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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-25-2013, 6:55 PM
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Default 'Ex Post Facto' gun laws

(admin - if this is in the wrong forum please move)
(and I searched the archives but found little re ex post facto)

I'm not a Californian so I'm not that familiar with the firearms laws of that state. It is my understanding that Darrell Steinberg, D-Sacramento has proposed (among other things) banning the possession — not just manufacture and sale — of magazines holding more than 10 rounds. Under current CA law possession is lawful I believe? It would also ban any gun that has a detachable magazine. Under current CA Law firearms with detachable magazines are lawful.

The question I have, for anyone knowledgeable, is why doesn't Article 1, Section 9 of the U.S. Constitution apply? It simply states: No Bill of Attainder or ex post facto Law shall be passed.

As I understand it an "ex post facto law" is one that is 'formulated, enacted, or operating retroactively'. Or by another definition 'Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action'.

Section 10 of the U.S. Constitution also addresses ex post facto laws -

'No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing 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.

The relevant points are 'No State shall...pass any...ex post facto Law...'

So, if a person lawfully owns a cosmetically scary weapon with a detachable magazine under current law, or a 20 round magazine under current law, how does a new law make possession of these illegal? In other words if you owned it legally under previous law, how can it be illegal under a new law?

Oregon, where I live, is attempting something similar. HB 3200 would allow possession of only one cosmetically scary weapon, all others one might own would have to removed from the state, sold, destroyed, or turned in to authorities.
  #2  
Old 02-25-2013, 7:12 PM
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Based on my understanding, "ex post facto" refers to a situation in which a law criminalizes prior legal acts. In other words, a law is passed today that would enable the state to charge you at some point in the future, for a past crime that was legal at the time the act was performed. FOR EXAMPLE, yesterday I washed my car on the street, and it was legal to do so; today, a law is passed that makes it a crime to wash my car in the street: I cannot be charged with washing my car in the street yesterday.

The proposed legislation that you are referring to, based on my understanding, deals with possession AFTER the law is enacted. It does not criminalize prior legal act of possessing "high capacity" magazines prior to the enactment of the law.

So, if that law passes, you need to either sell or take and store your soon-to-be illegal possessions out of state, or surrender them to the authorities (via some sort of gun buyback) prior to the new law taking effect. How can this be considered "ex post facto"?

Last edited by Born To Glock; 02-25-2013 at 7:53 PM..
  #3  
Old 02-25-2013, 7:26 PM
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If it doesn't have a grandfather clause like the AWB does, allowing posession, it would be illegal law unless they payed you the value of the magazine when they confiscated it.
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Old 02-25-2013, 7:31 PM
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Two observations:

1) ex post facto bills are unconstitutional and that's why the big bills all allow registration. In fact SB-47 appears to not even want to go into equal protection clause areas so it just registers as assault weapons rather than a new category.

2) you are more than welcome to pay me market value for my pre-ban mags, some of mine from the early 1990s are now rusty... These days that's about $50 - $80 a magazine and would give me enough money to buy a MUCH nicer truck LOL!
  #5  
Old 02-26-2013, 7:54 AM
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The Oregon Constitution, Section 21, also prohibits ex post facto laws. "No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution...." As stated above, bills that do not allow for "registration" but attempt confiscation of items that were previously legal must provide just compensation. Once that is the issue, however, the state must show the "public use" for the taking. Absent flawed logic of Kelo this is a hard argument for the state to make under takings law. There is no public use need that I am aware of for the State to take guns. The argument is based on safety which is generally not part of taking jurisprudence. Rather, taking of private land for needed freeway, school, etc... is the classic example.

If a proposed law does not allow for registration, though, it would appear to be an impropr ex post facto law making possession now illegal when it was not before the law was passed. There also are problems with registration. Though it may suffice to get past the ex post facto law without confiscation, it may be an unreasonable burden on exercise of RTKBA, right of privacy / association. Finally, an argument could also be made that even with registration it still amounts to an ex post facto law as the new law makes possession illegal without registration whereas registration was not previously required. If you fail to register which was not previously required, stiff fines/penalties/jail is imposed. I have not seen this challenge and would not want to be the test case, but this last argument may not prevail since that is exactly what happened with the previous california ban and it still stands.
  #6  
Old 02-26-2013, 8:00 AM
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Quote:
Originally Posted by Born To Glock View Post
Based on my understanding, "ex post facto" refers to a situation in which a law criminalizes prior legal acts. In other words, a law is passed today that would enable the state to charge you at some point in the future, for a past crime that was legal at the time the act was performed. FOR EXAMPLE, yesterday I washed my car on the street, and it was legal to do so; today, a law is passed that makes it a crime to wash my car in the street: I cannot be charged with washing my car in the street yesterday.

The proposed legislation that you are referring to, based on my understanding, deals with possession AFTER the law is enacted. It does not criminalize prior legal act of possessing "high capacity" magazines prior to the enactment of the law.

So, if that law passes, you need to either sell or take and store your soon-to-be illegal possessions out of state, or surrender them to the authorities (via some sort of gun buyback) prior to the new law taking effect. How can this be considered "ex post facto"?
This is my understanding as well.
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Old 03-01-2013, 7:16 PM
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Default Ex Post Facto laws

Found this on SnipersHide Forum. I'm only pasting the third paragraph of his post re: ex post facto laws which corresponds with my thinking in my original post.

letter from retired SP captain Robert Jones (legal issues for NY)

"
Letter from Retired Capt. Robert Jones who is also an Attorney.

Published in the Troy paper here http://www.troyrecord.com/articles/2...2614205104.txt

I previously used the phrase Ex-Post Facto law. Basically, an ex post facto law is one that punishes previous conduct undertaken when such conduct was not a crime. For example, it can be credibly argued that a person who had lawfully acquired and owned a 17 round magazine on Jan. 14 had committed no crime perhaps he had owned the magazine for decades. Yet Cuomos best law in the nation suddenly made owning this previously lawful magazine a crime. The owner did nothing between the time he lawfully owned the magazine and the time his ownership was made a crime. Rather than grandfather this magazine in his new law so that its continued ownership would remain lawful, Cuomo made the previous lawful conduct of owning it a crime. But, you may argue, it is not the previous conduct that is now criminal, but the ownership after the effective date of the new law that is made criminal. Nice try but the government may not force a forfeiture of private property to avoid criminal liability. This argument is only credible if the effect of the new law was to not effectively force the previously lawfully owned magazine to be forfeited. Yet this is what Cuomos law does. It also forces the forfeiture of previously lawful weapons that now fall within the more restrictive so-called assault weapon definition. The current owner can register them but cannot pass them on to his children or anyone else. They are, essentially, forfeited by the arbitrary and uninformed action of the government.

Robert Jones "
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Old 03-01-2013, 7:22 PM
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They made my BMF Activator illegal after the fact, no one comped me.
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Old 03-01-2013, 7:23 PM
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I Cant Argue Constitutionality of the Proposed Law But I do hope if it passes it will be found unconstitutional.

But the Magazine Possession Ban is not an Ex Post Facto Law. If it the law was that the Possession of a standard capacity Magazine Between Jan 1st 2012 and Dec 31st 2012 Would no be considered a crime then that would be an example of an ex post facto law.
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Old 03-01-2013, 9:40 PM
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At one point in time posssession and use of cocaine was 100% legal in the US.
They passes a law making possession and use illegal as of a certain date. Anyone in possession of or using cocaine after that date was breaking the law. The law was not broken until the date the law took effect. The possessor of what was once legal cocaine was not grandfathered. He was not compensated for the value of the cocaine he had to flush away. He either used it before it became illegal, or he disposed of it.

This was not an ex post facto law.

In regards to making a magazine over a certain capacity illegal, it is not illegal until the day the law goes into effect. Constitutionally, passage of a law against possession would probably fall under the category of "due process of law" so they could probably require them to be turned in, removed from the state, or destroyed by a certain date. Compensation is only required for property siezed "for public use" according to the constitution. If the property is not siezed, but is rather simply made illegal to possess within the state, no compensation would be required.

An ex post facto law would be if they made a law against possession of magazines over a certain capacity, and that law stated that anyone proven to have ever owned one is guilty of a felony.
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  #11  
Old 03-02-2013, 6:31 AM
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Quote:
Originally Posted by Decoligny View Post

In regards to making a magazine over a certain capacity illegal, it is not illegal until the day the law goes into effect. Constitutionally, passage of a law against possession would probably fall under the category of "due process of law" so they could probably require them to be turned in, removed from the state, or destroyed by a certain date. Compensation is only required for property siezed "for public use" according to the constitution. If the property is not siezed, but is rather simply made illegal to possess within the state, no compensation would be required.

An ex post facto law would be if they made a law against possession of magazines over a certain capacity, and that law stated that anyone proven to have ever owned one is guilty of a felony.
Take two attorneys. They are supposed to know the law. One will argue the the legality of a specific law, one will argue the law is unconstitutional.

Take two judges. They are supposed to know the law. One will rule the law is constitutional and the other may overturn that ruling and find it unconstitutional.

The law is always open to interpretation.

I believe a strong argument CAN be made that laws banning and criminalizing possession of a weapon or magazine that were previously lawful to possess are, in fact, Ex Post Facto laws.

And I am saying that if the proposed legislation in Oregon, California, and other states that ban/criminalize these items become law, they should be challenged on all constitutional grounds including any Ex Post Facto sections of State and the U.S. Constitution.

That's my opinion. I'm sticking with it.
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Old 03-02-2013, 6:38 AM
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Quote:
Originally Posted by Decoligny View Post
At one point in time posssession and use of cocaine was 100% legal in the US.
They passes a law making possession and use illegal as of a certain date. Anyone in possession of or using cocaine after that date was breaking the law. The law was not broken until the date the law took effect. The possessor of what was once legal cocaine was not grandfathered. He was not compensated for the value of the cocaine he had to flush away. He either used it before it became illegal, or he disposed of it.

This was not an ex post facto law.

In regards to making a magazine over a certain capacity illegal, it is not illegal until the day the law goes into effect. Constitutionally, passage of a law against possession would probably fall under the category of "due process of law" so they could probably require them to be turned in, removed from the state, or destroyed by a certain date. Compensation is only required for property siezed "for public use" according to the constitution. If the property is not siezed, but is rather simply made illegal to possess within the state, no compensation would be required.

An ex post facto law would be if they made a law against possession of magazines over a certain capacity, and that law stated that anyone proven to have ever owned one is guilty of a felony.
A couple of practical differences with your example and guns.

One, cocaine use isn't a constitutionally protected individual right ( see Heller).

Two, ex-post facto runs full speed into the 5th Amendment. While ex post facto laws are unfortunately quite common these days , as applied to firearms its a non-starter for the anti's long term.

Here's why. There's case precedent going back to the 1930s that an ex-post facto gun law is unconstitutional, since there's no practical way for a law-abiding citizen to avoid self incrimination. If a magazine possession law is passed which makes current and retroactive possession a crime, you're an instant criminal no matter what you do. Transporting the contraband for surrender to LE doesn't change the fact that you're breaking the law. You can't exactly flush a 30 round mag down the toilet either.

The first draft of the NFA originally banned then-current possession of full auto weapons and mags. Had the original 1934 act passed all full auto weapons would have been illegal to own immediately; due to the 5th Amendment, the law had to provide a means to legally register currently owned firearms, hence the NFA tax stamp.
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Old 03-02-2013, 11:13 AM
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Quote:
Originally Posted by SilverTauron View Post
A couple of practical differences with your example and guns.

One, cocaine use isn't a constitutionally protected individual right ( see Heller).

Two, ex-post facto runs full speed into the 5th Amendment. While ex post facto laws are unfortunately quite common these days , as applied to firearms its a non-starter for the anti's long term.

Here's why. There's case precedent going back to the 1930s that an ex-post facto gun law is unconstitutional, since there's no practical way for a law-abiding citizen to avoid self incrimination. If a magazine possession law is passed which makes current and retroactive possession a crime, you're an instant criminal no matter what you do. Transporting the contraband for surrender to LE doesn't change the fact that you're breaking the law. You can't exactly flush a 30 round mag down the toilet either.

The first draft of the NFA originally banned then-current possession of full auto weapons and mags. Had the original 1934 act passed all full auto weapons would have been illegal to own immediately; due to the 5th Amendment, the law had to provide a means to legally register currently owned firearms, hence the NFA tax stamp.
Excellent points SilverT. Thanks for bringing them to the discussion.
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Old 03-02-2013, 11:21 AM
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The politburo of this state doesn't care, they pass what they want. They continue to do so because the people are allowing it to happen.
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Old 08-17-2015, 6:15 PM
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Is there any new ground being gained for gun owners on this issue? BTW, I sure miss my SKS Sporter I was forced to sell out-of-state at a REDUCED price compared to what I paid!

Judges now-a-days just make up "new" laws to fit their agenda, if the current law is not "good enough" (Obama Care for instance).
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Old 08-17-2015, 7:31 PM
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Quote:
Originally Posted by 1Asterisk View Post
Take two attorneys. They are supposed to know the law. One will argue the the legality of a specific law, one will argue the law is unconstitutional....
Attorneys represent their clients' interests. If it's in my client's interests for a particular law to be unconstitutional, and if there's a way I can argue with a straight face that it is, I will argue as best I can that it is unconstitutional. The lawyer opposing me will argue that the law is constitutional. It will be up to the judge to decide.

Quote:
Originally Posted by 1Asterisk View Post
...I believe a strong argument CAN be made that laws banning and criminalizing possession of a weapon or magazine that were previously lawful to possess are, in fact, Ex Post Facto laws....
How nice for you. However, your beliefs are not law. And there is, in fact, considerable case law on the question. Before you form your beliefs and construct your arguments, you would be well advised to do some actual research into what the courts have said on the topic. And your arguments to be worth anything at all will need to be based on prior court decisions.

So let's have a look at some court opinions on whether a law is or is not ex post facto and why or why not.

So in Cases v. United States, 131 F.2d 916 (1st Cir. 1942)) the First Circuit told us why the the Federal Firearms Act is not expost facto (at 920 -921, emphasis added, footnotes omitted):
Quote:
...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....
In De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), The Supreme Court distinguished between a law enacted to punish past conduct and a law intended regulate present conduct (at 160):
Quote:
...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....
To Be Continued
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Old 08-17-2015, 7:31 PM
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Originally Posted by 1Asterisk View Post
...And I am saying that if the proposed legislation in Oregon, California, and other states that ban/criminalize these items become law, they should be challenged on all constitutional grounds including any Ex Post Facto sections of State and the U.S. Constitution...
One example of such a law which has been the subject of considerable litigation is the Lautenberg Amendment prohibiting persons who have been convicted of misdemeanor domestic violence from possessing a gun or ammunition.

Rejecting a challenge on ex post facto grounds of the Lautenberg Amendment, the Federal District Court for the Northern District of Georgia wrote (National Association of Government Employees v. Barrett, 968 F. Supp. 1564, at 1575 - 1576):
Quote:
...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.")....
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.

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?

To recap in terms of the Lautenberg Amendment --
  1. 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.

  2. In terms of the Lautenberg amendment, it may be understood as follows:

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

Quote:
Originally Posted by 1Asterisk View Post
...That's my opinion. I'm sticking with it.
That may be your opinion. But all opinions are not equal. The opinion on a highly technical point of law by one uneducated in the law and who has not done appropriate research really isn't worth much.
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Last edited by fiddletown; 08-17-2015 at 8:56 PM.. Reason: fix formatting
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Old 08-17-2015, 7:35 PM
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A prime example of an "ex-post facto" law that was passed not too long ago in Cali was the firearms prohibition for those convicted of misdemeanor assaults. Many people (LEO included) pled to the lessor charge when arrested for domestic violence under the belief they could keep their jobs, as no felony conviction arose. Years later, they. and many other unsuspecting people were caught off guard by the "new" law, which made ANY misdemeanor domestic violence conviction grounds for the firearms prohibition and immediate dismissal from employment as a peace officer. Don't think it can't happen under any circumstances, and to anyone. So much for the touted uber power of police unions, huh? Some of you are far too young to know much about anything firearms or their lawfully related regulations / laws.

Please note, this was posted seconds before Fiddletowns very informative post.

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Old 08-17-2015, 7:39 PM
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Quote:
Originally Posted by SilverTauron View Post
...TThere's case precedent going back to the 1930s that an ex-post facto gun law is unconstitutional, since there's no practical way for a law-abiding citizen to avoid self incrimination. If a magazine possession law is passed which makes current and retroactive possession a crime, you're an instant criminal no matter what you do. Transporting the contraband for surrender to LE doesn't change the fact that you're breaking the law. You can't exactly flush a 30 round mag down the toilet either...
Then cite the cases.
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Old 08-18-2015, 7:28 AM
KHF1222 KHF1222 is offline
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If a law is passed today which makes current ownership or possession of a handgun you acquired legally 10 years ago a crime (not
considering the 2A implications), it would not be ex-post facto. The crime would be if you continued to possess the handgun. Making
it a crime for legally acquiring a handgun 10 years ago that you no longer own and is no longer in your possession at the effective
date of the statute would be ex post facto.
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Old 08-18-2015, 7:55 AM
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Quote:
Originally Posted by Born To Glock View Post
Based on my understanding, "ex post facto" refers to a situation in which a law criminalizes prior legal acts. In other words, a law is passed today that would enable the state to charge you at some point in the future, for a past crime that was legal at the time the act was performed. FOR EXAMPLE, yesterday I washed my car on the street, and it was legal to do so; today, a law is passed that makes it a crime to wash my car in the street: I cannot be charged with washing my car in the street yesterday.

The proposed legislation that you are referring to, based on my understanding, deals with possession AFTER the law is enacted. It does not criminalize prior legal act of possessing "high capacity" magazines prior to the enactment of the law.

So, if that law passes, you need to either sell or take and store your soon-to-be illegal possessions out of state, or surrender them to the authorities (via some sort of gun buyback) prior to the new law taking effect. How can this be considered "ex post facto"?
What we have here is an example of inane presented as intellectual. When reason and logic are applied, it pares to unadulterated BS. The sad thing is this inanity is taught in law schools and those that are turned loose in the world after legal indoctrination foist inanity upon others.

Ex post facto, a latin term, defined, translates to after the fact. If we continue to allow legal shylocks to deliberately contort our Founder's intentions, they'll devise schemes that'll enable shylocks to use the very tangible evidence of liberty against us: the US Constitution.

This is precisely why judges must be immediately impeached when they act contrary to law and the US Constitution.

His gun is legal today. Only the brain damaged could infer that it has mystically become dangerous and therefore illegal.

I'm sure you'd have a whole new definition of ex post facto were politicians to make the practice of law outside of strictly prescribed parameters (strict limits on legal fees) illegal tomorrow.

Oh yeah, such a law is de facto governmental stealing of property. At its organic essence, it is a blatant violation of the Second Amendment. But then again, pettifoggers no longer have use for the constitution.

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Old 08-18-2015, 8:10 AM
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James Madison wrote the Constitution. He also wrote The Federalist No. 44. The following is a paragraph taken from The Federalist No. 44:

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment.

Source: http://www.constitution.org/fed/federa44.htm

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Old 08-18-2015, 8:18 AM
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Quote:
Originally Posted by SansSouci View Post
What we have here is an example of inane presented as intellectual. When reason and logic are applied, it pares to unadulterated BS. The sad thing is this inanity is taught in law schools and those that are turned loose in the world after legal indoctrination foist inanity upon others....
Enjoy living in your fantasy world. What Born to Glock and others have described is how things work in the real world.

In the real world what matters is how courts have actually applied the prohibition in Article I, Section 9 of the Constitution on the enactment of ex post facto laws. The opinions of the courts on legal issues affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

The Founding Fathers assigned to the federal courts, not to you, the power to decide cases arising under the Constitution (Article III, Sections 1 and 2):
Quote:
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ...
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...
While you may be entitled to your opinion, it doesn't mean anything. The world will continue to go on about its business without regard to what you think.

Quote:
Originally Posted by SansSouci View Post
...If we continue to allow legal shylocks to deliberately contort our Founder's intentions, they'll devise schemes that'll enable shylocks to use the very tangible evidence of liberty against us: the US Constitution....
On the other hand, many of the Founding Fathers were lawyers. Several were judges.
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  #24  
Old 08-18-2015, 8:39 AM
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Quote:
Originally Posted by fiddletown View Post
While you may be entitled to your opinion, it doesn't mean anything. The world will continue to go on about its business without regard to what you think.
Depends on the justification for an opinion.

In his fantasy land, an opinion is justified if it has sound, logical, rational reasoning behind it.

In the real world, such an opinion is meaningless if the opposition argues from a position based on nothing but authority, no matter how unjust, irrational, or illogical.
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Old 08-18-2015, 8:41 AM
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Quote:
Originally Posted by fiddletown View Post
Enjoy living in your fantasy world. What Born to Glock and others have described is how things work in the real world.

In the real world what matters is how courts have actually applied the prohibition in Article I, Section 9 of the Constitution on the enactment of ex post facto laws. The opinions of the courts on legal issues affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

The Founding Fathers assigned to the federal courts, not to you, the power to decide cases arising under the Constitution (Article III, Sections 1 and 2):While you may be entitled to your opinion, it doesn't mean anything. The world will continue to go on about its business without regard to what you think.

On the other hand, many of the Founding Fathers were lawyers. Several were judges.

And that's the sad reality of our real world. We are controlled 24/7/365 by capricious pronouncements of practitioners of voodoo, the constitution be damned.

I know that many of our Founding Fathers were lawyers. They'd be sickened to see the mockery of the liberties they bequeathed us by pettifoggers.

You're fantasy has become the new reality. No other country can defeat us. We will defeat ourselves. Allowing inanity to prevail over reason and logic, not to mention the US Constitution, we have created Utopia where a de fact plutocracy rules the rest of us, ostensibly justified by relying upon wisdom of philosopher kings and their noble lies.

You're right, fiddletown, James Madison, the Second Amendment, and The Federalist No. 46 have been reduced to obsolesce. They have been replaced by philosopher kings who have and will continue to impose their versions of liberty upon the unwashed masses.

fiddletown, what role are you playing in the destruction of the America our parents knew?

BTW, tell me what you think you know about Marbury v. Madison. Apparently law schools don't always go with facts when legend works better.
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Old 08-18-2015, 8:49 AM
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^^ This.

SansSouci...another way of understanding what he's saying is: Elections have consequences. You bought something when it was legal. At some later date the Legislature passes a law that makes it illegal to possess past a certain date and requires you to sell, destroy or surrender (your choice) said item.

Your remedy is not through the courts after the fact; your remedy is through the representative government that enacted the legislation. If you are on the wrong side of that representative majority, it sucks. Sometimes deeply.

Trust me that it is only fear of losing reelection, not fear of the mighty 9th Circus that keeps our legislature from passing forfeiture laws or the Governor from signing them. They have put themselves in a tough spot since they would lose the support of some of their Union buddies if the law applied to everyone, and they risk having it struck down if it doesn't.

You may WISH that it was unconstitutional for the legislature to suddenly make something legal today illegal tomorrow. You may FEEL that it is an infringement on an enumerated right. You might even BE correct from a constructionist point of view...but that doesn't mean anything at all in the courts.

EDIT: [my "this" refers to fiddletown's last post...]
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Argue with me all you want but the "pussification" of America is not a positive thing.

Last edited by hammerhead_77; 08-18-2015 at 8:51 AM.. Reason: too too long to type
  #27  
Old 08-18-2015, 8:57 AM
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Absolutely. Also applies to CA.

If LA had a reasonable mayor, he'd veto unconstitutional city ordinances.

If CA had a reasonable governor, he'd veto unconstitutional state laws.

But sadly, neither will ever happen, because people don't want reasonable leaders. They want people that keep them "safe" and "secure".

https://www.schneier.com/blog/archiv...tics_of_3.html

We'll never gain any liberty back, only lose it, little by little. This isn't so much by design as just simply inherent to all systems of government. You can only hope to slow the rot, never stop (let alone reverse) it.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
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Old 08-18-2015, 9:01 AM
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hammerhead,

Actually, I was relying upon what was intended to be the predictability of the rule of law. Legislative changes were intended to be inconsequential upon the predicability of the rule of law. However, as early as Lincoln's attempting to justify dictatorial powers during the Civil War until FDR vanquished the US Constitution during WWII, the result has been capricious application of political agenda via auspices of courts of political agenda.

James Rickards, in his excellent, The Death of Money, described our depression as systemic as opposed to cyclical. He wrote that Americans have no clue of what will become law because law has been reduced to political agenda. I call it voodoo. The problem with our economy is practitioners of voodoo (politicians and lawyers) protecting plutocrats to the detriment of the unwashed masses (that'd be us).

There is a reason Americans consistently rank lawyers in the bottom third of America's most admired professions.

If Obamacare can regulate physicians' remuneration, the initiative process sure has hell ought to be able to regulate both lawyers' remuneration and what would trigger a lawsuit.
  #29  
Old 08-18-2015, 9:17 AM
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Quote:
Originally Posted by curtisfong View Post
...In his fantasy land, an opinion is justified if it has sound, logical, rational reasoning behind it.

In the real world, such an opinion is meaningless if the opposition argues from a position based on nothing but authority, no matter how unjust, irrational, or illogical.
Phooey! This isn't a philosophical discussion about the way someone thinks things should be.

The OP suggested using the constitutional prohibition on ex post facto laws as a basis upon which to challenge various gun control laws. Whether or not that could be a useful approach will depend not on some "Platonic ideal" understanding of "ex post facto." It will depend on how courts have actually applied that rule.

People who operate well in the real world understand that reality is what goes on in the real world. Other people who confuse reality with what goes on in their heads often don't get on very well in the real world.

Quote:
Originally Posted by SansSouci View Post
And that's the sad reality of our real world. We are controlled 24/7/365 by capricious pronouncements of practitioners of voodoo, the constitution be damned....
In the real world, things get done in court, in the legislatures and in the voting booth.

The ruling of courts affect the lives and property of real people in the real world. Laws enacted by legislatures are the bases upon which courts make their rulings (as well as prior court decisions). And the representatives voters put into office will do the things in legislatures which will get them elected and re-elected.

And those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

The reality is the we live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give you to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

The Founding Fathers set up our system --
  1. The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

    1. A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);

    2. Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;

    3. Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;

    4. A Constitution that could be changed, albeit with difficulty.

The system does allow for change, so you are free to try to generate sufficient support to put into place an alternate system which might suit you better.

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

It's up to us to use the available tools effectively in real world terms. If we're not getting the results we want, the fault lies not in our stars but in ourselves.
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Old 08-18-2015, 9:26 AM
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curtis,

Article VI, Section 2 makes the US Constitution the supreme law of the land. The 14th Amendment makes the US Constitution applicable throughout America. Hence, any law that violates the US Constitution is null & void. So any gun control law that is inconsistent with Madison's Second Amendment is null and void. If we had leaders of honor and character, we'd be living under the rule of law, which means the Second Amendment and not political agenda of the US Supreme Court would be controlling. As fiddletown eloquently pointed out, that would be fantasy. We live in reality in which we have no individual liberty. One governmental entity or another controls every aspect of our lives 24/7/365. That is fiddletown's reality. And he is right. Hell, we can't even take a leak unless a governmental entity has approved where we take leaks. In the city in which I live, I must first seek governmental approval before I can repair a water leak. That ideal of a nation of rugged individualists died with our Founding Fathers.

We haven't been a free people since 1913. We are continuing to lose liberties. At the rate we're going, we'll be in chains by the end of the decade. Philosopher kings, charlatans, and pettifoggers will devise pseudo-intellectualism (read: voodoo) to entice the unwashed masses into enslaving themselves.
  #31  
Old 08-18-2015, 9:30 AM
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Originally Posted by fiddletown View Post
It's up to us to use the available tools effectively in real world terms. If we're not getting the results we want, the fault lies not in our stars but in ourselves.
Those tools are increasingly inaccessible, for all the reasons I've already outlined many times before.

There is simply no incentive for people to fight for liberty, when they're consistently indoctrinated by the idea that they are under incessant assault from dangers that only an almost entirely despotic system of unquestioned authority can protect them from.

Our entire political system is built around the notion that only an ever exponentially increasing number of laws provide safety and security.

And when we assume that every conclusion come to by a court is, by definition, just, simply because the court is a system cobbled together by some sort of consensus, then we are in trouble, because the consensus is one built on nothing but hyperbole, lurid anecdotes, political maneuvering, and eyeball drawing fiction presented as "news".
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Lawyers and their Stockholm Syndrome
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Old 08-18-2015, 9:34 AM
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If we had leaders of honor and character
Such leaders are in-electable. And if they were actually elected, they'd be blamed for any number of "tragedies" that "could have been prevented" by (unjust) laws they either opposed or worked to repeal.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome
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Old 08-18-2015, 9:47 AM
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fiddletown,

You have nailed it with your:

"In the real world, things get done in court, in the legislatures and in the voting booth."

All three, especially courts, are political. Hence, were we to follow you line of thinking longitudinally, we'd arrive at the fact that we do not live in the republic bequeathed to us by our Founding Fathers, a system of government in which minority rights used to be protected. In your reality, and it is reality, we live in an oligarchy in which laws are enacted to protect and defend their status. Your reality was oh so eloquently detailed in Tony Coelho's, Honest Graft. In Tony's epic book, he detailed how politicians schemed to obviate Americans in the political process thereby assuring safe districts in which ordained politicians would always be reelected. And that is our reality. For the reality of our Founding Fathers no longer exists.

You are right in the our reality is anything but a land of the free. It is home of plutocrats that control us out of necessity.

I'm not sure whether you're a student of early American history and the construct of self-government. If you are, then you know that we are not governed. We are ruled. And that is your reality and mine.

Keep the Fed Reserve in mind while you read Thomas Jefferson's admonishment:

“If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property -until their children wake-up homeless on the continent their fathers conquered.”
---Thomas Jefferson---

I'd appreciate your proving the following quote false:

"There is hardly a part of the United States where men are not aware that secret private purposes and interests have been running the government."
---President Woodrow Wilson---

Self-government, like James Madison's magnum opus, is an illusion.

Tell me how a man with no provable past, with dubious political history was able to raise a half-billion bucks and defeat the Clinton Machine. Would you consider such a suspicious feat consistent with the republic created by ur Founding Fathers? Or would you go with Woddy Wilson's pronouncement? My money's on Woody.

We are not a constitutional republic. We are ruled by a plutocracy that uses the awesome power of government to protect it's interests and to control us.
  #34  
Old 08-18-2015, 10:00 AM
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Originally Posted by fiddletown View Post
Enjoy living in your fantasy world. What Born to Glock and others have described is how things work in the real world.

In the real world what matters is how courts have actually applied the prohibition in Article I, Section 9 of the Constitution on the enactment of ex post facto laws. The opinions of the courts on legal issues affect the lives and property of real people in the real world. Your opinions on such matters and $2.00 will get you a cup of coffee at Starbucks.

The Founding Fathers assigned to the federal courts, not to you, the power to decide cases arising under the Constitution (Article III, Sections 1 and 2):While you may be entitled to your opinion, it doesn't mean anything. The world will continue to go on about its business without regard to what you think.

On the other hand, many of the Founding Fathers were lawyers. Several were judges.
I like the cut of your jib, sir.

I also agree with your points thus far.
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  #35  
Old 08-18-2015, 10:00 AM
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...There is simply no incentive for people to fight for liberty, when they're consistently indoctrinated by the idea that they are under incessant assault from dangers that only an almost entirely despotic system of unquestioned authority can protect them from....
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Originally Posted by SansSouci View Post
...Philosopher kings, charlatans, and pettifoggers will devise pseudo-intellectualism (read: voodoo) to entice the unwashed masses into enslaving themselves.
And you have every right to withdraw behind your malignant grousing and unproductive invective. Of course, none of that helps anyone.

So while you sputter your discontent, others will be handling the matters in the real world.
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  #36  
Old 08-18-2015, 10:03 AM
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fiddletown,

In case your law school deceived you, Marbury did not create judicial review. Moreover, Dred Scott did not create ownership rights in human beings, nor did Plessy create separate but equal. All three were illegitimate political decisions that were devoid of legal foundation. You can add Roe and a whole lot more to courts defending political agenda under the auspices of law.

For law to regain moral foundation, lawyers and judges of honor and character (There has to be at least a few.) must demand disbarment and impeachment of scurrilous lawyers and judges.

BTW, Jefferson and Marshall were cousins. Marshall orchestrated Marbury because he wanted to elevate the court to the other two branches of government, which was contrary to the intent of our Founding Fathers. Marshall should have recused himself because he had signed Marbury's commission. When Jefferson go wind of Marshall's machinations, he told him that if he tried to screw with him, he'd send the US Army to to court to yank him right out of it. And to this day, lawyers have no clue of the actual facts of Marbury, yet they cite judicial review as though they think they know what they're talking about.

Taney, a Democrat, used Dred Scott as a political device to undermine Lincoln's political platform.

As Paul Harvey would say, now you know the rest of the story.
  #37  
Old 08-18-2015, 10:10 AM
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Originally Posted by fiddletown View Post
Phooey! This isn't a philosophical discussion about the way someone thinks things should be.

The OP suggested using the constitutional prohibition on ex post facto laws as a basis upon which to challenge various gun control laws. Whether or not that could be a useful approach will depend not on some "Platonic ideal" understanding of "ex post facto." It will depend on how courts have actually applied that rule.

People who operate well in the real world understand that reality is what goes on in the real world. Other people who confuse reality with what goes on in their heads often don't get on very well in the real world.

In the real world, things get done in court, in the legislatures and in the voting booth.

The ruling of courts affect the lives and property of real people in the real world. Laws enacted by legislatures are the bases upon which courts make their rulings (as well as prior court decisions). And the representatives voters put into office will do the things in legislatures which will get them elected and re-elected.

And those who tend to be the most dissatisfied with the way the process is working are forgetting their own role in the process. We select the government. How effective are you at influencing your neighbors, the people in your community, your co-workers, etc., to join you in selecting representatives who will further the goals and values important to you?

The reality is the we live in a pluralistic, political society, and not everyone thinks as we do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while we may be using the tools the Constitution, our laws and our system give you to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

The Founding Fathers set up our system --
  1. The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

    1. A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);

    2. Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;

    3. Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;

    4. A Constitution that could be changed, albeit with difficulty.

The system does allow for change, so you are free to try to generate sufficient support to put into place an alternate system which might suit you better.

Throughout our history there have been people who have complained that the actions of the federal government were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. Throughout our history there have been people who have complained that the actions of state governments were inimical to the founding principles of our Nation and inconsistent with the proper scope of government. That sort of friction will be common to any organized society. Our Founders left us with a particular framework and process (a federal system, checks and balances and separation of powers) for managing that friction.

It's up to us to use the available tools effectively in real world terms. If we're not getting the results we want, the fault lies not in our stars but in ourselves.
Quote:
Originally Posted by fiddletown View Post
And you have every right to withdraw behind your malignant grousing and unproductive invective. Of course, none of that helps anyone.

So while you sputter your discontent, others will be handling the matters in the real world.
Have you heard of Thomas Payne? Maybe not. He was of the same cloth of our Founding Fathers.

“It is the duty of the patriot to protect his country from his government.”
---Thomas Paine---

Wait, it gets better:

“When injustice becomes law, resistance becomes duty.”
---Thomas Jefferson---

While I know that your reality has become the reality foisted upon me and that I am powerless to seek justice as opposed to preservation of political agenda, it does not mean that I have to like it. Moreover, while I still have freedom of expression, I can try to post wisdom of our Founding Fathers and how the "legal" system demolished it.

You're 100% right, I am discontented with your reality. My discontent is exacerbated by the reality that it'll get far worse.
  #38  
Old 08-18-2015, 10:18 AM
SansSouci SansSouci is offline
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fiddletown,

Would you support a law creating jury nullification?

Would you support a law removing immunity from judges and prosecutors?

Would not a judge be principal to murder were he to award a child to a parent that subsequently murdered that child? The judge was proximate cause of the child's murder. There was credible evidence that the parent to whom the judge awarded custody was dangerous. So why shouldn't the judge stand trial for principal of first degree murder? Screwing up is not a defense to a crime. So what do you think should happen to such an grossly incompetent judge who was proximate cause of a child's murder?
  #39  
Old 08-18-2015, 10:33 AM
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Originally Posted by SansSouci View Post
fiddletown,

In case your law school deceived you, Marbury did not create judicial review. ....
I'm fully aware that Marbury did not create judicial review.

Judicial review was not an expansion of the power of the courts. It was, at the time of the framing of the Constitution understood to be a natural consequence of the exercise of judicial power to decide cases arising under the Constitution, For example, see Prakash, Saikrishna, and Yoo, John, "The Origins of Judicial Review," 70 U. Chicago Law Review 887 (2003):
Quote:
...there is a wealth of evidence that the Founders believed that the courts could exercise some form of judicial review over federal statutes. Dozens of delegates to the federal and state conventions understood that the proposed Constitution would authorize judicial review of federal legislation. Moreover, in pamphlets and the popular press, commentators on the Constitution likewise wrote that such review would exist....
As professors Saikrishna and John note later in that article (pg 914):
Quote:
...A written constitution creates a structure in which individual branches of government may not change its provisions unless acting through the specific procedures, established in the document itself, for amendment or alteration....judicial review naturally flows from an understanding of the separation of powers as creating three branches of government that bear independent obligations to interpret and enforce the Constitution within their respective spheres. Within this scheme, the Article III judiciary must refuse to enforce legislation that violates the Constitution....
Marbury reflects an interesting irony. A "Cliff Notes" description of the case is as follows:
  1. Marbury was appointed a justice of the peace for the District of Columbia, but James Madison, then Secretary of State, refused to deliver the documents making that appointment effective.

  2. Marbury asked the Supreme Court to issue a writ of mandamus (a court order to a government official directing the official to perform an particular act) directing Madison to deliver the documents.

  3. Marbury's request was brought under a provision of the Judiciary Act of 1789, which purported to authorize the Supreme Court to entertain such a request and to issue such a writ.

  4. However, the Supreme Court declined to issue the writ because it decided that it didn't actually have the power to hear Marbury's request, nor to issue such a writ upon such a request.

  5. The Supreme Court concluded that provisions of the Judiciary Act of 1789 were not valid to the extent those provisions purported to expand the original jurisdiction of the Supreme Court beyond what the Founding Fathers specified in Article III of the Constitution the Supreme Court's original jurisdiction would be.

  6. In other words, in Marbury the Supreme Court rejected an attempt by Congress to expand the power of the Court. Essentially, Congress could not give the Supreme Court more power than the Constitution gave to the Supreme Court.

  7. Thus in Marbury the Supreme Court applied the doctrine of judicial review to scale back its own power.
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Last edited by fiddletown; 08-18-2015 at 8:59 PM.. Reason: correct typo
  #40  
Old 08-18-2015, 11:05 AM
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fiddletown,

Would you support a law creating jury nullification?...
Jury nullification is a fact of life. It flows naturally from the Fifth Amendment prohibition on double jeopardy. Thus in a criminal case the prosecution may not appeal a jury verdict of acquittal, even when that verdict is completely unsupported by the law or the facts.

Jury nullification can be a two edged sword. Some may look on it as a check on government by permitting a jury to acquit someone who might be considered a victim of government excess. But during some of the "bad old days" of the post Reconstruction South and some of the early days of the Civil Rights Movement, juries regularly practiced nullification to let off various murders of Blacks, participants in lynch mobs and the like. We've certainly seen perversion of jury nullification -- at times when no White jury would convict a White man of a crime against a Black (or Native American or Asian or Hispanic) no matter what the law or the facts were.

Quote:
Originally Posted by SansSouci View Post
...Would you support a law removing immunity from judges and prosecutors?...
Judicial Immunity

With regard to judicial immunity, you're talking about a principle which has been accepted for hundreds of years and in, at least, the majority, if not all, Western judicial systems. Note, for example, that Floyd and Barker, cited in Bradley (see below), dates from 1608.

Second, judicial immunity grows out of the special roles that judges and the courts serve in society. How well could we expect the judicial system to function if a judge were subject to a civil suit for damages by every disappointed litigant adversely affected by a ruling? What would be the result of judges having an incentive to make their decisions colored by a desire to avoid being sued?

Third, judicial immunity is a well established reality and is unlikely to be changed any time soon.

Some Supreme Court opinions on judicial immunity --
  • Mireles v. Waco, 502 U. S. 9 (Supreme Court, 1991). As the Court notes (502 U. S. 9, at 9--10):
    Quote:
    A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e.g., Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985); Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1872)....
  • See also Bradley v. Fisher, 80 U.S. 335 (Supreme Court, 1871, at 347--348, footnotes omitted):
    Quote:
    ....The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well ordered system of jurisprudence. It has been the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, 'a deep root in the common law.'

    Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608, where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records, except before the king himself, and it was observed that if they were required to answer otherwise, it would 'tend to the scandal and subversion of all justice, and those who are the most sincere, would not be free from continual calumniations.' ....

Prosecutorial Immunity

Exactly what are you asking about. If such immunity exists, it's clearly limited and qualified.

Consider the infamous Duke University lacrosse case. Durham County District Attorney Mike Nifong wrongfully prosecuted members of the Duke lacrosse team for rape. The charges were bogus, and Nifong acted improperly. As a result a number of parties, including Durham County and Nifong, were sued. The court allowed the claims to go forward over the objections of the defendants; and the claims were ultimately settled in the favor of the plaintiffs.

Nifong was also disbarred.

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Originally Posted by SansSouci View Post
Would not a judge be principal to murder were he to award a child to a parent that subsequently murdered that child? The judge was proximate cause of the child's murder. ...
That's a matter presently in dispute. There is only limited information publicly available. The issue will need to work through the process.

I know that you won't be satisfied with my answers. Insofar as you have asked for my personal views, they are none of your business. I have answered based on reality.

If enough people are sufficient dissatisfied with the current state of affairs, things could be changed legislatively.
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