Public Safety or Bills of
by Jon Roland*
Published in University of West Los Angeles Law Review,
Vol. 34, 2002.
During the 20th century, Congress and state legislatures have adopted a
great deal of legislation for the ostensible purpose of public safety, by
defining a class of persons considered "dangerous", and making it a crime to
for such persons to acquire or possess firearms or ammunition or for other
persons to convey firearms or ammunition to them. At the federal level,
Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, containing Title VII, §1202 (a)(1) proscribing
the possession of firearms by any person who "has been convicted by a court of
the United States or of a State ... of a felony." In 1986 Congress passed the
Firearms Owners Protection Act, which has been
amended several times. This legislation has been codified in 18 U.S.C.
§§ 921-924, and provisions of it
sustained by U.S. Supreme Court majorities in such cases as Lewis v. United
States, 445 U.S. 55 (1980) and Caron v. United
States, 524 U.S. 308 (1998).
However, in 1995 the Supreme Court struck down a part of these sections
in United States v.
Lopez, 514 U.S. 549 (1995), on grounds
of lack of authority under the Commerce Clause, but the provisions have since
been restored by Congress with language added relating them to "interstate
commerce", and the restored provisions have not yet been tested in the courts.
In May, 2000, the Supreme Court decided in United States v.
Morrison, Docket 99-5, and in Jones v. United
States, Docket 99-5739, to restrict
the civil and criminal powers of the federal government asserted under the
Commerce Clause. Although narrowly decided, the opinions in these cases,
especially those of Justice Thomas, create a challenge to the entirety of 18
U.S.C. §§ 921-924, as does the present case of United States v. Emerson,
Cr. Act. C:98-CR-103-C, which struck down 18 U.S.C. § 922(g)(8) on the
grounds that it violates the Second Amendment. This holding was reversed, and
the case remanded, by the Fifth Circuit, but that decision is expected to be
appealed to the Supreme Court, if the government pursues it at the trial
This article argues that in addition to the other violations of the
Constitution of provisions of 18 U.S.C. §§ 921-924, its provisions
also violate the Fifth Amendment right of due process, and the prohibition in
U.S. CONST. Art. I § 9 Cl. 3 of bills of attainder
and ex post facto laws, and rest upon violations by the states of the
prohibition in U.S. CONST. Art. I § 10 Cl. 1 of
bills of attainder and ex post facto laws.
"We the people are the rightful masters of Congress and the courts,
not to overthrow the Constitution, but to overthrow men who pervert the
— Abraham Lincoln
The classes of persons considered too "dangerous" to possess firearms
are listed in 18 U.S.C. § 922(g):
(g) It shall be unlawful for any person –
- (1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
- (2) who is a fugitive from justice;
- (3) who is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances Act (21
- (4) who has been adjudicated as a mental defective or who has
been committed to a mental institution;
(5) who, being an alien –
- (A) is illegally or unlawfully in the United States; or
- (B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C.
- (6) who has been discharged from the Armed Forces under
- (7) who, having been a citizen of the United States, has
renounced his citizenship;
(8) who is subject to a court order that –
- (A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to participate;
- (B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of such intimate
partner or person, or engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or child; and
- (i) includes a finding that such person represents a
credible threat to the physical safety of such intimate partner or child;
- (ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate partner or child
that would reasonably be expected to cause bodily injury; or
- (9) who has been convicted in any court of a misdemeanor crime of
domestic violence, to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in interstate or
However, on ATF forms an applicant for purchase of a firearm must sign,
under penalty of perjury, somewhat different language:
- Is applicant –
- a. Charged by information or under indictment in any court for a
crime for which the judge could imprison him/her for more than one year? An
information is a formal accusation of a crime made by a prosecuting
- b. A fugitive from justice?
- c. An alien who is illegally in the United States?
- d. Under 21 years of age?
- e. An unlawful user of or addicted to marijuana, or any depressant,
stimulant, or narcotic drug, or any other controlled substance?
- f. Subject to a court order restraining him/her from harassing,
stalking, or threatening an intimate partner or child of such partner?
- Has applicant –
- a. Been convicted in any court of a crime for which the judge could
have imprisoned him/her for more than one year, even if the judge actually gave
him/her a shorter sentence?
- b. Been discharged from the armed forces under dishonorable
- c. Been adjudicated mentally defective or been committed to a
- d. Renounced his or her United States citizenship?
- e. Been convicted in any court of a misdemeanor crime of domestic
violence? This includes any misdemeanor conviction involving the use or
attempted use of physical force committed by a current or former spouse,
parent, or guardian of the victim or by a person with a similar relationship to
The problem with this somewhat broader language on the form is that the
applicant must sign it "under penalty of perjury", and for that purpose the
interpretation of the language is not limited to that authorized by the
statute. "Any court" could be interpreted to include courts of foreign
countries, for "offenses" that would not be offenses in the United States.
Whether an alien is "illegally" in the United States is not always easy to
determine, and might be the current subject of litigation. What is the
authority for the age limit, especially when under state law the disabilities
of minority might have been removed for all purposes except voting? While the
statute provides that the substance to which someone might be addicted be
"controlled" under 21 U.S.C. 802 §102, under the language of the form the
applicant could be prosecuted for being addicted to alcohol, coffee,
cigarettes, or chocolate, which are "controlled" under various state and local
acts to varying degrees. What is an "intimate partner", and what is the
authority for making that a predicate for disablement of a civil right? What if
the commitment to a mental institution was only for a few days for evaluation,
and the person was determined to be in good mental health?
For that matter, what is the authority for a federal agency to require
applicants for the exercise of a civil right to sign a statement "under
penalties of perjury"? Is there any constitutional authority to prosecute
anyone for perjury outside of the territory and jurisdiction of federal
enclaves? We will return to these questions below.
Let us examine some the difficulties of defining a class of "felons" or
"serious offenders" or "dangerous persons" for whom the right to keep and bear
arms is to be legislatively disabled:
"Felons" are not always violent people who would misuse a firearm.
Some laws are drafted so broadly that penalties that meet the simplistic
definitions used in the 1986 Firearms Owners Protection Act are imposed on
widely different behaviors. Despite the fact that the Act specifies "violent"
felonies, the enforcement of the Act has considered all felonies "violent" just
because they are "felonies".
- Lewd behavior is a "felony" in some states, but can include
anything from relieving oneself in the wrong place, to social protest, to
topless sunbathing, to flashing.
- Pornography is a felony by some local standards, but what is
pornographic changes. The term has been applied to books now considered
classics, to classical art such as naked Greek statues, or to parents who
innocently took pictures of their children as naked babies.
- In many states gambling is a felony, depending on the game played
and the amount bet.
- Impregnating a woman, even if one later marries her, or even
nonmarital cohabitation, can be a felony in some states.
- Procuring an abortion was once a felony in most states. If one
did it when it was illegal and was convicted, one would be a "felon" for the
purposes of the federal Act.
- Income tax evasion, or filling out government forms incorrectly,
can be a felony. So can donating too much money to a political campaign,
defending oneself from attack by a dangerous animal that happens to be a member
of an endangered species, filling in a part of one's backyard that some
bureaucrat decides is a "wetland", and some types of illegal dumping. Many of
these laws do not require criminal intent.
- Many states have similar names for crimes, some of which are
felonies and some are not. Larceny "over" a certain value may be a "felony",
and "under" that value a "misdemeanor", but the value varies from state to
state, and even within a state, the laws and values may change.
- Penalties for the same offenses have often increased from one
year to the next. Conviction of drunk driving in Massachusetts in 1993 would
not have disqualified one from having a firearm, but would have done so
beginning in 1994.
Although The Brady Handgun Violence Prevention Act requires the FBI
to destroy the records of checks, that provision is being ignored, and the
"instant check" system establishes not just a national gun registration system
but a national dossier and tracking system of all citizens. Previously
forbidden from maintaining dossiers on individuals unless they were the
subjects of a criminal investigation, the federal government is now compiling
massive amounts of information on everyone. Not all of that information is
correct, yet people are being prosecuted on the basis of that incorrect
- Each state has different laws and standards. There is no uniform
labeling of crimes or characterization of offenses as misdemeanors or felonies.
In many states, the older criminal records are not in good order.
- Until fairly recently, all records were kept by hand locally.
Different courts kept their records in different ways. There were differences
in the way judges handled cases.
- Many states have methods which allow the judge to impose court
supervision without giving the accused a criminal record. Terms such as
"pre-trial diversion", "pre-trial probation", "continuance without a finding",
"placing on file", "conditional dismissal", and "suspended finding", describe
dispositions which do not result in giving the accused a criminal record.
Because judges believed nothing more than a fine would result from such
dispositions, they were quick to impose them without much thought to the guilt
or innocence of the accused.
In some areas, records of closed cases have been destroyed
leaving only cryptic entries describing the charges but not the disposition of
the case. When the NICS check is conducted,
it frequently turns up these partial records. The "instant check" FBI staff
assume the worst, even though the records were ambiguous.
- Although not authorized by law to do so, the "instant check" also
looks at the NICS records of arrests. If no follow up entry was made in that
data base indicating what happened after the arrest, the government tends to
treat the reported arrest as if it were a conviction. The citizen is then
forced to prove he was not convicted.
- There is no time limit on convictions. A check could turn up a
record 60 years old. Tracking down older public records to establish
nonconviction or to correct erroneous information can be very difficult.
- A criminal conviction remains forever unless one is pardoned, has
the record expunged, or one lives in a state that automatically expunges a
record on the passage of time. Most states do not automatically expunge
records, and some that are supposed to do so, don't.
- Some states seal records after a period of time. The sealing of a
record does not remove the conviction, it simply hides it from the general
public, and perhaps from the person convicted. If one knows or suspects he may
have a sealed record, he should consult with his attorney before answering any
governmental questionnaire that asks about convictions.
Court interpretations of the Firearms Owners Protection Act have
resulted in serious problems.
- For a time, the federal government refused to recognize state
pardons of people with felony convictions and refused to recognize the state
classification of a crime as a misdemeanor if the potential penalty was greater
than two years. This led to people who committed offenses which were
misdemeanors under state law being prosecuted under federal law as though the
state offenses had been felonies.
- People who had received pardons or who had their right to own
firearms restored under state law acquired firearms in good faith, believing
they were in compliance with the law, only to be prosecuted by the federal
government as felons in possession of firearms. To avoid this the Firearms
Owners Protection Act was amended to provide that, "Any conviction which has
been expunged, or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction under this chapter,
unless such pardon, expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or receive
But this provision has been interpreted by a number of federal
district and circuit courts in different and conflicting ways.
One argument was that the rights were restored or limited
under federal law to the same extent they were restored or limited under state
law. This was the argument favored by the dissenting opinion in the
The other argument was that a restoration of rights had to be
full. If any limitation was placed on firearms ownership, the "unless" section
applied. This was the argument that prevailed in the Caron case, the
basis for which was a Massachusetts law that restored a person's right to own
rifles, shotguns, and handguns five years after a conviction for a felony, but
not his right to carry handguns outside his home.
The other categories, not issues in Caron, such as persons
with a "history" of "mental disorder" or "addiction" to "depressants" or
"stimulants", or the recently added "domestic violence" or "subject of a
protective order" provisions of the Lautenberg Amendment to the Act, present
similar difficulties of definition, different state and local standards,
incomplete, incorrect, or misleading records, and uncertainty for a reasonable
and law-abiding person as to whether one of the categories applies to him.
- A person may innocently be unaware of an indictment or arrest
warrant, and therefore be a "fugitive" without knowing it.
- Many persons are routinely required to have a mental examination,
without any indication of mental disorder, yet the fact of the order of
commitment or examination represents a "history" that could be used to make
possession of a firearm a federal crime.
- In most states, the results of medical examinations, but perhaps
not the fact of them, are sealed under privacy laws and not available for
reporting or inquiry without a court order, preventing the subject from being
able to establish that the result of the examination was that he had no
- Some persons cooperate in getting a mental health examination
without ever knowing there is a court order.
- Mental health examinations can include those made of unruly
children who later turn out all right.
- There are many kinds and degrees of addiction and mental
disorder, most of which do not result in violent behavior, and many addicts or
mentally disordered persons completely recover.
- Angry spouses can falsely accuse their partners of abuse to
strengthen their position in anticipated divorce proceedings, and create an
arrest record for the subject, without guilt ever being decided by a court of
- In many divorce proceedings, protective orders are routinely
issued without any basis in reported violent behavior. Sometimes the order is
just filed away and never served on the subject.
- This Act actually operates to put the burden of proof on the
subject that he is not legally disabled.
These points should be recognized for the constitutional problems they
represent. Disabling the right to keep and bear arms, or any other civil right,
on the basis of events that might be indicative of being dangerous, but are not
conclusive of it, are prohibited bills of attainder, just as legislation that
incarcerated all persons with a XYY chromosome abnormality, because such
persons are prone to violent crime, would be.
The definitions and state of record-keeping is not the only difficulty,
however. To explore some of the other problems, let us first consider two
Lewis v. United
States, 445 U.S. 55 (1980)
The majority opinion of BLACKMUN, J., held that
Even though petitioner's extant prior state-court felony conviction
may be subject to collateral attack under Gideon v. Wainwright, 372 U.S.
335, it could properly be used as a predicate for his subsequent conviction for
possession of a firearm in violation of 1202 (a)(1) of Title VII of the Omnibus
Crime Control and Safe Streets Act of 1968. Pp. 60-68.
(a) The plain meaning of 1202 (a)(1)'s sweeping language proscribing
the possession of firearms by any person who "has been convicted by a court of
the United States or of a State ... of a felony," is that the fact of a felony
conviction imposes firearm disability until the conviction is vacated or the
felon is relieved of his disability by some affirmative action. Other
provisions of the statute demonstrate and reinforce its broad sweep, and there
is nothing in 1202 (a)(1)'s legislative history to suggest that Congress was
willing to allow a defendant to question the validity of his prior conviction
as a defense to a charge under 1202 (a)(1). Moreover, the fact that there are
remedies available to a convicted felon — removal of the firearm
disability by a qualifying pardon or the Secretary of the Treasury's consent,
as specified in the Act, or a challenge to the prior conviction in an
appropriate court proceeding — suggests that Congress intended that the
defendant clear his status before obtaining a firearm, thereby fulfilling
Congress' purpose to keep firearms away from persons classified as potentially
irresponsible and dangerous. Pp. 60-65.
(b) The firearm regulatory scheme at issue here is consonant with
the concept of equal protection embodied in the Due Process Clause of the Fifth
Amendment, since Congress could rationally conclude that any felony conviction,
even an allegedly invalid one, is a sufficient basis on which to prohibit the
possession of a firearm. And use of an uncounseled felony conviction as the
basis for imposing a civil firearms disability, enforceable by criminal
sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109;
United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405
U.S. 473 . Pp. 65-67.
591 F. 2d 978, affirmed.
The Court would seem to be making it a federal crime for someone to
violate the disabilities of the right to keep and bear arms imposed on him by a
state court, but that is not what is being done. While there is a presumption
that such a state conviction will entail state disablement of the right, that
is not necessarily so. It is possible that the state does not disable the
right, or that the disability expires automatically upon completion of other
components of the sentence, or at some later time, but such possibilities are
presumed not to apply unless the subject can prove otherwise. The Act disables
a civil right legislatively at the federal level, on the basis of an event,
namely an indictment, temporary order, or conviction in a state court, which is
not complete due process, which may not have disabled the right at the state
level, or if it did, may have since removed the disability, or may yet remove
it, as by a retrial and acquittal or with a pardon, after the subject is
prosecuted and convicted of a crime in federal court.
So let us ask two questions, and defer the answers to later: Why does
the Act not authorize a federal agency or prosecutor to deliver the subject to
a state court for prosecution under state law, and perhaps provide the
prosecutor, if the subject has violated a state disability? And if not, what is
the constitutional authority to legislatively disable a civil right on the
basis of an element of due process, namely indictment or conviction, performed
by another sovereign, the state, but perhaps not completed by it, or with a
disablement that does not cover the particular instance, or is no longer in
Caron v. United States, 524 U.S. 308
This case further demonstrates how politics or public
policy, without a grounding in constitutional fundamentals, can
yield a morass of contradictions and unjust outcomes. It arises out of the 1986
Firearms Owners Protection Act, as amended,
which forbids a person convicted of a serious offense to possess any firearm,
18 U.S.C. § 922(g)(1), and requires that a three-time violent felon who
violates § 922(g) receive an enhanced sentence, § 924(e). However, a
previous conviction is not a predicate for the substantive offense or the
enhanced sentence if the offender’s civil rights have been restored,
“unless such ... restoration ... expressly provides that the person
may not ... possess ... firearms.” § 921(a)(20) (emphasis added). The
petitioner in this case was convicted under the Act for possession of some
rifles and shotguns, even though on one of his original convictions he had had
his civil rights restored by operation of a Massachusetts law that permitted
him to possess rifles but restricted his right to carry handguns. The decision
of the Court was to uphold the conviction and longer sentence, on the argument
that, although he had a right under Massachusetts law to possess the rifles and
shotguns, the disability for carrying handguns made the federal charge
applicable under the above "unless" clause, even though he didn't have any, so
that if there were any limitations on firearms ownership remaining after a
restoration of rights, the federal law prohibited such person from possessing
any firearms. That is, even if the state specifically said the person could
have certain firearms, the federal law would not recognize that. Justices
Thomas, Scalia, and Suter dissented on this argument, but neglected to examine
the more fundamental issues that invalidate the entire Act.
The case arose from enforcement of The Brady Handgun Violence Prevention
Act, 18 U.S.C. §§ 921-22 (1994), a
political compromise in which the NRA accepted and supported its "instant
check" system by the FBI on prospective
purchases of firearms, forbidding purchases to certain categories of persons,
as an alternative to new gun laws. The FBI has claimed that this system has
prevented sales of firearms to hundreds of thousands of "felons" and other
"dangerous persons", but what seems like a good public safety outcome is often
unjust, besides being unconstitutional using the criteria and methods on which
the sales are rejected. Where political compromises are involved,
constitutional principles tend to be compromised along with the policy
preferences, making moot the presumption of the constitutionality of
While all this might indicate a need to tune the standards, standardize
the definitions, and improve state and federal recordkeeping, there is a
fundamental problem that was not addressed in this case: legislative
disablement of a civil right, even upon "conviction" of a "felony".
"Do not separate text from historical background. If you do, you
will have perverted and subverted the Constitution, which can only end in a
distorted, bastardized form of illegitimate government."
Fundamentals of the
U.S. CONST. Art. I § 9, Cl. 3:
No Bill of Attainder or ex post facto Law shall be passed.
U.S. CONST. Art. I § 10, Cl. 1:
No State shall ... pass any Bill of Attainder, ex post facto Law,
U.S. CONST. Second Amendment:
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
U.S. CONST. Fifth Amendment, in part:
No person shall be ... deprived of life, liberty, or property,
without due process of law;
Finally, U.S. CONST. 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.
Let us first consider the Fifth Amendment. What rights are protected by
it, what is due process, what does it mean to deprive a person of such a
Due process is a judicial proceeding, not a legislative or
executive proceeding. It begins with a petition to a court, and ends with an
order granting or denying the petition, and perhaps with the execution of the
order. In between are procedures to insure that the legitimate interests of
everyone affected are protected from injustice. There are two main kinds of due
process, a civil proceeding and a criminal proceeding. What
distinguishes them is the kind of rights that can be lawfully disabled by each,
and the standards for proof. A civil proceeding may only disable a right to
property not vested, and when decided
by a jury, is decided by a preponderance of evidence and a statutory
supermajority. A criminal proceeding may also disable the rights to life, limb,
and liberty, and when decided by a jury, is decided by proof beyond a
reasonable doubt by a unanimous vote of a jury of twelve. For convenience, all
constitutional rights are grouped into those categories.
The great unsettled issue of jurisprudence is how to define what is due
process and what is needed to satisfy the requirement for it. Much of U.S. case
law since the 14th Amendment is about "substantive" due process or "procedural"
due process. When the United States was founded, many of the judicial and
quasi-judicial proceedings we have now were unheard of. It is thought
impractical to decide minor disablements by the same standards that were
developed for criminal felony trials, in which the life of the accused was at
stake, but in criminal proceedings the Fifth and 14th Amendments make no
allowance or exception for minor deprivations of liberty or property. In civil
cases the Seventh Amendment guarantees the right of a jury in cases involving a
value of more than twenty "dollars", which
opens the way for lesser due process protections for disablements whose value
is less than that. However, there is no such constitutional threshold for
criminal proceedings below which lesser due process protections than those for
a trial for a capital offense might be applied.
So how can we now have lesser due process protections for misdemeanors
with penalties of less than six months or a year of imprisonment? Or "civil"
proceedings on "infractions" for substantial disablements of either the liberty
or property of the "subject", if not always the "defendant", which are decided
by judges alone? Or administrative proceedings, without a judge, and without
the right of adequate counsel or a jury? Are all these kinds of process "due"
enough to meet the constitutional requirement? No they are not. Comparable
disablements of rights need comparable standards of due process, and
disablement of any of the rights recognized by the Constitution and its
amendments require the same standard of due process, including substantial
disablements of the unenumerated rights of the Ninth Amendment. A substantial
disablement of any right is a "punishment" for purposes of due process
protection, even if the proceeding is not called "criminal".
In a competency proceeding, which may adjudge the subject mentally
defective, or commit him to a mental institution for more than a brief
examination, or disable his right to keep and bear arms, the subject should
have the same right to a unanimous verdict of a jury of twelve, that he would
have if he were being prosecuted for a crime for which the penalty was
imprisonment. Likewise if the "penalty" were the deprivation of the property
right of practicing his profession, or the parental right of visitation with a
child, or the right to vote and hold office, he should also have the same due
process protections that someone accused of a capital offense would have.
Bills of attainder and ex post facto
Let us now turn to the prohibitions against bills of attainder and ex
post facto laws. Established precedents tend to define these terms narrowly.
These precedents are confusing, incomplete, and do not reflect all the rights
the mandates were meant to insure. They come from isolated unrelated cases.
They may have even served to detract from the rights the mandates were meant to
preserve because they only reflect portions of what a bill of attainder
From English law a punishment less than death without a trial is
considered to be a bill of pains and penalties, so one of the issues is to
determine whether the phrase "bill of attainder" in the Constitution includes
the "bill of pains and penalties" as well.
To establish what a bill of attainder really is requires some research
and reflection. One researcher has summarized the definitions in the various
sources and precedents: "A bill of attainder is a law, or legal device,
used to outlaw people, suspend their civil rights, confiscate their property,
put them to death, or [otherwise] punish them without a trial."
In spite of the limited methodology used for determining what is, and
what is not a bill of attainder, some elements are:
A. A bill of attainder proper is the administration of death without a
B. Any punishment without trial is a bill of attainder under the
doctrine of inclusion of "pains and penalties."
C. Bills of attainder can include any legislative act which takes away
life, liberty, or property. (This concept is mostly ignored by courts and
D. Bills of attainder can apply to specifically named individuals or
easily ascertainable groups (including the group of everyone).
One of the greatest hazards of bringing a bill of attainder case is one
cannot count on the court to support any of the concepts above. In cases where
Article I mandates are addressed, the courts sometimes respond to Article III
mandates instead. Most courts avoid the issue.
A criminally prohibited act can be malum in se, an actual injury
to someone, or malum prohibitum, which is normally justified as an
attempt to prevent injury. But opening legislation to preventive
measures is dangerous. Punishing people for their past offenses can be
justified as prevention of future crimes, and past crimes are indeed usually
the best predictors of future crimes, but when legislators try to use acts
other than crimes as predictors of crimes, and prohibit those alleged
predictive acts, they are disabling the right of the people to engage in such
acts for innocent purposes.
Preventive legislation was not unknown to the Founders, but most of
their criminal legislation presumed an act which was an injury to a victim. The
difficulty with preventative statutory prohibitions is that they involve
disablement of everyone's rights on a theory of causation that may not be
valid, and may have unintended consequences that are worse than the intended
ones. The prohibition of alcohol by constitutional amendment was a classic
failure of this kind, and the present "war on drugs" seems to be another one.
All too often the predictors chosen are weak or dubious causes of the evil the
measure seeks to avoid, and are beneficial in other ways that may greatly
exceed the hazards. However, the predictors are too often dramatic in their
adverse effects, but diffuse in their beneficial effects, misleading public
policy to focus anecdotally on the harm while ignoring the benefits.
Although historically bills of attainder have sometimes imposed
punishment legislatively for past acts which may have already been prohibited
as crimes, or acts not prohibited as crimes when committed, which would be make
them ex post facto laws, some have been justified as preventive, and
sought to avoid political opposition by being imposed on a minority class or
faction out of power. This would make bills of attainder the legislative
equivalent of civil injunctive or mandamus relief, but without the trouble and
expense of the plaintiff proving he would be injured if the relief sought is
not granted. If done for alleged past acts that were crimes, it is disablement
of public rights without due process of law, but if preventive, it is
disablement of public rights for possible future acts, and that is in clear
conflict with the purpose of government being the protection of rights. Rights
may sometimes conflict and need to be balanced, but actual rights must be
balanced against actual rights. It does not work to disable actual rights to
prevent possible future infringements of rights that may never occur.
The linking of ex post facto laws and bills of attainder to criminal
actions fails to consider that the purpose of these provisions is protection of
the rights of defendants, and it matters little, except perhaps to the
reputation of the defendant, whether the action is called "civil" or "criminal"
if the right sought to be disabled is the same. A competency hearing that seeks
to confine the defendant to a mental institution is a petition to disable the
liberty of the defendant, and as such must be accorded the same due process
protections that a "criminal" action would have that sought to imprison the
defendant. For the defendant there is little difference between confinement in
a mental institution and confinement in a penal institution.
These considerations also open the question of the constitutionality of
punitive damages in civil cases. They imply that such punitive damages are
necessarily of a character that requires criminal due process. There is no
constitutional prohibition against combining civil and criminal cases in a
single action, but punitive damages must be imposed by a unanimous verdict of a
jury of twelve, based on proof beyond a reasonable doubt, with all the due
process protections of criminal trials.
Weak definitions from court
U.S. v. Brown, 381 U.S. 437 (1965), U.S. v. Lovett 328 U.S. 303 (1946), and In re Yung Sing Hee (1888) establish bills of pains and penalties as punishment
without trial, and included within the prohibitions of bills of attainder. The
precedent that best reflects most of the original intention of the mandates is
from Cummings v. Missouri, 71 U.S. 277 (1867). It states, "A bill of attainder, is a legislative
act which inflicts punishment without judicial trial and includes any
legislative act which takes away the life, liberty or property of a particular
named or easily ascertainable person or group of persons because the
legislature thinks them guilty of conduct which deserves punishment."
U.S. v. Lovett was a case historically relevant to taking away
pay checks of government workers Congress could accuse of being Communists.
This was an asset forfeiture case. It states:
"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 trial, are 'bills of attainder'
prohibited under this clause."
The usual argument made for a restrictive construction of the "bill of
attainder" clauses is that they only mean "punishment", and that deprivation of
rights other than by death or incarceration in a prison are not "punishments"
for the purpose of those clauses. The argument is further made, against the
group being very large, or even the entire population, that the prohibitions
are only intended to protect "small" groups. But is it the right being
disabled, or the number of persons affected, that make a bill of attainder? If
it is a bill of attainder when it designates a single individual, or ten, or a
hundred, then how many persons have to have their rights disabled before it
ceases to be a bill of attainder? What would a legislative act be if it, say,
terminated the right to vote for the entire population, and suspended all
further elections, or deprived the entire population of the right to practice
any religion, or to speak critically of the government, or to keep and bear
arms (except, of course, the elites in control of the government)? It would be
unconstitutional, and not just because it violated rights explicitly recognized
and protected, but because it would be a bill of attainder. And it would be a
bill of attainder if it disabled any of the unenumerated rights recognized in
the Ninth Amendment.
The argument is further made that all legislation has some adverse
effect on some people, and that it is often possible to identify from the
statement of the legislation who those persons adversely affected will be,
making them an identifiable group to which the bill of attainder clauses might
apply if the clauses were interpreted broadly. Any regulation, or tax, it is
argued, will deprive some people, perhaps most persons, of property or the use
or value of it, so if the bill of attainder clauses were interpreted as broadly
as it is herein being argued we should, the prohibitions would be prohibitions
on all legislation. This argument is specious. The delegated powers to regulate
and to tax were intended as exceptions, provided that they be exercised in a
reasonable and uniform manner. The same argument could be made about the
takings clause of the Fifth Amendment, and indeed there is a large and murky
body of case law that has arisen to determine at what point the impact of
legislation, or executive actions under the authority of legislation, on the
property rights of persons, becomes sufficiently severe to constitute a
"taking" requiring compensation.
Interpretative guidance from the
One clue to the proper interpretation of the bill of attainder and ex
post facto clauses can be found in the many statements, by Madison and others,
that the Bill of Rights, which includes the Fifth Amendment with its
protections for due process and uncompensated taking of property, were not
necessary because there were no powers delegated to violate such rights, or
that such prohibitions as were needed had already been included in the original
Constitution. If that is so, then we should
be able to find all the protections of the Bill of Rights, including the Fifth
Amendment, in other clauses of the original Constitution, or in the absence of
clauses. If we search the clauses of the original Constitution with this in
mind, we find the bill of attainder and ex post facto prohibitions being the
only clauses that could have the same meaning, in terms of limits on, or
nondelegations of, powers, as those clauses in the Fifth Amendment requiring
due process and prohibiting uncompensated takings. If a broad interpretation of
the bill of attainder clauses is not appropriate, then what is the basis for
the prevailing broad interpretation of the semantically equivalent Fifth
All the provisions in the Constitution that were meant to preserve the
right of private property over the right of the government to take property
have been abused to the point that there is no protection for private property.
The evidence that this was never meant to be is overwhelming. Founder Samuel
Adams said, "Now what liberty is this when property can be taken without
permission." Some case law exists that reflects this idea. Cases like,
U.S. v. Brown, U.S. v. Lovett, and Nixon v. U.S., 978 F. 2d 1269
(1992), all state the government does not
have the right to confiscate property. One can wonder if the opposition in the
Nixon case had invoked Calero-Toledo, would President Nixon have lost his rights to
private property? As it stands, it is another case of the bill of attainder
mandates protecting the right to private property.
The preservation of a group or individual's protection of life, liberty,
and property have fallen by the wayside in American law. Any prosecutor that
waves Calero-Toledo in front a judge takes any property he wants, and in
some cases without a trial. It has also been ruled in U.S. v.
Ursery, that it is not a violation of the
Double Jeopardy clause to pursue both criminal and civil punishment in cases
arising from the same offense. Further, the Court in Bennis v.
Michigan has allowed the confiscation of
property from "innocent owners" without due process. So much for "any"
legislative act, so much for "any" protection at all from the bill of attainder
mandates. No matter what relevance the mandates had in our past without the
protection from bills of attainder in our law we have been robbed of the civil
rights the Constitution was meant to preserve.
Further insight comes from examining several questions. Are bills of
attainder and ex post facto laws disjunctive, is one a subset of the other, or
do they overlap partially but not completely? Clearly, ex post facto laws are
bills of attainder when they apply to the class of convicted persons and
operate to increase the penalty, or likelihood of penalty, for them. Therefore,
a class of persons convicted of something can be a suspect class for which, if
a legislative act imposes a penalty on them, either after sentence is passed,
or not as part of the sentence, that act is a bill of attainder.
Does it have to be a legislative act to be a bill of attainder or ex
post facto law? No. Executive acts, purportedly under color of authority of a
legislative act, such as regulations or administrative actions, can have the
effect of a bill of attainder or ex post facto law, and therefore the act which
authorizes the executive action, to the extent it authorizes that executive
action, is a bill of attainder, and if the effect is retroactive, an ex post
The discussion during the Federal Convention limited bills of attainder
and ex post facto laws to criminal disablements, but examined more carefully,
they are actually just a complementary way to restate the requirement for due
process in the Fifth Amendment, and include vested property as well as life and
liberty. The Fifth Amendment says constitutional rights may only be deprived by
judicial due process, and the prohibitions are against doing that by
legislative process or executive process not based on a court order. Together,
they emphasize that any disablement of a constitutional right must be by order
of a court of competent jurisdiction upon petition and proof under due process
protections of the rights of the defendant.
There is one way, however, in which the semantic content of the
prohibition against bills of attainder and ex post facto laws differs from the
protections of due process rights under the Fifth and Fourteenth Amendments.
The latter creates standing for petition for redress only after one's rights
have been violated. The former creates standing for petition for redress upon
adoption of the legislation, and implicitly recognizes the right, which can be
considered to be included in the unenumerated rights of the Ninth Amendment, to
not have legislation enacted which creates the fear of prosecution, even if
that prosecution does not occur. In other words, any person who might be
subject to the act, even if not being actively threatened by it, and without
admitting to being subject to it, or to having it apply to him, would have
standing to seek a declaratory judgement that the act was unconstitutional.
While this is contrary to current judicial practice, it follows logically from
the words of the Constitution.
What the legislative branch can do is prescribe the penalties to be
imposed upon conviction of a crime. Indeed it must prescribe some such
penalties for it to be a crime. But those penalties must be made explicit in
the sentencing order to disable the rights of the defendant, and if they are
not, then the disablement is not by due process, even if there was a trial.
A thought experiment
To understand this point, let us conduct a thought experiment. Suppose
someone petitions a criminal court to prosecute an accused person for some
offense, say, "parting one's hair on the left", and he seeks the death penalty.
The first thing he would have to do is get an indictment from a grand jury.
Could he get one? Of course. The grand jury is not supposed to return a bill of
indictment on a charge that is not authorized by a lawful penal statute, but
they might be willing to indict a ham sandwich, so they might do it anyway.
So the newly authorized prosecutor asks for a trial date, and the
defendant's counsel moves for dismissal on the grounds that there is no statute
authorizing the charge. The judge is supposed to dismiss the case on those
grounds, but suppose he doesn't. Happens all the time. So it goes to trial, and
the defendant demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left?
Sure it could. The accused admits he parts his hair on the left. There are
plenty of witnesses with evidence that he does so regularly. Now, the jury is
not supposed to find the defendant guilty of the offense, because, logically,
to be guilty of an offense requires not only that he did it as a matter of
fact, but that what he did is an offense of the kind he is being charged with
doing, in other words, that it really is a criminal offense, an act which the
constitution authorizes the legislative branch to pass legislation to prohibit,
with criminal penalties for those convicted of doing it. So let's suppose the
jury unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he
been deprived of any rights by that event? No. All the verdict does is
authorize the judge, or the jury itself if it has the power to prescribe the
penalty, to set the penalty, and the judge to issue the sentencing order.
What does the sentencing order do? It does three things. First, it
disables one or more rights. That is, it restricts their exercise. In
legal theory, constitutional rights are never "lost" or "terminated", but only
"disabled", and disabilities can be removed, whereas rights, since they don't
come from government, but pre-exist it, could not be restored by government if
ever "lost". Second, it penalizes, or imposes a loss of life, limb,
liberty, or property that has been enabled by the disablement of the rights of
the defendant. Third, it authorizes and directs an official to carry out
the penalty. These three components may be collapsed into a few words, but an
analysis of what a proper sentencing order does can always be resolved into
these three phases.
So let's return to our thought experiment. The jury has brought a
verdict of guilty, and thereby authorized the judge to issue a sentencing
order. But the prosecutor has demanded the death penalty. Can the judge impose
that penalty, even though neither the offense or such a penalty is authorized
by law? He is not supposed to. He is limited to those penalties which the
legislature has prescribed for that offense, and if there are no penalties,
there is no offense, even if the defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the
defendant is accused of violating, and finds there is no such statute, or maybe
it is only an administrative statute governing the proper grooming for
government employees, with the only penalty for violation being to fire them.
Since the defendant is not a government employee, what does the judge do at
this point? Sentence the defendant to death anyway? He had better not, if he
respects the law. Of course, some judges don't. But what he is supposed to do
is only impose the penalties authorized by statute, if any, regardless of what
the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and
deprivation of the right to keep and bear arms, as the penalty for some
offense, or even for all "felonies", or perhaps all "violent" felonies? Yes it
could. It could prescribe a penalty of, say, ten years in prison, a fine, and
no right to keep and bear arms for life. But suppose the judge, either through
mercy or incompetence, sentenced the defendant to ten years, but omitted the
fine or explicit disablement and deprivation of the right to keep and bear
arms. If it's not in the sentencing order, can some prosecutor come back on an
appeal of the sentence and get the fine or the right to keep and bear arms
included in the sentence? In general, court rules and the law do not permit a
sentence to be revisited and increased in this way, or offer only limited time
and process for doing so. At some point, the sentence is final, and may not be
further increased. If there was a mandatory sentence, and the judge did not
impose it, the only recourse is against the judge. Nothing further can be done
to increase the penalties imposed on the defendant.
So, if it is a violation of due process to later increase the sentence
by adding the fine, then how can it be consistent with due process to later add
the disablement of the right to keep and bear arms? Both are prescribed by law,
both were omitted from the sentencing order. How does the one penalty differ
from the other, that one should be beyond later inclusion in the sentence and
the second assumed to be part of the sentence without being made explicit in
it? The answer is, to be compliant with the mandate for due process, all
disablements must be made explicit in the sentence, as well as all orders to
apply the deprivations those disablements allow.
The myth that one "loses all rights" on
So where does the notion come from that a defendant "loses all rights"
upon conviction, rather than just those rights disabled and deprived in the
sentencing order? Incompetent legal thinking, aided by the lack of political
clout by convicted felons and a general public attitude of "let's get tough on
crime", but it is unconstitutional.
Cases such as Lewis and Caron illustrate the subversive
way that stare decisis doctrine operates to effect a drift away from
original understanding. By assigning greater weight to later precedents, and
using rules like limits on the length of briefs, and a judicial bias against
argument from first principles, the result is akin to the walk of a drunken
sailor, from bad precedent to worse, until it becomes extremely difficult to
bear the heat from breaking back to constitutional fundamentals.
So now we can see what the statutes codified under 18 U.S.C. 922-924 do.
They legislatively impose a criminal penalty (although it would make no
difference if it was civil) on the class of persons convicted (or even just
indicted) of a crime, in many cases retroactively, without prescribing it as
part of what is to be imposed in the sentencing order. Logically, that is a
violation of the requirement for due process and of the prohibitions against
bills of attainder and ex post facto laws. It makes no difference that persons
convicted or indicted for a crime might present a threat to public safety. So
do law enforcement officials acting without lawful authority.
Violation of separation of
There is also a fundamental constitutional problem with officials of one
sovereign imposing a penalty, either civil or criminal, based in whole or in
part on the actions of officials of another sovereign. It is a violation of
federalism and the separation of powers. Each branch and level of government is
accountable solely to its own electors, and may not delegate authority to
officials of another branch or level. In Lewis, what happens if the
federal government convicts and sentences someone of the offence of carrying a
firearm, on the basis of a conviction of a felony in a state court, and then
the state offense is pardoned or overturned on appeal? It simply does not work,
constitutionally, for the decisions of a state court to determine whether an
act is a federal crime. That applies not only to state criminal proceedings,
but to things like protective orders, competency hearings and commitment
orders, indictments, arrests, issuance of licenses or permits, or any other
The right to keep and bear
We should also note that there is no provision of the Constitution or
amendments to it that say "the rights to life, limb, liberty, or property shall
not be infringed". Does that mean that by due process of law, all those rights
except the right to keep and bear arms may be deprived? Logically, if the
Second Amendment had been ratified after the Fifth, it would indeed be an
exception. But the ten amendments of the Bill of Rights were ratified at more
or less the same time, so is the right to keep and bear arms an exception, or
is it included within the rights of life, liberty, and property? For the moment
we will take the latter position, but leave the question open for later
For the sake of completeness we also must consider the question of
whether "due process" is a right to "life, liberty, or property" that could
itself be disabled by due process. Self-referencing can lead to loops in logic
and computer programming, and must usually be excluded. So we exclude due
process itself from the rights that can be disabled by due process.
Something should be said about the "right to limb". It is mentioned only
in the double jeopardy clause of the Fifth Amendment, together with life. Most
other references are to "life, liberty, and property", and the Declaration of
Independence used the somewhat more expansive phrase "pursuit of happiness" in
place of "property", although they were considered synonymous by the Lockean
social contract theory which is the basis for both the Declaration and the
Constitution. "Limb" is a term of art, and the "right to limb" is the right to
not have corporal punishment inflicted on oneself. So a criminal proceeding is
one in which the petition is for death, imprisonment, corporal punishment, or
deprivation of vested property for the benefit of the state, as a penalty for
an injurious public act, and a civil proceeding is one in which the petition is
only for deprivation of property, either for the benefit of the state or for a
So does this categorization cover everything that is sometimes referred
to by the term "right"? No, these are constitutional rights, which
include natural rights arising from the state of nature, civil
rights arising from the social contract, and constitutional rights
proper arising from the constitution. All of them are either
negative rights against action by government, or positive rights
of petition and due process. They are not rights against action by private
parties, or for an equal share or sufficiency of some scarce resource, other
than for petition and due process, because a constitutional right can only be
an equal right, and the only rights that can be equal are the rights to not
have something done by government or to have equal access to petition for
redress for grievances and get a decision on the merits of a claim. This can
yield a positive right to adequate defense counsel in a criminal trial, but it
is a right that can always be provided by not trying the accused at all.
So what kind of right is the right to keep and bear arms? Life, liberty,
or property? Actually, it is a composite of rights of each category. First, it
is an implied right of life. A right, to be meaningful, must include the right
to acquire and use the means to secure it, and that includes arms, for use in
defense of ones own life. Now liberty is also an implied right of life, because
we need liberty to preserve and defend it, although it is also a right in
itself, because it includes all those activities which make life worth living,
that is, happiness. Property can be considered an implied right of life and
liberty, since it includes the right to acquire, keep, and use the means to
preserve and defend both, but it also a right in itself, since it includes the
right to leave one's property to those one cares about, one's family, friends,
or others one favors. So the right to keep arms is a property
right and the right to bear arms a liberty right, and both
support the right to life and other kinds of liberty and
property. But the liberty right to bear arms would be meaningless without the
implied right to acquire and keep arms and ammunition for them.
But the Second Amendment mentions the Militia. What is the purpose of
that? It is intended to recognize that a person has not just the right
to defend himself, but the duty to defend others. The word militia is from Latin, and means
"military service" or, since that activity originally included law enforcement
and disaster response, "defense service". When used as a collective noun, as it
is used in the Constitution, it means any one or more persons performing
militia duty. That duty arises out of the social contract to mutually defend one another against abuse of
rights, and it includes the duty not only to obey laws, but to help enforce
them. The militia clauses have a deeper meaning, however. While all the the
rights recognized by the Constitution are for the private enjoyment and
fulfillment of persons, each of them also corresponds to a militia duty to
defend the society. It is not just by exercise of the right to keep and bear
arms that we have a duty to defend the community and its members, including
ourselves. We also have the duty to exercise our other rights for defense. We
do not have the option of not doing our part in defending. That means we have
the duty to exercise the right to speak, to publish, to petition, to assemble,
to practice religion, to vote, to serve on a jury, and to do every other lawful
thing, in defense of the state and its constitution, whenever anything might
Now one might ask how religion can be used to defend the state? The
answer to that depends on the religion, but most religions seek to develop the
virtue of their adherents, and, as many of the Founders observed, civic virtue
is essential to the viability of a constitutional republic. Civic decadence is
therefore also a threat to the state and its members, and to the extent that
religion fosters virtue, it functions as a defense activity, and therefore a
variety of militia. That does not mean, of course, that people have a
duty to take up arms to suppress moral decadence. The limits on the methods by
which decadence may be fought remain. The main methods available are social
rejection, setting a good example, and moral instruction, especially of the
young, but promoting civic virtue is still a civic duty of defense of the
community, even if it is only general preparation for potential threats rather
than imminent ones.
By this argument, therefore, the disablement of the right to keep and
bear arms is the disablement of a liberty and perhaps a life right, and not
just a property right, and as such can only lawfully be done by a criminal
proceeding, with all of its special protections, including the right to a
unanimous jury verdict and the standard of proof beyond a reasonable doubt.
So could persons be deprived of their arms, considered as property, if
there was just compensation? Yes, if there was some public need for the arms.
But there is no power to prohibit such persons from acquiring more arms, if
they can afford them, without a court order pursuant to a due process
proceeding, and to disable the right to acquire arms, the due process would
have to be that of a criminal, not a civil, proceeding.
No federal police powers on state
How, then, can Congress legislatively disable the right to keep and bear
arms for the class of persons defined as those having been convicted of a
felony, or even just indicted for one? It does so on the alleged authority of
public safety, that is, a police power, and the power to regulate
interstate commerce. But does that work? No, it does not. The only
delegation of police powers to the union government was limited to federal
enclaves created under U.S. CONST. Art. I § 8 Cl.
First, there is no delegation of police powers to Congress, except
within federal enclaves created under U.S. CONST. Art. I
§ 8 Cl. 17. Second, while "regulation" may be considered "prohibition" of
some modalities of something, the original meaning of the term is to
make regular, and that implies there must be some modalities that are
permitted. It is not a power to prohibit all modalities, and contrary to the
opinion of Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. 316
(1819), the Constitution contains delegations
of limited powers, not spheres of action within which the power of Congress is
unlimited. Third, the original meaning of commerce included only
commodities, and only the purchase or trade in such commodities that begins in
one state and terminates in another, or is between a state and a foreign
nation. It does not include trade within a state, and it does not include
agriculture, hunting, mining, manufacturing, possession, transport, or use of
anything. And "commerce" certainly does not include everything which has a
substantial effect on commerce. That is simply ungrammatical. The power to
regulate is not the unlimited power to do whatever it takes to achieve a
regulated outcome. That could be used to authorize anything, even genocide. It
is only the power to impose civil penalties on certain modalities of trade in
commodities. If normal methods of inspection and imposition of such civil
penalties are not sufficient to achieve a regulated outcome, then the
government may not extend its power to do other things intended to do so.
The final point needs to be made clear. The Founders distinguished
between delegations of powers to impose civil and criminal penalties, and
considered the latter not to be an implied power of the former, but a distinct
power requiring a distinct delegation of constitutional authority. This can be
seen in Resolution 2 of the
Kentucky Resolutions of
1798, which asserted the prevailing
common understanding at the time that the criminal powers Congress had on state
territory were limited to the following subjects:
- Treason (Art. III § 3 Cl. 2);
- Counterfeiting (Art. I § 8 Cl. 6);
- Piracy and felonies on the high seas (Art. I § 8 Cl. 10);
Offenses against the laws of nations (Art. I § 8 Cl. 10).
Although the Resolutions were controversial concerning their apparent
claim of state power to nullify national laws, the provisions on the limits of
federal criminal power were unchallenged. Thomas Jefferson, the author, did
omit one other criminal power, that of disciplining the military and the
militia when in federal service, and Congress was granted the powers similar to
that of a state on federal enclaves created by cessions by a state legislature
of parcels of land to the exclusive legislative jurisdiction of Congress for
Most federal criminal powers are asserted to be authorized by the
Commerce Clause, as can be seen above by the ways the clauses recite a
connection to interstate commerce, like a mantra, but with as little meaning.
It is intellectually dishonest to claim that the Founders intended the national
government to exercise police powers on state territory, based on the Commerce
Clause. The recent decisions in Lopez, Morrison, and Jones
are small steps toward unraveling that usurpation. But they also create a
fundamental conflict with the decisions in such cases as Lewis,
Caron, and Ursery.
To answer the earlier question about federal prosecution for perjury, it
may be considered an implied power of the above subject powers that a person
could be prosecuted for perjury in a case against him on one of the subjects
the federal government is empowered to adopt criminal legislation on, but since
violation of a state disablement of rights, or of being a dangerous person
seeking or in possession of a firearm is not one of them, there can be no
constitutional authority for a perjury prosecution.
There are several reforms that need to be made at both the state and
- Require all disablements to be explicitly stated in the order of the
court, and argued separately in adjudicating the penalty phase.
- Require the same standards of due process for disablements of all
rights recognized by the Constitution, including the right to a unanimous jury
verdict for adjudication of mental disorder, addiction, incompetence, or any
disablement of the right to keep and bear arms.
Establish that in jury trials all legal argument be made in the
presence of the jury, and provide jurors with all pleadings, including
amicus curiae briefs, and access to an adequate law library.
Re-establish independent grand juries, and remove impediments to
private criminal prosecutions and public access to grand juries, especially in
cases of official corruption and abuse.
- Establish that any legislative act which has the effect of disabling
the rights, privileges, or immunities of any person convicted of a crime, other
than by prescribing constraints on the sentence to be imposed, is to be
considered a bill of attainder and is prohibited.
- Strike down or repeal all legislative disablements of civil rights as
bills of attainder and ex post facto laws, and violations of due process.
- Educate lawyers to make more use of bills of attainder and ex post
facto arguments in their pleadings, and judges to give weight to them.
- Educate the public about what bills of attainder are and that they
are to refuse to enforce them if they serve on a jury in a case in which
someone is charged under one.
Establish that assets may not be forfeited but for payment of a
specific fine, nor may assets be forfeited which have not been proven to belong
exclusively to the person convicted of the crime, nor in excess of what may be
reasonably expected to bring the amount of the fine in a public sale, and all
proceeds in excess of the fine from such sale shall be refunded to the owner.
Limit in rem proceedings to items for which there is no apparent owner
and the owner cannot be ascertained.
- Strike down or repeal all federal criminal statutes based on the
Commerce Clause, particularly firearms legislation.
Limit the role of stare decisis, and return to fundamental
principles of constitutional interpretation, beginning with original
understanding and working forward in every case.
- Clearly mark the boundaries between federal enclaves and state
So the answers to the two questions posed earlier are, in reverse order,
that the federal government has no constitutional authority to make it a crime
to violate a state disability of a civil right. All it can do, and what it
should do, is deliver any person accused of violating a state disability to the
appropriate state magistrate for prosecution under state law, and perhaps
provide the prosecutor for the case.
The present system of disabling the civil rights of broad classes of
persons thought prone to misuse of firearms, based on uncertain events, is
unconstitutional, as would be any system of licensing or registration. What
could be done, constitutionally, is the following:
- Establish a central database of court disablements of civil rights
which any authority could check quickly.
- Make sure the database is properly updated when disabilities are
- Establish severe penalties for filing false information in the
database, or failing to promptly correct errors, and compensatory relief and
damages to persons if such errors occur and are not promptly corrected.
- Issuance by either government or private organizations to persons of
a certificate showing what his disabilities are, or that he has no
disabilities, which he can show to any person challenging his exercise of a
civil right, as a way to avoid temporary detention while checking the
- Remove all impediments to the purchase or possession of firearms that
do not violate the specific legal disabilities to which a person may be
Nothing in the Constitution prevents us from adopting measures that
solve the problems before us, but we need to be creative. What we will find is
that constitutional measures are also likely to be more effective and less
susceptible to corruption and abuse.
All web sites visited during October, 2001.
* The author is president of the Constitution Society,
7301 RR 620 N #155,276, Austin, Texas 78726,
1. Omnibus Crime Control and Safe Streets Act of 1968,
Pub. L. No. 90-351, 82 Stat. 197.
2. Firearm Owners' Protection Act, Pub. L. No. 99-308,
100 Stat. 479.
3. See especially
18 U.S.C. 921
— Firearms, Definitions <http://www.law.cornell.edu/uscode/18/921.html>
and 18 U.S.C. 922
— Firearms, Unlawful Acts <http://www.law.cornell.edu/uscode/18/922.html>.
Lewis v. United
States, 445 U.S. 55 (1980). Opinions with commentary by the author at
Caron v. United
States, 524 U.S. 308 (1998). Opinions with commentary by the author at
United States v.
Lopez, 514 U.S. 549 (1995). Opinions with commentary by the author at
United States v.
Morrison, Docket 99-5, 967 F.2d 264 (8th Cir. 1992). Opinions with
commentary by the author at <http://www.constitution.org/ussc/99-0005_.htm>.
Jones v. United
States, Docket 99-5739, 570 F.2d 765 (8th Cir. 1978). Opinions with
commentary by the author at <http://www.constitution.org/ussc/99-5739_.htm>.
9. See the opinion by District Judge Sam Cummings, and
the brief by Defendant's attorney Sean Healy, at
The Fifth Circuit opinion is 99-10331 at
10. NICS — National Instant Check System, not to
be confused with the NCIC — National Criminal Information Center.
11. The preceding list of points borrows heavily from
an article by Karen L. MacNutt in Gun Week magazine.
Lewis v. United
States, 445 U.S. 55 (1980), Syllabus, at <http://www.constitution.org/ussc/445-055_.htm>.
Calder v. Bull, 3
U.S. 386 (Dall.) (1798). Opinions with commentary by the author at <http://www.constitution.org/ussc/003-386jr.htm>.
14. In 1789 the "dollar" was a coin, the Spanish
taler, containing 416 grains of silver of standard purity. A troy ounce
is 480 grains, so a "dollar" is 0.8667 troy ounce, and 20 such coins would be
17.3333 troy ounces. This would represent about $87.71 in federal reserve notes
at the prevailing prices of silver on June 15, 2000, and it is the the minimum
"value in controversy" that would preserve the right to trial by jury in a
civil case under the Seventh Amendment as of that date.
15. U.S. CONST.
Art. III § 2
Cl. 3 requires all crimes, except of impeached officials for removal and
disablement of the right to hold future office, to be tried by a jury, which
makes no exceptions for "minor" offenses and thereby establishes a minimum
standard for due process protection.
16. Thomas M. Saunders, Certified Linguist, started
the Bill Of Attainder Project after doing a study through the U.S. Commission
On Civil Rights, (CC#93-1-1037), with cooperation from the Justice Department.
17. U.S. v. Brown, 85 S. Ct. 1707, 381 U.S. 437
(1965). See also Communist Party v. Subversive Activities Control Bd., 351 U.S.
18. U.S. v. Lovett, 328 U.S. 303 (1946). See <http://www.constitution.org/ussc/328-303.htm>
19. In re Yung Sing Hee, 36 F. 437 (1888).
20. Cummings v. Missouri 71 U.S. 277, 323 (1867).
21. Letter from James Madison to Thomas Jefferson,
October 17, 1788. See <http://www.constitution.org/jm/881017bor.htm>.
22. Nixon v. U.S., 978 F. 2d 1269 (1992).
23. Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663 (1974).
24. U.S. v. Ursery, 518 U.S. 267 (1996).
25. Bennis v. Michigan, 517 U.S. 1163 (1996).
26. See "How stare decisis Subverts the Law",
Jon Roland, at <http://www.constitution.org/col/0610staredrift.htm>.
27. For more on the militia concept, see the
Constitutional Defense page at <http://www.constitution.org/cs_defen.htm>,
especially the Whisker Militia Treatises, by James Whisker, at <http://www.constitution.org/whisker/whisker.htm>.
28. For more on the social contract concept, see "The
Social Contract and Constitutional Republics", Jon Roland, at <http://www.constitution.org/soclcont.htm>;
The Citizen, Thomas Hobbes (1647), at <http://www.constitution.org/th/decive.htm>;
Second Treatise on Government, John Locke (1689), at <http://www.constitution.org/jl/2ndtreat.htm>;
The Social Contract, Jean Jacques Rousseau (1762), at <http://www.constitution.org/jjr/socon.htm>.
29. See "Federal Jurisdiction", Lowell H. Becraft, at
See also Jurisdiction over Federal Areas within the States at
30. McCulloch v. Maryland, 17 U.S. 316 (1819).
Opinions with commentary by the author at <http://www.constitution.org/ussc/017-316_.htm>.
31. See The Virginia Report, J. W. Randolph,
ed. (1850) at <http://www.constitution.org/rf/vr.htm>.
32. See "The meaning of 'offenses against the laws of
nations'", Jon Roland, at <http://www.constitution.org/cmt/laws_of_nations.htm>.
33. See "Limits of Congressional Powers", Lowell
Becraft, at <http://www.constitution.org/becraft/limits1.htm>
and "Interstate Commerce", Lowell Becraft, at <http://www.constitution.org/becraft/interstatecommerce.htm>.
34. See "Let's Revive Private Prosecutions", Jon
Roland, at <http://www.constitution.org/uslaw/privpros.htm>.
Word version | Text version