illegal search a seizure question

[vranasaurus]

If a law is passed and you violate it it by possessing a banned firearm you will certainly get your due process in the form of a criminal trial.

What you do today can't be made illegal tommorow but what you do tommorow can be made illegal today.

Here's an example.

Say you possessed a drug on 2 April and there was no law against said possession.

On 3 April a law goes into effect that bans the possession of said drug.

You still possess said drug on 4 April.

The conduct that will cause you to be charged with a crime is the possession of said drug on 4 April. Just because you legally possessed and used said drug only two days before doesn't mean you can continue to do so after the ban is enacted.

If you were no longer in possession on 4 April you would not be charged with a crime.

If it were ex post facto it would be passed on 3 April and make the conduct on 2 April illegal.

As long as a law makes some future conduct illegal it does not violate the ex post facto clause.

And if they sieze said drug pursuant to a criminal proceeding after the law has been enacted then they don't have to reimburse you for it.

Due process requires a hearing, and in most cases a trial and adjudication by one's peers. Further, confiscation serves no "public use". No gun control act has ever gone so far as to try and confiscate firearms. When police seized weapons in New Orleans after Hurricane Katrina, injunctive relief was immediately sought in Federal court. The Federal court responded by forcing the NOPD to return those firearms to their rightful owners. The people who had firearms confiscated, would be able to sue the NOPD in Federal court, and probably win, if they could prove harm was done to them by an unlawful confiscation.

The reason they had to return the weapons is because they were not confiscated pursuant to any law. Had they been confiscated pursuant to a criminal action the NOPD would have been justified in doing so. As in the law regarding weapons possession was vilated so we took the weapon and chrged the offender. The due process would come as a criminal trial. Most states have laws regarding forfeiture of weapons used in crimes or possessed illegally.

These weapons were not confiscated because the possessors violated the law but because the NOPD did so because they thought they should which is not contained in any law.

Just because no gun control act has ever gone that far doesn't mean it wouldn't be legal if done. The reason no gun control law has ever gone that far is because such an action makes it almost completely unpalatable. The best argument against such laws is not some misguided interpretation of the ex post facto clause, very similar to the one the courts have rejected regarding the lautenburg amendment, but an argument that such a law violates the second amendment.

[pendennis]

There are a plethora of laws concerning use and possession of drugs. Until the 20th century, it wasn't illegal to use cocaine or opium. However, Congress used the commerce clause to regulate and control drugs of many types, effectively removing them from private or state control.

If you were a drug addict on April 3, your addiction would soon use up your supply, and whether you had drugs on April 4 would become a moot point, since the April 3 stash would be used up very quickly. After April 3, any procurement resulting in possession and/or usage would certainly result in prosecution. There is also the caveat, that some probable cause of illegal behavior would have to be known before anyone can be charged with anything. Also, no one knows how long you had the illegal drugs, since there's generally no manufacturing tag on marijuana, heroin, or crack cocaine.

Weapons manufacturers comply with a long list of Federal and state laws, which is one reason why there are fewer today than thirty years ago. The courts have generally been on the side of the manufacturer here. They produce a legal product, which for the most part is used for legal purposes. Courts have long taken a dim view of holding manufacturers responsible for legal products used in a legal manner. That's also why you can't be held liable if a person steals your guns and kills someone with it provided you report the theft(s). Courts have even held that you can't be held liable even if you don't report the theft.

Bills of attainder punish a person, or group of persons, by making something illegal, and bypassing the court system. If Congress and the President want to ban and seize a particular type of weapon, then they can certainly pass a law attempting to do so. However, a law suit would be filed in Federal district court before the ink has dried on the paper.

Congress passed a law concerning the AIG bonuses. They knew when they passed it, that it was a bill of attainder and an ex post facto law, since they knew and approved of the bonuses well in advance of March 2009. Their only intent was to pass a "we care, and we're mad as hell" law, and kick the can into the court system. They've targeted a specific group here, and courts have always held that this type of law was a bill of attainder.

[zxcvbob]

You're all (well, most of you) overlooking the "takings clause" in the 5th Amendment.

Also, I don't think you really have to worry about the military confiscating weapons from civilians. If that order is ever given, the military will collapse because enough will refuse to follow such an illegal order. National Guard is a little more iffy.

The folks you need to watch out for are the thousands of federal (and sympathetic local) police, such as the FBI, ATF, Marshalls, Secret Service, etc. But there's not enough of them to be everywhere at once.

[Chuckusaret]

Back to the "So called up and coming AWB". I do believe we have no other choice than to get rid of the Obamanation and his staff as soon as possible. In my circle of friends, mostly retired military, the majority believe we are going to have major civil unrest in the near future because of the direction the Obamanation group is taking America. They also believe that he will first take as many weapons out of the hands of the civilins as possible to prevent any type of resistance. I am a law abiding citizen and will turn my guns over to them bullets first, all 32 surplus ammo cans containing about 15,000 rounds.

[Mike Irwin]

Ah, I LOVE the smell of a good "OMG!!!! OH NOES!" thread in the making. Smells like paranoia.

And then we get to the point where we start coming up with these WONDERFULLY clever nicknames for politicans we don't like...

Obamanation...

Hitlery...

Shrub...

McStain...

And so forth and so on...

If that's the best and most effective way you can find to express your feelings on the subject, how can we tell the difference between the adult you supposedly are, and the internet associative "5-year-old on the elementary school playground"?

No matter how wonderously clever you THINK you are, no matter the depth of your moral outrage and angst, no matter how much of a patriot you imagine you see looking back from the mirror in the morning...


CHILDISH NAME CALLING HAS NO PLACE ON THIS FORUM.

You're (hopefully) adults for God's sake, so try acting like rational adults. At the very least, it's a violation of our rules against invective.

Now, Chuck, don't for a moment think I'm picking on you.

You simply were in the wrong place at the wrong time and you're the one on the receiving end of my dissatisfaction. You have a lot of brethren out there.