As regular readers—and other sentient beings—know, the “Constitution State,” the state of Connecticut, has recently passed a law outlawing firearms and accessories—particularly magazines with greater than ten rounds capacity—that were previously entirely unremarkable and lawful. This law, and the potential for the deadly abuse of law-abiding citizens in the enforcement of it, have greatly concerned Americans. I’ve played some small part in informing that concern with a series of articles beginning with: “Connecticut: The Coming Storm.”
Connecticut’s law seems prima facie unconstitutional in that it is arguably a direct assault on the Second Amendment. It essentially outlaws an entire class of firearm, which is made more egregious by the fact that the class—AR-15 type rifles—is the most popular in contemporary America. The Supreme Court’s Heller decision noted that firearms usually and commonly in use are not subject to bans. The fate of magazine capacity limits is not quite so clear, but surely at some point, restricting the number of cartridges available to free men in defense of themselves, their families, their state and their nation must run afoul of the Second Amendment.
After all, if ten rounds—a number picked at random by anti-freedom advocates—is a good thing, why not limit magazines to only six, or even one? Fortunately, the nation has ample experience with such things. The Clinton gun ban, which also banned similar rifles and limited magazines to ten rounds, was in effect for a decade. It accomplished nothing—nothing at all—for public safety. Even its most ardent proponents were forced to admit this, and Democrats, smarting from the self-imposed political slaughter it wrought amongst them, quietly allowed the law to sunset. [note: a new study suggests that murder rates was 19.3% higher during the federal ban. -ed.]
What then is the argument for the same, failed law? That it will make Democrats and the uninformed feel good? That it will make a “nicer” society? “We’re the government and we can do whatever we want, nyah, nyah, nyah!?”
Obviously, under strict scrutiny, which is likely the standard by which the Supreme Court will judge substantial Second Amendment issues in the future, this sort of law shouldn’t have a leg to stand on. But there is another, even more obvious and compelling reason why such laws should not be written, and once written, must fall: they are ex post facto laws.
The Cornell Legal Information Institute defines Ex Post Facto as:
Latin for ‘from a thing done afterward.’ Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep’t of Corrections v. Morales, 514 US 499 (1995).