Reply
 
Thread Tools Display Modes
  #1  
Old 09-18-2019, 11:19 AM
Ashtura is offline
Guest
 
Join Date: Aug 2003
Posts: 2,374

Is there any state gun ban that doesn't have a grandfather clause?


I realize that, for instance, California's ban on certain guns exempts guns purchased before the enactment. Is there any state that restricts certain guns that doesn't grandfather old guns? In other words, you're caught with an old AR-!5 that you have a receipt for and your busted?
  #2  
Old 09-18-2019, 12:28 PM
dtilque is offline
Charter Member
 
Join Date: Jan 2000
Location: My own private Nogero
Posts: 7,128
Not in the US. There's a clause in the Constitution forbidding ex post facto laws. That is, laws that make actions done prior to the passage of the law a crime. So if someone legally bought a gun, they can't make the ownership of that gun a crime.
  #3  
Old 09-18-2019, 12:51 PM
Tired and Cranky is offline
Guest
 
Join Date: Dec 2014
Posts: 1,563
I'm not aware of any such laws but I disagree with dtilque as to why. It would violate the ex post facto clause to make my possession of a handgun last year retroactively illegal and imprison me for it now. It would not be a violation of the ex post facto clause of the Constitution to make my continued ownership of a particular old handgun a crime going forward.

There are some Constitutional concerns with not grandfathering ownership of existing weapons which probably explains why there might not be any such laws in the U.S. First is the fifth amendment's "just compensation" clause, which prohibits the government from taking private property without paying the owner just compensation. The government couldn't just ban guns and demand that you turn them over (or destroy them) because it would be a taking of your property without compensation. The government would have to pay you for the guns it is depriving you of.

Second, you are entitled to the concept of "due process" under the Constitution. An immediate ban which says that "you can't own this gun any more, effective this instant" with no opportunity to cure *might* be a denial of due process. That could violate your rights under the fifth amendment (if it's a federal law) or the 14th amendment (if it's a state law) but I'm not certain.

Finally, any gun ban in the U.S. is going to have to pass muster with the Supreme Court under its recent Second Amendment jurisprudence, but I'm sure you knew that.

Last edited by Tired and Cranky; 09-18-2019 at 12:52 PM.
  #4  
Old 09-18-2019, 02:35 PM
Ashtura is offline
Guest
 
Join Date: Aug 2003
Posts: 2,374
Thanks for the replies so far

Quote:
Originally Posted by Tired and Cranky View Post
Finally, any gun ban in the U.S. is going to have to pass muster with the Supreme Court under its recent Second Amendment jurisprudence, but I'm sure you knew that.
Okay, so how would that work in terms of grandfathering though? I assume after the law is passed an immediate injunction is going to be filed that would presumably make it all the way to SCOTUS.

Would any gun bought before it went to SCOTUS be grandfathered? Furthermore, IIRC the 1994 assault weapons ban only applied to guns manufactured after it was enacted. Could you continue to buy guns in perpetuity as long as they were manufactured before the ban? Kind of like how you can still buy full auto weapons if you have enough money to (and the tax stamp)?
  #5  
Old 09-18-2019, 02:39 PM
Saint Cad is offline
Guest
 
Join Date: Jul 2005
Location: N of Denver & S of Sanity
Posts: 13,544
Quote:
Originally Posted by Ashtura View Post
Thanks for the replies so far


Okay, so how would that work in terms of grandfathering though? I assume after the law is passed an immediate injunction is going to be filed that would presumably make it all the way to SCOTUS.
I suspect it would be that same as Prohibition. Prohibition never outlawed drinking alcohol, merely the manufacture, transport and sale of it so any alcohol purchased before the Volstead Act took effect was legal to drink. So in this case owning a gun would not be illegal but the transportation and sale of it would be.
__________________
When I was a boy, a mere lad, A FAERIE APPEARED UNTO ME AND TOLD ME I WOULD BE BOTH POPE AND KING! But I am a bastard. And a pretender.

-Richard Hariss
  #6  
Old 09-18-2019, 02:43 PM
HurricaneDitka is offline
Guest
 
Join Date: Aug 2012
Posts: 14,493
Quote:
Originally Posted by Ashtura View Post
... Furthermore, IIRC the 1994 assault weapons ban only applied to guns manufactured after it was enacted. Could you continue to buy guns in perpetuity as long as they were manufactured before the ban? Kind of like how you can still buy full auto weapons if you have enough money to (and the tax stamp)?
Just because I'm not sure everyone who reads this is aware, but the '94 AWB expired. But, to answer your question, while it was in effect, there was a lively (and perfectly legal) second-hand market for "pre-ban" firearms and accessories (such as standard-capacity magazines). Guns that had been manufactured before the ban were bought, sold, and traded regularly. If you didn't have one before the ban, and decided you wanted one, it was a fairly trivial matter to go out and purchase a "pre-ban" "assault weapon".
  #7  
Old 09-18-2019, 02:52 PM
Ashtura is offline
Guest
 
Join Date: Aug 2003
Posts: 2,374
Quote:
Originally Posted by Saint Cad View Post
I suspect it would be that same as Prohibition. Prohibition never outlawed drinking alcohol, merely the manufacture, transport and sale of it so any alcohol purchased before the Volstead Act took effect was legal to drink. So in this case owning a gun would not be illegal but the transportation and sale of it would be.
Transportation? So taking it to a gun range would be out? I seen people taking miniguns to gun ranges tho.
  #8  
Old 09-18-2019, 03:03 PM
Tired and Cranky is offline
Guest
 
Join Date: Dec 2014
Posts: 1,563
Quote:
Originally Posted by Ashtura View Post
Okay, so how would that work in terms of grandfathering though? I assume after the law is passed an immediate injunction is going to be filed that would presumably make it all the way to SCOTUS.

Would any gun bought before it went to SCOTUS be grandfathered? Furthermore, IIRC the 1994 assault weapons ban only applied to guns manufactured after it was enacted. Could you continue to buy guns in perpetuity as long as they were manufactured before the ban? Kind of like how you can still buy full auto weapons if you have enough money to (and the tax stamp)?
I don't know because you haven't said exactly how this gun ban works. All such laws are obviously subject to 2nd amendment challenges.
* Does the law ban the manufacture, importation, or sale of new covered firearms? This wouldn't likely constitute an unconstitutional taking because it doesn't affect any existing property.
* Does it ban the resale or transfer of existing covered firearms but allow for their continued possession? Again, might be subject to challenge on takings grounds since eliminating my ability to sell my guns could be construed as a regulatory taking of my right to sell but this isn't a particularly strong argument. I still have my property; I'm just restricted in the way that I can use it and that's likely within a state's police power.
* Does it ban any continued possession of covered firearms? This is definitely a taking because it doesn't provide for just compensation for banned guns.
* Does it explicitly allow for the "grandfathering" of existing firearms subject to some condition (such as licensing or registration)? This probably takes care of takings challenges because I still own and can use my property but creates due process challenges if the licensing or registration isn't, for lack of a better word, fair.
  #9  
Old 09-18-2019, 03:12 PM
Ashtura is offline
Guest
 
Join Date: Aug 2003
Posts: 2,374
Quote:
Originally Posted by Tired and Cranky View Post
I don't know because you haven't said exactly how this gun ban works. All such laws are obviously subject to 2nd amendment challenges.
* Does the law ban the manufacture, importation, or sale of new covered firearms? This wouldn't likely constitute an unconstitutional taking because it doesn't affect any existing property.
* Does it ban the resale or transfer of existing covered firearms but allow for their continued possession? Again, might be subject to challenge on takings grounds since eliminating my ability to sell my guns could be construed as a regulatory taking of my right to sell but this isn't a particularly strong argument. I still have my property; I'm just restricted in the way that I can use it and that's likely within a state's police power.
* Does it ban any continued possession of covered firearms? This is definitely a taking because it doesn't provide for just compensation for banned guns.
* Does it explicitly allow for the "grandfathering" of existing firearms subject to some condition (such as licensing or registration)? This probably takes care of takings challenges because I still own and can use my property but creates due process challenges if the licensing or registration isn't, for lack of a better word, fair.
Well, I don't know exactly. I imagine it would fall somewhere between the '94 AWB and 'Hell, yes, we're going to take your AR-15".
  #10  
Old 09-18-2019, 03:23 PM
Spiderman's Avatar
Spiderman is offline
Member
 
Join Date: Oct 2000
Location: somewhere East of there
Posts: 10,999
I don't know about old guns per se but NJ doesn't allow large capacity magazines; no grandfather exemption.

Eight other states and the District of Columbia have enacted laws that put restrictions on magazine capacity: California, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, New York, and Vermont. I don't know about the grandfather status in those states.
  #11  
Old 09-18-2019, 03:48 PM
Saint Cad is offline
Guest
 
Join Date: Jul 2005
Location: N of Denver & S of Sanity
Posts: 13,544
Quote:
Originally Posted by Ashtura View Post
Transportation? So taking it to a gun range would be out? I seen people taking miniguns to gun ranges tho.
Transport in terms of commerce like importing or distribution. So it would be illegal to give (not sell) a gun since it was transported to the exchange.
  #12  
Old 09-18-2019, 04:06 PM
MartinLane is offline
Guest
 
Join Date: Sep 2019
Posts: 77
Trump seized 600,000 bump stocks by adding them to the federal definition of machine guns. No one was allowed to register and pay the transfer tax to keep them. Even without paying compensation, the feds say this will cost the country $312 million.

When I lived in Hawaii I had to modify my >10 round mags to keep them legal even if I owned them prior to the ban. It is interesting that the law says a modified magazine can not be "readily restored" to greater than 10 rounds. Before the law went into effect, I called around and talked to people about what it meant. The police said they only enforce the law and were waiting for the courts to decide.

In other words, as soon as someone was arrested for not properly modifying their magazine, the court would decide if they were guilty or not violating the vague law. As far as I know, the police have never arrested a single person for an inadequately modified magazine. I'm not surprised as the police in Hawaii for the most part were not fans of the assault pistol band.
__________________
Thou shall not lay the burden of proof upon those questioning the claim

Last edited by MartinLane; 09-18-2019 at 04:11 PM.
  #13  
Old 09-18-2019, 05:48 PM
Corry El is offline
Guest
 
Join Date: Jan 2013
Posts: 3,876
Quote:
Originally Posted by Tired and Cranky View Post
I'm not aware of any such laws but I disagree with dtilque as to why. It would violate the ex post facto clause to make my possession of a handgun last year retroactively illegal and imprison me for it now. It would not be a violation of the ex post facto clause of the Constitution to make my continued ownership of a particular old handgun a crime going forward.

There are some Constitutional concerns with not grandfathering ownership of existing weapons which probably explains why there might not be any such laws in the U.S. First is the fifth amendment's "just compensation" clause

Second, you are entitled to the concept of "due process" under the Constitution.

Finally, any gun ban in the U.S. is going to have to pass muster with the Supreme Court under its recent Second Amendment jurisprudence, but I'm sure you knew that.
I agree, making it illegal to *now* possess something obtained when it was legal to obtain it is not itself an 'ex post fact' law. But it tends to affect many more people possessing any given thing, and rile them up more (while by same token being more potentially effective in eliminating or reducing that thing than just banning sale of it, especially if a long lived item like a gun rather than something consumable). It has a much more intrusive intuitive feel I think, even beyond guns.

I also agree other legal objections like the govt taking the value of that thing without compensation, or due process, might be raised. But it's hard to say the outcome of such challenges without all the details, and even then without seeing how actual actual judges, not just internet board 'constitutional law experts' deal with it.

In terms of actual law/regulation, and as was indirectly referred to in an earlier post, I believe the recent administrative action to outlaw 'bump stocks' is not grandfathered. Also some recent state magazine capacity limit laws do not grandfather existing ones. My state (NJ) does not grandfather magazines larger than the current limit for sale. Also many laws requiring new licensing or registration have not exempted existing owners from those requirements, though that's not the same as making existing hardware illegal. The strict licensing/registration requirements of the National Firearms Act of 1934 and subsequent law/regulation of automatic weapons did not exempt existing owners. And some state 'assault weapon' (ie semi-automatic rifle) bans have new registration requirements which don't grandfather existing owners.

Last edited by Corry El; 09-18-2019 at 05:50 PM.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:21 AM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright 2019 STM Reader, LLC.

 
Copyright © 2017