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Lively month coming up in Supreme Court
Leading up to the argument in Chicago, set for March 2, we have:
Carr v. US, argued on February 24. Carr was a convicted sex offender who moved to another State before the Federal statute requiring registration after an interstate move was enacted. He was later arrested for not having registered after enactment of the law. Question: is this an ex post facto law, since it increases the punishment for the crime, after the commission of the crime, or is it not, since he committed the Federal offense via conduct occurring after enactment of the Federal law, by not heeding its requirement to register?
The positions staked out parallel the issues raised when the firearm possession ban for domestic violence misdemeanors is applied to such convictions as occurred before the change in law, and I suspect the ruling here will determine the status of those cases.
Second, there is US v. O'Brien, to be argued February 23. At issue is the 30 year mandatory sentence for use of a fully automatic firearm in a crime. Issue: is the use of a full auto an element of the crime, which must be proven true beyond a reasonable doubt, or just a sentencing factor, which need only be proven true by a preponderence of the evidence?
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Actually the feds have NO AUTHORITY to make things criminal and to prescibe punishments outside 5 explicit areas. Read Article I Section 8 and Article II, Section 3. Note the explicit grants of power to punish and the glaring absence of punishment powers for ALL other areas. The "necessary and proper" phrase DOES NOT delegate the power. IF the N&P phrase granted any other powers, then the explicit delegation of nearly half of the powers in Section 8 was wholly unnecessary. Any reading of one clause that negates the need for the inclusion of another clause is flat out WRONG.
This is the true separation of powers. Congress and the feds have very specific powers and the States are to enforce laws make in proper concert with those powers. Every author I've read from the 18th and 19th centuries states that the Police Power was left to the States. And the Constitutional language provides the final proof.
And then there is this other tiny case a couple of days later...
-Gene