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Ex Post Facto Laws

Discussion in 'Legal' started by pendennis, Jan 15, 2013.

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  1. pendennis

    pendennis Member

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    The United States Constitution, Article 1, Sections 9 and 10 state the following:

    Article 1, Section 9 - No bill of attainder or ex post facto Law shall be passed.

    Article 1, Section 10 - No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

    Given the proscriptions stated above, how does New York expect to retroactively ban any weapons, magazines, etc. which are legal the day before the laws take effect?

    Congress passed the AWB of 1994, but guns, magazines, etc., produced prior to the law's effective date were legal as per Article 1, Section 9. How does state law usurp existing Federal laws?
     
  2. Birch Knoll

    Birch Knoll Member

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    That's not what an ex post facto law is.

    An ex post facto law would make owning a banned weapon in the past a crime. This is not an ex post facto law.
     
  3. mbt2001

    mbt2001 Member

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    I think that the magazines will have to be Grandfathered in...

    If you are going to punish past behavior when it was not illegal, that is ex post facto. Another way to look at it is that it is effectively "seizing" property....
     
  4. csspecs

    csspecs Member

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    Seizing property without just compensation is not allowed either.
     
  5. Girodin

    Girodin Member

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    As stated, the NY law is not an ex post facto law. Calder vs. Bull is a good starting point for understanding ex post facto laws.

    Hmmm, I think I know what you are trying to say. The only way this runs afoul of federal laws is perhaps by being a violation of the second amendment or perhaps the takings clause depending on exactly what the law is doing (I'm not sure what exactly it is the NY law has done as I've not read it).

    States generally can legislate in an area the feds have unless the law is preempted. You can have a few different types of preemption. The first is express preemption. That is if the feds made a law that expressly allowed for the things NY restricts. Fed law, provided it was a valid exercise of power would trump. The next is implied preemption. The state law basically gets in the way of what a fed law is aiming to do. Lastly is field preemption. The feds have such broad and/or comprehensive regulation in the area that they intend to be the only laws that apply. None of these apply. As such there is room for concurrent legislation and the states can go further than the feds. Of course what the states can do is still limited by constitutional constraints.
     
  6. foghornl

    foghornl Member

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    Ex post Facto law:

    See Lautenberg amendment to previous "Gun Control" acts.

    (Essentially, if you were EVER convicted of an act of "Domestic Violence", you are now banned from firearm ownership.)
     
  7. Jeff H

    Jeff H Member

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    This is the real issue as I see it. It isn't an ex post facto law, but it is a violation of the 14th amendment if they take them without compensation.
     
  8. Girodin

    Girodin Member

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    The courts have specifically ruled that is not an ex post facto law. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
     
  9. NavyLCDR

    NavyLCDR member

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    So, what would keep the government from making anyone with so much as a speeding ticket on their record at any time in their past prohibited from possessing any firearm or ammunition now? That would knock out a huge majority of the population.
     
  10. 316SS

    316SS Member

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    The courts (the Supreme Court, no less) have also ruled that everything is involved with interstate commerce in the eyes of the law, regardless of whether it is involved with interstate commerce in fact.

    Just because a court says something doesn't make it true. To paraphrase Monty Python, the power of the court is derived from a mandate from the masses (The People), not from some farcical judicial ceremony.
     
  11. Girodin

    Girodin Member

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    Well for all intents and purposes it does actually. I certainly think the courts and SCOTUS particularly have gotten a lot of stuff very wrong, Wickards and Raich for example. However, the reality is that those are the precedents we have and the law that everyone that matters is operating under. The sad reality is that from a functional perspective the constitution is nothing more than what the court says it is. I may not like it but is has proven to be the truth time and time again.

    First, the political process. Second there would be strong arguments that the second amendment does as there is no rational relation between speeding and being a restricted person (although I think that is actually true of many felony offenses).
     
  12. 316SS

    316SS Member

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    If the Supreme Court ruled that the sky was purple, then that would be the law, but it wouldn't be true. If you think this is mere semantics, The Framer's anticipated this kind of tyranny, and predicted the need to resist such tyranny.

    It is a historical fact that our forefathers resisted by armed insurrection, not via a legal or political process. To be precise, they tried the legal and political approach first, and when that failed ...

    DISCLAIMER: I do not advocate any action in violation of the law.
     
  13. Frank Ettin

    Frank Ettin Moderator

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    But in the cases being discussed, the Supreme Court was not ruling on the color of the sky or anything of the sort. The Supreme Court was deciding matters of law; and in doing so, the Supreme Court was fulfilling the function assigned to it by the Founding Fathers in the Constitution (Article III, Sections 1 and 2):

    Politics and nexus. Politics, because such a broad disqualification would probably draw too much political flak. Nexus, because it would be difficult if not impossible in court for the government to satisfactorily establish sufficient relation between a routine traffic infraction and the qualification to possess a gun; and such a relationship would most likely be necessary to satisfy any level of scrutiny likely to be applied by the courts to regulation of the rights described by the Second Amendment.

    The Lautenberg amendment might have some nexus problems, but those haven't yet been fully tested in court. But that doesn't make it an expost facto law.

    Expost facto essentially means being subject to criminal sanctions today for an act performed in the past which was legal when performed. That is different from being subject to a civil disability today because of something done in the past. It's also different from being subject to criminal liability for the continued possession of a things after the effective date of a law making that thing illegal to possess.
     
  14. pendennis

    pendennis Member

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    There's at least one New York attorney who believes there is an "ex post facto" facet to this New York law. There are several links if you "Google" the name "Jim Tresmond", a Buffalo, New York attorney. He's been interviewed on several radio stations. Here's a link with just a bare minimum of information:

    http://www.dailypaul.com/270550/class-action-lawsuit-for-all-ny-gun-owners

    I would imagine that there will be a number of constitutional aspects argued, both from the 2nd and 14th Amendments, as well as others.
     
  15. Frank Ettin

    Frank Ettin Moderator

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    Of course. As a matter of normal litigation tactics, representing a plaintiff at this very early stage a lawyer will look at everything even the slightest bit colorable. One reason for casting the net very wide at the beginning is to possibly increase the scope of discovery. As things proceed, a good plaintiff attorney will begin to narrow his focus.
     
  16. Phatty

    Phatty Member

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    Here's two examples that hopefully clarify ex post facto laws:

    Ex post facto law
    In 2013, Congress passes a law saying it shall be a felony for any person to have possessed alcohol in the years 2005 through 2012. It was legal to possess alcohol in 2005 through 2012.

    Not an ex post facto law
    In 2013, Congress passes a law saying that from the date of enactment of the law, no person shall possess alcohol.

    There is nothing wrong, in and of itself, to enact a new law that makes it illegal going forward to do something that was previously legal. This happens all the time. You just can't go back in time and criminalize past conduct that was legal at the time of the conduct.

    With respect to the new magazine ban, NY is only criminalizing possession going forward. They are not criminalizing past possession.

    Other than the 2A argument, a takings claim is probably the best argument to make, but would likely be unsuccessful.
     
  17. winterhorse290

    winterhorse290 Member

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    from the Latin for "from a thing done afterward." Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep't of Corrections v. Morales, 514 US 499 (1995).cornell law sight:

    and you just thought you were safe. the "law" is what ever those in power say it is. there is a legalleze term for getting around a law. lawyers go to law school to learn this.
     
  18. 316SS

    316SS Member

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    We agree then that the Supreme Court decides matters of law, not matters of right and wrong. No free person allows a group of people, let alone laywers, to dictate to him what is right and wrong. :rolleyes:
     
  19. Frank Ettin

    Frank Ettin Moderator

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    Which has nothing to do with the discussion. We are discussing law.

    Please stay on topic. Off topic posts will be deleted.
     
  20. Drail

    Drail Member

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    It seems to me the anti gunners do not need to "change" any laws, they only have to redefine the definitions of the terms. If the BATFE is authorized to define or classify any firearm to be whatever they want to call it they will. It's kind of like the old Clinton line - "It depends on what the definition of "is" "is".
     
  21. Frank Ettin

    Frank Ettin Moderator

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    This is inaccurate. Most definitions are statutory. They do no give the Director of ATF any discretion except with regard to certain narrow questions of whether or not a definitional attribute exists. It is all a good deal more complicated than you suggest.
     
  22. Birch Knoll

    Birch Knoll Member

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    Most, yes. But some very important definitions are left up to ATF, like, exactly, does "readily convertible" to fully-automatic fire mean? Or what firearms are particularly suitable for "sporting use"?
     
  23. Frank Ettin

    Frank Ettin Moderator

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    Not the definition, but only a component of the definition.

    Yes, in a enforcement action ATF, in its quasi-judicial capacity, will make a determination of whether a particular firearm is "readily convertible" to fully automatic fire. But it must still make that determination in a manner consistent with the meanings of words like "readily" and "convertible." So ATF would be hard pressed to defend in court a determination that a particular firearm that could be converted to fully-automatic only by extensive machining and fabrication of parts not otherwise available was "readily convertible."

    When a regulatory agency has the authority to make those kinds of decisions, a decision must still be rational. A court will overturn a decision of a regulatory agency in the case of an "abuse of discretion" by the agency.
     
  24. 316SS

    316SS Member

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    I think you're on the right path, but it won't be the BATFE that redefines the law, but the Supreme Court. The Constitution is a "living document" :barf: whether you like it or not. The meaning of the Constitution changes as the makeup of the Court changes. Example: New Deal laws were struck down several times, IIRC, before FDR stacked the Court.
     
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