They Can’t Criminalize Us After The Fact – Ex Post Facto Legislation Prohibited

by Mike

Remember those powerful clauses in the Bill of Rights with words like “Congress shall make no law….”, “Congress shall not infringe…”? Well there are other equally powerful clauses right up front in Article I which deserve our attention as DiFi, Mario Junior (Andrew Cuomo), and BarryO talk about criminalizing guns that we have already obtained and currently possess legally.

Article 1, Section 9, Clause 3 of the US Constitution states, in reference to the legislature: “No bill of attainder or ex post facto Law shall be passed.”

Article 1, Section 10, Clause 1 of the US Constitution similarly binds the states:
“No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”

In plain English, neither the Federal government, nor the Sovereign States, may single out a person or group (EG gun owners, the NRA, etc.) for punishment by legislative act. Nor may they pass a law which makes an act which was legal at the time it occurred (EG obtaining a gun) retroactively illegal.

What does this mean? It means that acts of Congress, passed in contravention of the clear intent of the constitution, are “Null, Void, and of No Effect”, IE NOT LAW. Let us not forget the key words in the oft-misconstrued ‘Supremacy Clause’:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land
Paraphrasing, those laws which are NOT pursuant to the constitution, are therefore NOT the supreme law of the land, and thus cannot preempt state constitutions or laws.
For further emphasis, let us turn to the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, we did not grant the Federal government the power to criminalize acts “Ex Post Facto”, and thus they do not have the authority do do so.

Simply put: We bought our guns, we keep our guns, we are not criminals today, and they cannot legislatively make us into criminals after the fact. Thus we have no obligation to comply with any efforts to make us register or surrender said guns under penalty of an invalid act of Congress (the word “law” cannot apply to an action which is in contravention of the Constitution). Now would be a good time to support and expand the activities of Oath Keepers, and ensure that our local law enforcement and county sheriffs are aware that any such law is not valid. Let us also remember the principle of Jury Nullification – if the jury can be convinced that a law is unconstitutional, they have the right to refuse to convict under that law.

Finally, we should never forget these immortal words:
Ben Franklin: “We must all hang together, or assuredly we shall all hang separately
Martin Niemoller:
First they came for the Socialists, and I did not speak out– Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out– Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out– Because I was not a Jew.
Then they came for me–and there was no one left to speak for me.

Dear reader, even if you do not own a gun, just remember these two immortal statements, and consider that if “first they came for the gun owners” and you did not speak up, there would be no-one left to defend you when it is your turn.
Legal references from the Legal Information Institute at Cornell:
The full text of Article I
Bills of Attainder and Ex Post Facto Laws (Click for complete reference – summary below):

Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” The phrase “bill of attainder,” as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder.

The prohibition embodied in this clause is not to be strictly and narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, a violation of the separation of powers concept. The clause thus prohibits all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.

Ex Post Facto Laws
Definition.—At the time the Constitution was adopted, many persons understood the term ex post facto laws to “embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.” But in the early case of Calder v. Bull, the Supreme Court decided that the phrase, as used in the Constitution, applied only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind, the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal. Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.

Leave a Comment

  • Susan

    Who doesn’t love the Gonzales flag?!!!

    • Rick_GraniteGrok

      That is why I have that sticker on the back of my truck

  • Rick_GraniteGrok

    This is a great piece, Mike! My sense is though that Progressives remain undeterred.
    It’s a sobering notion to come to the realization that as human behavior sometimes requires and necessitates, physical force is required to enforce laws…(Constitution)

    • Something about the tree of liberty and blood?
      The federal government must be reminded that we the people, and our sovereign states, are their masters.
      We are armed as insurance against ultimate tyranny, and we pray that said insurance will be sufficient deterrent. We do not wish for armed confrontation, but must not shrink from it if innocents are threatened or seized by the government. See Neimoller.

  • Ed Naile

    It will be amusing to see Democrat governors handle this gun confiscation issue.
    Let’s see, the legislation will take some time to pass or fail. 2014 is coming real soon and those elections will be a bell-weather. Obama is gone on 2016, a lame duck half way there.
    Yea, good bet to climb aboard the anti Second Amendment wagon.

  • allen

    I hate to say it, but they already did it with Class III weapons. find an old MG-42 in the attic of a WW2 vet, and see if you can get a tax stamp on it.

    they will use this as precedent. a (voluntary) amnesty registration..which no one will follow…followed by massive fines and jail time for unregistered items. it won’t be an ex post facto law because it won’t be the actual ownership they’re will be the failure to pay a tax. and then they will cut off accepting new people paying the tax, and the guns get confiscated when people die. progressives are patient. they can wait another generation for the last AR to go into the blast furnace. by then no child will have ever been allowed to touch a firearm, and they will not know how to operate one nor will they have a desire to. the “gun=BAD” reinforcement that we get from suspending children who DRAW something that looks like it MIGHT be a gun will have run it’s full course as those children reach adulthood.

    TAKE A CHILD SHOOTING. it is our best hope for the future. I will even volunteer my own guns, time, and expertise for that cause (you buy the ammo though…that stuff is getting EXPENSIVE). give a kid 10 rounds of .22LR, and just ONE in the 10X ring..and we’ll probably have a shooter for life.

    • Let me see. Discover an old weapon with no registration?
      Just don’t register it. We don’t have to play their games by their rules.

      • allen

        yes, we have the right. (“allowed” isn’t the correct term, but you know that).

        I am all for the repeal of GCA34…but I don’t think there is anyone trying to get that done. there are machinegun collectors that wouldn’t want it to happen, because it would eliminate 90% of the value of thier class 3 weapons overnight.

        • true. collectors would lobby against it.

    • Ed Naile


      Some friends, a 15 year old girl and her mom, came to stay with us this fall. I let them shoot the Ruger 10/22 at an old toilet tank and top.
      They are hooked!
      Both have no problems with guns but to take apart and old toilet with a semi auto was a blast.
      Mom shot two out of three cherry tomatoes at 50 feet.

  • Sam Adams

    Good reads Mike. I also thought Article 1 Section 8 says Congress has exclusive legislation[not to exceed 10 sq miles]. I forgot about Expost Facto , My legislature won,t like to hear this. Didn,t they also have a head ache with prohibition when the thugs couldn,t get one jury to convict?

    • Justin

      It says that Washington D.C. can only be 10 miles squared….

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