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In this article we are going to examine the court determinations relative to the ex post facto nature of the Lautenberg Amendment. First, what is ex post facto? According to legal-explanations.com: adj. Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed. Such laws are specifically prohibited by the U.S. Constitution, Article I, Section 9. Therefore, if a state legislature or Congress enacts new rules of proof or longer sentences, those new rules or sentences do not apply to crimes committed before the new law was adopted.In fewer words: - You can't criminalize behavior performed before the passage of a new law.
- You can't increase penalties for a criminal act after the date of the act.
So, how does Lautenberg fit into this? The Lautenberg Amendment makes prohibitted persons out of those who have been convicted of misdemeanor domestic violence, no matter the date of act or conviction. The Congressional Research Service wrote a report in 2001 addressing Constitutional challenges to Lautenberg in Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment. The report explains that Lautenberg did not violate the Ex Post Facto Clause because it was criminalizing new behavior: possession by those convicted of misdemeanor DV. It was not criminalizing possession before the effective date of Lautenberg. What the report fails to address is the concept that Lautenberg was increasing the penalties of a misdemeanor DV conviction after the date of the act and even the conviction. This would be a mute point if you could make a point that the loss of rights was not a penalty of conviction. That would be a difficult argument to make as Lautenberg effectiveness is predicated on the misdemeanor DV conviction. It is on this second definition that the Lautenberg Amendment violates the Ex Post Facto Clause for those who were convicted for acts before the 1996 enactment of the Lautenberg Amendment.
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Written by beerslurpy on 2006-05-13 01:05:56
This issue was before the courts lots of times on the "felon in possession" cases after they created the idea in 1968 and again after they changed it in 86 and 96. It simply boils down to "If condition A is true then B is illegal" where A is "being a person who did X in the past." Also, there were a ton of cases (I can find at least 3 personally) in 97 that raised this exact issue and each time they held that it wasnt ex post facto.
You basically cannot kill Lautenberg on the principle that it is a punishment after the fact without killing the entire concept of "prohibited persons," including felons, who were not prohibited from owning firearms until after the acts creating the prohibition. It is pretty much unanimous circuit opinion and would have to be reversed by the supreme court.
The most logical answer IMO is that prohibitions on weapon possession need to be imposed DURING SENTENCING. Any other time is inappropropriate, as it is a punishment, plain and simple.
Firearm prohibitions should:
-only be imposed after a conviction
-for a crime that suggests a compelling public benefit from such a prohibition, subject to 8th amendment scrutiny by higher courts
-not be imposed legislatively on top of what a court imposes- this violates separation of powers and due process
-be for limited terms except in extreme circumstances, just like we do with prison sentences | Written by beerslurpy on 2006-05-13 02:35:33
Oh yeah, here you go, from NAGE v Barrett (1997 challege to lautenberg in the 11th circuit- mine) where they discuss why it isnt ex post facto. Basically the idea is that they are punishing you for doing something now, even though it draws upon "antecedent facts" as elements of the crime.
There is other stuff in the decision where they toss out a variety of other claims because "the case does not deal with a fundamental right" but reading those would probably make you puke. Without further ado:
Quote:
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 section 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 section 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 Got v. Hart, 260
U.S. 427, 4437, 43 S.Ct 151, 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."). Finding defendants' argument and the Brady
opinion persuasive, the court holds that because section 922(g)(9)
does not criminalize conduct that occurred prior to its effective
date, it is not retrospective and thus not violative of the Ex Post
Facto Clause. [footnote 18] Accordingly, defendants are entitled to
dismissal of plaintiffs' claims to the extent that those claims are
brought under the Ex Post Facto Clause.
| Nage does not address second defn of Ex
Written by admin on 2006-05-19 13:18:33
It is true that the L conviction is for an offence that occurs after the enactment of Lautenberg. But NAGE never addressed the concept that the loss of rights is a increased punishment inflicted after the date of the predicate offense. |
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