2010/10/24

Missing from Schrader v. Holder

The case of Jefferson Wayne Schrader and Second Amendment Foundation v. Eric Holder and Federal Bureau of Investigation is on facts well-selected for rolling back the unconstitutional provisions of 18 USC 922. However, it is missing several claims for relief that need to be included in the petition to establish a predicate for eventual appeal.

The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.

To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.

Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.

I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.

It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?

How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre?

1 comment:

Jeff Gaul said...

can i call u?
jeff gaul
goatnycapdotrrdotcom

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