Just got some really bad news

[Bartholomew Roberts]

Eghad sorted out the legalese nicely. Some could (and have) argued that the ex post facto penalty in Lautenberg is the denial of Second Amendment rights for a crime that occured in the past. In effect, the penalty is being enhanced after you have already been convicted of the crime. So far that argument has not been successful.

The link gc70 gave has some excellent examples of precedent and legal reasoning explaining the distinction Eghad just wrote:

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.

 

[jimpeel]

The courts tortured logic on 922(g)(9) was that it did not fit the definition of ex post facto because the punishment the law metes out as a result of a prior conviction is not ex post facto. So if the law takes a prior conviction and tacks on an additional prohibition as a result of that conviction the court does not see that as further punishment for that offense. What a bunch of idiots. If the law did not impose the restriction at the time of conviction then the addition of that prohibition at a later date has to be ex post facto.

d. Ex Post Facto

The United States Constitution prohibits Congress from passing
an ex post facto law. U.S. Const. art. I, section 9, cl. 3. "To
fall within the ex post facto prohibition, a law must be
retrospective -that; is, 'it must apply to events occurring before
its enactment' -and it 'must disadvantage the offender affected by
it' by altering the definition.of criminal conduct or increasing
the punishment for the crime." Lynce v. Mathia -- U.S. --, --, 117
S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (quoting Weaver v. Graham,
450 U.S. 24, 28-29, 101 S.Ct 960, 964, 67 L.Ed.2d 17 (1981)).
Plaintiffs' claim that section 822(g)(9) violates the Ex Post Facto
Clause fails because section 922(g)(9) is not retrospective.

Plaintiffs' argument that section 922(g)(9) is retrospective
is based on the fact that section 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 section 922(g)(9). Defendants
counter this argument by pointing out that the activity prohibited
by section 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 section 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 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.

 

[jimpeel]

Bartholomew Roberts

In the cited analysis, they state the following:

Reviewing courts have rejected these challenges to the Lautenberg Amendment, determining that its provisions fall within acceptable institutional parameters. Regarding the Commerce Clause, courts have held that the law contains an express jurisdictional element requiring a finding that the firearm in question was possessed in or affecting commerce, or was received after having been shipped or transported in interstate or foreign commerce, obviating the concerns at issue in United States v. Lopez.

So if the person who wishes to own a firearm were to manufacture their own weapon and have it serialized and recorded by BATF&E could they not then be able to own that firearm even though they had a conviction that would fall under Lautenberg?

 

[NukemJim]

if the person who wishes to own a firearm were to manufacture their own weapon and have it serialized and recorded by BATF&E could they not then be able to own that firearm even though they had a conviction that would fall under Lautenberg?

IANAL

I doubt it very much. The courts in many cases involving the "interstate commerce clause" have ruled many different things to be fungible.

Fungible (Law) Returnable or negotiable in kind or by substitution, as a quantity of grain for an equal amount of the same kind of grain.

From the American Heritage Dictionary

This is how the Medical Marijhuana case was ruled upon. Even though the MJ was grown, harvested, processed, distributed, sold and consumed in California, the USSC ruled that it affected interstate commerce.

Like it or not, fair or not, logical or not that is the way the courts system has ruled repeatedly going back about 60 years. See Wickard vs. Filburn.

NukemJim

 

[Bartholomew Roberts]

So if the person who wishes to own a firearm were to manufacture their own weapon and have it serialized and recorded by BATF&E could they not then be able to own that firearm even though they had a conviction that would fall under Lautenberg?

Well, you have to remember that case is from the mid-90s. The first thing I would want to do is see if courts have broadened or narrowed the rule since then. I would also want to see if anybody has tried that approach.

Even if nobody has tried this approach, I would still be concerned about how the later decision of Gonzales v. Raich changes the playing field since it addresses the commerce clause and happened after this case.

In Gonzales, the Court ruled that medical marijuana was a commercial activity and so could be subject to aggregation* (like Wickard v. Filburn) to determine if it impacted interstate commerce. There doesn't even have to be an actual aggregate effect - Congress just has to have a rational basis to believe there could be one. Scalia went even further and argued that regulation here was justified by the necessary and proper clause and they didn't even need to consider whether it substantially effected interstate commerce.

*Aggregation is the concept that while you making a firearm in your own state for your own use might not substantially effect interstate commerce, if everyone did that it would effect interstate commerce and therefore Congress can regulate your behavior too. It comes from the Wickard v. Filburn case and was part of the law covering the Commerce Clause for decades until Lopez removed that test from certain circumstances involving non-commercial activity.

The problem a Court would have here is that Lopez found the Gun-Free School Zones Act to be the type of non-commercial activity not subject to aggregation - so it might work; but the Court also later upheld a later Gun-Free School Zones Act just because Congress added findings showing how they thought it affected interstate commerce. So I would want to look at what findings Congress included with the Lautenberg amendment. In any case, if you did win, you could bet Congress would be rewriting the Lautenberg Amendment to include more detailed findings right after that.

 

[allenomics]

It sounds like you might need the help of an attorney to advocate for you.

 

[jimpeel]

Basically, it sounds as though they would say that the steel used to manufacture the one-of-a-kind firearm had previously traveled in interstate commerce so the end product would have an effect on interstate commerce. I guess it turns out that the interstate commerce clause was the worst clause written into the Constitution and also the one that has been the most abused.

 

[IdahoG36]

or even having a friend buy the rifle for me

That could be bad news for your friend if the feds found out.

 

[workinwifdakids]

or even having a friend buy the rifle for me

At that point you'd go from a young man with an erroneous domestic dispute infraction on his record to a young man in prison on a real federal weapons charge, and a friend who chose to turn state's evidence rather than go to prison, too.

If you plan to violate federal law, I'd recommend not posting it on the internet.

 

[Wuchak]

Reminds me of the case I saw a while back where a guy went out for some drinks to celebrate the birth of his daughter in the late 1980's. On the way home his friend who was driving him pulled over to the side of the road so the guy could take a leak. A cop happened to drive buy and gave him a ticket for public indecency. Fast forward 20 years and the state the guy lives in passed a retroactive sex offender registry and that public indecency charge put him on the list. Worse yet is his house is too close to a school so he was being forced to sell his home and move.

 

[cold dead hands]

If you plan to violate federal law, I'd recommend not posting it on the internet

If you actually took the time to read all of his words, he said he wasn't going to violate the laws. Reading is your friend.

That could be bad news for your friend if the feds found out

See above comment.

He said...

I thought about a gun show or even having a friend buy the rifle for me but I just can't for some reason I am one of those people who just has a really hard time doing something shady like that.

There, now you can re-read it for yourself. Part of participation involves paying attention to ALL of the words, not just the ones that caught your eye at first glance.

 

[Josh70]

Hey thanks cold for clearing that up.

I would never do it that way because it would just end up screwing me over a lot more and my morals wouldn't let me do something illegal I mean hell my morals got me into trouble in the first place for yelling at the guy harrasing my sister and then just being willing to plead guilty because I knew I was.