good exercise and one day, I'll get it right!

        2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Wed Nov 06, 2013 at 07:56:35 AM PST

        [ Parent ]

  •  Gura seems to have a real flair (1+ / 0-)
    Recommended by:
    BlackSheep1

    pointing out in the first sentence that Paul Revere was convicted of a misdemeanor for a fistfight, had to pay a fine and post a bond for good behavior.

    INTRODUCTION
    On May 11, 1761, a Justice of the Peace convicted
    26-year-old future Revolutionary War hero Paul Revere
    of misdemeanor assault and battery for his role in a
    fistfight. See Esther Forbes, Paul Revere and the World He Lived In 67, 69 (1942); 2 Elbridge Henry Goss, The Life of Col. Paul Revere 667-68 Appx. H (1891). Revere received no jail time, but was ordered to pay “as small a fine as was consistent with any decency,” Forbes at 69, and have two sureties bond for his good behavior. Id.; Goss at 668.

    Were he alive today, Revere would doubtless be
    astonished to learn not only that Congress has denied
    him the right to keep and bear arms on account of that minor transgression, but that the Second Amendment tolerates the categorical disarmament of all simple common law misdemeanants.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 09:24:56 PM PST

    •  Yup. He's channeling J.Scalia! Yikes, there are... (1+ / 0-)
      Recommended by:
      LilithGardener

      ... two of them!

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Wed Nov 06, 2013 at 06:14:33 AM PST

      [ Parent ]

      •  Or.... (1+ / 0-)
        Recommended by:
        PavePusher

        Alan Gura has studied his audience and knows where the soft spots are, er, how best to hand J. Scalia the ahem ammunition of the right caliber.

        Gura strikes me as one who never makes the mistake of bring a knife to a gunfight.

        "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

        by LilithGardener on Wed Nov 06, 2013 at 10:12:36 AM PST

        [ Parent ]

  •  Firearms Law and Policy Wednesday Open Thread (0+ / 0-)

    will be held tomorrow at 6:35 EST.

    We'll probably pick up the two links above re the National Instant Criminal Background Check System and Form 4473 that licensed firearms dealers and buyers fill out when a gun is transferred from the FFL to the new owner.

    Please join us to chat about this case, the NICS, form 4473, or anything else that's on your mind tomorrow evening.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 10:00:58 PM PST

  •  I'm still confused about one thing (0+ / 0-)

    Is he a resident of DC, a resident of Maryland, or doesn't it matter. Why was this case heard by the DC circuit?

    I'm sure this is a really simple question, but I can't seem to find it in the petition.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Tue Nov 05, 2013 at 10:02:28 PM PST

    •  AG Holder is the key defendant. You can sue him... (1+ / 0-)
      Recommended by:
      LilithGardener

      ... in DC. practically speaking, it was convenient for all the parties to have the case in DC.

      I think Schrader is still a Maryland resident, but I'm not sure.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Wed Nov 06, 2013 at 06:45:06 AM PST

      [ Parent ]

  •  Two things that bother me about this case: (3+ / 0-)
    Recommended by:
    LilithGardener, DavidMS, ER Doc

    One, it hinges on an effective loop hole that in 1968 MD did not define sentencing terms for this misdemeanor.  To use this as the basis for justification against a law that was written with clearly different intentions, spelling out 1 and 2 year time frames, strikes me as quite a stretch.

    Two, and more importantly, the lack of the appeal process effectively puts this person on a proverbial No Fly List based upon a secret database that one can't access.  This is a disturbing concept and one that our benevolent rulers have gotten a little to comfortable with.  

    If it is so easy to infinitely restrict this man's 2A rights, based upon a nebulous misdemeanor from four decades ago, using tenuous justifications, what is to stop these sorts of shenanigans from being applied to other rights?  To me, it seems a lot like deciding to have sex with someone: it is much easier the second time.

    •  Hmm, well, guns and sex. Inviting topics, both! (2+ / 0-)
      Recommended by:
      LilithGardener, Wordsinthewind

      I don't think the awkwardness of two provisions of the Federal gun laws mashed together was a loophole. That was the Federal law in 1968 (and thereafter) acknowledging the varieties and vagaries of state laws in 1968.

      Common law misdemeanors, generally meaning low level crimes (crimes of violence, yes, but not with guns or knives, and thereby not "aggravated"), were, well, common. Particularly back then, before legislatures more thoroughly codified into statutes criminal law and procedure. I think Congress knew exactly what it was doing, despite its portmanteau language.

      On your second point, the database may not be accessible - given privacy rights, I believe that's the correct policy - but the FBI will, I'm told, verify the reason for a ban, at least if you ask it as Schrader did. I completely agree that there should be an efficient, inexpensive, fair administrative review and appeal process. Write your Senators and Congressperson to fund the existing law which, I think, is sufficient.

      2014 IS COMING. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Wed Nov 06, 2013 at 08:52:08 AM PST

      [ Parent ]

  •  Firearms Law and Policy Open Thread - Wednesday (0+ / 0-)

    is posted. Please drop by and have a virtual beer with us.

    Firearms Law and Policy Open Thread - Wednesday November 6, 2013

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Wed Nov 06, 2013 at 05:14:54 PM PST

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