illegal search a seizure question

[chemgirlie]

Doesn't exist? Check out NYS Assembly Bill A-6294 February 27, 2009

That's for NY state, not a federal ban.

[JuanCarlos]

Ex post facto, literally means "enacted after the fact". In other words, what is legal today, can't be legislated illegal tomorrow. Your AR15, and its 30 round magazines which are legal today, can't be taken away from you tomorrow, just because Congress passes a law. They would only become illegal if manufactured after the law went into effect. There are a lot of AR-15's out there manufactured prior to 1994, the last time Congress passed a restrictive gun law. Those guns were legal to own after the law went into effect. Colt, for example, just couldn't manufacture AR-15's with flash suppressors after the law was passed in 1994.

I'm pretty sure ex post facto doesn't apply here, other than protecting those that owned the items prior to a ban from prosecution (obviously). But I don't think it covers their continued ownership, as a ban on ownership and accompanying requirement to get rid of the offending property doesn't qualify as an actual judicial punishment.

Are you sure the previous AWB didn't grandfather in the old weapons out of political expediency, rather than Constitutional necessity?

[vranasaurus]

It's not ex post facto because it wouldn't make your prior possession illegal.

Ex post facto applies when the government makes a law that what you did in the past is now illegal. In order to not be ex post facto the prohibited conduct occurs after the passage of the law.

If the prohibited conduct occured before the passage of the law then it is ex post facto.

[Re4mer]

The Internet is rife with examples of govt officials, at all levels of enforcement entering people's homes, for reasons they thought well and true. Only to later discover that they were in error.The sad thing is the number of times these incidents resulted to damage and suffering to the people and property involved.

That is a great point +1.

[ilbob]

The sad thing is the number of times these incidents resulted to damage and suffering to the people and property involved.

I would say the saddest thing is the complete lack of consequences to the perpetrators.

[M1911]

Doesn't exist? Check out NYS Assembly Bill A-6294 February 27, 2009

Do you understand the difference between state laws and federal laws?

[USAFNoDak]

Oops. Double pumped. Sorry.

[USAFNoDak]

If a new federal law is ever passed which doesn't grandfather in existing "assault weapons" it would be illegal for the regular military to come and search houses. There is law called posse commitatis (sp?) which is suppose to prevent the regular military from being used for law enforcement purposes. The states could use the national guard if not employed in the service of the federal government. I believe that is what was done in New Orleans, but I'm not 100% certain of that. I'm sure others will provide more concrete information.

Of course, if the feds want the states to use the national guard to conduct searches, then they can do what they always do to try and make states comply. "If you don't do what we strongly suggest that you do, you won't be getting any highway funds or education funds from us". That typically gets most states to bow down and lick the boots of the feds.

[ilbob]

First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.

Despite what some amateur lawyers on the Internet think, its not an ex post facto law if, for instance, a law was passed banning the future possession of some fire arm that is currently legal. It would be ex post facto to punish the possession of it prior to the law being enacted.

The military will do what it is told to do. It is not like BHO is going to stand up and say, "You know, I think I will federalize the NG and send them out to confiscate guns from law abiding citizens today". There are plenty of ways it could be justified that would get enough popular support that it would go forward.

[csmsss]

There are any number of means (constitutionality notwithstanding) at the government's disposal to conduct widespread searches for "illegal" firearms should the government so choose. There are several existing federal agencies with purview whose ranks could easily be and quickly inflated - agencies like BATF, DEA, FBI, ICE, etc. These new "agents" would not be constrained by posse comitatus and would be accountable only to the executive branch.

[M1911]

First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.

If the government confiscates private property, they have to pay for it. That's why they grandfather it.

[cjw3cma]

Get your foil hats ready. Show them you're serious!

[pendennis]

When the GCA of 1968 was passed, it mandated that certain guns be registered within a certain time frame (e.g. the Marble's Game Getter). If the gun was not registered within that time frame, it could never be registered. However, it was not illegal for the owner to possess, and use the gun. The transfer of those guns was "outlawed". Since those guns were legal when they were purchased, the GCA of 1968 could not make ownership illegal, only transfer if not registered. This was discussed in quite a bit of detail after 1968. There have also been innumerable articles written on the subject before the advent of the internet.

The AWB of 1994 did not make possession of any pre-1994 guns, high-cap magazines, flash hiders, etc., illegal. The thing that changed was that those guns and accessories which fit the parameters of "assault weapons", could not be manufactured after the act was signed and took effect. That was not an expedient. The fact is, those pre-1994 guns could not be retroactively made illegal. If you owned 30-round mags for your AR15, those mags were still legal in 1995. They just couldn't be manufactured. The AWB also did not make it illegal to sell those original items after the act's passage.

[pendennis]

First off, nothing requires any government to grandfather in anything. Its typically done that way to make it more palatable.

Despite what some amateur lawyers on the Internet think, its not an ex post facto law if, for instance, a law was passed banning the future possession of some fire arm that is currently legal. It would be ex post facto to punish the possession of it prior to the law being enacted.

The military will do what it is told to do. It is not like BHO is going to stand up and say, "You know, I think I will federalize the NG and send them out to confiscate guns from law abiding citizens today". There are plenty of ways it could be justified that would get enough popular support that it would go forward.

The punishment by law, without trial, is a bill of attainder. Those too, are unconstitutional.

The Guard and it's various components could only be nationalized in the event of a nationwide emergency. If the Feds attempted to browbeat a governor into calling up the guard for illegal purposes, and that's what confiscaction would be, several Federal district courts, and a slew of state courts, would issue permanent or temporary injunctions to prevent the Guard from being used for unconstitutional purposes.

[Huey Long]

The Fourth Amendment reads thusly:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As yet, there is no pending assault weapon legislation at the federal level. However, assuming a future total ban with no grandfathering, what could happen hinges heavily upon whether or not the courts consider the fact that you bought an assault weapon at one time "probable cause" that you still possess it. If they do, law enforcement could trace all assault weapons and go around searching people's homes for them. If they don't, the most law enforcement could do is what's called a "knock and talk." If they do that, simply tell them you sold the gun a while back at a gun show, you do not consent to any searches, and you do not care to discuss the matter any further without an attorney present. That will get rid of them.

Note that the above details what law enforcement could do. What they would do, IMO, is simply get rid of them through attrition by seizing them whenever they came up, as another poster has stated.

[vranasaurus]

The courts will disagree with your assessment of what is ex post facto. The same reason the lautenburg amendment is not ex post facto, because it doesn't punish for past firearm possession, will be the same reason that an awb with no grandfather provision will not be ex post facto.

And the government will not have to pay for the property if they sieze it from you after it's possession has been prohibited, as in you committed the crime of illegal possession of an "assault weapon". If the law was enacted you will have to comply by modifying, destroying, or rendering inoperable your "assault weapons".

Any future ban will likely contain a grandfather provision because it will be much easier to enforce.

[Huey Long]

Any future ban will likely contain a grandfather provision because it will be much easier to enforce.

I think it would be more easy to enforce it without the grandfather provision. Without a grandfather clause, all a cop will need to know is that a given gun is of a prohibited model. With a grandfather clause, a cop would need to know not only that a given gun is a prohibited model, but also exactly when the receiver was manufactured. The '89 import ban is largely unenforceable and unenforced for this very reason.

[44 AMP]

Note that the 94 AWB passed only with a grandfather clause, AND a sunset proivision. And that it basically passed by only one vote.

Any future ban bill will most likely contain a grandfather provision, as without one, it will be more difficult to get passed. And, a grandfather provision can actually make the law more enforcable, if worded correctly. Note that while the 94 bill did not ban manufacture of magazines holding more than 10 rnds, it did ban their sale and posession by civilians, if the mags were made after 94, and it required the mfg date marked on the mags.

So, a 30 rnd AR mag with no date was made before the ban, and grandfathered. But a 30rnd AR mag with a 1997 date on it would be illegal for a civilian to own.

[pendennis]

If an AR15 is in your possession today, and the rifle is legal, a law passed tomorrow will not make that gun illegal. Your intent when you purchased it doesn't have anything to do, and can't be construed that you planned to break a law which hadn't been enacted.

[JuanCarlos]

If an AR15 is in your possession today, and the rifle is legal, a law passed tomorrow will not make that gun illegal. Your intent when you purchased it doesn't have anything to do, and can't be construed that you planned to break a law which hadn't been enacted.

Will not, maybe. But can not? You seem to be completely ignoring the idea that the government can require turn-in (with compensation) of the offending items, along with a reasonable grace period. There is absolutely no reason that all AR-15s could not be made illegal after a reasonable date...say, two years from now.

And if you continued to own the rifle after that point, yes you would be breaking the law.

[thallub]

ok i get what your saying thanks for the info i will have to look into this alittle deeper but still useful do u know where i can view all the details of the new "assault weapons" ban

There is none. It doesn't exist. No such legislation has passed either house of Congress, and chances are none will. Until and unless such legislation is passed, there is no way to know what would or would not be in the bill.

After having breakfast a couple times per week at the same place for 20 years I changed dining places. This is all the guys there talked about for the past 2+ months. To a person they believe that congress has passed an AWB and Obama is about to sign it.

[ftd]

After having breakfast a couple times per week at the same place for 20 years I changed dining places. This is all the guys there talked about for the past 2+ months. To a person they believe that congress has passed an AWB and Obama is about to sign it.

Some times arguing with gun people (especially me) is just as frustrating as discussing gun rights and facts with the antis. What's the saying - "you can't fix stup..."? If you can't agree to the facts, there is no need of further discussion.

[vranasaurus]

If an AR15 is in your possession today, and the rifle is legal, a law passed tomorrow will not make that gun illegal. Your intent when you purchased it doesn't have anything to do, and can't be construed that you planned to break a law which hadn't been enacted.

When you purchased or possessed it legally has nothing to do with it. The only question will be did you possess an item after a law was enacted that prohibited such possession? If the answer is yes it will be irrelevant that you possessed it legally before the enactment of such a law.

[pendennis]

When you purchased or possessed it legally has nothing to do with it. The only question will be did you possess an item after a law was enacted that prohibited such possession? If the answer is yes it will be irrelevant that you possessed it legally before the enactment of such a law.

It has everything to do with it. It's exactly the point. This goes to the root of our civil and criminal law. What a person does uses or owns today, will not be made criminal by legislation tomorrow. Purchase and possession of a weapon which is legal today, can't be confiscated tomorrow.

Not only is this protected by Article I, Section 9, it's also protected by the Fifth Amendment, which states in part, "...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

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.

What we have in this discussion, is a lot of supposition that smacks of "black helicopter and blue helmet" fear.

[JuanCarlos]

It has everything to do with it. It's exactly the point. This goes to the root of our civil and criminal law. What a person does uses or owns today, will not be made criminal by legislation tomorrow. Purchase and possession of a weapon which is legal today, can't be confiscated tomorrow.

Not only is this protected by Article I, Section 9, it's also protected by the Fifth Amendment, which states in part, "...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

I fail to see what Article I, Section 9 has to do with it, as this is neither a bill of attainder nor an ex post facto law. Good point on the fifth amendment, though, and I guess I'll just have to poke around when I get a chance to see if this is something that has happened before, or if it has ever been ruled on.

I will say that it probably wouldn't be impossible to show the removal of such weapons from civilian hands as a compelling interest, and provided it addressed other crime-related issues (not that ARs are generally used in crimes anyway, but whatever) I could see it possibly meeting a strict scrutiny standard for an exception to that clause.

What we have in this discussion, is a lot of supposition that smacks of "black helicopter and blue helmet" fear.

From some, perhaps. It's not uncommon. I hope it's clear that I don't think this actually will happen...it's not something that concerns me in the slightest (though even an AWB with a grandfather clause is unacceptable, and not nearly as far-fetched). I'm merely arguing that it could happen. Like, legally.

To which you've made a fairly compelling rebuttal.