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Old March 18, 2013, 11:09 AM   #95
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,750
Originally Posted by scpapa
Does this mean that if Congress were to pass more laws similar in nature to the Lautenberg, incrementally referencing "lesser" crimes, eventually you could be a prohibited person because you paid a speeding ticket 20 years ago?...
  1. We need to understand that not every bad law, stupid public policy or outrageous act of the government is unconstitutional. Congress could in theory do all sorts of unwise, or downright stupid, things that will be entirely constitutional. (And in theory there are probably things the Congress could do that would be very good to do, but which it can't do under the Constitution.) That's one of the reasons it's important to pay attention to who we elect and to participate in the political process. The Constitution alone can't guarantee wisdom in public affairs.

  2. There are reasons a law like the Lautenberg Amendment might be vulnerable to attack other than as an ex post facto law. There have been several, thus far unsuccessful, attacks on the Lautenberg Amendment on Second Amendment grounds (although one worked at the trial court level). And there is a case pending. Maybe we'll ultimately be able to get some traction at the Supreme Court.

  3. And of course, it doesn't help us to pursue a claim in court on a basis that can't work. So attacking the Lautenberg Amendment, or the other prohibiting conditions of 18 USC 922(g), as ex post facto would be an unwise use of our limited resources.
So to get back to your question, it would not be unconstitutional as an ex post facto law to make it a federal crime for someone who had a minor traffic violation in the distant past to possess a gun today. But there are at least two factors that make such a law extremely unlikely: politics and nexus.
  1. Politics, because such a broad disqualification would probably draw too much political flak.

  2. Nexus, because it would be difficult if not impossible in court for the government to satisfactorily establish sufficient relation between a routine traffic infraction and the qualification to possess a gun; and such a relationship would most likely be necessary to satisfy any level of scrutiny likely to be applied by the courts to regulation of the rights described by the Second Amendment.
The Lautenberg Amendment might have some nexus problems, but those are still in the process of being tested in court. That doesn't make it an ex post facto law, however.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

Last edited by Frank Ettin; March 18, 2013 at 11:19 AM. Reason: correct typo
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