Wouldn’t this hold true for anyone before 1994 when background checks started.
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Not exactly sure what you’re getting at.
Before there were background checks, those who purchased and owned firearms, legally purchased and owned those firearms.
They were not required to go through a retroactive background check.
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Yes but if someone had a felony they still could get an fid but when the background check started. They should’ve been vetted. Other wise the background check dose not apply to them according to this.
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I am still not sure what you are trying to say or ask makes sense.
Regardless of what was before 1994, if they attempt to purchase a firearm now, they must meet the new laws… and pass the background check.
They can not be forced to undergo a retroactive background check, so any firearm purchased before background checks, they are free and clear…
The ex post facto is to protect citizens from a law being passed that makes what you did yesterday legally into an illegal act retroactively and prosecute you because you did it yesterday when it was legal… at that time.
In other words, if you drink Bud Lite today, and tomorrow they pass a law that makes drinking Bud Lite illegal, they can not come and prosecute you tomorrow because you drank a Bud Lite today.
So, yes, anyone who purchased a firearm before background checks are perfectly legal and can not be prosecuted for that… and can not be forced to undergo a background check … for that purchase…
But any NEW purchase would fall under the new laws… and the background check applies.
Is that clear or confusing and does that address your question.
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Good explanation
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But then that would make it illegal for background checks past 1994 cause then they would be held accountable for something they did then now and would be illegal.
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That’s why there is the bill of attainder.
Background checks can’t be done past 1994
according to this.
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No.
The background check is not being held against them, there is no new law that made what they did legally in the past suddenly illegal, it was already illegal at the time they did it. The only difference is the requirement today for a background check.
They were already guilty of a crime, it was not a change from a legal act to an illegal act which they are being prosecuted and convicted of today… when they were legal when they took the action…
Let’s try this.
It is LEGAL to fish in the Potomac River. On 29 September 2020 they make it illegal to fish in the Potomac River. If you fished in the river in 2019, or 1970… you were legal and they are not prosecuting you for that (if they do, then they are violating the Constitution).
If it was legal to fish in the river, BUT you were required to have a fishing license and you did not have one, you were found guilty and paid a fine in 1992… but it did not come up when you purchased a firearm in 1993, you were still guilty of the fishing without a license. If they now do a background check, they find you were guilty and do not allow you to purchase a firearm.
They are NOT holding you accountable for a crime today that was legal when you did it… they are simply holding you accountable for the crime you committed and today is part of discovery when you do a background check.
Does that make sense? I used fishing as a basic example… we all know, at least so far, that fishing without a license is not a felony.
They committed the crime, were held accountable (prosecuted and convicted), so there is a record. The background check simply finds the record.
Personally, I think once the sentence is served, the entire sentence, including any and all probation parole and monetary penalties or restitution, your rights should be restored. All of your rights…
But, your argument that they are being held accountable now during a background check for something they did before is not accurate.
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Ok so they are subject to harsher future laws without representation?
Even when they where able to get an fid card back after they paid for their crime. But after 1994 they are not allowed.
Something doesn’t sound right.
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No.
Federal law states a felon may not purchase a firearm. While I do not agree with any permanent prohibition on rights, and think they should be restored AFTER you serve your complete sentence, the law states a felon may not purchase a firearm.
Prior to the requirement of background checks, felons might have been able to purchase firearms, which would lead to charges and prosecution if they were found to be in possession of them… with background checks, the criminal records are available at the point of sale and may prevent the felon from purchasing the firearm.
It is NOT additional punishment or prosecution for a new crime that made something illegal that was legal when they did it. There is no ‘ex post facto’ law which criminalize actions that were legal when committed, nor is there any ‘bill of attainder’ which is declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial.
The individuals in question, the ‘felons’, were already charged and prosecuted and convicted of a crime, that was a crime at the time they took action… (such as bank robbery, or armed robbery)… so there is no ‘ex post facto’, and there is no ‘bill of attainder’ (the requirement for a background check is not declaring them guilty of anything, they were already guilty) , they are not by act of Legislature being declared guilty as a group or as an individual of some crime… they were already charged, prosecuted, and convicted of a crime, an already existing crime.
The 1934 NFA, which I disagree with as there is no authority in the Constitution to prohibit automatic firearms and prohibits felons from owning firearms including AFTER they serve their complete sentence, does prohibit felons from owning firearms. The institution of background checks does NOT declare them guilty, it is not creating a crime from an action that was legal when the action was taken. Felons were not allowed to own firearms since 1934.
The background checks simply provided a system by which firearms dealers could check the status of purchasers.
I am not a lawyer, do not play one on TV and did not stay at a Holiday Inn Express last night, so we should ask @MikeBKY for a more informed and professional opinion.
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This is not an easy exercise but I will try to explain it as simply as possible. The prohibitions against bills of attainder and ex post facto laws are found in Article I, Section IX paragraph 3, with respect to the federal government, and Section X, Paragraph 1, with respect to state governments.
Bills of Attainder are extremely rare and there is little to no case law on them. A bill of attainder is a law that is an act by the legislature that declares a person or group of people guilty of a crime and imposing a punishment without a trial. For instance, if the legislature passed a law declaring all persons who voted for Trump guilty of treason and sedition and incarcerates or executes them. There is absolutely no due process in the execution and enforcement of the law.
An ex post facto law is a law that makes some act done in the past illegal. If congress passed a bill today making it illegal to purchase a firearm during a the current state of emergency and made the law retroactive to the declaration of the state of emergency making anyone who purchased a firearm since mid March a criminal, even though it was legal at the time. Ex post facto laws would still require a trial (due process) if they were legal.
I do not know when federal background checks began across the country, but I know I had a background check and a 2 week waiting period in Pennsylvania in 1984 when I purchased my first firearm in Pennsylvania. As best I can tell, prior to the Brady Bill, made law in 1993, effective February 28, 1994, background checks were done at a state level. To be honest with you, I know I had one but do not remember if I had to get finger printed or what was done.
The Brady bill made it a federal requirement to have a background check to purchase certain firearms. Anyone who purchased one prior to that point was not suddenly guilty of a crime for bypassing a process that did not then exist. That does not mean they owned the firearm legally. If there was a law that prohibited them from possessing a firearm when they first got it, it was illegal then, continued to be illegal. This is neither an ex post facto law nor a bill of attainder.
The question everyone want to really know the answer to is if they were to pass a law that required everyone to turn in their so called “assault weapons” and “high capacity magazines,” by a certain date, would that violate the Constitution? It really becomes a question of can the legislature pass a law that makes having something that was legal yesterday illegal tomorrow?
Such a law would not be a bill of attainder or an ex post facto law. It is not making you a criminal for doing or having something in the past. It is making it illegal to possess something at some point in the future. It sounds bad and would not be a good idea for government to do that, but it is possible. The coca plant was initially legal in the US and was used in many products, most notably Coca Cola! In 1914, cocaine became illegal in the US. What was legal in 1913, was illegal in 1914.
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Isn’t that what it’s doing by stereotyping or category saying all felons are dangerous and can’t be trusted?
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The best I can put it is that actions have consequences. These consequences can have long term effects well beyond the conviction and sentences. The effect getting a job, getting excluded to loans and other government loans. They effect immigration status and, as we are well aware, they effect the ability to possess firearms.
We are all presumed to know the law. The loss of certain rights, including the right to possess a firearm, has been a consequence of being convicted of a felony for a very long time under both federal and state laws. The laws are not bills of attainder or ex post facto laws because they are not declaring a group of people guilty of a crime and they are not making something done in the past a crime. The possession charges require some contemporaneous possession of a firearm, either actual or constructive, to be prosecuted. The same law applies to those convicted of domestic violence, users of and those addicted to unlawful drugs, illegal aliens (and some legal aliens), dishonorably discharged veterans, fugitives, those who have renounced citizenship.
No one in this group has committed a crime until they take possession of a firearm making it neither a bill of attainder nor an ex post facto law.
Are the laws stereotyping? Yes. Is it right? If you believe past behavior is a predictor of future behavior, then yes, it is right.
I understand @Kevin29’s point about restoring rights after completion of a sentence. I do not necessarily agree with it based on my involvement in the legal system. In Kentucky, certain felonies can be expunged, but there is a 5 year waiting period. It is much less likely that someone will reoffend 5 years after their sentence then the day after they get out of prison. More serious offenses in Kentucky cannot be expunged but can be pardoned by the Governor. Again, committing crimes have consequences.
As for the federal government prohibiting firearm possession, assuming they can legislate it (which they can if the states can) then, as a sovereign, the feds make their own laws. There are times where the state and federal laws conflict. In such a case, the Constitution makes federal law the supreme law of the land. (U.S. Constitution, Article IV, clause 2, known as the Supremacy Clause, makes the Constitution and laws of the United States, “the supreme law of the land” notwithstanding state laws to the contrary.
States can and do have mechanisms to restore a persons rights after committing a felony. But in order to do so, the criminal conviction must be sealed. States are not inclined to do this for most crimes because it would also prevent those past crimes from being used to enhance the punishment for repeat offenders.
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That actually has the sound reasoning of logic. I still stand with the idea of an individual pays their debt to society as they say… or simply put, finishes their sentence of consequences for their actions, they should have their rights restored. If that requires a 5 year waiting period, that works.
If they reoffend, they forfeit their rights again, and on completion of the sentence, perhaps due to their reoffending, a 10 year waiting period, or we may decide a second offense of a serious crime is a permanent forfeiture of their rights.
I was sure that what James485 was trying to say about the background checks was not correct, but not sure I could explain it well, but it was not an ex post facto or bill of attainder, not as I could determine.
Thanks for clarifying some of the confusion.
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It’s sad but the 3 year US recidivism rate runs between 60 and 80 percent meaning nearly 3/4 of all prisoners released will be back in the big house with new charges. Past behavior is an indicator of future behavior.
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That is true, past behavior is an indicator of future behavior, but not always.
While I prefer people to be incarcerated… for the crimes they commit, I still consider their rights to be important, and while their actions forfeited their rights, they serve their sentence, those rights should be restored.
If we are worried about their Second Amendment, to reoffend and commit more crimes does not need the right to keep and bear arms, or the ability to purchase a firearm legally. So, without their rights, they are capable of obtaining firearms, or any other item for criminal use or to commit crimes.
If we only seek to punish, and never allow someone who commits a crime to return to society, there may be little opportunity for them to avoid reoffending…
And I am far from being any bleeding heart liberal. I consider the rights we have, guaranteed by the Constitution to be of utmost importance, and conducive to a civil society as well as pure and simple freedom. Those who forfeit their rights through their own actions, have made their choice, and there are consequences for those choices, however, if we refuse to consider restoration of rights to those who serve their sentence, what future do they have… and what future do we have when we see ‘Red Flag’ laws that deny Due Process, deny the right to face your accuser, to cross examine witnesses, to present evidence in your own defense, when there was no crime committed, no indictment, no jury… but a prosecution and a declaration of guilt… for no crime.
Even if it is resolved, in your favor, and your firearms are restored to you, your name, your reputation are damaged, perhaps permanently. It will follow you for employment, for background checks, your neighbors, and if you operate a business, your customers.
Sorry for bloviating. It is an issue that we the people should consider…
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@MikeBKY. I have always been concerned with what what was done when they re-classified domestic abuse cases and made a conviction, or plea bargain agreeing to a guilty plea, an offense with an added penalty, that of the loss of the right to bear arms. I remember the stories of police officers who had to leave their job because the new law added a new penalty to a past offense and suddenly they could not posses their side arms any more. I felt that could not be constitutional, or even in keeping with the fundamentals of our legal system, yet it seems they did it anyway. Am I incorrect in my understanding of what happened in some way ?, or does it in fact violate these constitutional provisions?
Because what is to prevent them from re-classifying other things in a similar way to, for example, make anyone who ever ran a stop sign for which they plead guilty and paid the fine, loose their licence for life and since that is now the penalty, anyone who ever got a ticket for that in the past, as well, is also subject to the newly added penalty.
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My understanding is that they did not make the law retroactive to cases before it became effective. It would be very problematic if they did for many reasons. But it would apply to anyone who was convicted after the law went into effect.
On the other hand, courts have found that convictions prior to a law being enacted can be used to enhance later prosecutions. So, a prior DV conviction could make a later DV a second or greater offense increasing the penalties.
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So shouldn’t background checks stop & start at 1994?
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