Re: unconstitutional

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Your citation to Calder v. Bull prompted me to engage in an
interesting, retrospective exploration of the early origin of
our Court's interpretation of the Constitution. Actually the
Supreme Court has continued to cite Calder v. Bull in cases as
recent as 2005. It is still "good law" to cite.

It is noteworthy that Calder v. Bull actually ruled against the
claim that the new law which was called into question was a
violation of U.S. Const. art. 1, § 10. I found the Court's
discussion of the difference between a "retrospective law" and
an "ex post facto law" very instructive.

"Every ex post facto law must necessarily
be retrospective; but every retrospective
law is not an ex post facto law: The former,
only, are prohibited. Every law that takes
away, or impairs, rights vested, agreeably
to existing laws, is retrospective, and is
generally unjust, and may be oppressive;
and it is a good general rule, that a law
should have no retrospect: but there are cases
in which laws may justly, and for the benefit
of the community, and also of individuals,
relate to a time antecedent to their commencement;
as statutes of oblivion, or of pardon. They are
certainly retrospective, and literally both
concerning, and after, the facts committed.
But I do not consider any law ex post facto,
within the prohibition, that mollifies the
rigor of the criminal law; but only those that
create, or aggravate, the crime; or encrease
the punishment, or change the rules of evidence,
for the purpose of conviction."
[Calder v. Bull, 3 U.S. 386, 391 (U.S. 1798)]

The Court identifies four factors which make a law "ex post
facto."

1st. Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal; and
punishes such action.
2d. Every law that aggravates a crime, or makes it greater than
it was, when committed.
3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when
committed.
4th. Every law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required at
the time of the commission of the offence, in order to convict
the offender. [Id. at 390]

It is #3 that you rely on to support your claim that the
Lautneberg amendment is unconstitutional. So we are back to the
distinction between a "punishment" and a "collateral
consequence" or perhaps "retrospective" v. "ex post facto." I
understand that, on you personally, it has the effect of
punishment because you can not possess a firearm and that is a
personal loss to you.

Again, I agree the difference between a "collateral consequence"
and "punishment" seems to be a thin distinction. You define it
as a "punishment" and the government says it is a "collateral
consequence." If it is a "collateral consequence" it is not
subject to the ex post facto prohibition of the U.S. Const. art.
1, § 10.

To pursue an argument that the Lautneberg amendment is a
violation of U.S. Const. art. 1, § 10 you need case law that
rules on at what point a "collateral consequence" becomes
a "punishment." The "collateral consequence" of deportation as
a result of a guilty plea is an example of a situation where a
successful argument was made that it was necessary to inform a
defendant of the "consequence" of a guilty plea because
deportation was to be considered a "punishment" that attached to
the underlying crime.

I'm not saying you should give up--but you should focus on
establishing that the loss of gun rights is a "punishment" that
attaches to your guilty plea. Start with the deportation cases
that lead to successfully overturning old guilty pleas because
the defendant was not informed of all punishments attaching to
his plea. That will mostly be state law.

On 11/22/07, Stewart wrote:
> BY, thank you for the well thought out response and thank you
> for not responding like an arse the way the idiot did. I have
> to say that you did not use the term "is not a criminal
> punishment per se". The words and intent an ex post facto
> claus encompasses every law that changes the punishment and
> inflicts a greater punishment, than the law annexed to the
> crime when committed. 'Calder v. Bull, 3 U.S. (1 Dall.) 386,
> 390 (1798) (opinion of Chase, J.). The Lautenberg amendment
> does just that... it creates a greater punishment after the
> fact by changing the punishment. One is punished by not being
> able to own a firearm if he/she was convicted of a misdemeanor
> DV. If they were NEVER convicted then the Lautneberg amendment
> would not apply to them, therefore it does violate the ex post
> facto claus.
> On 11/20/07, -- wrote:
>> Loss of gun rights under the Amendment you refer to [The
>> Lautenberg Amendment to the Gun Control Act of 1968,
>> effective 30 September 1996] allows for the "collateral
>> consequence" of the loss of the right to own a gun.
>>
>> I agree that it sounds like a thin distinction but it is
>> pretty much a part of law from way back. A "collateral
>> consequence" is not a criminal punishment per se.
>>
>> There are literally hundreds of statutes rules and
>> regulations in every state and also under federal law that
>> impose "collateral consequences" for a criminal conviction.
> I
>> just completed a compilation of all "collateral
> consequences"
>> in our state as part of a national project to identify and
>> catalogue "collateral consequences" in all 50 states. I
>> found over 200 in our state alone.
>>
>> For example; if you want to get a license to operate
> a "blind
>> vendor outlet" in a state building, you may not have a
>> conviction involving moral turpitude within the last 5
> years;
>> a methamphetamine conviction will get you booted out of
>> public housing; any felony conviction will prevent you from
>> getting a Realtor's license---on and on---
>>
>> Courts do not have to notify you of any possible "collateral
>> consequences" if you enter a guilty plea with the exception
>> of the effect it may have on deportation proceedings--that's
>> the only one considered more than a mere "collateral
>> consequence."
>>
>> Not saying I agree with the Amendmant but it is unlikely to
>> be found unconstitutional or overturned on other grounds
>> anytime in our lifetime.
>>
>>
>> On 11/20/07, Stewart wrote:
>>> The Lautenberg Amendment sounds to me to violate many
>>> amendments of the U.S Constitution. What does everyone
>>> think? What can we do as citizens to get this law recended
>>> so we citizens can have our rights back. I mean what if you
>>> plead guilty in 1994 to D.V and then this law comes around
>>> 3 years later, would you have plead guilty if you knew this
>>> waa coming? They say that this amandment is not an ex post
>>> facto law because you are not being punished again for the
>>> crime. But if not for the original crime, they could not
>>> keep you from a fire arm. So this law does bounce off the
>>> original charge, thus making it ex post facto. Why can't
>>> judges see this?