Without a doubt it is ex post facto, because it is a new penalty applied for something prior.
However legally it has been declared previously by the court to not be an ex post facto issue when reveiwed because firearm prohibition was not considered a new punishment.
The way they got around the ex post facto legality was to essentially declare that taking away your firearm rights for life is not a penalty or punishment. So someone that owned firearms for years after a conviction who suddenly became a prohibited person after having committed no new crime was said to have not received any new penalty for that crime.
If permanently removing your right to ever own a firearm is not a penalty, then it is not a new penalty applied after the fact, which is why legally it was not consider ex post facto.
In light of Heller, (and even if it wasn't a right, but that is besides the point) and it being an individual right, a strong case could certainly be made that retroactively removing firearm rights for a crime that did not have such a penalty when committed is in fact illegal ex post facto increase in penalty after the fact. Legal minds that were intellectually honest and not jutifying the means to suit ends they may like would have to agree.
That case however would only restore rights to those with convictions prior to the Lautenberg Amendment. It would not address the legality of convictions since then or in the future.
That would need a different legal argument and would pose a bigger challenge.
As a result I think many are reluctant to put a lot of money and effort into the ex post facto angle when it would not actually change the law itself.
However legally it has been declared previously by the court to not be an ex post facto issue when reveiwed because firearm prohibition was not considered a new punishment.
The way they got around the ex post facto legality was to essentially declare that taking away your firearm rights for life is not a penalty or punishment. So someone that owned firearms for years after a conviction who suddenly became a prohibited person after having committed no new crime was said to have not received any new penalty for that crime.
If permanently removing your right to ever own a firearm is not a penalty, then it is not a new penalty applied after the fact, which is why legally it was not consider ex post facto.
In light of Heller, (and even if it wasn't a right, but that is besides the point) and it being an individual right, a strong case could certainly be made that retroactively removing firearm rights for a crime that did not have such a penalty when committed is in fact illegal ex post facto increase in penalty after the fact. Legal minds that were intellectually honest and not jutifying the means to suit ends they may like would have to agree.
That case however would only restore rights to those with convictions prior to the Lautenberg Amendment. It would not address the legality of convictions since then or in the future.
That would need a different legal argument and would pose a bigger challenge.
As a result I think many are reluctant to put a lot of money and effort into the ex post facto angle when it would not actually change the law itself.
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