Legal theory question regarding federal gun laws

[JTScribe]

One of the more under-appreciated aspects of the U.S. Constitution is it's forbidding of ex post facto laws where laws are passed making previously legal behavior illegal.

Given this, I can see where it might be argued that NFA 1934 was permitted due to there largely being no such gun laws beforehand, but how would follow-on efforts in '68, '86, and '92 not run afoul of ex post facto? My grandfather, for example, had a fully-automatic Thompson that he was forced to get rid of prior to the '68 legislation because he didn't want to pay the tax to register it. Given that he bought it when it was fully legal, how was the registration requirement not contrary to that aspect of the Constitution?

 

[GodFearinGunTotin]

Since when does what's written in the Constitution have any bearing over what is legal and what is not? You must be new to this country...welcome to the USA.

 

[JTScribe]

Since when does what's written in the Constitution have any bearing over what is legal and what is not? You must be new to this country...welcome to the USA.

Hey now, this is a THEORY thread, man.

 

[Kurr]

IANAL but as it has been explained to me, if I got the understanding that is, They didnt make ex post facto. In your grandfathers case as you said, they made a tax, he didn't want to pay it.

Would he have had to pay it, or would he have been grandfathered in some sort of amnesty? Seems the tax would have been paid in the 30's

 

[JTScribe]

IANAL but as it has been explained to me, if I got the understanding that is, They didnt make ex post facto. In your grandfathers case as you said, they made a tax, he didn't want to pay it.

Would he have had to pay it, or would he have been grandfathered in some sort of amnesty? Seems the tax would have been paid in the 30's

I'm not sure if there was an amnesty or not. I'd assume if he hadn't paid the tax and registered it, it would be the same penalty as having an NFA item without a tax stamp now.

 

[HoughMade]

An Ex Post Facto law is a law that makes an act illegal after the act has been committed. Your grandfather could not be prosecuted for possessing a gun in 1967 by passage of a law that took effect in 1968.

What the government can do is make a law stating: "from X day forward, possession of Y is illegal." They are not punishing past behavior, but punishing only behavior from the date of the law forward. Think about. If there could never be a law that made behavior illegal that was once legal, what laws could be passed?

 

[JTScribe]

An Ex Post Facto law is a law that makes an act illegal after the act has been committed. Your grandfather could not be prosecuted for possessing a gun in 1967 by passage of a law that took effect in 1968.

What the government can do is make a law stating: "from X day forward, possession of Y is illegal." They are not punishing past behavior, but punishing only behavior from the date of the law forward. Think about. If there could never be a law that made behavior illegal that was once legal, what laws could be passed?

Sure, but from what I understand, after the amnesty expired in 1968, they COULD be prosecuted. "However, the GCA also provided for a 30-day amnesty (Amnesty) which ended December 1, 1968, whereby unregistered NFA firearms could be registered and “made legal” without the risk of criminal prosecution against the registrant. "

From: The Legal Side: An Update Regarding Machine Gun Amnesty Registration Efforts

 

[HoughMade]

Not prosecuted for past possession, for possession going forward.

 

[JTScribe]

So how is that not ex post facto, then? Ownership was legal one day, then a month later it wasn't. That's like playing Calvinball!

I understand that they aren't being prosecuted for the past ownership, but it seems to me if anything past owners should have been exempted from prosecution.

 

[HoughMade]

An ex post facto law is like this: Tuesday, it was legal and you did it. Weds. they made a law. Thursday they prosecute you for what you did Tuesday. They can not do that.

In your case its: Tuesday, possession was legal and you possessed. Weds. they made a law saying you had to register by Thursday. Thursday you did not register. Friday, they prosecute you for possessing ON FRIDAY, but not for possession on Tuesday, because it was legal then. It was not legal to possession on Friday and you possessed it, so the prosecution is allowed.

Just because something WAS legal does not mean it always has to be legal. All ex post facto means is that you cannot be prosecuted for doing something that was legal WHEN YOU DID IT.

Possession is something that starts anew every day (theoretically, every second). Possession when legal cannot be prosecuted. Possession when illegal, can be prosecuted.

Yesterday the speed limit was 70 on the highway, today it is 55. I can be fined for going 70 today, but not for going 70 yesterday.

 

[JTScribe]

Possession is something that starts anew every day (theoretically, every second).

You just blew my mind.

And, as with pretty much every other freedom, it comes down to property rights.

 

[Kirk Freeman]

And, as with pretty much every other freedom, it comes down to property rights.

Well . . . this is INGO so, yeah, everything is about property rights.

Unless it about the right of quiet enjoyment, the right to services, right to income from property, right to enforcement of property rights, or a dozen other property rights that are disfavored on INGO.

 

[Bill of Rights]

You just blew my mind.

And, as with pretty much every other freedom, it comes down to property rights.

Put another way (the opposite, actually,) I can be prosecuted for possessing marijuana today, if I was in possession of it. If a law passes in Indiana this coming session, making possession of MJ lawful, I cannot be prosecuted for possessing it after July 1, 2015, however, if they can prove I possessed it before that date, I can be prosecuted for it, despite the change in law.

Whether or not I would be so prosecuted would be up to the prosecutors' office.

Just to make this perfectly clear, because the point is pretty important, I do not now nor have I ever possessed marijuana. The closest I've gotten was a contact high while working a concert (38 Special and Golden Earring, BTW) as medical coverage.

Da*n, that was a lot of years ago!

 

[HoughMade]

[video=youtube;wDQANmQO2g0]https://www.youtube.com/watch?v=wDQANmQO2g0[/video]

 

[Kirk Freeman]

Just to make this perfectly clear, because the point is pretty important, I do not now nor have I ever possessed marijuana. The closest I've gotten was a contact high while working a concert (38 Special and Golden Earring, BTW) as medical coverage.

Pffft, are you some kind of old guy with a salt and pepper beard? Geez, Golden Earring.

Well, I'm off to shower and put on my April Wine concert t-shirt.

 

[SEIndSAM]

Just to make this perfectly clear, because the point is pretty important, I do not now nor have I ever possessed marijuana. The closest I've gotten was a contact high while working a concert (38 Special and Golden Earring, BTW) as medical coverage.

Da*n, that was a lot of years ago!

That show wouldn't have been at Dayton's Hara Arena was it??? If so, we may have passed.

 

[Drail]

In this fine country we have a Bill of Rights. Written in common English. AND we have a Supreme Court to explain to all of us what the Government "thinks" those words "mean". So we play by "their" rules and they win every time. Sounds like a lawyer's wet dream to me. Democracy should be a forbidden four letter word.

 

[ryknoll3]

So how is that not ex post facto, then? Ownership was legal one day, then a month later it wasn't. That's like playing Calvinball!

I understand that they aren't being prosecuted for the past ownership, but it seems to me if anything past owners should have been exempted from prosecution.

Part of the deal was, they weren't legally possessing them before 1968, either. They could've faced prosecution if caught with an unregistered MG. The '68 amnesty was simply to allow those illegal guns (many of them war trophies) to come in "from the shadows" as they say these days. Those guns were, prior to 1968, and subsequently if they weren't registered during the amnesty, illegal.

 

[ryknoll3]

Also, I'm pretty sure the people that owned them in 1933 that had to subsequently register them to comply with NFA didn't have to pay the tax. It was only on new purchases after the law went into effect and also during the amnesty period.

When new guns are added to NFA purview, such as the Street Sweeper, which was previously classified merely as a shotgun, they aren't subject to the making tax. They are registered tax-free on a Form 1, and any subsequent transfer of that now NFA firearm or any sale of a new one to a non-licensee would be subject to the tax.

 

[Bill of Rights]

Pffft, are you some kind of old guy with a salt and pepper beard? Geez, Golden Earring.

Well, I'm off to shower and put on my April Wine concert t-shirt.

Yes and yes.

That show wouldn't have been at Dayton's Hara Arena was it??? If so, we may have passed.

No. Lubbock, TX.