esqappellate
New member
Ex post facto bar applies only to criminal punishments. A firearms disability is not considered to be criminal.
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SCOTUS Cert filed: Schrader, et al v. Holder, et al
- Thread starter Al Norris
- Start date
Spats McGee
Administrator
esqappellate, has the firearms disability ever been challenged as ex post facto? I simply haven't delved off into that area.
Ex post facto bar applies only to criminal punishments. A firearms disability is not considered to be criminal.
But this same case says a deprivation of civil rights IS a punishment?
And yet, when you get a pardon, it can lead to having your civil rights restored? And I was just reading something somewhere on the subject that you could get a pardon that wasn't a full pardon and retained the lack of a 2A civil right?
Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866)
Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866)
While this does separate penalties and disabilities, there is only one category of civil rights restored, and "penalties and disabilities" appears in a recurring theme phrase manner consistent with "The People" in certain other writings.A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights.
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maestro pistolero
New member
So it gets in line with a cert petition, i presume?
If anyone noticed, I updated some cases yesterday. Among those were #32, the Schrader case. On June 11th, Alan Gura field a petition for certiorari with the SCOTUS.
Not having heard of this anywhere else, I emailed Mr. Gura last night for a request for a copy of the cert petition, not expecting anything until Monday (as this was the start of the weekend). Just got home for lunch and the PDF was in my inbox, so I haven't had a chance to read it, as I wanted to get it out ASAP.
The PDF is 90+ pages, but only the first 45 are the actual petition (the rest are underlying lower court opinions).
Thank you, Mr. Gura.
Not having heard of this anywhere else, I emailed Mr. Gura last night for a request for a copy of the cert petition, not expecting anything until Monday (as this was the start of the weekend). Just got home for lunch and the PDF was in my inbox, so I haven't had a chance to read it, as I wanted to get it out ASAP.
The PDF is 90+ pages, but only the first 45 are the actual petition (the rest are underlying lower court opinions).
Thank you, Mr. Gura.
Attachments
Alan Gura is asking the Court to answer 2 questions. The first question is:
Should the Court answer, No, then the next question is:
What should follow is another "No" answer.
These two questions are the entire basis that this litigation was premised upon, starting with the suit at District Court.
The problem is that both the District and the Appeals Courts refused to answer even the first question. Instead, it presumed that the government had sufficient reason to impose the lifetime ban, based solely upon an extremely broad interpretation of statute in question. At no time, did the lower courts actually require the government to justify the law, they merely presumed that the justification was already present and required the plaintiffs to prove otherwise.
That is rational basis, at its core. Alan Gura shows this, in no uncertain terms. Calling the Courts attention to the myriad forms of "intermediate" scrutiny used, which was merely rational basis in disquise.
Alan Gura goes on to show that the lower courts have varied widely in how they have struck the right to keep and bear arms, until it has been stripped of all meaning, contrary to the Courts pronouncement in McDonald that the right is not a second class right and should be accorded the dignity of other enumerated and fundamental rights:
Here is the timeline at DCCA:
1. Whether a common law misdemeanor offense lacking any statutory sentencing range is “a crime punishable by imprisonment for a term exceeding one year” per 18 U.S.C. §§ 921(a)(20)(B) and 922(g)(1).
Should the Court answer, No, then the next question is:
2. Whether an individual may be barred from exercising Second Amendment rights upon conviction of a non-aggravated common law misdemeanor.
What should follow is another "No" answer.
These two questions are the entire basis that this litigation was premised upon, starting with the suit at District Court.
The problem is that both the District and the Appeals Courts refused to answer even the first question. Instead, it presumed that the government had sufficient reason to impose the lifetime ban, based solely upon an extremely broad interpretation of statute in question. At no time, did the lower courts actually require the government to justify the law, they merely presumed that the justification was already present and required the plaintiffs to prove otherwise.
That is rational basis, at its core. Alan Gura shows this, in no uncertain terms. Calling the Courts attention to the myriad forms of "intermediate" scrutiny used, which was merely rational basis in disquise.
Alan Gura goes on to show that the lower courts have varied widely in how they have struck the right to keep and bear arms, until it has been stripped of all meaning, contrary to the Courts pronouncement in McDonald that the right is not a second class right and should be accorded the dignity of other enumerated and fundamental rights:
And on balance, it is not unfair to claim that “the lower courts’ decisions strongly reflect the pragmatic spirit of the dissenting opinions that Justice Stephen Breyer wrote in Heller and McDonald.” Id. at 707. If the Second Amendment is to retain its substantive meaning, this case presents an ideal vehicle for this Court to examine whether the lower court’s methodology here comports with the majority opinions in those cases.
Here is the timeline at DCCA:
- 12-28-2011 - Appeal officially filed.
- 02-29-2012 - CLERK'S ORDER filed setting briefing schedule: APPELLANT Brief due 04/20/2012. Appendix due 04/20/2012. APPELLEE Brief due on 05/21/2012. APPELLANT Reply Brief due 06/04/2012.
- 04-20-2012 - Opening Brief filed.
- 06-05-2012 - The governments response filed.
- 06-19-2012 - The reply brief is filed. Awaiting a date for orals.
- 08-06-2012 - Oral arguments are scheduled for October 10th.
- 01-11-2013 - Decision against Schrader. Lower Court Affirmed.
- 02-25-2013 - Petition for en banc filed.
- 03-13-2013 - Petition denied.
- 06-11-2013 - Petition for Certiorari Filed. SCOTUS Docket #12-1443. Response due July 15, 2013.
And the total of this thread shows why there should be no, none, zero person that are not in custody that should be "prohibited".
To deny any person the right to bear arms in his/her own personal self defense basically states that the prohibited person's life is less valuable than any other person that may bear arms in their own personal self defense. (I do think there is an "equal protection" clause...no?
There were no "prohibited persons" prior to 1968, and it wasn't a problem. That there are persons who probably should not have firearms is not argued, but as everyone here knows and understands, those with criminal intent do not care what restrictions the law may place on them and will obtain their firearms illegally...but they will still obtain them.
To deny any person the right to bear arms in his/her own personal self defense basically states that the prohibited person's life is less valuable than any other person that may bear arms in their own personal self defense. (I do think there is an "equal protection" clause...no?
There were no "prohibited persons" prior to 1968, and it wasn't a problem. That there are persons who probably should not have firearms is not argued, but as everyone here knows and understands, those with criminal intent do not care what restrictions the law may place on them and will obtain their firearms illegally...but they will still obtain them.
All the filings have been done. The case is set for conference on Nov. 1, 2013. You can read the response and the reply at SCOTUSblog: http://www.scotusblog.com/case-files/cases/shrader-v-holder/
Schrader's problems became extent in 2008 when he was denied a purchase of a shotgun by the NICS system. Even though it appears that MD has no record of this prior misdemeanor conviction, the denial was based upon his 1968 misdemeanor conviction of assault.
this doesn't make sense. MD has no record of this but somehow the feds do?
leadcounsel
Moderator
These laws, and their application (especially retroactively) are what really aggravate me about my profession and our system.
Ask 100 people in the abstract and 99 of them will tell you that these things are unfair, and don't make sense. But then you get 1 person who makes some obscure argument and, as applied to some political hot topic like gun control, and suddenly you get unjust results.
Change it from 'gun control' to 'right to get married, or free religion, or speech, or whatever,' and suddenly you'd get a different outcome.
Thanks for posting all of this...
Ask 100 people in the abstract and 99 of them will tell you that these things are unfair, and don't make sense. But then you get 1 person who makes some obscure argument and, as applied to some political hot topic like gun control, and suddenly you get unjust results.
Change it from 'gun control' to 'right to get married, or free religion, or speech, or whatever,' and suddenly you'd get a different outcome.
Thanks for posting all of this...
To deny any person the right to bear arms in his/her own personal self defense basically states that the prohibited person's life is less valuable than any other person that may bear arms in their own personal self defense
It may be a little cold, but I'd say people who have committed a felony serious enough to become a prohibited person have made their live less valuable than the people who have been good enough members of society not to do so. You're welcome to disagree, of course.
Perhaps not "less worthy" but less trustworthy to wield the rights of citizens.
I'm not opposed to restricting those who have been proven to abuse their rights. That said, I don't think tax fraud or similar non-violent crimes are a good reason to make someone a prohibited person.
I'm not opposed to restricting those who have been proven to abuse their rights. That said, I don't think tax fraud or similar non-violent crimes are a good reason to make someone a prohibited person.
maestro pistolero
New member
Very disappointing. It is becoming very difficult to remain optimistic in light of each new denial.
The court can only rule on the matter at hand for any particular case, and its hard to imagine identical facts to Schrader that could be addressed in any other upcoming case in the foreseeable future.
Could it be that NONE of these cases would have gone our way, and the Heller majority is merely exercising damage control via denials?
The court can only rule on the matter at hand for any particular case, and its hard to imagine identical facts to Schrader that could be addressed in any other upcoming case in the foreseeable future.
Could it be that NONE of these cases would have gone our way, and the Heller majority is merely exercising damage control via denials?