Hindsight from The New Gun Week February 10, 1997
Grandfather Clauses and Ex-Post Facto Laws
by Joseph P. Tartaro
Executive Editor
The ban of firearms possession for people convicted of misdemeanor domestic abuse crimes has a lot of failings. Chief among them seems to be the claims that it is an ex-post facto law which is specifically prohibited in the main body of the US Constitution.
Article I sets forth the legislative power of Congress, spelling out what the legislative branch can and cannot do. Section 9, paragraph 3 of Article I says, "No Bill of Attainder or ex-post facto Law shall be passed."
Article I, Section 9 makes it clear that Congress can make no laws which criminalize and penalize activities committed before enactment of the law.
The principal of justice and fairness in this constitutional provision should be evident to most people. Governments should not be free to punish someone after the fact, since the person or persons targeted by such a law have no defense. If lawmakers can wave a magic wand and make an act which was legal and was generally considered legal and acceptable by the bulk of society at one point in time, an illegal act after the fact, everyone would be in legal jeopardy all of the time. I would not be safe to do anything because no one would know that they were in jeopardy.
What is in dispute with regard to the Lautenberg bill is not that the type of past domestic abuse violation was ever legal or acceptable, but that the punishment it prescribes did not exist at the time of the misdemeanor. The person who pleaded guilty or was convicted of the misdemeanor was to aware of the level of punishment which might be exacted at a later time.Altered Choices If the original penalty seemed mild at one point in time, the accused might plead guilty or fail to defend him or herself in court because such a defense might entail an expense or other cost which appeared out of proportion to the penalty. On the other hand if the penalty were known to be much more severe, the accused would most likely seek to be acquitted or at least refuse to plead guilty.
Further compounding the problem with the Lautenberg measure is that only about a third of states actually codified the misdemeanor domestic abuse as such, or otherwise define what kind of cohabitation may be considered a domestic household; the federal law had to specify what types of actions would be considered disabling crimes for purposes of denying the right to arms.
Complicating the issue in this case is that the Lautenberg bill ensnares not just the average person, but police and military personnel who have traditionally been exempt from such laws, even for prevision felony violations.
The reaction to this law among police, military and others whose livelihood depends on the ability to possess, bear or transfer has been primal. It is of concern to them, not just because a basic right is being denied forever because of a prior history of non-felony domestic violence, but because it also denies forever the opportunity to earn a living in a chosen occupation.Total Exemption While some police and military people take the elitist view that they should have been exempted from the law altogether, others object only to the unusual denial of right and occupation after the fact. They claim that it is an ex-post facto law and a legal challenge to the law is likely on those constitutional grounds. However, the outcome of such a suit is far from certain.
That is why Rep. Bob Barr (R-GA) has already filed a House bill which would exempt not just the police and military from provisions of the Lautenberg law, but anyone who was convicted or pleased guilty to a misdemeanor domestic violence crime before the law was enacted last September. The Barr proposal seems a just solution to the problem.
On the other hand, Rep. Bart Stupak (D-MI) has filed a proposal which would exempt the police and military from all provisions of the domestic abuse law. This seems like it would be vastly more dangerous since it would declare open season on the families and live-in friends of police and the military. It would create a whole class of people exempt from full prosecution for crimes which society finds especially reprehensible.
The police and military have high-stress, high-risk, jobs, but if anyone is going to be deprived of the right to possess firearms because of a record of misdemeanor domestic abuse crimes, there is a danger to the public in allowing such people to possess firearms. Once again, Capitol Hill has created a one-size-fits-all solution to the problem. They have left little room for common sense judicial discretion.
If the domestic violence crime is not severe enough to warrant a felony charge, and the conflict and future threat is dealt with through supervisory review and family counseling, there is no reason to deny rights for a law enforcement officer or military person--or anyone else for that matter.
If, on the other hand, the situation is serious enough to warrant felony charges, then denial of the right to arms is justified. However, Congress should restore the funding for the Bureau of Alcohol, Tobacco and Firearms (BATF) to do individual checks for restoration of rights. The statutory language which permits such review and relief of disability is on the books. However, the anti-gunners have emasculated the law by denying the funds to do the necessary checks on individuals who seek relief. Thus, you could have someone who committed a crime many years ago, who has been totally rehabilitated and has led a useful and harmless life since the early error, but is denied a right simply because of the vindicative nature of the anti-gunners.
The inconsistency of the anti-gunners is always a source of amazement. They promote the ideal of rehabilitating criminals but deny that such rehabilitation is possible for anyone whenever firearms are remotely involved.
They like to grab the headlines and drive public policy with their media spin. The withdrawal of funding for relief of disability is one example. The denial of firearms rights to persons convicted of misdemeanor abuse crimes is another. In no other instance is a person convicted or pleading guilty to a misdemeanor so deprived of rights. However, the leverage point is domestic abuse, and issue which has become a major policy problem in this country. Indeed, the only reason the Lautenberg bill was pushed so hard before Congress adjourned last fall was to create an issue which would win women's votes for the Clinton-Gore ticket.Grandfather Clauses The ex-post facto issue raised by the domestic abuse bill may end up being resolved in the Supreme Court if it is not dealt with soon through corrective legislative action. But that Congress should intentionally push the envelope on the Constitutional prohibition should be cause for concern.
Federal, state and local lawmakers are often doing the same thing when they enact new laws. To get around it, they resort to the "grandfather clause." This device helps them solve two problems at one stroke. By grandfathering existing objects like so-called assault weapons, or acts such as the location of the business, or type of house, they avoid the ex-post facto issue for those people who were legal before the law was passed. At the same time, they manage to reduce opposition to the new law from people who already own those prohibited guns, operate a business in the now protected zone, or are committed to whatever act or right is being limited. The grandfather clause is thus a two-edged sword for those who would cut a swath through the rights and the legal activities of others.
Even as this is being written, Members of Congress are filing all sorts of new legislation that intrudes on individual rights--firearms and ammunition legislation up to and including expanded authority for more federal wiretapping. Many Americans suspect that the people who push these ideas have never read the Constitution, and have little regard for fairness and justice. Some of the things Congress has done lately certainly deserve such appraisal.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com