Ex post facto law?

[Guitargod1985]

"The law was effective September 30, 1996. However, the prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the law’s effective date."

I found this text on the ATF's official website in reference to the Lautenberg amendment.

But, wait a minute. I thought that Article 1 Section 9 of the Constitution expressly prohibited any ex post facto law from being passed.

Wow! You know, sometimes I just can't help but feel sorry for all the poor souls in the generations to come who are going be subject to even more of these blatant disregards for our rights. It astounds me that laws such as these are passed by people who are supposedly so intelligent - many of whom possess law degrees or legal experience, I might add. Our elected public servants ought to know better than to trample upon this sacred document. The only thing that matters to them any more is money and control.

I could go on incessantly, but quite frankly, I've lost the energy at the moment. I'll need what energy I can muster to write my congresspig.

 

[Fred Fuller]

[Treasure of the Sierra Madres Mexican bandit voice in Blazing Saddles spoof] Constitution? We don' need no steenkin Constitution... [/Treasure of the Sierra Madres Mexican bandit voice in Blazing Saddles spoof]

http://www.darryl.com/badges/

Please excuse the flippancy, but if I didn't try to make fun of the situation, it would make me cry.

lpl/nc

 

[Andrewsky]

The truth is that we haven't had a legitimate government since the 1860's.

I don't want to start a North vs. South debate.

The North fights a war "to preserve the Union between the states," yet the states aren't completely given representation until many years after the war. In the meantime, several laws and constitution amendments are passed.

Southern patriots are prohibited from doing many things, because of ex post facto laws (14th amendment).
The system is loosey goosey. The constitution is followed if it's politically convenient to do so. For example, allowing people to protest is respected by virtue of the first amendment because it's politically correct to do so. But the right to bear arms is not respected because it's politically incorrect "to give in to the gun lobby."

*not a lawyer, could be totally wrong, just my opinion*

 

[GTSteve03]

The truth is that we haven't had a legitimate government since the 1860's.

You can thank Abraham Lincoln, worst President we've ever had.

 

[Bartholomew Roberts]

But, wait a minute. I thought that Article 1 Section 9 of the Constitution expressly prohibited any ex post facto law from being passed

You are confusing terms. Ex post facto law means that you are punished for something you did in the past that was legal at the time. For example, lets say that you possessed an assault rifle in 1994; but sold it in 2004. Hillary Clinton gets elected in 2008 and passes a law banning assault rifles retroactively. You are arrested for your possession of the rifle in 1994 and convicted even though you no longer possess it. This is an ex post facto law. You are being punished currently for something you did in the past, even though it was legal then.

The Lautenberg law is not technically an ex post facto law because it doesn't punish you for a retroactive crime. It says that if you have been convicted of X crime in the past, then you may now not legally possess a firearm (even though you could legally possess a firearm between the time you committed X crime and the time Lautenberg was passed). You are being convicted because of a CURRENT crime (possessing the firearm with a misdemeanor DV conviction), not a past crime (misdemeanor DV conviction).

Many gun owners confuse the two because they rightly don't see much difference between being deprived of rights because of a past misdemeanor conviction and being convicted today based on behavior that was legal at the time. While I would agree that the Lautenberg bill is a grave injustice for many gun owners, it is not an ex-post-facto law in the technical, legal sense and no court has held the application of Lautenberg to be an ex-post-facto law in the constitutional sense either, though I think a good argument can be made that way.

 

[geekWithA.45]

The other thing that wrankles me is that the supreme court has held that Lautenberg does not "impose additional punishment", as if RKBA were a trivial thing. IIRC, they also held that the required due process of law with respect to their RKBA being stripped had already occurred at their original trial.

Perhaps the most damning argument against Lautenberg's amendment is that it violates a notion of fully informed consent to a guilty plea.

Many people plead guilty to misdemeanors, rather than fight them, based on their assessment of the risks, benefits and consequences of such a plea _at_the_time. (ie: Paying the $50 fine for a misdemeanor, and then it's over and done with is better than losing a week of work and paying a lawyer, etc.)

Then, many years, or possibly decades later, they suddenly learn that there are now new additional consequences, the likes of which nobody dreamed were possible at the time.

I am not aware of anything in the Lautenberg mechanism or ruling that prevents the extension of the concept. For example, what's to prevent expanding Lautenberg to include, say, simple misdemeanor brawling charges, disorderly persons offenses, or the lawschool classic, "mopery with intent to creep"?

 

[kurtmax]

I agree with Bartholomew. While it's not an ex-post-facto law, things like this just make no sense.

Geek is exactly on the money. Somebody might just pay a 50USD fine for a disorderly conduct charge instead of paying 50000USD to fight it. Then ten years later: BOOM! No firearms for you!

 

[209]

Well, a lot of lawyers love the law. They already have and will continue to make a lot of money because of it.

 

[TallPine]

it is not an ex-post-facto law

Well, I disagree.

It is ex-post-facto in the punishment portion of the law.

For instance, the vast majority of drivers exceed the speed limit sometimes, because they know that the punishment is only a relatively small fine. So how would everyone feel if the speeding ticket you got 20 years ago made you ineligible to renew your driver's license...?

Actually, it is possible that Lautenberg violates the principle of "double jeopardy" - since one is being punished twice for the same offense.

 

[roo_ster]

It astounds me that laws such as these are passed by people who are supposedly so intelligent - many of whom possess law degrees or legal experience, I might add.

Their intelligence and education are tools used to gain them power, money, and influence.

They know right form wrong and can read the COTUS. They just don't care.

 

[Guitargod1985]

Thanks for the clarification, Bart. I had actually asked my father (an attorney) about this a few hours after posting and he saide pretty much the same. That's too bad because I had already dug out my congressman's number.

 

[ArfinGreebly]

Fully Informed Consent

"How do you plead?"

"On advice of my attorney, I plead guilty."

"Very well. I hereby sentence you to time served and $10 admin fee. Please pay the Clerk. I am also required to advise you that you may, in the future, be denied access or privilege to as-yet undefined venues or activities, and may be prohibited from the specific exercise of certain as-yet undefined presumed rights, even ones defined in the Constitution, as a consequence of laws, or amendments to laws, not yet passed and in accordance with rules and regulations not yet defined. Do you understand these possible restrictions and prohibitions as I have described them to you?"

"Uh, what!? You're telling me that I can have trouble years from now because of this, from rules that haven't even been written yet? I'm changing my plea to Not Guilty, your honor."

"Too late, son. Your lawyer should have explained all that to you before you entered your plea. Have a nice day."

 

[Standing Wolf]

Where's it say all that in the Second Amendment?

 

[Sindawe]

Where's it say all that in the Second Amendment?

What? That old thing? Get real, nobody of any social or political importance pays any attention such foolishness.



While Lautenberg may not meet the legal definition of ex post facto, it does strike this layman as a clear violation of the 2nd Amendment. Me thinks the 'Ol Bard was on to something with his comments about laywers...

 

[Bartholomew Roberts]

I don't think anybody here would argue Lautenberg was a just or fair law. Just explaining the technical distinctions that have so far allowed the law to escape the Constitutional prohibitions against ex post facto laws.

Me thinks the 'Ol Bard was on to something with his comments about laywers...

Ironic that everyone always forgets that in the play the line is given by a tyrant who wishes to usurp rule and must first remove all of those who would understand he is breaking the law

 

[ConstitutionCowboy]

How about the simple basic truth here, guys. It's unconstitutional. Lautenburg infringes upon the Right to Keep and Bear Arms! Ex post facto be damned! It shouldn't be an issue to begin with!

Woody

A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other act that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood

 

[Rudy Kohn]

It seems like Tallpine and ArfinGreebly have something here...

I'm no lawyer, but analogously, imagine a person convicted of a crime with a mandatory minimum sentence. Found guilty, sentenced to minimum time for whatever reason.

Before (or after ) he is released, a rash of (insert crime here) occurs, and the minimum sentence is lengthened. Assuming his good behavior, can they extend his sentence? Could it be argued, by the same logic, that his sentence must be extended?

What I mean is, the punishment is something decided by a court, and additional suspension of certain other rights is (whether philosophically right or wrong) a part of this punishment, is it not? Should it be legally acceptable to later extend the punishment of an individual without another conviction? It seems that the heart of the prohibition on ex post facto laws and double jeopardy is to prevent the criminal legal system from harassing people. Doesn't permitting the system to extend punishments after-the-fact make harassing people terribly easy? By that logic, shouldn't such extensions (post facto extensions? ) be unconstitutional?

Some have said (Ayn Rand, I think, for what it's worth) that the desire of totalitarian systems is to make every person a criminal. That way, conviction and legal loss of freedom can be held over each citizen's head like the sword of Damocles. It seems that the extension of punishments after the fact is a way to continually hold in fear (and under foot) those former criminals who actually change their ways.

For what it's worth, those are my thoughts on the matter.

 

[ConstitutionCowboy]

Good thoughts, Rudy. It's no different than having to prove your innocence(lack of guilt) before you can buy a gun. It is unconstitutional in more than one way. If it has been proven in court that a person cannot be trusted with a weapon, that person needs to be kept locked up until (s)he can be trusted, or executed.

Woody