Second post of night
U.S. Gun Laws Retroactively Barred This Vietnam Vet From Owning a Firearm
Because of a Teenage Misdemeanor 45 Years Ago
Feb. 26, 2013 8:52am Becket Adams
A 19-year-old sailor stationed in Annapolis, Md., in 1968 was arrested for
getting into a fight with an alleged member of a street gang.
Now, 45 years later, he has been stripped of his right to own a gun.
Jefferson Wayne Schrader, 64, has been fighting a losing battle in the
courts since 2008 to get his name off the fed’s firearm ban list. In fact, just
last month, a federal appeals court in Washington, D.C., upheld a
lower-court ruling barring the U.S. Navy veteran from Cleveland, Ga., from owning a
firearm.
“It’s a depressing thing. A depressing thing,” he told TheBlaze in a
phone interview, “to have the government treat you like that. It’s not, well,
it’s not a good thing.”
The ban list is meant to prevent people of questionable standing,
including illegal aliens, drug addicts, people dishonorably discharged from the
U.S. military, and fugitives, from buying or selling guns.
And although Schrader — a certified expert with a handgun — served in
Vietnam from Jan. 1, 1968, until being honorably discharged in September 1970,
the U.S. government believes he is unfit to own a gun because of his
teenage misdemeanor.
“Due to a conviction some forty years ago for common-law misdemeanor
assault and battery for which he served no jail time, plaintiff Jefferson Wayne
Schrader, now a sixty-four-year-old veteran, is, by virtue of 18 U.S.C. §
922(g)(1), barred for life from ever possessing a firearm,” U.S. Circuit
Judge David Tatel wrote in the court’s January opinion.
“In rejecting plaintiffs’ constitutional claim, the district court relied
on the Supreme Court’s observation in District of Columbia v. Heller …
that ‘the right secured by the Second Amendment is not unlimited,’ as well
as the Court’s inclusion of ‘longstanding prohibitions on the possession
of firearms by felons’ within a list of ‘presumptively lawful regulatory
measures,’” Judge Tatel added.
In its ruling against Schrader, the fed appeals court cited the Gun
Control Act of 1968 signed into law by President Lyndon Johnson, which makes it
more difficult for questionable characters to engage in interstate commerce
involving firearms.
But we’ll come back to that later.
The other gun law that led to Schrader’s odd set of circumstances is the
Brady Handgun Violence Prevention Act of 1993. This bill laid the groundwork
for the FBI’s 1998 National Instant Criminal Background Check System
(NICS).
So when Schrader tried to buy a handgun in 2008, the NICS flagged his
45-year-old misdemeanor – which only now qualifies in Maryland for a sentence of
two or more years in prison – and he was disqualified from making the
purchasing.
But here’s the weird thing: Schrader has been selling and trading guns for
a long time.
“I’ve bought and sold probably, oh, a dozen … maybe 15 guns over a 42
year time period” he said. “I never had a problem with it. I was just
surprised it happened at all. The ATF [Bureau of Alcohol, Tobacco, Firearms and
Explosives] agent said I wasn’t allowed to have any guns.”
“But he said I could keep my black powder rifle. Thank you very much,” he
added sarcastically.
TROUBLE
As mentioned in the above, it all started in 2008 when an NICS check
flagged Schrader’s name for his 1968 misdemeanor.
The FBI blocked Schrader’s wife, Harriet, from buying him a shotgun for
his birthday and then blocked him on two different occasions from buying a
handgun.
But let’s back up for a second and revisit his 1968 misdemeanor.
As Schrader told TheBlaze, one evening in Annapolis he and his Navy
buddies were attacked by a street gang while walking back to base. A few weeks
later, Schrader saw one of his attackers hanging out on a street corner.
“I told the guy driving to stop and let me out,” Schrader said, “and I
walked over to him and was going to tell him, ‘You need to come with me, we’
re going to talk you over to the police station.’ And he said, ‘Oh, you
want some more?’ and stood up.”
As official court documents show, “a dispute broke out between the two, in
the course of which Schrader punched his assailant.”
Unfortunately for Schrader, he didn’t see the two police officers “
sitting at the red light.”
The sailor was arrested and convicted of common-law assault and battery.
He was told he could pay a $109 fine, which included court costs, or spend
thirty days in the hole.
He chose the former.
After paying the fine, Schrader went on to serve a 21-month tour of duty
in Vietnam and was honorably discharged upon his return.
>From that time forward, according to the complaint, he had no scrapes with
the law (except for one traffic violation).
REASON FOR THE BAN
After going more than five decades without any serious trouble with the
law, the 2008 background check came as a shock to Schrader.
“I don’t know why they’re coming after me,” Schrader said. “All I did
was punch someone in the nose.”
So what’s the court’s reasoning?
The Gun Control Act (remember we said we’d come back to this?)
specifically includes a ban on anyone convicted of a misdemeanor punishable under
state law by up to two years in prison.
Okay, but Schrader never had to serve a two-year prison sentence.
This is where it gets interesting. At the time of his arrest, the state of
Maryland did not set any maximum sentence for common-law assault and
battery convictions.
However, the DOJ reasons that because Maryland would have given him two or
more years if it had the laws it has today, well, that’s good enough to
keep Schrader on the banned list.
TODAY
Two years after having his name flagged for the Annapolis fight, Schrader
sued to challenge the ban and he has been fighting it ever since.
Unfortunately, things haven’t gone his way.
“All I can do now is wait and see what my attorney can do,” Schrader told
TheBlaze.
His lawyer, Alan Gura, a prominent civil rights attorney, says there are
still a few options left.
“Today is our deadline for filing a petition for rehearing and rehearing
en banc in the Schrader case,” Gura told TheBlaze in an email on Monday.
“Some misdemeanors are very serious and Congress can address those
specifically,” he added later in a phone interview, “but to broadly disarm anyone
who has ever been involved in even a minor scuffle, 45 years later, seems
to be excessive.”
“We hope that the court rehears the case. We think it’s worthy of that.
It raises the types of questions that courts often find they need to rehear.
If the court does not decide to reconsider the case then, of course, we
will consider the next step, which will be a petition to the Supreme Court.”
A spokeswoman with the U.S. Department of Justice did not immediately
respond to TheBlaze’s request for comment.
Here’s the full case: Schrader v. Holder, 11-cv-5352, U.S. Court of
Appeals for the District of Columbia:
http://www.theblaze.com/stories/2013/02/26/u-s-gun-laws-retroactively-barred-this-vietnam-vet-from-owning-a-firearm-because-of-a-teenage-misdemeanor-45
-years-ago/
