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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 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.


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.


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.


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

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