Oral argument was held today in the D.C. Circuit. Argument time vastly exceeded 15 minutes per side. Gura was up for a good 30 minutes and gov. counsel was up well past her time. While the court did not appear to buy Gura's argument that 922(g) should be narrowly construed to exclude common law offenses categorically, at least two members of the panel appeared to be very uncomfortable with a holding that 922(g) could be constitutionally applied to Mr. Schrader specifically in his unique circumstances. They were looking at ways to avoid the constitutional holding, perhaps with a remand to the district court with instructions to apply 18 usc 925(c). However, that would require a judicial rewrite of 925(c), as it permits the district court to review a denial of a decision of the AG, not to conduct de novo proceedings in the absence of such an AG denial, and 925(c) has been defunded by Congress so the AG has no money to apply it. As Judge Tatel said to gov. counsel "assume that we have a major constitutional problem with applying 922(g) to Schrader personally so give us a way to avoid the constitutional issue" Gov. counsel declined the invitation (and honestly there does not appear any easy way to avoid the constitutional issue if the court does not rewrite the statute to avoid application to common law crimes). Bottom line prediction (don't hold me to it): 2-1 (Judges Tatel and Williams) for Schrader in *some* manner, if only a remand for a factual hearing. As Judge Tatel suggested: The Court may be forced to make a constitutional ruling that application of 922(g) "as applied" to Schrader is unconstitutional under the 2A.
