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. -- Jon ---------------------------------------------------------- Constitution Society http://constitution.org 2900 W Anderson Ln C-200-322 Austin, TX 78757 512/299-5001 jon.rol...@constitution.org ---------------------------------------------------------- |
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