Article 17 of the Maryland Constitution: No ex post facto

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  • benton0311

    Active Member
    Feb 26, 2011
    358
    I just wanted to create a separate post to highlight the differences between the no ex post facto provisions of the Maryland Constitution and the United States Constitution The no ex post facto provision of the United States Constitution has been discussed a little bit here but the greater degree of protection afforded by the Maryland Constitution seems to frequently be overlooked.

    The Maryland Constitution:
    Article 17.
    That retrospective Laws, punishing acts committed before the existence of such
    Laws, and by them only declared criminal, are oppressive, unjust and incompatible
    with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective
    oath or restriction be imposed, or required.


    The U.S. Constitution, Article 1, Section 9:
    No Bill of Attainder or ex post facto Law shall be passed.

    Regarding the United States Constitution, note that the ex post facto provision of Article 1 Section 9 is a little more vague and has frequently been argued as to whether not it only applies to new acts committed after a law is passed or to newly-banned property owned in violation of laws moving forward. This is where you then go down the rabbit hole of the Takings Clause and Due Process.

    Article 17 was one of the arguments I made to my legislators last year as well as during several parts of FSA2013. Whether or not it was heard, I also sent Article 17 to the bills' sponsors explaining that provisions of their bills were in clear violation of the Maryland Constitution with Article 17 copied and pasted in the text.
     

    shootin the breeze

    Missed it by that much
    Dec 22, 2012
    3,878
    Highland
    That’s awesome except even if we could get the cases to the top Maryland court they’d twist themselves into bigger pretzels than the 9th does to justify them.
     

    benton0311

    Active Member
    Feb 26, 2011
    358
    That’s awesome except even if we could get the cases to the top Maryland court they’d twist themselves into bigger pretzels than the 9th does to justify them.

    Right, but the 9th is working off of Article 1 of the United States Constitution which is much more vague and this allows room for argument. This is why I’m posting this reminder about Article 17 of the Maryland Constitution. When most consider ex post facto, they automatically reference the United States Constitution and previous battles in circuit courts but completely overlook that we have a state constitution in MD that also applies.

    Correct me if I’m wrong, but as I recall even the 9th’s ruling on California’s retroactive magazine ban was based on the fact that owners were allowed to keep them as long as they modified the magazines to the new 10 round restriction, thus circumventing ex post facto and the Takings Clause. However, that was a restriction which could be argued would be allowed under the United States Constitution version of ex post facto while Maryland specifically prohibits retroactive restrictions.

    Thus far possession has been stricken from previous laws due to Article 17. The closest was bump stocks in which they deferred to the ATF with expectation that the ATF would either add them to NFA or reverse their decision memo, which they did.
     

    shootin the breeze

    Missed it by that much
    Dec 22, 2012
    3,878
    Highland
    Right, but the 9th is working off of Article 1 of the United States Constitution which is much more vague and this allows room for argument. This is why I’m posting this reminder about Article 17 of the Maryland Constitution. When most consider ex post facto, they automatically reference the United States Constitution and previous battles in circuit courts but completely overlook that we have a state constitution in MD that also applies.

    Correct me if I’m wrong, but as I recall even the 9th’s ruling on California’s retroactive magazine ban was based on the fact that owners were allowed to keep them as long as they modified the magazines to the new 10 round restriction, thus circumventing ex post facto and the Takings Clause. However, that was a restriction which could be argued would be allowed under the United States Constitution version of ex post facto while Maryland specifically prohibits retroactive restrictions.

    Thus far possession has been stricken from previous laws due to Article 17. The closest was bump stocks in which they deferred to the ATF with expectation that the ATF would either add them to NFA or reverse their decision memo, which they did.

    It’s a great argument and I hope it works, at least in court because I really don’t think the assholes in Annapolis give a shit and will ignore it and ban away.

    Why so defeated?

    Because it’s hard staying optimistic when every damn year you get the same damn fight and all we can hope to do is stop more from happening but knowing every so often another FSA 2013 will occur. When that happens we sit for years waiting to hear from the courts which we find are usually in the dims pockets. Rinse and repeat. Doesn’t mean I won’t do what I can but I’m done hoping for a better outcome.
     

    Bolts Rock

    Living in Free America!
    Apr 8, 2012
    6,123
    Northern Alabama
    Correct me if I’m wrong,

    Snipped everything in your argument that does not matter.

    Let that sink in for a minute.

    The Maryland General Asylum does not f*cking care about ex post facto when it comes to guns and they care even less what you or any progun person thinks. Froshiepoo will spend millions of your tax dollars defending that position and the Inmates of the Asylum know it. That isn't defeatist, it's reality.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    Don't know for sure if MGA will hear anything as being tone deaf. But..

    And as Abraham Lincoln stated:
    The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it.”
    – “Abraham Lincoln, [September 16-17, 1859] (Notes for Speech in Kansas and Ohio),” Page 2.


    Also ex post facto Marbury v Madison


    Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
    The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:

    I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.

    Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?
    If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.
    It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

    Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
    The rule must be discharged.


    https://www.law.cornell.edu/supremecourt/text/5/137
     

    benton0311

    Active Member
    Feb 26, 2011
    358
    Snipped everything in your argument that does not matter.

    Let that sink in for a minute.

    The Maryland General Asylum does not f*cking care about ex post facto when it comes to guns and they care even less what you or any progun person thinks. Froshiepoo will spend millions of your tax dollars defending that position and the Inmates of the Asylum know it. That isn't defeatist, it's reality.

    No, this is actually a very important distinction to make. I'd like to point out that "possession" has been stricken from all previous bills and legislators need to be reminded of Article 17 of The Maryland Constitution when articulating the problems with these bills in your emails, letters and oral testimony. They do not want to allow for possession and don't care about any retroactive impacts for gun owners but legally, they have to. I've been doing this for years and, thus far, bans on possession have not withstood the Article 17 test.

    This does not mean that pending laws won't be particularly draconian or blatantly violate the 2nd Amendment. They will push for those through regardless but when you provide the actual legal text to nullify portions of a proposed bill there's really nothing they can do but abide.

    "Correct me if I'm wrong" pertained to the 9th Circuit's ruling on California's magazine ban and the provision to modify existing magazines being the reason the law did not violate ex post facto. I was following that one to see how ex post facto and takings clauses would apply but California does not have an expanded definition in their state constitution.
     

    shootin the breeze

    Missed it by that much
    Dec 22, 2012
    3,878
    Highland
    Don't know for sure if MGA will hear anything as being tone deaf. But..

    And as Abraham Lincoln stated:
    The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it.”
    – “Abraham Lincoln, [September 16-17, 1859] (Notes for Speech in Kansas and Ohio),” Page 2.https://www.law.cornell.edu/supremecourt/text/5/137

    But, but, but the fourth box is verboten or so we’re repeatedly told. I don’t want a war really but I think we are there in this state. Fortunately most of the country is on the correct path so the feds would crush a Maryland revolution. It would have to be a true civil war to start fighting and they know it. I don’t know what else to do because we sure aren’t overthrowing them at the ballot box.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    But, but, but the fourth box is verboten or so we’re repeatedly told. I don’t want a war really but I think we are there in this state. Fortunately most of the country is on the correct path so the feds would crush a Maryland revolution. It would have to be a true civil war to start fighting and they know it. I don’t know what else to do because we sure aren’t overthrowing them at the ballot box.

    I said not a word about w@@.

    'Resistance’ still has its place in the US of today, of course — one just needs to acquire a permit that is appropriate for the particular type of rebellious activity.


    whenever any Form of Government becomes destructive of [the People’s Rights], it is the Right of the People to alter or to abolish it, and to institute new Government…
    — The US Declaration of Independence
     

    TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,179
    Sun City West, AZ
    The MGA doesn't care about ex post facto laws...they vote the way they do to show voters they're "doing something about crime" and should a court overturn it (not likely in a Maryland court), they can criticize the "activist" judges for actually following the Constitution and say they did what they could.
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    I think the devil in the details on these is going to be the time to comply.

    A new law is made, you are being given time to comply with it before any legal consequences.

    HBAR law passed on April 1st, goes into effect on Oct 1st. You have time to comply

    Ex Post Faco:

    HBAR law passed on April 1st, HBARS illegal effective date 10/1/2013.
     

    JohnnyE

    Ultimate Member
    MDS Supporter
    Jan 18, 2013
    9,466
    MoCo
    We won't get any help from an ex post facto law challenge. Arguing it just wastes our bandwidth. Here's why:

    The MGA is not proposing to make it illegal to have acquired and possessed an HBAR's between 10/1/13 and the date the new law is proposed to take effect (some time in the future). Doing THIS would be unconstitutional.

    Instead the MGA is proposing to make it illegal to own HBAR's that you acquired between 10/1/13 and the date the new law is proposed to take effect, AFTER the new law takes effect. No one will be legally on the hook for owning a post-FSA HBAR unless they continue to possess it in Maryland after the new law takes effect. If you get it out of Maryland before the new law takes effect, you are not a "criminal," thus it is not an ex post fact law.
     

    dist1646

    Ultimate Member
    May 1, 2012
    8,758
    Eldersburg
    I said not a word about w@@.

    'Resistance’ still has its place in the US of today, of course — one just needs to acquire a permit that is appropriate for the particular type of rebellious activity.

    :rofl:That's funny and sad at the same time! The very thought of having to acquire a permit to be able to resist, from those you are resisting.:sad20:
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    [/ATTACH]
    I just wanted to create a separate post to highlight the differences between the no ex post facto provisions of the Maryland Constitution and the United States Constitution The no ex post facto provision of the United States Constitution has been discussed a little bit here but the greater degree of protection afforded by the Maryland Constitution seems to frequently be overlooked.

    The Maryland Constitution:
    Article 17.
    That retrospective Laws, punishing acts committed before the existence of such
    Laws, and by them only declared criminal, are oppressive, unjust and incompatible
    with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective
    oath or restriction be imposed, or required.


    The U.S. Constitution, Article 1, Section 9:
    No Bill of Attainder or ex post facto Law shall be passed.

    Regarding the United States Constitution, note that the ex post facto provision of Article 1 Section 9 is a little more vague and has frequently been argued as to whether not it only applies to new acts committed after a law is passed or to newly-banned property owned in violation of laws moving forward. This is where you then go down the rabbit hole of the Takings Clause and Due Process.

    Article 17 was one of the arguments I made to my legislators last year as well as during several parts of FSA2013. Whether or not it was heard, I also sent Article 17 to the bills' sponsors explaining that provisions of their bills were in clear violation of the Maryland Constitution with Article 17 copied and pasted in the text.

    FYI: Here is written testimony on that provision that I submitted to the MGA last year.
     

    Attachments

    • Testimony on HB 1108.pdf
      110.3 KB · Views: 157
    • Testimony on 825 disqual.time.of.Offense.pdf
      121.3 KB · Views: 100

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    This attorney at Law is our friend. https://publiushuldah.wordpress.com/category/ex-post-facto-laws/

    ThePubliusHuldah [publiushuldah@gmail.com]

    This accurately explains what a “bill of attainder” is: http://www.historylearningsite.co.uk/Bill-of-Attainder.htm
    An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.
    Say you barbequed outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbequing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.
    Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”. That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.
    Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.
    It would also be unconstitutional as in violation of the 2nd Amendment.
    But it would not be an ex post facto law. See postscript below!
    People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.
    If TRUTH spread as rapidly as lies, our problems would have been resolved long ago. But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH
    Endnote:
    In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):
    “…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” PH
     

    fabsroman

    Ultimate Member
    Mar 14, 2009
    35,852
    Winfield/Taylorsville in Carroll
    [/ATTACH]

    FYI: Here is written testimony on that provision that I submitted to the MGA last year.

    Mark, as it pertains to the matter you wrote about, I completely agree with you. A law that a person violated in the past, that did not make him a prohibited person at the time he was convicted, should not make him a prohibited person in the future because the legislature decided to change the penalty for the law at some future time after the conviction.

    However, what a lot of people are doing in this forum is trying to apply the ex post facto law to the Rapid Fire Trigger Device, the HBAR ban, etc. and say that because the item was purchased before the possession ban was passed, that it is an ex post facto law. I think gprim1 addressed this. With regards to the Rapid Fire Trigger Device and the HBAR ban, the legislature is NOT criminalizing possession of those items prior to the law going into effect at a future date. The legislature is passing a law in April, having it go into effect in October, and criminalizing the possession of those items at a future date. So, ex post facto does not come into play in these specific situations.
     

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