Is a Misdemeanor Sufficient Reason to Deny Second Amendment Rights?

[middlefinger]

Brian Doherty | October 15, 2010

The Second Amendment Foundation and its legal paladin Alan Gura continue their wave of post-McDonald lawsuits challenging laws that might violate Second Amendment weapon possession rights (although this challenge is to a federal law that did not require the McDonald innovation of applying the Second Amendment to states and localities). Details on the latest from an SAF press release:

Acting on behalf of a Georgia resident and honorably discharged Vietnam War veteran, the Second Amendment Foundation today filed a lawsuit against Attorney General Eric Holder and the Federal Bureau of Investigation over enforcement of a federal statute that can deny gun rights to someone with a simple misdemeanor conviction on his record.

The lawsuit was filed in United States District Court for the District of Columbia. SAF and co-plaintiff Jefferson Wayne Schrader of Cleveland, GA are represented by attorney Alan Gura, who successfully argued both the Heller and McDonald cases before the U.S. Supreme Court.

In July 1968, Schrader, then 21, was found guilty of misdemeanor assault and battery relating to a fight involving a man who had previously assaulted him in Annapolis, MD. The altercation was observed by a police officer, who arrested Schrader, then an enlisted man in the Navy, stationed in Annapolis. The man he fought with was in a street gang that had attacked him for entering their “territory,” according to the complaint.

Schrader was ordered to pay a $100 fine and $9 court cost. He subsequently served a tour of duty in Vietnam and was eventually honorably discharged. However, in 2008 and again in 2009, Mr. Schrader was denied the opportunity to receive a shotgun as a gift, or to purchase a handgun for personal protection. He was advised by the FBI to dispose of or surrender any firearms he might have or face criminal prosecution.

The lawsuit charges that the FBI applied an illegitimate reading of 18 U.S.C. 922 (g) (1) in declaring that this mere misdemeanor should disqualify him from being able to own a gun under federal law. Apparently because Maryland did not have a statutorily set maximum possible punishment for that misdemeanor, the FBI believes it can treat Schrader for the purposes of federal denial of gun possession rights as if he "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

SAF thinks this is an improper application of the law, and that, as the lawsuit (not online) states, that his conviction "cannot be the basis for a firearms disability under 18 U.S.C. 922(g)(1) because Schrader was not actually sentenced to a term of imprisonment exceeding two years. Maryland's failure to codify a statutory penalty for a simple common law misdemeanor does not create a firearms disability under federal law for conviction of such common law misdemeanor offense."

http://reason.com/blog/2010/10/15/is...-sufficient-re

[Brick]

This should be an interesting case to follow.

But, we should all note that the way the law is written, you may be prohibited if convicted of a crime where a sentence of 1 year or more could be imposed. Regardless of what the actual sentence was. Of course the exception to this is for any misdemeanor conviction for the abuse of a domestic partner.

[ehidle]

Clearly, this man is a threat to the State's control, because he fought back against an unwarranted and illegal attack. Clearly, if he will fight back against an illegal attack from a gang member, he might fight back against an illegal act or attack by the State, and we can't have that, now can we?

[tl_3237]

This should be an interesting case to follow.

But, we should all note that the way the law is written, you may be prohibited if convicted of a crime where a sentence of 1 year or more could be imposed. Regardless of what the actual sentence was. Of course the exception to this is for any misdemeanor conviction for the abuse of a domestic partner.

For misdemeanors (except for domestic violence as you noted) the potential sentence has to exceed 2 years; for other 'crimes' it has to exceed 1 year.

18 USC 921
(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

[tsafa]

As cash tight as I am... I just sent my $15 membership fee to the Second Amendment Foundation. This guys clearly are very effective at what they do.

I am also a member of the NRA and GOA. The issue of Individual Gun Rights is too important to entrust to just one organization. I want them all working on my behalf. I regret not having joined SAF sooner.

[ChamberedRound]

Once again, as in McDonald, Gura and the SAF know how to find 'em. If you have to find someone who has a misdemeanor on their record as a test case for the law, I don't think Gura and Co. could have come up with a better person to represent. It's going to be very hard for the US government to vilify this plaintiff and play the "evil criminal" angle.

[ksig1869]

Do you think that this lawsuit will get anywhere? I'll be sure to keep an eye on it but I don't there will be a positive verdict.

[Brick]

For misdemeanors (except for domestic violence as you noted) the potential sentence has to exceed 2 years; for other 'crimes' it has to exceed 1 year.

Thank you for the clarification. It improves the knowledge of the group.

Perhaps we should suggest to the BATFE that their Form 4473 should reflect the law correctly!

See: http://www.atf.gov/forms/download/atf-f-4473.pdf and pay special attention to question 11c on page 1 and Exception to 11c on page 4.