UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

__________________________________________ JEFF ERSON WAYNE SCHRADER, et al. ) ) P laintif fs, ) ) v. ) Civil Action No. 10-1736(RMC) ) ERIC HOLDER, Attorney G eneral, et al. , ) ) Defendan ts. ) __________________________________________) MEMORAN DUM OP INION Ba ck in 1968 when Jeffe rson Schra der w as 20 y ear s old and in the Navy , he wa s in a fistfig ht with a member of a g angthat had pre viously attacke d him on the street in Annapolis, Mary

land. He w as ar

rested a nd convicted in a

Mary land State cour

t of common law misdemeanor a ssault and batter y . He r ece ived a $100 f

ine and no jail time. B eca use it was an uncodified c ommon law violation, no St ate statute spe cified a maxi mum term of incar cer ation. For ty y ear s later, a s Mr. Schrade r attempted to purc hase f irea rms, his attempts were rebuf fed when he was identified in the N ational Instant Criminal Bac kg round Check Sy stem (“NI CS”) as ineligible sinc e his 1968 conviction could have re sulted in a sentenc e of two year s or more a nd fede ral lawprohibited his purcha se. See18 U.S.C. § 922(g)

.

Mr. Schra der c halleng es the g overnme nt’s application of § 922( g ) to his fac ts and

asser ts that he has a c onstitut ional rig ht under the Sec ond Amendment to purc hase f irea rms. All parties r ecognize that feder al law ba rs anyone convic ted of c erta in crimes fr om purcha sing guns, including those convicted of a State-la w misdemeanor

that is punishable by

more than two year s in prison. See18 U.S.C. § 921(a)(20) (B ). The que stions presented a re whether

an uncodif

iedmisdemeanor of a g arde n-var iety

sort comes within the fe dera l definition and whethe r, if so, such treatment violates Mr. Schrade r’s rig hts under the Sec ond Amendment. The g overnme nt moves to dismi ss and Mr. Schra der c ross moves for summar y judgme nt. I. F ACTS The re levant fa cts are simple and, unless otherwise stated, unconte sted. In J uly of 1968, Mr. Schra der w as enlisted in the Navy and stationed in Anna

polis, Maryland. While walkingon the stree ts of Annapolis, Mr. Schra der w as assa ulted by a stree t ga

ngfor a lleg edly enter ing the ir terr itory . Sometime later, on or a bout J uly 23, 1968, Mr. Schra der w as ag ain walkingin Annapolis and enc ountere d one of the g angmembers who ha d previously assaulted him. A fig ht broke out, and Mr . Schrade r punche d the g ang member. Anear

by police off

icer 1

arr ested Mr. Schr ader

for a ssault and batter

y and disorder ly

conduct. Eight day s later, Mr. Schrade r wa s found g uilty of assua lt and battery

and orde red to pa

y a $100 fine and $9 in cour t costs. Mr. Schra der pa id the fine a nd costs and wa s relea sed. Aside f rom this incident, Mr. Schrade r has no other

convictions and ha s had no other me aning ful enc ounters with law enfor ceme nt. For

ty y ear s later, Mr. Schr ader attempted to ac quire a

shotgun a

nd a handg

un for self-de fense purposes. As r equire d by the B rady

Handg un Violence and Preve ntion Act, Pub. L

. 103-159, 107 Stat. 1536, Mr. Schrade r’s name and infor mation was che cked a g ainst the National

Def endants viewwith skepticism Mr. Schrade r’s stateme nt that he was pr eviously 1 assaulted by

a stree t ga

ng but have no ba sis to deny the ac count. Even if the acc ount were proper ly disputed it is not materia l to this decision. More over, in g rantingDef endants’ motion, the Court views the fa cts in a lig ht most favorable to Mr. Schrade r. See, e .g., Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). -2-I nstant Criminal Bac kg round Sy stem (“NI CS”) to see if he was e ligible to purc hase a firea rm. The ba ckg round che ck re veale d Mr. Schra der’ s prior convic tion, and he wa s deeme d ineligible.

Mr. Schra der wrote to the F BI and aske d why

his firea rms transac tions had been

canc elled. On June 3, 2009, the FB Iadvised that it had made a “de nial decision” unde r 18 U.S.C. § 922(g) (1) on the ba sis of the 1968 Mary land misdemeanor

common law assa

ult and battery conviction. The F BI

further advised him to dispose of or surr ender any firea rms he mig ht possess or he c ould fac e cr iminal prosecution. B eca use the c ommon law misdemeanor f or which Mr. Schra der w as convic ted had no leg islatively -ca pped punishment rang e, the g overnme nt treats him as it would a convicted f elon for the purpose of

fede ral law , banninghim for life fr om possessing a

ny firea rm for a ny purpose a

nd listi nghis name in the NI CS database a s disqualified from owningfirea

rms. Mr. Schra der c omplains that the g overnme nt’s expansive rea ding of § 922(g )(1) is mistaken. Even a ssuming that the f eder al sche me could be r ead to e ncompass common law misdemeana

nts, he complains that the g overnme nt’s attempt to limi t his right to purc hase guns under § 922( g )(1) fails constitutional scrutiny under the Second Amendme nt. Mr. Schrade r and the Second Ame ndment Foundation filed this lawsuit seekingan orde r re quiring Def endants to 2

remove Mr. Schra der’ s firea rms disability

from NI CS pursuant to 18 U.S.C . § 925(a) and perma nently enjoining D efe ndants from e nforc ing 18 U .S.C. § 922(g) (1) with re spect to his

The Sec ond Amendment F oundation is a non-prof it membership org anization 2 incorpora ted under the laws of the State of Washington, with its principal plac e of business in Be llevue, Washing ton. I t say s that it has over 650,000 membe rs and supporte rs nationwide. 2 n d Am. Compl. ¶ 2. -3-uncodified c ommon law misdemeanor of fense on the g round that it has no statutory punishment criter ia. II

. LEGAL STANDARDS

A. Jurisdiction an d Venue The Court has jurisdiction under 28 U.S.C. §§ 1331 (fede ral que stion) and 2201 (De clar atory

J udg ment Act). V enue is prope r under 28 U.S.C. § 1391. B. Motion to Dism iss A motion to dis miss for failure to state a c laim pursuant to Fe dera l Rule of Civil Procedur e 12(b) (6) c halleng es the a dequac y of a c omplaint on its fac e. F ed. R. Civ. P. 12(b)(6). A complaint must be sufficie nt “to g ive a de fenda nt fair notice of what the . . . claim is and the g rounds upon which it re sts.” Twombly , 550 U.S. at 555 (2007) ( internal c itations omi tted). Although a

complaint does not nee d detailed f actua l alleg ations, a plaintiff’s oblig ation to provide the g rounds of his entitlement to relief “re quires more than labels a nd conclusions, and a formulaic r ecitation of the elements of a cause of ac tion will not do.” Id. To survive a motion to dismiss , a complaint must contain suffic ient fac tual matter, a cce pted as true , to state a c laim for relief that is “plausible on its face .” Twombly , 550 U.S. at 570. A cour t must t reat the complaint’s fa ctual alleg ations as true, “ even if doubtful in fac t.” Twombly , 550 U.S. at 555. But a court ne ed not ac cept a s true leg al conc lusions set forth in a complaint. Ashcroft v. Iqbal , 129 S. Ct . 1937, 1949 (2009). I n decidinga motion under Rule 12(b)(6) , a cour

t may consider the fac ts alleg ed in the complaint, docume nts attache d to the

-4-complaint as exhibit s or incorpor ated by ref ere nce, a nd matters about whic h the cour t may take judicial notice. Abhe &Svoboda, Inc . v. Chao , 508 F.3d 1052, 1059 ( D.C. Cir. 2007).

C. Standi ng A plaintiff bea

rs the burde n of establishing his own standing f or ea ch cla im that he make s. Northeastern Fla. Chapter, Associated Gen. Contractors of Am. v. City of Jack sonville , 508 U.S. 656, 663 (1993); Lujan v. Defende rs of W ildlif e , 504 U.S. 555, 560-61 (1002). F eder al cour

ts are c ourts of limited jurisdiction and a plaintiff must show a “justiciable controve rsy ” with the def endant—one that is “definite a nd concr ete, touching

the leg al re lations of par ties having adver se leg al intere sts.” Aetna Life Ins. Co. V. Haworth , 300 U.S. 227, 240-41 (1937). To e stablish constitut ional standing , a plaintiff must show an “ injury -in-fa ct,” whic h means “ an invasion of a

leg ally protec ted intere sts that is (a) conc rete and par ticularized, and (b) actua l or imminent, not conjectural or hy pothetical.” Lujan , 504 U.S. at 560 & n.1. A plaintiff must also demonstrate a “ causa l connec tion between the injury and the c onduct complained of .” Id. Finally , the injury

must be redr essable by

the re lief sought in the complaint. Id. at 561. Org anizations can establish standingin one of two wa y s. First, they

can demonstrate injury , causa lity , and re dressa bility in the same wa

y as a tra ditional plaintiff. See, e.g., Ame rican Legal Found. v. FCC , 808 F.2d 84, 89 ( D.C. Cir. 1987) (citing Have ns Realty Corp. v. Coleman , 455 U.S. 363, 378-79 (1982)) . Second, an or g anization can have repr esentational standing “ on behalf of its members whe n its members would otherwise have standing to sue in their own right, the interests at stake are g erma ne to the org anization’s purpose, a

nd neither the claim asser ted nor the r elief r equeste d require s the participation of

-5-indivudual members in the lawsuit.” Friends of the Earth, Inc. v . Laidlaw Envt’l Serv s., Inc. , 528 U.S. 167, 181 (2000). III. ANALYSIS

A. Standi ng The g overnme nt contests the standing of both Mr. Schra der a nd the Second Amendment F oundation. Acc ording to the g overnme nt, Mr. Schrade r lac ks standing f or three

rea sons. First, he f

ails to identify

wher e, whe n or how he intends to purchase or possess a handgun and longg un. Second, his past inability to acquire or possess a f

irea rm leg ally

is not prese ntly harminghim so that there is no exist ing “ actua l controver sy .” See H aase v. Se ssions , 835 F.2d 902, 911 ( D.C. Cir. 1987). Third, the alleg ations in the Second Amende d Complaint

are too vag ue to find that any injury conce rning future f

irea rms purcha ses or possession is trac eable to the Def

endants or r edre ssable by the Court. Mr. Shrade r pre sently

intends to purchase and possess a ha ndg un and longg un for self-de fense within his hom e. He does not fac e any of the ty pical disqualifying ba

rrier s under fede ral gun control laws. He is not under indictment, has neve r bee n convicted of a fe lony or misdemeanor c rime of domestic violenc e, is not a fug itive from justice, is not a user of unlawful controlled substanc es or a n addict, has ne ver be en adjudicated as having a mental def

ect or been committed to a mental institut ion, has not been discha rg ed under

dishonorable c ircumstance s, has

never renounc ed his citizenship, and has neve r bee n the subject of a restra ining or der r elatingto an intimate par

tner. See18 U.S.C. § 922(g) . He is also fully qualified to possess fire arms under the laws of G eorg ia, his State of citizenship.

-6-Mr. Schra der ha s been de nied the rig ht to purchase guns on two occa sions because

he is listed in the NI CS database a s disqualified. He c omplains that this l isting pre vents him, now and into the future , from any such exercise of his Second Amendme nt rig hts. The g overnme nt does not dispute this fact but protests that his future intentions are too imprecise.

The Court disag ree s. The D.C. Circuit has “c onsistently treated a lice nse or pe rmit denial pursua

nt to a state or f

eder al administrative sche me as a n Article I I Iinjury .” Parker v

. District of Columbia , 370 F.3d 376 ( 2007) (c ollectingcase s), aff’d sub nom. Dist. of Col umbia v. Heller , 554 U.S. 570 (2008). The FB Iexplained its denial decision in 2009 and Mr. Schra der sued in 2010. Ther e is not a “pr e-e nforc ement cha lleng e,” a s to which the Circuit has conc luded a plaintiff lac ks standing due to the absenc e of a n injury -in-fa ct. Id. at 374 (c iting Seegars v

. Gonzales , 393 F.3d 1248 ( D.C. Cir. 2005)). More over, Mr . Schrade r pre sents “an a ctual and well-founde d fea

r that the law

will be enfor ced a g ainst [hi m.] ” Id. at 375 (quoting Virginia v. American B ooksellers Ass’n , 484 U.S. 383 (1988)). The Court finds no ambiguity , undue dela y , or unce rtainty

here about Mr. Schra der’ s suit or claims. His standing is at lea st as secur e as D ick Heller in Parker v . D.C. See also De arth v. Holder , 641 F.3d 499 ( D.C. Cir. 2011) (finding standing when plaintiff a lleg ed that he intende d to purcha se and store a fire arm in the United States and that the fe dera l regulatory scheme thwarte d his continuing de sire to purc hase a firea rm). Be cause the Second Ame ndment Foundation has not raised issues sepa rate from those raise d by

Mr. Schra der, the Court need not dec ide whethe r it has standing

. See D earth v. Holder , 641 F.3d 499, 503 n.* ( 2011) (c iting Environmental Ac tion, Inc. v. FE RC, 939 F.2d 1057, 1061 n.* (D.C. Cir. 1991)).
-7-B. App licabili ty of § 922(g) Although § 922( g )(1) is colloquially ref err ed to as the f

elon-in-possession statute, that descr iption is underinc lusive. See U nited States v. W

illiams , No. 09-00044-CG- C, 2009 U.S. Dist. L EXI S 70299, at *3 (S.D. Ala. Aug . 11, 2009) (“ In fac t, felon-in-posse ssion is a misnomer beca

use it is possibl e under

18 U.S.C. § § 922(g) (1) a nd 921(a) (20)( B) for a misdemeanor c onviction to disqualify a per son from possessinga fire arm.” ). The r eleva nt lang uag e prohibits any

person c onvicted of “ a cr ime punishable by imprisonment for a ter

m exceedingone y ear ” fr om possessing f irea rms. 18 U.S.C. § 922(g) (1). The statute define s the term “c rime punishable by imprisonment for a ter

m exceedingone y ear ” to exclude “a ny State offe nse cla ssified by

the laws of the State as a misdemea nor and punishable by

a ter m of imprisonment of two y ear s or less.” 18 U.S.C. § 921(a) (20). The question, thus, is whether Mr. Schrade r’s c ommon law assault and battery conviction is a cr ime “punishable by a ter m of imprisonment of two y ear s or less.” Id.

Neither party disag ree s with this analy sis. W here they part c ompany

is in it s application to these f

acts. The United States contends that whe n a common law c rime is involved, for whic h a State leg islature has se t no specific pe nalty , a cour t’s sentenc ing disc retion in limi ted only

by the bar to crue l and unusual punishment g uara nteed by the Eig hth Amendment. By

this calculus, Mr. Schra der’ s assault and ba ttery conviction constituted a State 3 misdemeanor punisha

ble by more than two year s. Mr. Schrade r re sponds that uncodified common-law of

fense s are not “punishable” by any particula r statutory

criter ia and, ther efor e, do

The Eig ht Amendment states that “[e]x cessive ba il shall not be require d, nor excessive 3 fines imposed, nor c ruel a nd unusual punishments inflicted.” U.S. C O N S T . amend. VI I I

.

-8-not fall within the purview of § 922(g ) at a ll. The Gover nment complains that adopting Mr. Schrade r’s re adingof § 922 would eliminate a ll uncodified common law of fense s, reg ardle ss of their violence or ser iousness, from pre cluding an individual from ca rry ing f irea rms. Mr. Scharde r re sponds that adopting the Gover nment’s re adingof § 922 would lump even the simplest common law offense with violent felonies.

Whil e the pa

rties spend time combinghistory and dictionar ies to make their arguments, the Court need not tar ry . There is one insurmountable hole in Mr. Schra der’ s logic

. His argument that the lack of statutory criter ia makes a common law cr ime not “punishable” within the meaningof fe dera l law imports a re quirement that ne ither the lawnor log ic re quires or sug g ests. Whether any

particula r State has c odified its criminal common law c annot limit t he eff ect of fede ral law . The a

bsence of a le g islatively -def ined sentenc e leaves sentenc ing to the discretion of the judge , limit ed only by constitutional (fede ral or State) provisions. Mr. Schrade r does not argue, nor c ould he, that a Ma ryland State cour

t judge could not have se ntence d him, or another offe nder of

the same c ommon law crime, to more than two y ear s in jail. Thus, his 4 offe nse wa s “punishable” by a ter m of more than two year s in jail.

The a ctual ter

m of the sentenc e g iven is not controlling; only the possibilit y

of 4 punishment of more than two year s for a misdemeanor matters for pur poses of § 922(g )(1)

. See, e.g., United States v . Hill , 539 F.3d 1213, 1219- 21 (10th Cir. 2008) (Sec tion 922(g )(1) was satisfied whe re max imum federa l penalty was 23 months imprisonment even thoug h defe ndant was only sentenc ed to ten months); United States v. J ones , 195 F.3d 205, 207 ( 4th Cir. 1999) (“[I ]twas plainly

irrele vant to Congr ess whethe r the individual in question actually rec eives a prison term; the statute imposes disabilities on one convicted of a cr ime punishable by imprisonment for a ter

m exceedingone y ear .”); United States v. Arnold , 113 F.3d 1146, 1148 (10th Cir. 1997) (“ Appellant attempts to rewrite 18 U.S.C. § 922(g )(1) by conver ting the w ord ‘punishable’ into ‘punished.’ What matters is not the actua l sentence . . . but the maxi mum possible sentence .”); United States v. Qualls , 108 F.3d 1019, 1021- 22 (9th Cir. 1997). -9-Mr. Schra der f urther a rgues that the fe dera lism concerns that underg ird our g overnme nt structure in the U nited States allow only a State’s leg islature to dec ide how har shly it chooses to punish its own crimes and Cong ress de fer s to the wisdom of that localized judgme nt. See U nited States v. Mc

Kenzie , 99 F.3d 813, 820 ( 7th Cir. 1977) (“[W] hile states may vary on what off

enses a re punishable by

a ter m exceedingone y ear , it does not alter Cong ress’ intent to keep guns out of the hands of a ny one that a g iven state de termines to be a felon.” ). Howeve r, the c hoice of

a State leg islature to re ly on judicial discretion at se ntencingon cer tain common law misdemea

nors re prese nts a leg islative choice just as the adoption of a statute would. To the extent that reliance on judicial discretion re prese nts leg islative “inac tion, ” only the citizens of the State might c hang e that, not the fe dera l gove rnment. Giving “ punishable” its 5 common sense de finition does not undermine Mar yland’s ability

to choose how to punish its citizens who are c onvicted of State c rimes.

Moreove r, if Mar

yland wante d to limi t the rea ch of § 922 to misdemea nats who have be en convic ted of c rimes that ca rry a statutory penalty , it knew how to do so. See MD Public Safety

Code Ann. § § 5-101, 5- 133 (Mar yland’s gun control statute prohibits g un
owner ship by

a per son convicted of

a “misdeme anor in the State tha t car ries a statutory penalty of more tha

n 2 y ear s . . . .”) ( emphasis adde d). Mar yland’s gun control statute indicate s that the State leg islature appr eciated the diffe renc e betwe en codif ied and unc odified pena lties and chose

I n fac t, since Mr. Schra der’ s conviction in 1968, the State of Mar yland has c odified the 5 common law cr ime of assa ult. First Deg ree Assault is a felony punishable by

up to 25 y ear s imprisonment and cover s assault that ca uses or attempts to cause ser ious phy sical injuries or that is carr ied out with a fire arm. See Md. Criminal L aw Code A nn. § 3-202. Second D eg ree Assault is a misdemeanor

punishable by

up to 10 y ear s imprisonment and cover s all other for ms of assault. See id. at § 3-203. -10-not to make such a distinction before it codifie d this common law criminal misdemeanor . Ag ain, the silence of the State leg islature is as telling as its post-1968 action.

The F ourth Circuit Court of Appea ls encompasse s Maryland, and the United States urg es the Court to adopt the re asoningand holding s of Four th Circuit decisions on point. See U nited States v. Coleman , 158 F.3d 199, 203- 04 (4th Cir. 1998) ( en banc ); United States v. 6 Hassan El , 5 F.3d 726, 732- 33 (4th Cir. 1993). Mr. Schra der a rgues that these de cisions are flawe d and unper suasive and pr edate d District of Columbia v. Heller , 554 U.S. 570 (2008), which held that the Sec ond Amendment prote cts an individual rig ht to keep and be ar a rms. Unless there is a possible Second Amendme nt problem, howeve r, the Court is otherwise persua ded by

the Four th Circuit. Two more points should be adde d. First, bec ause Mr . Schrade r’s Mar yland assault and battery

conviction ac tually

involved violence, which he a dmits, hi s offe nse wa s of a kind to which § 922(g )(1) speaks to kee p firea rms out of the hands of

violent offende rs. Second, clar ity of the c riminal laws is nece ssary for both law e nforc ement and the people to know a nd fore see when the law

applies. In 1968, Mr. Schra der ha d no idea that Congress would late r pass the B rady Handgun Violence and Preve ntion Act. As to the prec ise question here , and without intending a

ny broade r application, the Court concludes that fe dera l criminal law e nforc ement cannot de pend on divining the meaningof leg islative silence in the 50 States.

Coleman overr

uled United States v. Sc hultheis , 486 F.2d 1331 ( 4th Cir. 1973), which 6 had adopte d the pra ctice of using the actua l sentence imposed on common law off ender s to deter mine status, rather

than the ra

ng e of inc arc eration for which a crime w as “punishable .” -11-B. Alleged Second Am endm ent Violation Mr. Schra der a lso advanc es a c onstitut ional claim: rea ding § 922( g ) as br oadly as the g overnme nt proposes would run a foul of the Sec ond Amendment as c onstrued by District of Columbia v. Heller. Heller decide d that the Second Ame ndment confe rs an individual rig ht to keep a nd bear arms and not just a c ollective right to participate in State militias. 554 U.S. at 592 (findingthe Second Ame ndment “guara ntee[s] the individual rig ht to possess and car ry wea pons in case of conf

rontation”); id. at 594 (“ [W ]e do not read the Sec ond Amendment to protec t the rig ht of citizens to carry

arms for any sort

of conf rontation, just as we do not re ad the F irst Amendment to protec t the rig ht of citizens to speak for any purpose .” (e mphasis in origina l)).

Mr. Schra der’ s desire to have one or more g uns in his house for saf

ety echoe s throug h Americ an history

. Id. at 611 (quoting Johnson v. Tompk ins , 13 F. Cas. 840, 850, 852 (CC Pa. 1833) (“a

citizen has ‘a r ight to ca

rry arms in def

ense of his property

or per son, and to use them, if either

wer e assa iled with such forc e, number s or violence as made it necessa ry for the protec tion or safe ty

of either .’”) ). He corr ectly relies on Heller ’s exposit ion of the history and application of the Second Ame ndment to argue that ther e is an individual constitutional right to “ke ep and be ar a rms.” U.S. C O N S T . amend I I

. See also Heller , 554 U.S. at 628 (noting “the inher ent right of self-de fense has bee n centr al to the Second Ame ndment rig ht”). Section I I Iof Heller , howeve r, notes that “[l]i ke most rig hts, the rig ht secure d by the Second Ame ndment is not unli mited.” Heller , 554 U.S. at 626. Most importantly for pr esent purposes, the Supre me Court specifie d that:

-12-[N] othing in our opinion should be take n to cast doubt on longsta nding prohibiti ons on the possession of firearms by felons and the menta lly

ill, or laws forbiddingthe ca rry ing of firea rms in sensitive place s such as schools a nd g overnme nt buildings, or laws imposing conditions and qualific ations on the commerc ial sale of arms.* *We identify

these pre sumptively

lawful re g ulatory

measure s only as examples . . . . Heller , 554 U.S. at 626-27 & n.26. In the dec ision under re view in Heller , known below a s Parker v . District of Columbia , the D.C. Circuit made the same point: “Personal cha rac teristics, such as insanity

or fe lonious conduct, . . . make g un owner ship dang erous to socie ty . . . .” Parker , 478 F.3d at 399.

Parker cited Lewis v. United States , 445 U.S. 55, 65 n.8 (1974), for the proposition that “convicted f elons may

be depr ived of their r ight to kee p and bea r ar ms.” 478 F.3d at 399. Lewis , in turn, had appr ovingly cited United States v. J

ohnson , 497 F.2d 34 ( 4th Cir. 1974), for its holding that § 922(g ) does not violate the Sec ond Amendment bec ause “ the Second Amendme nt only confe rs a c ollective rig ht of kee ping a nd bear ing a

rms which bea

r a ‘re asonable relationship t o the pre serva tion or eff

iciency of a w ell regulated militia.’” Lewis , 445 U.S. at 65 n.8 (citation omitted). Parker and Heller , of cour se, discar ded the theor y that the Second Amendme nt does not g uara ntee a n individual right. The D.C. Circuit ex plained its relianc e on the r esult, if not the rationale , of Lewis and Johnson , by

instructing that regulations on the use a

nd owner ship of g uns “promote the g overnme nt’s interest in public safe ty consistent with our common law tra dition . . . [ and] do not im pair the c ore c onduct upon which the r ight was pre mised.” Parker , 478 F.3d at 399.

-13-I t must be noted that the definition which so off ends Mr. Schra der’ s constitutional sensibiliti es wa s added to § 921(a ) on Oc tober 22, 1968, the year of his infamous enc ounter with a g angmember whom he punche d on the stree ts of Annapolis. See G un Control Act of 1968 , Pub. L . 90-618, 82 Stat. 1213. The law w as adopte d “to provide suppor t to Fede ral, State, a

nd local law e nforc ement off icials in their fight ag ainst crime a nd violence” but not to “place a ny undue or unne cessa

ry Fe dera l restrictions or burde ns on law-a biding c itiz ens . . . .” Id. The bill amende d 18 U.S.C. § 921(a)(20) (B ) to provide that the te rm “‘c rime punishable by imprisonment for a term excee ding one y ear ’ shall not include . . . (B ) any State offe nse (other

than one involving a f

irea rm or explosive) classified by the laws of the State as a misdemea nor and punishable by

a ter m of imprisonment of two y ear s or less.” Id. Whil e § 921(a )(20) (B ) no longe r includes the pa

renthe tical phra se, the languag e which c overs Mr. Schr ader ’s old crime was made a par

t of the statute in the ver

y y ear of its commission. No challeng e to the def inition has bee n raised suc cessf

ully in the deca des since. Its hoary ag e strong ly

sug g ests no constitutional im pediment and, indee d, the Court finds none under Heller ’s re adingof the Second Amendme nt or the ca selaw that prec eded Heller

. IV. CONCLUSION Mr. Schra der pr esents neither a statutory

claim nor a

constitutional one ag ainst the enfor ceme nt of 18 U.S.C. § § 922(g )(1) and 921(a )(20) (B ) ag ainst him. His real complaint is with the 1993 Br ady

Handgun Violence Prevention Ac t which orde red the Attorney Gene ral to establish and re ly

on NI CS for nationwide trac king of fede ral a nd State crimes. Mr. Schr ader may have c ompletely

forg otten his fistfight of 40 year s ag o but this C ourt ca nnot say that the FB I ’s memory

of it was fa

ulty in any respe ct. The D efe ndants’ motion to dism iss [ Dkt. # 20]
-14-will be g rante d, and Mr. Schr ader ’s cr oss motion for summary judgme nt [ Dkt. # 21] wil l be denied. A me morializi ng Orde r ac companies this Memora ndum Opinion.

Date: De cembe r 23, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

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