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Old February 11th, 2019, 07:52 AM #1
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Article 17 of the Maryland Constitution: No ex post facto

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.
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Old February 11th, 2019, 08:44 AM #2
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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.
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Old February 11th, 2019, 09:08 AM #3
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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.
Why so defeated?
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Old February 11th, 2019, 09:14 AM #4
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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.
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Old February 11th, 2019, 09:21 AM #5
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Time to mention Article 17 of the Maryland Constitution on Gun bill day and e mail it to all the sponsors who want to ban AR-15,shotgun ,rifles and so forth...
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Old February 11th, 2019, 09:27 AM #6
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Quote:
Originally Posted by benton0311 View Post
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.

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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.
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Old February 11th, 2019, 09:28 AM #7
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Originally Posted by benton0311 View Post
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.
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Old February 11th, 2019, 09:42 AM #8
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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
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Old February 11th, 2019, 09:55 AM #9
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Quote:
Originally Posted by Bolts Rock View Post
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.
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Old February 11th, 2019, 10:05 AM #10
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Quote:
Originally Posted by pcfixer View Post
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.
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