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Discussion Starter · #1 ·
I have a thought that I don't think I have seen in any of the cases opposing the NY SAFE Act.

The US Constitution Art I, Sect 10 says that "No State shall... pass any Bill of Attainder"

Blacks Law Dictionary, 6th Ed, p165, provides a defintion for Bills of Attainder
Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1715, 14 L.Ed. 484, 492; United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252. An act is a "bill of attainder" when the punishment is death and a "bill of pains and penalties" when the punishment is less severe; both kinds of punishment fall within the scope of the constitutional prohibition. U.S.Const. Art. I, Sect 9, Cl. 3 (as to Congress);' Art. I, Sec, 10 (as to state legislatures).
The NY SAFE Act is legislationwhich declares that property owned by an individual is forfeited and cannot be passed down to his heirs. This penalty (forfeiture of property) is directed by the legislature and is completely removed from any judicial process. It is also directed at a very specific members of a group; gun owners.

A more historical analysis could be performed, but from what I can find, the types of bills of pains and penalties and bills of attainder that were being used by England in the time period of the foudning of the nation, were generally of the type that was directly aimed at depriving the civil right to own property, and specifically took the form of declaring that such property could not be passed on to heirs and was forfeited to the crown. Exactly the form taken by the NY SAFE Act.

How is this not a direct violation of the Constitutional prohibition?

There is also an interesting oddity in the law that should poke a giant hole in the argument that act does something good and should be allowed in the interest of public safety. The definition of "assault weapon" contains an excpetion that any weapon older than 50 years is NOT defined as one. They didn't say maufactured before 1963 and they didn't say 50 years prior to adoption.

So if someone purchased a new rifle when they were 20, and it was subsequently banned, but the registered it. If that person dies at the age of 69 then the property is forfeit, cannot be passed to heirs, and cannot remain legally in NY. However, if that person dies at the age of 70+ then sometime before death the rifle became just a standard rifle and the heirs can inheret and retain it. How is there any argument to support the first case that it is important to rid NY of these weapons, if only a year later (or potentially less) the weapon could end up staying here indefinately? If a 48 or 49 year old rifle is allowed to remain with the original owner within the state, and can be inhereted and remain in the state with heirs indefinately beyond 50 years; then why can't a 48 (or 30 or 20) year old rifle remain with the heirs?
 

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It's not even close to being a Bill of Attainder. What you describe could be an argument for a takings clause case, but even that wouldn't work as they are prohibiting it instead of using it for public purposes. I understand what you hoped to do with this, but it's more than just a stretch.
 

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a 'stretch' is right. Under that broad interpretation we'd have few laws left that aren't bills of Attainder. Now, let's talk about the no-fly list...
 

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Discussion Starter · #5 ·
a " Bill of attainder" would have to do with capital punishment
what You actually meant was " Pains & Penalties "
I agree. Except that the Supreme Court has already ruled in a number of cases that the Constitutional prohibition against Bills of Attainder also includes Bills of Pains & Penalties. Thats what the Blacks Law Diction quoted above says it includes both. U.S. v. Brown (1965) U.S. v. Lovett (1946) In re Yung Sing Hee (1888) Cummings v. Missouri (1867)

Supreme Court said:
Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause
U.S. v. Lovett
 

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Reading the Black's law definition, it seemed pretty clear to me that the Legislature passed a "bill of pains and penalties", which is still categorized as an unconstitutional act. Judges, however are far smarter than serfs like me and can interpret this any way they want, the same as they can interpret "shall not be infringed" to mean any infringement their personal bias leads them to.
 

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After reading your piece about attainder , I'm not sure that qualifies but the Warren vs DC should be a major influence on any court opinion after all it's been well publicized that the police are under no contract to protect you ! From every officer I know says the same thing , they are here basicly to figure out who shot who and to order either an ambulance or a Morgue pickup ! As one stated sometimes it's both !
 

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Police actions, are to protect the interests of the STATE
remember, generally, it is the " STATE" that claims Loss, Harm, or Injury in criminal actions
 

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Police actions, are to protect the interests of the STATE
remember, generally, it is the " STATE" that claims Loss, Harm, or Injury in criminal actions
But the state has to show an extreme interest in all laws pertaining to a infringement upon a right ! So far that's been the standard in all court opinions .
 

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But the state has to show an extreme interest in all laws pertaining to a infringement upon a right ! So far that's been the standard in all court opinions .
I have yet to see the state provide any "compelling state interest" with regard to un-SAFE.
 

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I do not think attainder applies - the concept is generally used to some type of property that would be seized or punishment that would be inflicted due to the actions of a group of people. The NY law is based on the characteristics of the gun, not the person or there actions. When property is seized under a bill of attainder, the property itself is considered "tainted" by the actions of the owner, and ownership reverts to the state (or the crown in some countries).

The law may be an unconstitutional taking (since heirs cannot inherit property), but I suspect that the state would argue that the AWs could be transferred to a FFL and then sold out of state and need not necessarily be surrendered.

If you want an example of a bill of attainder, research the history behind my avatar - Georgia statutes of May 4, 1778.
 

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Reading the Black's law definition, it seemed pretty clear to me that the Legislature passed a "bill of pains and penalties", which is still categorized as an unconstitutional act. Judges, however are far smarter than serfs like me and can interpret this any way they want, the same as they can interpret "shall not be infringed" to mean any infringement their personal bias leads them to.
Judges have FAR TOO MUCH power to "interpret" law! In my opinion this is a MAJOR PROBLEM in our legal system which, some how, needs to be changed!!! I have argued many times that "laws" should include a definition as to the laws "intent". One example, again in my opinion, surrounds Miranda Rights. While the intent was to prevent illegal acts by law enforcement, the law has been twisted and manipulated by lawyers/judges to allow many criminals to avoid prosecution based on technical errors in the application of Miranda Rights. Great system, someone can be proven to be guilty of a major crime but walk on a technicality. The sample principal applies to our rights associated with 2A, free speech etc. (End of rant):hissyfit:
 
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