illegal search a seizure question

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Forget the manpower for the actual seizures which would be incredible. The courts and prisons are not up to the task. Hopefully there would be numerous constitutional challanges to the courts by any subjects arrested for that kind of violation. Maybe the ACLU would be forced to defend gun owners rights for a change.

I don't see it happening. They'll try something but nothing that extreme.
 
our government has more important things to worry about then whether or not to put a ban assault weapons i think.
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At least for the moment people will be calling for their heads if they aren't tinkering with the economy/banks/AIG and related companies.
 
Even if Congress were to pass a new version of the so-called Assault Weapons Ban, any weapon or part of a weapons system already manufactured would remain legal to own.

There is a clause in the U.S. Constitution, Article I, Section 9, Paragraph 3, which states - "No bill of attainder or ex post facto Law shall be passed."

A bill of attainder punishes specific individuals and/or groups. This is tantamount to conviction without a trial.

Ex post facto, literally means "enacted after the fact". In other words, what is legal today, can't be legislated illegal tomorrow. Your AR15, and its 30 round magazines which are legal today, can't be taken away from you tomorrow, just because Congress passes a law. They would only become illegal if manufactured after the law went into effect. There are a lot of AR-15's out there manufactured prior to 1994, the last time Congress passed a restrictive gun law. Those guns were legal to own after the law went into effect. Colt, for example, just couldn't manufacture AR-15's with flash suppressors after the law was passed in 1994.

To search your home for illegal items (contraband, drugs, illegal weapons, etc.), authorities must have probable cause that a crime has been committed, and they must attest to this in front of a judge. The judge has the option to sign a search warrant for execution by the police. Search warrants have to be specific. In other words, the police can't be on a hunting expedition. For example, if the search warrant calls for searching for drugs, the search area must be specific, and is limited to that area.

If the police search an area not in immediate control by the suspect, that area is usually off limits. If the police specify the living room in the warrant, they usually can also search the garage if the garage isn't accessible from the living room.

The above are generally true. However, there are specific instances where courts have interpreted search warrants differently in similar cases. The law is a funny (odd) thing at times.
 
Ex post facto, literally means "enacted after the fact". In other words, what is legal today, can't be legislated illegal tomorrow. Your AR15, and its 30 round magazines which are legal today, can't be taken away from you tomorrow, just because Congress passes a law. They would only become illegal if manufactured after the law went into effect. There are a lot of AR-15's out there manufactured prior to 1994, the last time Congress passed a restrictive gun law. Those guns were legal to own after the law went into effect. Colt, for example, just couldn't manufacture AR-15's with flash suppressors after the law was passed in 1994.
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I'm pretty sure ex post facto doesn't apply here, other than protecting those that owned the items prior to a ban from prosecution (obviously). But I don't think it covers their continued ownership, as a ban on ownership and accompanying requirement to get rid of the offending property doesn't qualify as an actual judicial punishment.

Are you sure the previous AWB didn't grandfather in the old weapons out of political expediency, rather than Constitutional necessity?
 
It's not ex post facto because it wouldn't make your prior possession illegal.

Ex post facto applies when the government makes a law that what you did in the past is now illegal. In order to not be ex post facto the prohibited conduct occurs after the passage of the law.

If the prohibited conduct occured before the passage of the law then it is ex post facto.
 
The Internet is rife with examples of govt officials, at all levels of enforcement entering people's homes, for reasons they thought well and true. Only to later discover that they were in error.The sad thing is the number of times these incidents resulted to damage and suffering to the people and property involved.
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That is a great point +1.
 
The sad thing is the number of times these incidents resulted to damage and suffering to the people and property involved.
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I would say the saddest thing is the complete lack of consequences to the perpetrators.
 
If a new federal law is ever passed which doesn't grandfather in existing "assault weapons":rolleyes: it would be illegal for the regular military to come and search houses. There is law called posse commitatis (sp?) which is suppose to prevent the regular military from being used for law enforcement purposes. The states could use the national guard if not employed in the service of the federal government. I believe that is what was done in New Orleans, but I'm not 100% certain of that. I'm sure others will provide more concrete information.

Of course, if the feds want the states to use the national guard to conduct searches, then they can do what they always do to try and make states comply. "If you don't do what we strongly suggest that you do, you won't be getting any highway funds or education funds from us". That typically gets most states to bow down and lick the boots of the feds.
 
First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.

Despite what some amateur lawyers on the Internet think, its not an ex post facto law if, for instance, a law was passed banning the future possession of some fire arm that is currently legal. It would be ex post facto to punish the possession of it prior to the law being enacted.

The military will do what it is told to do. It is not like BHO is going to stand up and say, "You know, I think I will federalize the NG and send them out to confiscate guns from law abiding citizens today". There are plenty of ways it could be justified that would get enough popular support that it would go forward.
 
There are any number of means (constitutionality notwithstanding) at the government's disposal to conduct widespread searches for "illegal" firearms should the government so choose. There are several existing federal agencies with purview whose ranks could easily be and quickly inflated - agencies like BATF, DEA, FBI, ICE, etc. These new "agents" would not be constrained by posse comitatus and would be accountable only to the executive branch.
 
First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.
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If the government confiscates private property, they have to pay for it. That's why they grandfather it.
 
When the GCA of 1968 was passed, it mandated that certain guns be registered within a certain time frame (e.g. the Marble's Game Getter). If the gun was not registered within that time frame, it could never be registered. However, it was not illegal for the owner to possess, and use the gun. The transfer of those guns was "outlawed". Since those guns were legal when they were purchased, the GCA of 1968 could not make ownership illegal, only transfer if not registered. This was discussed in quite a bit of detail after 1968. There have also been innumerable articles written on the subject before the advent of the internet.

The AWB of 1994 did not make possession of any pre-1994 guns, high-cap magazines, flash hiders, etc., illegal. The thing that changed was that those guns and accessories which fit the parameters of "assault weapons", could not be manufactured after the act was signed and took effect. That was not an expedient. The fact is, those pre-1994 guns could not be retroactively made illegal. If you owned 30-round mags for your AR15, those mags were still legal in 1995. They just couldn't be manufactured. The AWB also did not make it illegal to sell those original items after the act's passage.
 
First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.

Despite what some amateur lawyers on the Internet think, its not an ex post facto law if, for instance, a law was passed banning the future possession of some fire arm that is currently legal. It would be ex post facto to punish the possession of it prior to the law being enacted.

The military will do what it is told to do. It is not like BHO is going to stand up and say, "You know, I think I will federalize the NG and send them out to confiscate guns from law abiding citizens today". There are plenty of ways it could be justified that would get enough popular support that it would go forward.
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The punishment by law, without trial, is a bill of attainder. Those too, are unconstitutional.

The Guard and it's various components could only be nationalized in the event of a nationwide emergency. If the Feds attempted to browbeat a governor into calling up the guard for illegal purposes, and that's what confiscaction would be, several Federal district courts, and a slew of state courts, would issue permanent or temporary injunctions to prevent the Guard from being used for unconstitutional purposes.
 
The Fourth Amendment reads thusly:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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As yet, there is no pending assault weapon legislation at the federal level. However, assuming a future total ban with no grandfathering, what could happen hinges heavily upon whether or not the courts consider the fact that you bought an assault weapon at one time "probable cause" that you still possess it. If they do, law enforcement could trace all assault weapons and go around searching people's homes for them. If they don't, the most law enforcement could do is what's called a "knock and talk." If they do that, simply tell them you sold the gun a while back at a gun show, you do not consent to any searches, and you do not care to discuss the matter any further without an attorney present. That will get rid of them.

Note that the above details what law enforcement could do. What they would do, IMO, is simply get rid of them through attrition by seizing them whenever they came up, as another poster has stated.
 
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