Legal Challenge to Federal Gun Law

J

jselvy

New member
Ladies and Gentlemen of the Forum,

Have the various gun regulations ever been challenged on the grounds that hey interfere with the legal execution of the duties of a militiaman?
Forgive me for not having the references to hand as I am outwith the U.S. and separated from my library.
The Second Amendment clearly states that "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This indicates both the existence of the militia of the various states and the individual right to arm oneself.
The Militia Act of 1792 indicates that the militia is made up of citizens aged from 14 (I think) to 45, who are residents of the various states.
Several of the founding fathers in the federalist papers and other writings used for legal interpretive purposes indicate the need for a militiaman to keep a certain amount of supplies on hand (one pound of powder and four pounds of lead). Inferring that a duty is extant without the state needing to call up said militia.
The NFA unlawfully interferes with this duty to procure effective tools for militia use.
The GCA prevent whole bodies of militiamen from carrying out their duties as aforementioned. It also introduces a "sporting test" which has no real bearing on the duties of the militia as set forth in the preceding documents.
The BATFE is a federal hindrance to the duties of the militiaman by interfering with the acquisition of supplies that are the default duties of the militiaman in absence of immediate orders from the state.
Lautenberg also prevents whole bodies of militiamen from performing heir duties as outlined in the federal documents as mentioned earlier.
Therefore, it appears to me that these laws are Prima Facia invalid as they directly contradict previous Federal Law and Illegally regulate the militia of the Various States.

Any comments?

Jefferson
 
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The law that originally was known as The Lautenberg Amendment would appear to be an ex-post facto law, a type of legislation specifically precluded in the wording of The Constitution.

That being said, there it stands, it's legislative "brilliance and virtues" plain for all to see. Go figure.
 
The law that originally was known as The Lautenberg Amendment would appear to be an ex-post facto law
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Uhmm... That was a misunderstanding that I had as well till I was corrected.

An Ex-Post Facto law, is one that make a legal action illegal after you have done it. Lautenburg does not do that. It merely changes the penalty for an illegal act. Per several lawyers I have discussed this with that is not an Ex-Post Facto law.

I do not like the Lautenburg Ammendment nor do I think it is fair changing the penalty like that but my opinoins mean little.

NukemJim
 
NukemJim wrote, quoting my post:Quote:
The law that originally was known as The Lautenberg Amendment would appear to be an ex-post facto law

Uhmm... That was a misunderstanding that I had as well till I was corrected.

An Ex-Post Facto law, is one that make a legal action illegal after you have done it. Lautenburg does not do that. It merely changes the penalty for an illegal act. Per several lawyers I have discussed this with that is not an Ex-Post Facto law.

What was that old saw, something about "What goes around, comes around", or words to that effect.

Lautenberg created, after both the fact and the act, a penalty for a minor crime, previously applicable to situations involving felony convictions, and or actions much more serious in nature, as least that is my understanding of the thing. That strikes me as a hell of a lot more than "merely changes the penalty for an illegal act". Of course, I'm not a lawyer, nor have I ever played one on television.

Actually, I thought that the entire thing was sort of funny, what with, as I remember, the fuzz supporting Lautenberg, until it turned round, in the process biting some of that group roundly upon their asses. Seems to me, if memory serves, that I saw and heard at least some of the crocodile tears falling.
 
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Etymology: ex postfacto: 1632, from M.L. ex postfacto "from what is done afterwards."

Since the phrase is both a legal term and a Constitutional term, the meaning is not necessarily the same. Consider these two definitions:

From Law.com: ex post facto
adj. Latin for "after the fact," which refers to laws adopted (a)after an act is committed making it illegal although it was legal when done, or (b)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.

From Lectric Law Library: EX POST FACTO - Term used to designate action taken to change the effect given to a set of circumstances. This action relates back to a prior time and places this new effect upon the same set of circumstances existing at that time. Ex post facto laws are prohibited by the U.S. Constitution.

Not every change in a convicted person's situation violates the Ex Post Facto Clause. A law implicates the Ex Post Facto Clause only if it (a)criminalizes conduct that was not a crime when it was committed, (b)increases the punishment for a crime beyond what it was at the time the act was committed, or (c)deprives a person of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-43 (1990). Courts have held that legislation may lawfully impose new requirements on convicted persons if the statute's 'overall design and effect' indicates a 'non-punitive intent.' United States v. Huss, 7 F.3d 1444, 1447 (9th Cir.'93).

It seems to me that stripping a right is in fact a punitive effect of the Lautenberg amendment, which according to the second definition (Lectric Law Library) would trigger the constitutional prohibition.

Side note: While it may have seemed legal before Parker, this case sheds a whole new meaning upon Lautenberg.

18 USC §922(g)(9) says: "It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

This is one of the areas that I believe would be ripe for attack under Parker, as it is now
 
For anything to be done the SCOTUS needs to affirm the ruling in Parker.

On the other hand precedent already exists that states the Lautenberg amendment does not violate the ex post facto provision of the Constitution if it meets certain tests. However there are some exceptions to that within the rulings against ex post facto pertaining to Lautenberg. So far none of the cases have met those exceptions.
 
Don't be surprised. SCOTUS did away with the protection against double jeopardy by allowing the Feds to prosecute if you're found innocent in a State court, or to prosecute you again after you have been found guilty and served your sentence. Anyone who doesn't realize that the BOR has been completely traduced and usurped has been asleep for the last 50 years.
 
An Ex-Post Facto law, is one that make a legal action illegal after you have done it. Lautenburg does not do that. It merely changes the penalty for an illegal act.
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Changing the penalty is no big deal; they can say that jaywalking is a capital offense tomorrow. However, if they round up everyone who was already convicted of jaywalking and execute them (because, after all, the new penalty is death even if it wasn't previously), that's where the law fails the constitutional check, IMHO.

I'd be grateful if someone could point out my logical error, if any.
 
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