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Firearms and Other Weapons Had a request for this forum, so here it is. Guess it will give me some place to talk about guns myself after selling my ArmsLocker forum.

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Unread 02-13-2011, 03:25 PM   #1
Rich Z
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Default Lautenberg Domestic Violence Law

In another thread, decisions of the Supreme Court were discussed in relation to another topic. In it I expressed my opinion that the Supreme Court is still a political animal, regardless of this "job for life" position the justices now hold.

One of the more repugnant decisions rendered by the SCOTUS was in connection with the Lautenberg Domestic Violence law, especially in relation to the prohibition in the US Constitution concerning ex post facto laws.

Quote:
U.S. Constitution - Article 1 Section 9

Article 1 - The Legislative Branch
Section 9 - Limits on Congress

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.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
Quote:
Ex post facto
ex post facto adj. Formulated, enacted, or operating retroactively. [Med Lat., from what is done afterwards] Source: AHD

In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”
Now, what happens under a misdemeanor conviction under the Lautenberg DV law is that anyone so convicted loses their "right" to possess a firearm even when such conviction has taken place BEFORE the law was passed. Can anyone here tell me how that would NOT be considered as ex post facto, based on the Constitutional text shown above?

Well apparently the courts, including the SCOTUS, can ignore this prohibition at will, simply by hair splitting what the definition of "law" actually is.

Quote:
In the United States, the federal government is prohibited from passing ex post facto laws by clause 3 of Article I, section 9 of the U.S. Constitution and the states are prohibited from the same by clause 1 of Article I, section 10. This is one of the very few restrictions that the United States Constitution made to both the power of the federal and state governments prior to the Fourteenth Amendment. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull, 3 U.S. 386 (1798), in which Justice Samuel Chase established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act of 2006. This law, which imposes new registration requirements on convicted sex offenders, also applies to offenders whose crimes were committed before the law was enacted.[9] The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals and the posting of personal information about them on the Internet does not violate the constitutional prohibition against ex post facto laws, because this does not constitute any kind of punishment.[10]

Another example is the Domestic Violence Offender Gun Ban, where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse for spanking his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive—it is a status offense.

Finally, Calder v. Bull expressly stated that a law that "mollifies" a criminal act was merely retrospective and not an ex post facto law.

A large "exception" to the ex post facto prohibition can be found in administrative law, as federal agencies may apply their rules retroactively if Congress has authorized them to do so. Retroactive application is disfavored by the courts for a number of reasons,[11] but Congress may grant agencies this authority through express statutory provision. Furthermore, when an agency engages in adjudication, it may apply its own policy goals and interpretation of statutes retroactively, even if it has not formally promulgated a rule on a subject.

Retroactive taxes are not ex post facto laws. Calder v. Bull, 3 U.S. 386, 390-91 (1798). Substantive due process challenges to retroactive tax laws are given rational basis review. United States v. Carlton.

See also: Fourteenth Amendment to the United States Constitution, Bouie v. City of Columbia, Rogers v. Tennessee, and Stogner v. California
I seriously doubt that anyone can claim that the founders of this country and the authors of the US Constitution wrote that prohibition against ex post facto laws, specifically using that term to mean that it gave the US Government carte blanche to ignore it simply by changing their definitions of what would be considered as "law".

Please note the note about retroactive taxes as well. How well would it set with you to find that next week Congress passes a law that adds a $1,000 retroactively applicable excise tax on every gun you have ever owned? According to the above, there is NOTHING that would prevent them from implementing such a scheme.
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