Ex Post Facto and SBRs: Baldwin’s Break Doesn’t Help Our Cause (MovieStillsDB.com/Shutterstock)
May 22, 2023
By Jeff Knox
Prosecutors in New Mexico decided to withdraw a “Firearm Enhancement” from the charges they have filed against actor Alec Baldwin and production Armorer Hannah Gutierez-Reed in the death of Halyna Hutchins. Both have been charged with two counts of Involuntary Manslaughter, but the jury will decide which count is applicable, so a guilty verdict would apply to only one count. The punishment, if convicted, could be up to 18 months in jail and up to a $5,000 fine. The firearm enhancement would have required a minimum sentence of five years in prison, but it turned out that the law that allowed the enhancement had not gone into effect at the time of the shooting. In their arguments calling for the firearm enhancement to be dropped, attorneys pointed out that it is a violation of the Constitution to charge someone for a crime that was not a crime at the time the act was committed. From this, some in our community are suggesting that there is an analog between this decision and the current threat of prosecution for possession of “Short-Barreled Rifles” that were not considered “SBR’s” a couple of months ago.
Unfortunately, the two matters are not analogous. The “Firearm Enhancement,” an additional punishment added on to a criminal charge when, under certain circumstances, a firearm is involved, is an actual law passed by the State Legislature, and its provisions are spelled out in the language of the law. The law was recently changed by the Legislature to be broader and include the brandishing of a firearm while committing a crime of violence. It was this new definition that prosecutors applied to Baldwin and Gutierez-Reed. The new law was in effect at the time prosecutors decided to press charges against Baldwin and Gutierez-Reed, but they subsequently admitted that applying it was an error, since it had not gone into effect at the time of the shooting.
Adding the new “Firearm Enhancement” would have constituted “ex post facto” prosecution, a Latin term meaning “after the fact,” which refers to passing a law and then prosecuting someone for it retroactively. Ex post facto prosecution is specifically prohibited under the Constitution. The previous law, which this new law replaced, was more limited and specific in how the firearm was used in the commission of the violent crime, and could not have been applied to the circumstances in the death of Hutchins. Even had the new version of the law been in effect, it’s quite a legal stretch to apply it in the Hutchins case.
It is easy to think that the regulatory changes regarding “pistol braces” would likewise fall under the legal definition of “ex post facto” prosecution, but they don’t. The distinction is that the new definitions in the BATFE’s regulations regarding pistol braces, are just that: regulatory definitions. They are not new laws. While the results are the same, and it can reasonably argue that it’s unjust and unfair, particularly in light of the multiple “determination letters” from the BATFE stating that pistol braces do not meet the definition of an SBR, from a legal standpoint, the BATFE is claiming that they are not creating new law, but rather correcting an error in the application of an existing law.
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Our side will argue that the BATFE is exceeding their authority and, in effect, creating new law. Unfortunately, until we win that determination, the Constitution’s prohibition against ex post facto prosecutions doesn’t apply. Further, if we do win that argument, the ex post facto prohibition won’t be relevant because the new rules will be thrown out and the matter will be moot.
Legislation has been introduced in Congress to remove SBR’s, Short-Barreled Shotguns, and the category known as “Any Other Weapon” (which includes oddities like cane guns, billy-club guns, and pistols designed to fire shotgun cartridges) from the restrictions and requirements of the National Firearms Act. That’s a good move, which should have been adopted years ago. I’m disappointed that the bill doesn’t include removal of silencers from the NFA and fails to address distinctions between long guns and handguns in the Gun Control Act, but its passage would be a huge step in the right direction.
The bill is S.163, sponsored by Senator Roger Marshall (R-KS), and is known as the SHORT Act. It currently has only 7 cosponsors in the Senate. A concurrent bill has been introduced in the House as H.R.646 by Rep. Andrew Clyde (R-GA). It currently has 35 cosponsors.
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The leading Senate bill to remove silencers from the NFA is sponsored by Senator Mike Crapo (R-ID) as S.401. It currently has 26 cosponsors in the Senate. The most prominent Silencer bill in the House is H.R.95, introduced by Rep. Jeff Duncan (R-SC), which currently has 95 cosponsors.
There are several other bills filed which call for deregulating or reducing regulation on silencers, but these are the leading contenders.
Realistically, none of these bills is going to make it out of the Senate, and if they did, they would be vetoed by Joe Biden. Nonetheless, there is no reason not to push your Senators and Representative to get on board and support them. Bills like these establish a record and serve as “litmus test” indicators for grading incumbents and prospective candidates. Getting politicians to cosponsor or pledge support, at least provides an idea of where they stand and whether we should support them.
You can explore legislation and message your elected servants through www.Congress.gov , and you can reach them by phone by calling the Congressional Switchboard at 202-224-3121.
About the Author The Knox Report is a service of The Firearms Coalition. Visit FirearmsCoalition.org for more information and to subscribe to our newsletter and other services.
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