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Originally Posted by jimpeel
...Why this was not brought before the courts at its inception is beyond me. It is clearly ex post facto yet it survives.
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No, it is not an
ex post facto law.
As defined, an
ex post facto law is one:
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...adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed...
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Ex post facto essentially means being subject to criminal sanctions today for an act performed in the past which was legal when performed. That is different from from being subject to criminal liability for the continued possession of a thing after the effective date of a law making that thing illegal for you to possess.
In terms of the Lautenberg amendment, it may be understood as follows:
- On may have possessed a gun after having been convicted of a domestic violence misdemeanor and prior to the effective date of the Lautenberg amendment.
- If that person had sold the gun prior to the effective date of the Lautenberg amendment, he would have no criminal liability under the Lautenberg amendment for the act committed and concluded before that amendment became effective.
- If however the Lautenberg amendment purported to make criminal that prior possession of a gun no longer possessed, it would be ex post facto and violate the Constitutional prohibition.
- But instead the act made illegal under the Lautenberg amendment is the possession of a gun after the effective date of the amendment by someone convicted of a domestic violence misdemeanor. The illegal conduct, possession of the gun, must occur after the effective date of the law.
- What is unlawful under Lautenberg is the continued possession after Lautenberg became effective, not the possession of a gun prior to the amendment's effective date.