MO: Supreme Court Finds that Removal of a Constitutional Right is not Punishment

The Missouri Supreme court has held that removal of a persons right to keep and bear arms is not a punishment, and therefore laws that make it illegal for persons to keep and bear arms, that apply to actions that were committed before the law was passed, are not ex post facto.  From an AP article about the case:

 Supreme Court Judge Zel Fischer wrote in the high court's opinion that the law prohibiting felons from possessing a gun does not punish Harris' past conduct or increase the penalty for the drug offense. Instead, it establishes punishment for actions that happened after the gun law was enacted and then modified in 2008.

Cited in the case by the State of Missouri in their brief: 

The United States Supreme Court has defined an ex post facto law as
one that: (1) makes an action, done before the passing of the law, and which was innocent when done, criminal and punishes such action; (2) aggravates a crime or makes it greater than it was when committed; (3) inflicts a greater punishment than was annexed to the crime when committed; or (4) alters the rules of evidence to require less or different testimony to convict the offender than was required at the time of the commission of the offense. Calder v. Bull, 3 U.S. (Dall.) 386, 390-91 (1798).

What the court is claiming is that the punishment is for the act of possessing the firearm;  that possession of the firearm happened after the law was passed, and therefore the punishment is not ex post facto.

What this blatant sophistry ignores is that the prohibition of the exercise of a fundamental constitutional right is a direct and clear punishment in itself. Does any reasonable person believe that removal of the legal ability to keep and bear arms is not a punishment?

The Supreme Court precedent that is relied on is from Samuels v. McCurdy, 267
U.S. 188, 190-92 (1925), a case that possession of liquor that was legally purchased before a 1917 law went into effect, then became illegal possession after the law went into effect.  That case seems to me to be substantially different from ex post facto felon in possession laws, which the Supreme Court has not ruled on.

Given the "logic" relied upon in this case, what is to prevent "non-punishments" from being applied for actions long past.  Perhaps having published "hate speech" in the past could now become reason to prohibit publishing on the Internet in the future.  After all, any fines or jail time would not be for actions done in the past, they would only be for actions that occur in the present.  Mere prohibition on publishing on the Internet itself would not be the punishment, the punishment would be the fines and jail time that would result from such publishing.

By the same token, it is not punishment to prohibit some one from voting, or from traveling, or from attending church.   Only the fines and jail time that would be applied to these prohibitions would be punishments, thus making all of them exempt from the prohibition on ex post facto laws in the constitution.

The federal cases that made this argument about ex post facto punishment in felon in possession, or misdemeanants in possession cases  such as United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir. 2000), all occurred before the Heller and McDonald decisions.  I do not know if anyone is making the argument that prohibition of the exercise of a constitutionally enumerated right is in fact a "punishment", but it seems clear to me that it is.

We can add "prohibition on ex post facto" laws to the long list of constitutional protections that have been neutered by creative use of sophistry by the courts.

©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
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