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The New Left’s Ex Post Facto Problem

I’ve always said that if gun control is going to work, you have to confiscate everything.

The left dances around the subject of gun control and firearm law, mostly out of ignorance, but also because they aren’t sure how far they can go.  There is this mental block that requires them to make exceptions for hunting and some form of self-defense.  But they are actually itching to get at everything.  And it’s not that complete confiscation wouldn’t work (confiscating all guns would reduce firearm related crime), it’s that there are constitutional roadblocks that prevent them from taking that final leap.

To that end, I give you Cory Booker, Spartacus, 2020 hopeful.

The FreeBeacon reported yesterday,

Booker introduced the plan earlier Monday to “[b]an assault weapons.”

The proposal describes itself as “the most sweeping gun violence prevention proposal ever advanced by a presidential candidate.”

Responding to the news, Harlow asked the junior senator from New Jersey how his proposal stacked up. She compared it to that of Rep. Eric Swalwell (D., Calif.). Swalwell is also running for president.

“Your competitor in the 2020 race, congressman Eric Swalwell has also, like you, proposed an assault weapons ban,” Harlow began.

Harlow described Swalwell’s “buy-back programs, where Americans who currently have those guns could sell them, essentially, to the government. But if they don’t within a certain period of time, they would be prosecuted, thrown in jail.”

The CNN anchor wanted to know whether he would similarly jail the gun owners. “Are you supportive of the same?” she asked.

Booker was not interested in answering the question.  He instead focused on his record as mayor of Newark.    And the CNN anchors kept trying! To no avail.

While Swalwell is ready to nuke gun owners and while the leftwing laity may be willing to go just shy of nuclear war to achieve a “peaceful”  society, the rest of their champions can’t articulate what it is exactly that they want.

We essentially have two options in the gun control movement.

1:  harsh restrictions bound by the ex post facto clause.

2: harsh restrictions that don’t give a flying fig about the constitution proper.

I have long held that even if the second amendment did not exist, confiscation of legally purchased firearms would still be unconstitutional. 

Article I, Section 9, says that no ex post facto law shall be passed.  Black’s Law Dictionary says this,


A law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such’ factor deed. By Const. U. S. art. 1,

Congress may not criminalize something and hold individuals criminally or civilly liable if the action were committed before criminalization. 

For example,  Congress can pass a law today outlawing the wearing of blue jeans.  They cannot pass a law that criminalizes wearing blue jeans yesterday.  It was legal to do so then.

The issue of ex post facto laws regarding firearms is tricky.  We deal with two separate issues.  One is purchasing, a single event.  The second is possession, which continues.

While the weeds of legality want us to define “preventive,” “punitive,” or “regulatory,” we know that ardent gun control supporters in congress have steered far away from the appearance of unconstitutionality.

Dianne Feinstein’s Assault Weapons Ban includes a grandfather clause.  And most new gun laws do.

But the left now has no interest in grandfathering in anything.  And that is a problem.  I’ve often joked with my liberal friends that any gun control measure with a grandfather clause is utterly ineffective.  There are millions of guns that were purchased legally, that are possessed legally, and will remain legal as long as there is a grandfather clause.  As is typical, you’ll also get a huge increase in gun sales if any attempt at regulation occurs. 

Confiscating legally purchased and legally possessed firearms is new territory for the left.  It will be effective at reducing gun violence, but there is a huge impracticality in getting it done.  Confiscation at this scale is impossible.

Case law on gun related issues is scant.  There are some scholars who argue that certain regulations are not even entitled to due process protections, regardless of whether they violate the ex post facto clause or the second amendment.   The DoJ says that some gun regulations have been challenged on ex post facto grounds, but they represent niche law confined by the conviction status of the offender.

We don’t know how the courts will view it if such regulations are foisted upon the general public. 

But we can guess that the Cory Bookers of the world will not object, even if they can’t come out and say it right now.  


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