Bloomberg News

Gun Buy Can Be Blocked by 1968 Misdemeanor Conviction

January 12, 2013

A U.S. Navy veteran can be barred from owning a gun because of a 1968 misdemeanor conviction over a fistfight, a federal appeals court ruled.

A three-judge panel in Washington upheld a lower-court ruling “which found ‘no constitutional impediment’ to including common-law misdemeanants” within the federal firearms ban. The lower court observed that “the right secured by the Second Amendment is not unlimited,” U.S. Circuit Judge David Tatel wrote in yesterday’s opinion.

The federal ban applies to several categories of people, including fugitives, undocumented aliens, those who are judged mentally incompetent or those who have been convicted of felonies or certain kinds of misdemeanors, including ones involving domestic violence.

The ruling comes amid a national debate over gun rights after the Dec. 14 shooting deaths of 20 children and six adults at a Newtown, Connecticut, elementary school by a man wielding a semi-automatic rifle outfitted with high-capacity magazines.

Jefferson Wayne Schrader, 64, of Cleveland, Georgia, sued to challenge the ban in 2010 after a companion tried to buy him a shotgun and Schrader tried to purchase a handgun in two separate transactions.

The Federal Bureau of Investigation blocked the shotgun purchase when the National Instant Criminal Background Check computer system flagged Schrader’s July 1968 conviction for misdemeanor assault. When informed of the rejection, Schrader canceled his handgun order.

Street Gang

The assault occurred in Annapolis, Maryland, while Schrader, then 20, was serving in the Navy and encountered a member of a street gang who had previously assaulted him, according to his complaint.

Schrader punched his assailant and was convicted of common- law assault and battery and fined $100. The court imposed no jail time. Schrader went on to serve a tour of duty in Vietnam and received an honorable discharge. He had no other brushes with the law, except for one traffic violation, he said in his complaint.

Schrader said that before 2008 he had bought guns from dealers at least five times without encountering difficulties with background checks.

“I’ve been buying and selling guns all these years and I didn’t know anything about this,” he said yesterday in a phone interview. “It’s a very poor decision. It sounds like they’re making it up as they go along.”

Alan Gura, Schrader’s attorney, said that a further appeal is likely. “This is not something that ends today,” he said yesterday in a phone interview.

Federal Law

Under federal law, people are disqualified from gun possession or ownership if they have been convicted of misdemeanors punishable under state law by more than two years in prison, according to Gura.

At the time of Schrader’s offense, the state of Maryland didn’t specify a maximum penalty for common-law assault and battery. This meant “the Maryland court could have sentenced Schrader to more than two years’ imprisonment,” putting him into a category that tripped the gun-possession ban, according to Tatel’s ruling.

“It’s silly to suggest that Congress intended to prohibit someone convicted of common-law misdemeanor from owning firearms,” Gura said. “There’s no way Mr. Schrader’s in the same category as serious felons.”

Gura argued a successful 2008 challenge to the District of Columbia’s handgun ban before the U.S. Supreme Court. The court’s 5-4 ruling established that the Constitution protects individual gun rights.

Tracy Schmaler, a spokeswoman for the U.S. Justice Department, declined to comment on yesterday’s ruling.

The case is Schrader v. Holder, 11-cv-5352, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Andrew Zajac in Washington at azajac@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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