The Lautenberg Amendment Violates Sec. 1 Article 9 Clause 3 of the U.S. Constitution

[Midwest]

The Lautenberg Amendment Violates Section 1 Article 9 Clause 3 of the U.S. Constitution

http://en.wikipedia.org/wiki/Ex_post_facto_law

Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.
__________________________________________________________________________________

http://www.law.cornell.edu/constitution/articlei


Section 9.

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

No bill of attainder or ex post facto Law shall be passed.

_____________________________________________________________________________________
http://www.senate.gov/civics/constitution_item/constitution.htm#a1_sec9


An ex post facto law declares an act illegal after it has been committed, or increases the punishment for an offense already committed.


So how is the Lautenberg Amendment allowed to stand?

 

[AlexanderA]

So how is the Lautenberg Amendment allowed to stand?

Personally, I agree that the Lautenberg Amendment violates the ex post facto clause of the Constitution.

The courts, so far, have not agreed. Maybe the proper cases have not been brought, or the issues haven't been framed well. After all, no one wants to stick his neck out too far on behalf of so-called "wife beaters." Lautenberg himself was diabolically clever in whittling down gun rights in this way, picking out a group that society supposedly despises.

The rationale for saying that Lautenberg does not violate the ex post facto clause is that gun possession by a DV convictee after the effective date of Lautenberg constitutes a new offense unrelated to the original DV. All the original DV conviction does is place the offender into a "prohibited class." It works the same as a felony conviction that places the felon into a "prohibited class" for gun possession.

This may be tortured reasoning but that's what we have to contend with.

 

[Midwest]

After all, no one wants to stick his neck out too far on behalf of so-called "wife beaters."

This is why I am specifically focusing on just what the constitution says about "ex post facto Law" in regard to the Lautenberg Amendment.

We could be challenging the law the same way if this law forum and we were talking about challenging a law that made anyone convicted of a simple drunk driving charge and they paid their debt to society years ago and now are suddenly prohibited for life from ever getting a drivers license.

We need to focus on Ex post facto laws that are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 in relation to retroactive element of the Lautenberg Amendment. That is what should be argued, the illegality of the retroactive element.

If we can focus on that aspect only, I think we would have an good argument in front of the Supreme Court.

No one wants convicted 'wife beaters' to have firearms, but the people who plead guilty just to get it over with would have mounted a defense to the charges if they knew more was at stake than just a fine and probation or jail time. That is the crux of the issue.


Their rights were violated because they were not informed that a guilty plea would also render them a lifetime prohibition. They could not have known that a guilty plea would render them a lifetime prohibition. The laws on the books at the time said no such thing.
It was after the fact, that they lost their second amendment rights retroactively in violation of Sec 1 Article 9 Clause 3 of the constitution.

The Lautenberg Amendment violates Sec 1 Article 9 Clause 3 of the constitution as well as the Second Amendment.

 

[stressed]

I'm getting tired of everyone saying they are sticking it to "wife beaters"

Are you kidding me? Did you know when women go to counciling, they are encouraged to get restraining orders against men by "victims advocates" and counselers because it permanatly strips their second ammendemnt?

Did you know you need no proof to get a restraining order against someone? You can literally make up anything on the paper when you file for one, and it will be granted.

There have been cases where women in different states have filed fraudulent restraining orders on men who they do not talk to, in some cases they have never met before in their lives and it's the mans burden to disprove it if he chooses to fight it, and lawyers cost thousands.

Want to know how easy it is to get a restraining order? PM me your full name and I will have one out on you by tomorrow morning. That goes for anyone who keeps parroting the "wife beater" line.

And if a man is guilty and sentenced, after he serves his time his debt to society should be considered paid, and thus reformed. Our sentances need to be longer as well.

 

[JERRY]

the guilty until proven innocent applies to the lautenberg amndt.

no other misdemeanor in this once great country strips away a constitutional right.

 

[Frank Ettin]

Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3.

1. The Lautenberg Amendment is not an ex post facto law. As defined, an ex post facto law is one:

   ...adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed...

   
   
2. Ex post 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 from being subject to criminal liability for the continued possession of a thing after the effective date of a law making that thing illegal for you to possess.
   
   
3. In terms of the Lautenberg amendment, it may be understood as follows:
   
   
   • One may have possessed a gun after having been convicted of a domestic violence misdemeanor and prior to the effective date of the Lautenberg amendment.
     
     
   • If that person had sold the gun prior to the effective date of the Lautenberg amendment, he would have no criminal liability under the Lautenberg amendment for the act committed and concluded before that amendment became effective.
     
     
   • If however the Lautenberg amendment purported to make criminal that prior possession of a gun no longer possessed, it would be ex post facto and violate the Constitutional prohibition.
     
     
   • But instead the act made illegal under the Lautenberg amendment is the possession of a gun after the effective date of the amendment by someone convicted of a domestic violence misdemeanor. The illegal conduct, possession of the gun, must occur after the effective date of the law.
     
     
   • What is unlawful under Lautenberg is the continued possession after Lautenberg became effective, not the possession of a gun prior to the amendment's effective date.
   
   
4. In Enos, et al v. Holder, et al. Case #2:10-CV-02911-JAM-EFB, filed on 10-29-2010 in the US District Court of the Eastern District of California,
   Don Kilmer, a well known, experienced, skilled and knowledgeable lawyer, did not raise ex post facto as part of his challenge, on behalf of several plaintiffs, of the Lautenberg Amendment. If that would have been a fruitful basis for challenge, he no doubt would have used it as a basis for a claim for relief in addition to the nine claims for relief he sets out in the initial complaint.
   
   
5. The Lautenberg Amendment has been challenged in other litigation and upheld at the Circuit Court level (see U.S. v. Hartsock, 347 F.3d 1 (1st Cir., 2003); U.S. v. Chester, 628 F.3d 673 (4th Cir., 2010); U.S. v. Skoien, 587 F.3d 803 (7th Cir., 2009); and U.S. v. Booker, 644 F.3d 12 (1st Cir., 2011)). In none of those cases was ex post facto raised. Are we to conclude that the plaintiff's lawyer in each of those cases was so incompetent as to ignore a potentially meritorious line of attack on the federal law?

...If we can focus on that aspect only, I think we would have an good argument in front of the Supreme Court....

You might think so, but apparently none of the lawyers who have been litigating Lautenberg Amendment cases think so.

 

[savanahsdad]

wife beaters ? I know a someone who got a DV charge for fighting with a room-mate ! and that someone has been a upstanding citizen and raised a family , pays taxes , votes, ect ect , a true American , this all happened years before the Lautenberg Amendment passed , the room mate (the victim) now has a long rap-sheet , a real peace of crap. , now if this would have been a friends room mate or a coworker or someone unknown to them then the Lautenberg rule would not apply , so it should not apply , and when this to place it didn't , so I agree "how can this be ?"

 

[Arizona_Mike]

It all comes down to whether the firearms disability is considered an increase in penalty or merely consequential.

Take the following 3 hypotheticals. I am going to rank them in what I would consider the order or severity:

People with a domestic violence conviction loose the right to . . .
1.) Live in the country (deportation).
2.) Own a gun.
3.) Get a loan to start a chicken farm.

I think just about everyone would consider 1 to be ex post facto. Probably no one would consider 3 to be so. With regard to the loss of an individual constitutional right for prior acts (#2) it probably depends on the level of scrutiny applied to the right and that is currently an open question.

Mike

 

[torqem]

Did you know?

Using dope, including pot, makes you a prohibited person? If you have a gun as a prohibited person, you are a federal felon, subject to 10 years in prison. Also, anyone who knows about your situation is a Federal felon, (misprision of a felony) by not snitching on you.

 

[JRH6856]

IF...

The Lautenberg Amendment is constitutional, but it has bad result (though probably one intended by its supporters) because of the inconsistency and ambiguity that exists at the state level as to what constitutes misdemeanor domestic violence.

SCOTUS may well reach a decision this term that says that the Federal law stands as written and it is up to the states to deal with the consequences by writing clearer laws. States could probably deal with a lot of this by defining a misdemeanor charge of domestic discord to cover non-violent domestic offenses.

My personal opinion (which won't even buy Frank a cup of coffee anywhere except at my house) is that Lautenberg both violates and and allows the States to violate the 14th amendment by infringing on the 2A rights of US citizens involved in misdemeanor offenses which outside of a domestic situation, would not affect their 2A rights at all. (That is my opinion. This is not a court and I am not prepared to present a case for it.)

 

[Frank Ettin]

It all comes down to whether the firearms disability is considered an increase in penalty or merely consequential.

Take the following 3 hypotheticals. I am going to rank them in what I would consider the order or severity:

People with a domestic violence conviction loose the right to . . .
1.) Live in the country (deportation).
2.) Own a gun.
3.) Get a loan to start a chicken farm.

I think just about everyone would consider 1 to be ex post facto....

Then why do you think that no lawyer who has litigated to challenge the Lautenberg Amendment has raised ex post facto?

The lawyers who have been representing the plaintiffs in these major Lautenberg cases do this for a living in the real world for real stakes, the lives and property of real clients. Do you really think any of those lawyers would avoid a possible meritorious claim that could serve the interests of his client?

The bottom line is that ex post facto does not apply here.

 

[Frank Ettin]

The Lautenberg Amendment is constitutional, but it has bad result (though probably one intended by its supporters) because of the inconsistency and ambiguity that exists at the state level as to what constitutes misdemeanor domestic violence....

Well whether it's constitutional remains to be seen. But it's not unconstitutional on ex post facto grounds.

The Lautenberg Amendment remains under attack in the courts. Furthermore, there are over 70 lawsuits on RKBA issues currently ongoing in federal courts around the country.

Ex post facto is not the only basis upon which to challenge Lautenberg. It's merely one that won't work. A law can be vulnerable to constitutional challenge even if it's not an ex post facto law. There have been several, thus far unsuccessful, attacks on the Lautenberg Amendment on Second Amendment grounds (although one worked at the trial court level). However, it doesn't help us to pursue a claim in court on a basis that can't work. So attacking the Lautenberg Amendment, or the other prohibiting conditions of 18 USC 922(g), as ex post facto would be an unwise use of our limited resources.

And we must never forget that not every bad law, stupid public policy or outrageous act of the government is unconstitutional. Congress could in theory do all sorts of unwise, or downright stupid, things that will be entirely constitutional. (And in theory there are probably things the Congress could do that would be very good to do, but which it can't do under the Constitution.) That's one of the reasons it's important to pay attention to who we elect and to participate in the political process. The Constitution alone can't guarantee wisdom in public affairs.

 

[JRH6856]

Well whether it's constitutional remains to be seen. But it's not unconstitutional on ex post facto grounds.

Agreed. (I didn't pick up the opening word when I cut and pasted from my editor. I've fixed it.)

 

[AlexanderA]

JRH6856 wrote:

States could probably deal with a lot of this by defining a misdemeanor charge of domestic discord to cover non-violent domestic offenses.

I'm having trouble seeing how this would work in practice. What you are proposing to do is criminalize "domestic discord" absent violence. I would venture to say that "domestic discord" is par for the course, at one time or another, in practically all marriages. Who can honestly say that they've never argued with their spouse?

As in the case of "zero tolerance" policies in schools, the advocates of political correctness have gone overboard in getting the police involved in domestic relations. It's time to trim this back a bit.

 

[mljdeckard]

Yeah. We know.

 

[JTHunter]

Midwest said:

Their rights were violated because they were not informed that a guilty plea would also render them a lifetime prohibition. They could not have known that a guilty plea would render them a lifetime prohibition. The laws on the books at the time said no such thing.

It is that "open-ended" situation that makes me resist even paying for a traffic citation. Half the time the cops never even show and the cases are dismissed.

Never give in - never give up. Otherwise, they win.

 

[JRH6856]

I'm having trouble seeing how this would work in practice. What you are proposing to do is criminalize "domestic discord" absent violence. I would venture to say that "domestic discord" is par for the course, at one time or another, in practically all marriages. Who can honestly say that they've never argued with their spouse?

Domestic discord absent violence is already criminalized in many if not all states, as misdemeanor domestic violence, and according to Lautenberg, domestic discord with violence is also often charged that way as well.

What I am suggesting is a way to separate violence from the misdemeanor charge in an attempt to reduce or eliminate the confusion created by a misdemeanor charge of non-violent domestic violence. Or to put it another way, by a misdemeanor charge of domestic violence that did not include a violent act.

Some jurisdictions have a requirement that an arrest be made any time the police are called on a domestic dispute. This is to give the officers a way to separate the parties for a cooling off period. The arrest is usually for misdemeanor domestic violence, even when there is no violence involved.

Calling such cases domestic violence in the past made them low-hanging fruit for Lautenberg who I'm sure intended to sweep them up along with the truly violent in order to eliminate the 2A rights of as many individuals as possible. So I suggest calling them something else. Leave misdemeanor DV as it is (for violent DV casesvthat really should be felonies but aren't) and create a new misdemeanor category for the non-violent charges.

The non-violent charges need to be separated from the ones involving violence. However, any state requiring an arrest on any domestic call is probably so deep into nannystatism that it agrees with Lautenberg's intent to disarm in the first place.

 

[carpboy]

After reading Frank's earlier post and JRHs reference to the 14th amendment,I now believe that Lautenberg creates a new punishment by violating 14th amendment protections of privileges&immunities thru a lack of due process.A person convicted of DV prior to 1996 could not have given informed consent when pleading guilty to DV that they were agreeing that they could be stripped of any privileges&immunities at a later date without due process.

 

[gc70]

What I am suggesting is a way to separate violence from the misdemeanor charge in an attempt to reduce or eliminate the confusion created by a misdemeanor charge of non-violent domestic violence. Or to put it another way, by a misdemeanor charge of domestic violence that did not include a violent act.

Some states do not have laws that differentiate domestic misdemeanors, which poses a clear problem in trying to distinguish the serious from the mundane. Other states do have laws that make the distinction, although maybe not in a way tailored to facilitate the Lautenberg Amendment.

North Carolina law does make distinctions, with different levels and elements of misdemeanor assaults and batteries before reaching a felony level of severity. There is misdemeanor simple A&B, misdemeanor A&B that causes "serious injury" and felony A&B that causes "serious bodily injury" (very specifically defined). Unfortunately, there is also a Domestic Violence statute that includes A&B laws and drags in other offenses such as stalking and harassment.

I suspect that it would be much more convenient for the government (state and federal) to scoop up all convictions involving North Carolina's A&B laws and Domestic Violence statute than it would be to sort out convictions based only on sections of the law that involve some specified level of violence or injury.

 

[JRH6856]

After reading Frank's earlier post and JRHs reference to the 14th amendment,I now believe that Lautenberg creates a new punishment by violating 14th amendment protections of privileges&immunities thru a lack of due process.A person convicted of DV prior to 1996 could not have given informed consent when pleading guilty to DV that they were agreeing that they could be stripped of any privileges&immunities at a later date without due process.

That's what I was looking for.

 

[Frank Ettin]

....I now believe that Lautenberg creates a new punishment by violating 14th amendment protections of privileges&immunities thru a lack of due process.A person convicted of DV prior to 1996 could not have given informed consent when pleading guilty to DV that they were agreeing that they could be stripped of any privileges&immunities at a later date without due process.

Can you cite any case law or appropriate legal authority to support that conjecture?

That's what I was looking for.

Why would anyone wait for an unsupported, fanciful conjecture?

People come up with all sorts of "arguments" for various "legal" proposition. But no matter how pretty or clever you might think an argument is, it doesn't mean a thing unless there is a real possibility that a court will pay attention. And a court will not pay attention unless the argument can be properly formed and supported with legal authority and case law.

So can anyone cite a Supreme Court (or other federal court of appeals) decision in which the privileges and immunity clause of the Fourteenth Amendment was applied in that way? Can anyone cite any cases suggesting the there is some legal authority that it should be applied in that way?

 

[JRH6856]

Why would anyone wait for an unsupported, fanciful conjecture?

Not waiting, Frank, looking.

So can anyone cite a Supreme Court (or other federal court of appeals) decision in which the privileges and immunity clause of the Fourteenth Amendment was applied in that way? Can anyone cite any cases suggesting the there is some legal authority that it should be applied in that way?

You have asked the same questions I asked myself when I read carpboy's post. Also need to look for cases in which the court has denied the argument or affirmed an opposing argument. And the same questions apply to Due Process as well.

Carpboy's proposal may be unsupported, but it is at least a bit more focused than what I wrote. I don't have the resources at hand that you do, but at least I have a better idea of what I am looking for and where to look. I may not find anything but the fun is in the hunt and I'll probably learn something along the way.

FWIW, the Privileges and Immunities clause of the XIVth had been dormant since The Slaughterhouse Cases of 1873 until Clarence Thomas revived it in 2010 in his opinion in McDonald so there probably won't be a lot to be found. May be it's time to set a precedent?

 

[carpboy]

Quote:
Why would anyone wait for an unsupported, fanciful conjecture? How long did the citizens of DC and Chicago have to wait?FWIW, the Privileges and Immunities clause of the XIVth had been dormant since The Slaughterhouse Cases of 1873 until Clarence Thomas revived it in 2010 in his opinion in McDonald so there probably won't be a lot to be found. May be it's time to set a precedent?Perhaps it would be easier then to focus on rulings concerning specific rights enumerated in the BOR.These rights are part of the privileges&immunities protected by the 14th amendment.

 

[Frank Ettin]

...the Privileges and Immunities clause of the XIVth had been dormant since The Slaughterhouse Cases of 1873 until Clarence Thomas revived it in 2010 in his opinion in McDonald so there probably won't be a lot to be found. May be it's time to set a precedent?...

First, Justice Thomas' application of the privileges and immunities clause of the Fourteenth Amendment was in a dissent. So while it was interesting and I personally wish his reasoning had been adopted you the Court, it was still the dissent and can hardly be called a revival.

Whether "privileges and immunities" is dormant and needs revival is an interesting question. The "privileges and immunities" clause of Article IV sees regular application. It's only the "privileges and immunities" clause of the Fourteenth Amendment that has not been applied to, as you suggest it should be, to make the rights enumerated in the Bill of Rights to the States.

Indeed, it's questionable whether your proposed application of "privileges and immunities" really adds anything. The Supreme Court has already held that the States are subject to the Second Amendment (in McDonald) using what has become the traditional approach of substantive due process.

 

[JRH6856]

I thought Thomas issued a supporting opinion in McDonald, not a dissent. He reached the same conclusion as the majority by a different route.


I'm not sure that the 14th P&I clause has much bearing on Lautenberg anyway. Both P&I clauses (Article IV and 14th amendment) appear to apply to the states more than the fed. The fed is limited elsewhere, and especially by the Bill of Rights. What Lautenberg may do most of all is violate due process--not in the Castleman case since Castleman's DV plea & conviction is post Lautenberg--but for all misdemeanor DV convictions prior to Lautenberg. For those defendants, their 2A rights were not at risk when they entered the plea. Their 2A rights were forfeited later by legislative fiat which appears to be a clear violation of due process. This is the direction I am looking now. (No, Frank, no case law citations yet).