Veteran’s Old Assault Rap|Will Keep Him Unarmed

(CN) - A Vietnam veteran cannot own a firearm because he got into a fistfight with a gang member 44 years ago, the D.C. Circuit ruled, finding that misdemeanants as a class "cannot be considered law-abiding."

Jefferson Schrader, a 64-year-old veteran, is barred for life from owning a firearm on the basis of 40-year-old conviction of common-law misdemeanor assault and battery, for which he served no jail time.

The Second Amendment Foundation brought a federal lawsuit on Schrader's behalf, claiming that this ban is inapplicable to individuals who served less than two years for misdemeanors, and that it violates the Second Amendment.

In an interview with Courthouse News, his attorney Alan Gura, with Gura & Possessky, described Schrader's position as "a real Kafkaesque situation." Gura also worked on the landmark Second Amendment case District of Columbia v. Heller.

Schrader says he was serving in the U.S. Navy at the time of the fight in 1968.

He was allegedly walking down the street in Annapolis when he saw a member of a gang who had assaulted him a week earlier.

"A dispute broke out between the two, in the course of which Schrader punched his assailant," according to Schrader's complaint. He was fined $100, went on to serve in Vietnam, received an honorable discharge, and has never had a brush with the law since.

Schrader appealed after a federal judge found "no impediment" to including misdemeanants in the federal firearms ban, but the D.C. Circuit affirmed Friday.

"Plaintiffs' argument boils down to the proposition that common-law misdemeanors should be viewed differently from other state misdemeanors punishable by more than two years' imprisonment," Judge David Tatel wrote for a three-judge panel. "This contention, however, flows not from any insight gleaned from the statute, but rather from plaintiffs' flawed belief that all common-law offenses are trivial."

As a class, individuals who have committed a misdeamenor "cannot be considered law-abiding and responsible," and therefore cannot lay claim to the protections of the Second Amendment, according to the ruling.

"Common-law misdemeanors included a wide variety of violent conduct, much of it quite egregious," Tatel wrote. "And although the category of common-law misdemeanors has since been narrowed through codification, plaintiffs have offered no evidence that individuals convicted of such offenses pose an insignificant risk of future armed violence. To be sure, some common-law misdemeanants, perhaps even Schrader, may well present no such risk, but 'Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.'

"Accordingly, because disarmament of common-law misdemeanants as a class is substantially related to the important governmental objective of crime prevention, we reject plaintiffs' constitutional challenge," the 21-page ruling states.

Gura, the lawyer for Schrader, disputed the court's finding.

"The idea that people who are guilty of nothing more than disorderly conduct can be lumped together with hardcore felons because a state hasn't codified its sentencing procedures is not consistent with the Second Amendment," he told Courthouse News. "It plainly contradicts Heller, which spoke of felon dispossession not misdemeanant dispossession. Obviously there are some misdemeanor crimes that are very serious, and Congress can bar such people from having guns. Domestic violence comes in here; that is not debated. What can't be done is to create a category of common law misdemeanants who are disallowed from possessing guns outright."

One section of the opinion noted that Schrader might otherwise fit the class of law-abiding citizens, but "plaintiffs never argued in the District Court that section 922(g)(1) was unconstitutional as applied to Schrader."

Gura said this "part of the opinion is false."

"The court had no trouble understanding what we were claiming on behalf of Mr. Schrader," he told Courthouse News. "To charge that his claim was not made with sufficient specificity does not sit well with us in notice-pleading land. The idea that lawyers must elevate magic words and apply a formalistic approach does not fit with today's civil procedure. The unjust and outrageous circumstances of Mr. Schrader's position were clear, and these things were discussed in District Court."

Gura declined to say whether his clients will appeal, but said: "There will be next steps. This isn't over."

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