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

[Frank Ettin]

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

Right, sorry. A further lesson not to post before I've had my coffee in the morning. He concurred in the result but on different grounds.

...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...

Exactly.

...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...

That certainly does better on the "smell test." What you need to do is a thorough job of researching due process cases.

Have there been cases looking at a change in law affecting status or qualification? Have there been any cases looking at that sort of thing from a due process perspective?

You most likely will not find cases directly on point. You might find cases which could suggest whether the approach might be helpful or worthless. But that is how legal research is done, especially at the edges of existing, settled law.

 

[JRH6856]

One thing I have found is a 1944 case involving Japanese draft protesters. Certainly not on point, but the Judge's writings on the case are interesting:

In United States v. Masaaki Kuwabara, 56 Federal Supplement 716 (Northern District, California), July 22, 1944. Judge Louis Goodman wrote:

"The issue raised by this motion is without precedent. It must be resolved in the light of the traditional and historic Anglo-American approach to the time-honored doctrine of "due process." It must not give way to overzealousness in an attempt to reach, via the criminal process, those whom we may regard as undesirable citizens."​

Judge Goodman later wrote in a paper he prepared for Law Day in 1961, entitled Why Due Process,

Inroads into, and shortcuts around our basic laws safeguarding individual rights, are too easily accepted - due to indifference, or callousness, or to too quick yielding to the clamor of those who seek to glorify an end, no matter what the means.

To proceed step by step in every process which affects life or liberty is, at times a tiresome and tedious procedure. The temptation to the short cuts I have mentioned is often strong. The hysteria and clamor of the moment are distracting. Temporary acclaim and momentary grandeur are very tempting fruits.​

(No, this is not a binding legal opinion but it does explain his reasoning)

 

[Frank Ettin]

Well keep digging. Note that Kuwabara is at the trial court level and is therefore of limited value.

If I were undertaking this, I'd start with law journal and law reviews dealing with similar or apparently related issues. Then I'd start looking at the cases cited in those articles and then cases cited in those cases. It's kind of like opening up one of those Russian nesting dolls.

 

[JRH6856]

At least Goodman's remarks (and yours) suggest there might be some merit in this approach. Time to start peeling the onion.

 

[torqem]

I've been in plenty of traffic courts. The dates are ALWAYS scheduled around the cop's being available, Often, the same cop(s) are appearing in multiple cases.

 

[Frank Ettin]

At least Goodman's remarks (and yours) suggest there might be some merit in this approach....

Whether or not it has merit remains to be seen. But it is worth exploring.

When doing this type of research it's vital to be objective. It's too easy to get messed up by "pet theory" bias. You will tend to focus on things that confirm your view while passing over things that don't. When we do this kind of thing in real life that can be deadly -- and humiliating when opposing counsel rams the negative you missed down your throat in front of the judge.

So pay attention to things that hurt your argument. Try to find ways to deal with them; but don't overlook or dismiss them.

 

[JRH6856]

Yes, confirmation bias is all to common a hazard for most of us.

It appears that Lautenberg was challenged within the first 5 years on both ex post facto and due process and passed muster, but that was pre Heller and the confirmation of an individual right. Haven't found any post Heller cases yet that are on point or close. Still looking...

 

[Frank Ettin]

It appears that Lautenberg was challenged within the first 5 years on both ex post facto and due process and passed muster,...

Do you have a citation to the case in which ex post facto was raised? In my research I didn't see such, and I would like to add the citation to my list.

...Haven't found any post Heller cases yet that are on point or close...

Well these are post-Heller cases challenging Lautenberg on Second Amendment grounds: 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).

 

[JRH6856]

Do you have a citation to the case in which ex post facto was raised? In my research I didn't see such, and I would like to add the citation to my list.

My B-I-L (a CD attorney and former DA) is the one that told me that. I've asked for particulars and I'll forward what I get. Thanks for the recent case cites

 

[gc70]

Do you have a citation to the case in which ex post facto was raised? In my research I didn't see such, and I would like to add the citation to my list.

National Ass'n of Government Employees v. Barrett, 968 F. Supp. 1564 - Dist. Court, ND Georgia 1997 is an early § 922(g)(9) case that addresses the commerce clause, equal protection, due process, ex post facto, bill of attainder, and the Tenth Amendment. Like so many MDV cases, the previous status of the Second Amendment was a significant factor in the NAGE case.

The court begins by noting that rational basis review is the appropriate level of scrutiny for plaintiffs' equal protection claims because plaintiffs' claims involve neither a suspect class nor a fundamental right.
..........
Plaintiffs' substantive due process claims, because they do not implicate a fundamental right, are reviewed under the rational basis test.

Of course, rational basis review effectively doomed the case.

One common thread in MDV cases is that MDV restrictions are like felon in possession restrictions, which are settled law.

United States v. Thoresen, 428 F. 2d 654 - Court of Appeals, 9th Circuit 1970 is a felony case that reflects the same conclusions regarding the prior status of the Second Amendment.

When legislative classifications threaten basic civil rights, the Equal Protection Clause requires "some overriding statutory purpose," and the lines drawn in such statutes are subject to "the most rigid scrutiny."
.....
On the other hand, "n applying the Equal Protection Clause to social and economic legislation, we give great latitude to the legislature in making classifications."
.....
Accordingly, we must uphold the classification scheme set up in the Federal Firearms Act if we find that it has any rational basis.

 

[Frank Ettin]

Do you have a citation to the case in which ex post facto was raised? In my research I didn't see such, and I would like to add the citation to my list.

National Ass'n of Government Employees v. Barrett, 968 F. Supp. 1564 - Dist. Court, ND Georgia 1997 is an early § 922(g)(9) case...

Okay, a District Court (trial court) ruling.

The court in addressing the ex post facto claim writes (at 1575 - 1576):

...Plaintiffs' claim that § 922(g)(9) violates the Ex Post Facto Clause fails because § 922(g)(9) is not retrospective.

Plaintiffs' argument that § 922(g)(9) is retrospective is based on the fact that § 922(g)(9) prohibits an individual convicted of a misdemeanor crime of domestic violence from possessing a firearm even if the individual's conviction occurred prior to the effective date of § 922(g)(9). Defendants counter this argument by pointing out that the activity prohibited by § 922(g)(9) is the post-enactment possession of a firearm, not the pre-enactment misdemeanor crime of domestic violence. Defendants' argument comports with the decision of United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 513 U.S. 894, 115 S.Ct. 246, 130 L.Ed.2d 168 (1994) In Brady, the Second Circuit addressed an ex post facto challenge to § 922(g)(1) whereby a defendant argued that his 1951 felony conviction could not serve as a an element of the offense prohibited by that section of the gun control laws. In rejecting defendant's challenge, the court held:

Regardless of the date of [defendant's] prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute .... by [the date of defendant's conviction under § 922(g)(1), defendant] had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Therefore, the Ex Post Facto clause was not violated by the use of a 1951 felony conviction as a predicate for a violation of § 922(g).​

Brady, 26 F.3d at 291. Cf. Landgraf v. USI Film Products, 511 U.S. 244, 269 n. 24, 114 S.Ct. 1483, 1499 n. 24, 128 L.Ed.2d 229 (1994) ("[A] statute `is not made retroactive merely because it draws upon antecedent facts for its operation.'") (quoting Cox v. Hart, 260 U.S. 427, 434-37, 43 S.Ct. 154, 157, 67 L.Ed. 332 (1922)); United States v. Allen, 886 F.2d 143, 146 (8th Cir.1989) ("So long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.")....

 

[gc70]

Okay, a District Court (trial court) ruling.

I linked the trial court ruling because the subsequent appeals court ruling ( Hiley v. Barrett 155 F.3d 1276 (11th Cir. 1998) ) -quoted below in its entirety- was not terribly informative:

HATCHETT, Chief Judge:

This case is affirmed for the reasons stated in the district court's thorough and well-reasoned order dated July 2, 1997, and cited as 968 F.Supp. 1564 (N.D.Ga.1997).

AFFIRMED.

 

[JRH6856]

OK, as a result of cases like those cited above and a few others I have found, I've narrowed my focus to cases involving MDV convictions prior to 1996.

Felony convictions have always threatened a defendant's Constitutional rights. Therefore, any defendant entering a guilty plea in a felony case does so with awareness of the threat to his rights.

This is not the case with misdemeanors. Misdemeanors do not threaten fundamental rights. In the case of MDV pre Lautenberg, defendants entering a guilty or no contest plea did so under the belief that conviction did not threaten their 2A rights. So this is where the comparison of prior misdemeanors to prior felonies breaks down.

Sen. Lautenberg's stated intent was to reach the one third of MDV convictions that he believed would have been charged as felonies if they did not involve domestic partners.
But Lautenberg's broom also sweeps up the remaining two-thirds of MDV convictions and pleas that would have been misdemeanors in any case. Cases that traditionally had not placed civil or political rights in jeopardy.

As I understand Due Process, the first element is Notice. The defendant must be advised of the charges in sufficient detail to fully inform him of the effect on his rights, property or person. There is no way the majority of MDV defendants could have had adequate notice of the effect on their 2A rights. This may be the only way remaining to challenge Lautenberg on Due Process.

I'm still looking for cases involving MDV convictions prior to Lautenberg, especially any that challange due process on this basis.

 

[TNBilly]

Felony convictions have always threatened a defendant's Constitutional rights. Therefore, any defendant entering a guilty plea in a felony case does so with awareness of the threat to his rights.

well if always is since 1968 anyways!

 

[JRH6856]

well if always is since 1968 anyways!

I didn't say just 2A rights. Even before 1968, felons lost the right to vote, serve on juries and hold public office in many cases.

 

[torqem]

No, a felony conviction has NOT "always" threatened your gun rights. Before 1968, no such Federal law existed, and few states had any such laws.

 

[Arizona_Mike]

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.

1. The 2nd Amendment has only recently been established as a fundamental individual right incorporated against the states.
2. The level of scrutiny has not yet been fully established.

Nowhere in my comments did I give an opinion on whether any court would find my second hypothetical to be an additional punishment.

Mike

 

[Frank Ettin]

...1. The 2nd Amendment has only recently been established as a fundamental individual right incorporated against the states.
2. The level of scrutiny has not yet been fully established.

Nowhere in my comments did I give an opinion on whether any court would find my second hypothetical to be an additional punishment.

Except --

1. The OP's post, and the subject under discussion at that point in the thread was challenging the Lautenberg Amendment on ex post facto grounds.
   
   
2. In post 8 you wrote:

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

   
   
3. Challenging the Lautenberg Amendment as ex post facto has nothing whatsoever to do with the Second Amendment or the level of scrutiny applicable to the regulation of rights protected by the Second Amendment.
   
   
4. But ex post facto is off the table, and I've explained why.

ETA: Four of the five cases I cited in post 6 were post-Heller, and all five challenged the Lautenberg Amendment on Second Amendment grounds. Incorporation of the Second Amendment against the States is irrelevant to a challenge of the Lautenberg Amendment since the Lautenberg Amendment is federal law.

 

[gc70]

I didn't say just 2A rights. Even before 1968, felons lost the right to vote, serve on juries and hold public office in many cases.

The Federal Firearms Act of 1938 imposed firearms prohibitions:

Sec. 2.(f) It shall be unlawful for any person who has been convicted of a crime of violence or is a fugitive from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act.

(6) The term "crime of violence" means murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.

 

[JRH6856]

^^^ Understood. In my response to TNBilly I was pointing out that rights were restricted prior to 1968. Not including firearms was an oversight.

The definition used for "crime of violence", includes the condition of "imprisonment for more than 1 year." which is also a condition of a felony, but not a misdemeanor. So I think my statement that felons had been subject to loss of civil/political rights prior to Lautenberg, while misdemeanor offenders had not, is valid.

 

[gc70]

3. Challenging the Lautenberg Amendment as ex post facto has nothing whatsoever to do with the Second Amendment or the level of scrutiny applicable to the regulation of rights protected by the Second Amendment.

Cases v. United States, 131 F.2d 916 (1st Cir. 1942)

In this case the court clearly indicates that the test is not the form in which the legislation is cast, but its substance, and that if, regardless of form, the statute in substance inflicts an additional punishment for a past offense, it is bad as an ex post facto law. But, on the other hand, this case establishes that if the statute is a bona fide regulation of conduct which the legislature has power to regulate, it is not bad as an ex post facto law even though the right to engage in the conduct is made to depend upon past behaviour, even behaviour before the passage of the regulatory act.

The legislature's power to regulate is a factor in determining whether a law is an ex post facto law. As such, Second Amendment limits on the legislature's power to regulate would have a bearing on an ex post facto determination. Skoien and Chester both recognized that domestic violence misdemeanants do not fall totally outside the protection of the Second Amendment and the courts are just beginning to feel their way toward a consistent definition of the protections retained by such individuals.

 

[Arizona_Mike]

Except --

1. The OP's post, and the subject under discussion at that point in the thread was challenging the Lautenberg Amendment on ex post facto grounds.
   
   
2. In post 8 you wrote:
   ​
   
   
3. Challenging the Lautenberg Amendment as ex post facto has nothing whatsoever to do with the Second Amendment or the level of scrutiny applicable to the regulation of rights protected by the Second Amendment.
   
   
4. But ex post facto is off the table, and I've explained why.

ETA: Four of the five cases I cited in post 6 were post-Heller, and all five challenged the Lautenberg Amendment on Second Amendment grounds. Incorporation of the Second Amendment against the States is irrelevant to a challenge of the Lautenberg Amendment since the Lautenberg Amendment is federal law.

I was being imprecise when I mentioned incorporation (along with it being an individual right). Incorporation was extraneous.

My original point is I could envision a civil penalty being considered so severe by a court that they would find it ex post facto and that whether the right is considered fundamental could have a bearing on that. I believe my #1 hypothetical with respect to deportation of all past domestic violence offenders would rise to that level. Thomas hinted the possibility of revisiting Calder v. Bull in Eastern Enterprises v. Apfe if a civil penalty were severe enough.

De Veau v. Braisted seems to actually have applied such a test:

The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.

More recently Smith v. Doe appears to have applied such a test as well:

If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.

Mike

PS. Not an ex post facto case, but in a recent right to jury trial case (US v. Jardee) a district court found that the lifetime firearms disability was a "a substantial infringement upon one’s right" but less severe than six months imprisonment, which would indicate that current courts do not view the right as so fundamental that such an argument could succeed.

 

[Frank Ettin]

The legislature's power to regulate is a factor in determining whether a law is an ex post facto law. As such, Second Amendment limits on the legislature's power to regulate would have a bearing on and ex post facto determination....

No, you missed some critical language in the First Circuit's decision.

But first we need to be clear that in the case we're looking at (Cases v. United States, 131 F.2d 916 (1st Cir. 1942)) did not find the law at issue, the Federal Firearms Act, to be expost facto.

As the court wrote (at 920 -921, emphasis added, footnotes omitted):

...The Federal Firearms Act is prospective only. That is, under it no one in the class described may be convicted for having transported or received either a firearm or ammunition at any time prior to its passage. In the ordinary sense, then, it is not an ex post facto law. But the appellant contends that it is an ex post facto law as applied to him because it imposes upon him an additional penalty for a crime which he committed and for which he was convicted before the Act was passed. The cases upon which he relies are [Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; Ex Parte Garland, 4 Wall. 333, 377, 18 L.Ed. 366, and Pierce v. Carskadon, 16 Wall. 234, 21 L.Ed. 276.

The Supreme Court in Cummings v. Missouri and in Pierce v. Carskadon struck down as ex post facto laws and therefore unconstitutional under Article I § 10, provisions of a state constitution and of a state statute, respectively, requiring the taking of a test oath containing affirmations of past loyalty to the United States in acts and deeds, and even loyalty in words, desires and sympathies, in the first case as a pre-requisite to pursuing certain professions and avocations, and in the second case as a prerequisite to filing a motion for a rehearing in a judicial proceeding of a specified type. In Ex Parte Garland the Supreme Court struck down as an ex post facto law, and therefore unconstitutional under Article I § 9, an act of Congress requiring the taking of a similar but less far reaching oath as a prerequisite to admission to practice before the Supreme Court of the United States. At first glance these cases may seem to support the contention of the appellant, but an examination of the opinions shows that they do not. In these cases the Supreme Court held the legislation invalid because it concluded that the test prescribed was not a test of fitness to practice the professions or avocations in question or to file a motion in court, and so that the legislation, in effect, imposed either an added punishment for a past crime or a punishment for a past act which was not punishable under the law as it stood when the act was done. In the dissenting opinions in these cases it is cogently argued that the statutes under consideration were not ex post facto laws at all, but we need not enter that controversy because even under the rule established by the court in those cases, as it was later developed, we do not think that the Federal Firearms Act is ex post facto.

In Dent v. West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623, cited and quoted with approval in Hawker v. New York, 170 U.S. 189, 198, 18 S.Ct. 573, 42 L.Ed. 1002, the Supreme Court, after noting that the doctrine of Cummings v. Missouri had been affirmed in Pierce v. Carskadon, said with reference to the Cummings and Garland cases "They only determine that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions". The court then went on to say: "The constitution of Missouri and the act of congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts, or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions."

In Hawker v. New York, supra, a case in which the Supreme Court upheld as valid a statute of New York which prevented one who had been convicted of a felony from thereafter practicing medicine, even though the conviction ante-dated the passage of the statute, the test is indicated by which the validity of a statute of the sort under consideration may be determined. In this case the court clearly indicates that the test is not the form in which the legislation is cast, but its substance, and that if, regardless of form, the statute in substance inflicts an additional punishment for a past offense, it is bad as an ex post facto law. But, on the other hand, this case establishes that if the statute is a bona fide regulation of conduct which the legislature has power to regulate, it is not bad as an ex post facto law even though the right to engage in the conduct is made to depend upon past behaviour, even behaviour before the passage of the regulatory act. This case also establishes that conviction of a crime may be made the conclusive test of past behaviour.

Thus if the past conduct which is made the test of the right to engage in some activity in the future is not the kind of conduct which indicates unfitness to participate in the activity, it will be assumed, as it must be, that the purpose of the statute is to impose an additional penalty for the past conduct. If, however, the past conduct can reasonably be said to indicate unfitness to engage in the future activity the assumption will be otherwise. So, in conformity with this principle, the cases cited above establish that a state cannot make past loyalty to the United States extending to words, desires and sympathies a test of fitness to teach, preach, practice law, or file a motion in court, and Congress cannot make such loyalty the test of fitness to practice before the Supreme Court of the United States. The constitutional provisions which prevent the passage of ex post facto laws by either a state or the federal government bar the way. But, on the other hand, a state can make conviction for a felony a test of fitness to practice medicine.

By the test indicated the Federal Firearms Act is clearly not an ex post facto law invalid under Article I, § 9, of the Constitution. Looking at the Act as a whole it is abundantly plain that in enacting it Congress was in no way interested in imposing an additional penalty upon those who at some time in the past had been convicted of a crime of violence. In the Act Congress sought to protect the public by preventing the transportation and possession of firearms and ammunition by those who, by their past conduct, had demonstrated their unfitness to be entrusted with such dangerous instrumentalities, and certainly no one can seriously contend that the test of unfitness which Congress established is irrelevant to this purpose. Surely it is reasonable to conclude that one who has been convicted of a crime of violence is the kind of a person who cannot safely be trusted to possess and transport arms and ammunition, and the fact that he may have reformed or that in some cases the test may operate harshly, does not invalidate the test. Hawker v. New York, 170 U.S. 189, 197, 18 S. Ct. 573, 42 L.Ed. 1002. See, also, McDonald v. Massachusetts, 180 U.S. 311, 21 S. Ct. 389, 45 L.Ed. 542....

 

[JRH6856]

Frpm the above cases, it appears that Congress' regulatory power under the commerce clause provides a shield that is difficult to pierce on the grounds of ex post facto or due process.

Which once again raises the question: Why does the 2A not protect firearms from interstate commerce regulations when such regulation infringes the protected right of an individual to keep and bear arms?

 

[Frank Ettin]

...De Veau v. Braisted seems to actually have applied such a test:

The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.

More recently Smith v. Doe appears to have applied such a test as well:

If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil....

Nah, the bottom line is that in neither case did the Supreme Court find the law being challenged to be ex post facto.

In De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), the Court wrote (at 160):

...Finally, § 8 of the Waterfront Commission Act is neither a bill of attainder nor an ex post facto law. ...The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession. See Hawker v. People of State of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002. No doubt is justified regarding the legislative purpose of § 8. The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony....

And in your quoting from the Supreme Court's decision in Smith v. Doe, 538 U.S. 84, 155 L.Ed.2d 164 (2003), you omit some key language (at 85, emphasis added):

...The determinative question is whether the legislature meant to establish "civil proceedings." Kansas v. Hendricks, 521 U.S. 346, 361. If the intention was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. E. g., ibid. Because the Court ordinarily defers to the legislature's stated intent, ibid., only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. See, e. g., ibid. Pp. 92....

And then the Court found (538 U.S. 84, at 86):

...Respondents cannot show, much less by the clearest proof, that the Act's effects negate Alaska's intention to establish a civil regulatory scheme....

The bottom line is that, as a basis for challenging the Lautenberg Amendment, ex post facto is a lost cause. See post 6, 10, 11, 34, 40, and 45.

...Which once again raises the question: Why does the 2A not protect firearms from interstate commerce regulations when such regulation infringes the protected right of an individual to keep and bear arms?

Because Second Amendment jurisprudence is still in its infancy. It is settled law that rights protected by the Bill of Rights are subject to limited regulation. Courts for many years and in many cases have been looking at the question of what the permissible scope and extent of such regulation with respect to rights protected by the First Amendment. As a consequence we have some decent notion of the permissible scope and extent of the regulation of such rights.

The Second Amendment was clearly recognized as describing a personal right only recently -- in 2008. It was incorporated against the States even more recently -- in 2010. We have a lot of work to do to build Second Amendment jurisprudence on that recently laid foundation.