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Posted: 6/22/2003 7:33:53 AM EDT
Can a new AWB be retroactive? I'm thinking if the answer is no then all post-ban rifles will become pre-ban. The old AWB covering them will be expired and there will be nothing effecting them except for the '89 ban on imported firearms.
Link Posted: 6/22/2003 3:45:17 PM EDT
Link Posted: 6/22/2003 10:06:44 PM EDT
Yes - Ex post facto prohibitions in the Constitution are only for criminal charges against peop-le. Administrative and legislative actions can be retroactive. As noted Clinton made taxes due retroactively and Bush made tax breaks retroactively.
Link Posted: 6/24/2003 3:02:17 AM EDT
I'm not a lawyer or judge, nor do I play one in the movies. However, it seems to me that when the law sunsets the restrictions vanish. Thus, I could fit my AR with a flash suppressor and real CAR stock.
Link Posted: 6/24/2003 4:52:13 AM EDT
Originally Posted By PaDanby: Yes - Ex post facto prohibitions in the Constitution are only for criminal charges against peop-le.
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Wouldn't an AWB violation be criminal?
Link Posted: 6/24/2003 6:45:48 AM EDT
Originally Posted By Brohawk: I'm not a lawyer or judge, nor do I play one in the movies. However, it seems to me that when the law sunsets the restrictions vanish. Thus, I could fit my AR with a flash suppressor and real CAR stock.
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Thought of that, too. One could make up a pre-ban, and when the ban sets, presto it's fine. Problem is they probably could hit you because it was illegal at the time you did it. ANd, it's an issue (funny how it's always "different" when it applies to guns) for which you'd not get rallies of support. I suspect they will either renew, or come up with something which incorporates the old ban, which will be in place before the old one sets.
Link Posted: 6/24/2003 9:37:25 AM EDT
Whoops! I misread the original question. I didn't catch the word "new." Experience has shown that the powers that be in Washington tend to do what they think they can get away with. If DiFi, et al, thought they could get away with writing a law that banned all semi-auto rifles with detachable magazines, they would do it. If they thought they could pass a law banning pre-existing weapons, they would. Then the question would be up the SCOTUS as the law is challenged. Sheesh. Now if I was king...
Link Posted: 6/24/2003 12:29:47 PM EDT
Ex Post Facto is making a previously legal activity illegal as of a date in the past with the intent of prosecuting people for what was legal at the time. A retroactive AWB could be made to take effect on the date of the Sunset and say be passed 6 months after the date. There would have to be a grace period or grandfathering of activities between the time of signing and implementation and the effective date. The new law to identify what are now no-nos under the new law. That grace period could require all turning in all (period nothing legal no matter when made or made after a certain date) without compensation before a certain date(most drastic, likely unconstitutional under takings clause), turning in with compensation, modifying to legal configuration before certain date or most likely illegal after a certain date current possessors may retain. After the grace period is over, the new law takes full effect. So during the uncovered period, if you buy an AW from a dealer and follow normal long gun rules. You are legal like any long gun. the new law passes AWs are made illegal or restricted. You then have a certain amount of time to comply before criminal penalties apply. You can take the administrative remedy or not. When you fail to comply with the remedies is when you commit the crime, even though the ban was effective 6-8 months before. As long as the criminal penalties don't take effect until after the law is enacted, it can be done. A real life example. - The Immigration Reform and Control Act of 1986 (IRCA -Why you fill out I-9 forms when you take a new job). The law was effective on 1 October, it said that as of 1 October 1986 all employers must verify legal right to work on new employees. Day Workers or Temporaries before starting, permanent employees within 3 days. And then gave a list of ways of veirification. One Document from Col. A showing right to work and identity, or one from Col. B (showing identity) and One from Col. C (Showing right to work) and that information was to be retained on file but not in regular personnel files (so it couldn't be used for national origin) discrimination later and would be available for inspection without access to sensitive personnel info. The INS didn't get the I-9 form approved by OMB until April or May of the next year. When it was issued, employers then had to go back and have employees hired since 1 October fill out the form. If they didn't or couldn't they must be let go. I worked in Employment for a major Aerospace Defense firm at the time. I got the project and had to go back and re-do 300 people. One guy wasn't going to cooperate with the Feds. (Kinda like some guys here.) Suspended his butt. He came through the next day.
Link Posted: 6/24/2003 12:40:41 PM EDT
THere's no ex post facto problem with making it retroactive, but there's a potential Fifth Amendment takings problem, depending on how they decided to do it. The Fifth Amendment prohibits the taking of provate property without just compensation. It may or may not apply in a situation like this, but I think that Fifth Amendment worries are why we have grandfather clauses in these laws. Since its unlikely they'd want to shell out the bucks to buy back all those ARs and AKs, the most likely worst case scenario IMO (if that makes any sense) would be to make them Class 3.
Link Posted: 6/26/2003 5:42:03 PM EDT
I was reading somewhere that the new bill in both houses includes, as part of the banned items that constitute an "assault" weapon, is a DETACHABLE MAGAZINE!!! Yikes. That would really blow a hole in everything. Does anyone have supporting or conflicting info on this?
Link Posted: 6/26/2003 7:27:12 PM EDT
[Last Edit: 6/26/2003 7:28:45 PM EDT by Andreuha]
Question: Situation- Guy buys (legally) five post-ban recivers. Also, five pre-ban config parts kits. Assembles them into rifles. Gets arrested, and convicted of breaking the law with the preban configs on postbans. He is sentenced ne 09/07/04. Ban really does sunset(a week after he is hauled off to federal penn). Does said guy get released? Just wondering... another one of my seemingly endless questions [:)]
Link Posted: 6/26/2003 8:37:33 PM EDT
Well since he broke the law when it was illegal to do something, was tried and sentenced while it was still illegal to do that thing. Why should he get released? Now might he get a pardon or amnesty? Depends, not guaranteed. Anybody that commits a crime is liable for the consequences of his actions. Doesn't matter if it's guns or not. (In other words as long as we're speaking hypothetically, why wasn't he smart enough to wait to be sure what he was doing was legal? or make them in a legal configuration and convert later?)
Link Posted: 6/28/2003 7:59:21 PM EDT
Originally Posted By PaDanby: Yes - Ex post facto prohibitions in the Constitution are only for criminal charges against peop-le.
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Bullshit. People are barred from owning guns due to ex post facto laws. The Maryland Citizen of the Year from last year had his guns stolen by Maryland because of a conviction for a bar fight in the early or mid- 60's, and another that I have met is barred because many years ago, he pulled a kid off his kid, and the parents pressed charges against him.
Link Posted: 6/28/2003 9:17:56 PM EDT
Originally Posted By Andreuha: Question: Situation- Guy buys (legally) five post-ban recivers. Also, five pre-ban config parts kits. Assembles them into rifles. Gets arrested, and convicted of breaking the law with the preban configs on postbans. He is sentenced ne 09/07/04. Ban really does sunset(a week after he is hauled off to federal penn). Does said guy get released? Just wondering... another one of my seemingly endless questions [:)]
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NO becouse when he built the post bans into prebans it was not legal to do so.
Link Posted: 6/28/2003 10:39:58 PM EDT
Hydguy, get a kindergarten teacher to teach you about ex post facto laws. I don't think I can make it any simpler. Well let me try again. You do something. It is legal at the time. The gummint decides it doesn't like you and/or what you did. They pass a law (after the fact=ex post facto) making that act illegal as of a time before you did it and then prosecute you. An example would be that in Jan 2003 the gummint passes a law that says anybody the cheered for Ohio State in the 2002 season is guilty of a misdemeanor and then arrests the entire OSU student body. You are citing cases where the gummint has passed a law saying that as of the effective date, after the enactment, that people previously convicted of a felony or certain other offenses may not possess firearms. When the law goes into effect they surrender their guns. If they don't comply after the effective date then they are liable. If you check the dates of the laws I'm sure you'll find that the law was enacted and signed on a certain date and that possession was not illegal until Jan 1 of the next year (or whenever the laws of the state take effect.) Adding additional punishment to previous offenses is not ex post fact. It aint pleasant but the punishment is for an offense previously adjudicated.
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