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

[gc70]

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, (1st Cir. 1942)) did not find the law at issue, the Federal Firearms Act, to be expost facto.

I missed neither the verdict or rationale for the ruling in Cases, which reflect the substantial barriers to challenging a law on ex post facto grounds. But the court did articulate a basis -the lack of legislative power to regulate- for finding a law to be ex post facto.

An ex post facto challenge to Lautenberg, as popular as the idea would be with many gun owners, would be the least likely or productive avenue of attack. A due process challenge would probably be successful long before (if ever) the legislative power to regulate within the realm of the Second Amendment is pushed back by the courts to the extent of achieving a favorable ex post facto ruling.

Nevertheless, the OP was about the Lautenberg Amendment as an ex post facto law, not the best approach to overturning Lautenberg.

 

[Arizona_Mike]

Frank, we seem to be in "violent agreement" that 2nd Amendment jurisprudence is new and immature and that an ex post facto challenge is currently unlikely to succeed.

My argument is since my initial post has been that a civil disability can be considered punitive if severe enough but it does not appear likely that the courts would consider the firearms disability severe enough to overcome that test.

Mike

 

[itsa pain]

Even from the grave lautenberg continues to wreak havoc and misery. I think man hater Hillary clin-ton started the ball rolling on DV and it was her actions I believe that led to the additional questions of DV on the 4473 form (I think that is the right number) when you buy a gun

 

[Frank Ettin]

...But the court did articulate a basis -the lack of legislative power to regulate- for finding a law to be ex post facto...

Actually, the court in Cases did not. You've taken one sentence out of context and built your entire analysis on that sentence (131 F.2d 916, at 921):

...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....

But that sentence is found in the court's discussion of a particular case, Hawker v. People of New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898). Let's look at the entirety of the First Circuits comments on Hawker (at 921, emphasis added):

...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...

The focus of the discussion is the nature of the past conduct and the question of whether the past conduct could have a bearing on one's fitness to engage in certain present activities. On one hand past loyalty to the United States can not be considered to bear on one fitness to pursue certain current activities. On the other hand, a past felony conviction may have a bearing on one's current fitness to practice medicine. And this view is consistent with the First Circuit's discussion of Cummings and Pierce (at 920, emphasis added):

...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....

To be sure, part of any attack on the Lautenberg Amendment could well be that it goes beyond a constitutionally acceptable scope and extent of regulation of the personal rights described by the Second Amendment. If we could achieve that, Lautenberg falls on that basis alone.

 

[JRH6856]

To be sure, part of any attack on the Lautenberg Amendment could well be that it goes beyond a constitutionally acceptable scope and extent of regulation of the personal rights described by the Second Amendment. If we could achieve that, Lautenberg falls on that basis alone.

Given the above, it appears to me that where Lautenberg overreaches is when it sweeps up all MDV convictions rather than just the 1/3 that Sen. Lautenberg believed should be charged as felonies. Violent felony convictions have long been accepted by the courts as a legitimate reason to regulate 2A rights. But non-violent misdemeanors have not been so accepted (except under Lautenberg) and they were not the stated target of the legislation.

It seems it should be possible to make a case on this basis. I.E. that Lautenberg is poorly crafted law and reaches beyond its purported intent.

 

[gc70]

It seems it should be possible to make a case on this basis. I.E. that Lautenberg is poorly crafted law and reaches beyond its purported intent.

Castleman challenges Lautenberg on the technical question of "violent force." If the Court limits Lautenberg to violent force, that would set the stage to question restrictions on non-violent felons. Felony restrictions built a wall of precedents over 30 years based on the "crime of violence" definition in the 1938 Act before non-violent offenses were included in 1968. I can only remember seeing one 922(g) case involving a non-violent offender.

 

[JRH6856]

Castleman challenges Lautenberg on the technical question of "violent force." If the Court limits Lautenberg to violent force, that would set the stage to question restrictions on non-violent felons.

From what I have read of the proceedings, there appears to be a problem at the state level of separating the non-violent MDV convictions from the ones involving violence, at least in some states. It would seem that if the Court limits Lautenberg to violent force, it fails because it provides no reliable mechanism for determining when violent force is an element of a misdemeanor.

But the Court may say that Lautenberg stands and it is up to the states to separate non-violent MDV from MDV involving violence. 2A friendly states might be prone to do so, but anti 2A states might not be so willing to change. That would be another can of worms.

(Heck, anti states may even start charging every misdemeanor as MDV. )