Ex Post Facto Law Being Enforced to Prevent Another American Citizen from Keeping and Bearing Arms
KABA NOTE: We are interested in
locating more Americans whose rights are being denied under ex post facto/bill
of attainder enforcement of Lautenberg, as described below. We're looking for
people who are serious about doing something to fix this problem and are willing
to tell their story publicly and provide documentation along the lines of what
you see above. If this is happening to you, too, please contact us with full,
thorough details and corroborating evidence and send it to Director@KeepAndBearArms.com
with a subject line, in all caps, of EX POST FACTO VICTIM. Thanks.
Facto Law Being Enforced to Prevent Another American Citizen from
Keeping and Bearing Arms
join me in doing something about this?
James Landry, Jr.
February 18, 2004
KeepAndBearArms.com -- In
1987, I pled guilty to misdemeanor domestic assault. On September 30,
1996, the Lautenberg Amendment to the Omnibus
Consolidated Appropriations Act was signed into law. It had
been introduced as Senate Bill
1632 by Sen. Frank Lautenberg (D-NJ) and House Bill
3455 by Rep. Robert G. Torricelli (D-NJ). Senators Feinstein and
Kennedy were among the co-sponsors in the Senate. Representatives
Durbin and Pelosi were among the House co-sponsors.
Lautenberg amended the Gun
Control Act of 1968. The relevant text and intent of that law --
referred to in the personal message below about the illegal denial of
my rights -- is found in 18USC922, as follows:
TITLE 18--CRIMES AND
Sec. 922. Unlawful acts
"(d) It shall be unlawful
for any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause
to believe that such person--" ...
"(9) has been convicted
in any court of a misdemeanor crime of domestic violence."
(g) It shall be unlawful
for any person--
(9) who has been convicted
in any court of a misdemeanor crime of domestic violence,
to ship or transport
in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Prior to that law being
enacted, there were no firearms prohibitions for mere misdemeanor
Recently, I attempted to
purchase a firearm and was denied. I had no earthly idea why.
Subsequent investigations led me to the FBI's headquarters, where I
discovered that I am barred from owning firearms because of that
misdemeanor assault conviction.
It was a complete shock to my
system to be denied for such a reason. After all, the law was signed
in 1996 -- nine years after my conviction.
The events surrounding my
conviction are not strictly relevant to the message I am here to
convey -- that retroactive federal laws are passed and enforced in
America to deny good people the right to keep and bear arms.
Nevertheless, I'm going to summarize those events because
you may wonder -- and because I have nothing to hide. I want you to
understand what's happening to me and other people like me. I'm
looking for a way to right this injustice and hoping that someone will
read this message and join me in doing something about it.
First, the details, followed
by links to documentation validating what you're
about to read.
I was born in 1967. I am a
happily married man, married to the same good woman for 13 years. I
served in the U.S. Army and received a general discharge under
honorable conditions. I work hard as a professional long-haul truck
driver. My haz-mat endorsement, which allows me to haul any hazardous
material including a truckload of explosives, has been on my truck
driver's license for over a decade, and I have a perfect safety
record. I pay all my taxes on time.
Other than this one incident,
I have no charges or convictions on my record -- civil or criminal --
and I have not broken any laws that I know of. I've always tried to be
a good American citizen. I'm a very religious man who loves God very
much. I love my country and am proud to be an American. I'm a
registered Republican, but I'm thinking of switching to the
Libertarian party -- because a Republican-controlled Congress and President haven't even tried to undo but a tiny fraction of the bad
things Bill Clinton did even though they've got a lot to choose from.
I've been a hunter all my
life, and I enjoy shooting. I like having the ability to protect
myself and my wife if such an unfortunate need should arise. And,
until recently, I always owned firearms. When I was told by the BATF
that I could be imprisoned for ten years and fined $10,000 just for
owning one single cartridge of ammunition, I disposed of my firearms
immediately and began my quest to correct this obvious
unconstitutional error in federal law.
ABOUT THE CHARGE AND
I'll make this short (though
I'm willing to share the additional sordid details with anyone who can
help and really wants to know):
I was married previously to a
woman who ended up literally trading sex for drugs and money while I
was away in the service at basic training and later out on exercises.
I had gotten married an hour before I graduated high school and two
weeks before I left for basic training. Obviously, I really just
didn't know her very well.
When I realized it was time
to get out of that mess and tried to claim the possessions that were
mine, she attacked me with a broken beer bottle and cut me to the
bone. (At the end of this report you can see pictures, taken just the
other day, of the scar on my wrist.) When she came at me with the
bottle to cut me again, I slapped her face to make her stop. I slapped
her ONE TIME -- with my open hand -- and didn't leave a single mark on
her. The cut hurt, and I believed she was intent on causing me even
more serious bodily harm. Had I wanted to hurt her, I could have done
so. But I didn't want to hurt her. I just didn't want to be cut again.
She ran out of the house and
left. A little while later a state police officer showed up and
arrested me. I was charged with misdemeanor domestic assault. The
officer would not let me file charges against her even though my wrist
was cut to the bone and bleeding and there was not a single mark on
I sat in jail for six days
waiting for the circuit judge to show up. When he did, I was told (by
him) at the hearing: "Mr. Landry, if you plead guilty I'll let
you go, time served. If you plead innocent I'll have to hold you over
I didn't have a lawyer or a
job -- I was fresh out of the service and in the middle of watching my
life fall apart, so I pled Guilty just so I could get out of Maine and
away from her. But I understood that I was only pleading guilty to one
count, and now they have it on the records as two. How they got two
counts out of one defensive, open-handed slap from a
bleeding man I do not know. I only recently found out that there were
two counts -- a discovery made once I started investigating why I
could not buy a firearm.
The judge just said
"don't let me catch you in my court again!" He never said
anything about how pleading guilty would mean I could never own a
firearm again, because at that time, a mere misdemeanor was not
justification for denying an American citizen a basic fundamental
right for the rest of his life.
MOVING ON, STARTING ANEW
I left Maine thinking it was
over and done with, dusted myself off, and got on with my life.
I chalked up my poor choice of a partner to youthful
inexperience, reconciled my mistakes with myself and God and moved
I eventually married again,
in 1991, and am still happily married to the same woman. As a wedding
present, she gave me a 20 gauge shotgun. I recently had to dispose of
it due to this situation. I thought the horrible end to a short, bad
"marriage" 17 years ago was behind me. I was wrong.
HOW I FOUND OUT I AM
BARRED FROM OWNING A FIREARM
I have been driving trucks
all over this country ever since I got out of the service. I have had
a good work history and personal life ever since I got away from my
I live in southern Louisiana.
We had a serial killer stalking and murdering women in the area a
while back. You may have heard about it. Being an over-the-road truck
driver, my work often calls me away for a month or two at a time.
Naturally, I want my wife to be safe while I'm gone -- and able to
protect herself. She is very precious to me. If that lunatic murderer
were to have harmed her while I was away working, I could never have
Because of my career, she
spends most of the time at home alone. Naturally, we both want her to
be safe, secure and able to protect herself.
When I went to buy a handgun
for her so she could protect herself while I'm away, I was denied. The
dealer said the FBI background check turned me down. He was unable to
tell me why. I figured it was some kind of silly mistake, and I set
about to fix it through the FBI.
It took six months of
searching and calling and writing -- going through the appeals process
-- to find out why I was denied the right to buy a firearm. I was
finally informed that according to the Lautenberg Amendment, I could
get 10 years in prison and a $10,000 fine for even having a single
bullet in my possession.
EX POST FACTO LAWS
AND THE CONSTITUTION
Now, I'm not a lawyer. I know
there are nuances to many laws that require some study to fully
comprehend. But I can read plain English. For the life of me, I cannot
understand how a law that went into effect in 1996 can be enacted
retroactively to affect a 1987 misdemeanor. Even without a law degree,
my reading of Article I, Section 9 of the U.S. Constitution reveals a
clear, direct and unequivocal barrier on Congress passing a new law
against an American citizen that would further penalize a criminal act
that occurred before the law was passed. That section of our country's
Constitution says very simply:
"No bill of attainder
or ex post facto Law shall be passed."
Article I, Section 10 also
bars States from passing ex post facto laws:
"No State shall ...
pass any Bill of Attainder, ex post facto Law..."
Law dictionaries are clear on
the meaning of "ex post facto" and have been clear on it for
a very long time. Even dictionary.com
makes it clear: "Formulated, enacted, or operating retroactively.
Used especially of a law."
The 1996 Lautenberg Amendment
extended the list of people prohibited from owning firearms to those
"convicted of a misdemeanor crime of domestic violence." But
my punishment had already long before been specified, agreed to, and
served, and it did not include giving up my Second Amendment rights. If it had, I would
never have pled guilty.
I can find no evidence that
the Constitution's bar against ex post facto laws was even
considered during House
testimony on the Lautenberg Amendment. Mr. Lautenberg probably doesn't
care that ex post facto laws are banned by the U.S.
Constitution -- but surely some members of Congress who voted
for that bill did not intend for it to be applied retroactively. But
even if they all wanted it applied retroactively, such
legislation is forbidden by the Supreme Law of the Land.
The ban on bills of attainder is also
being violated here. A bill
of attainder is "a legislative act that singles out an individual or
group for punishment without a trial." Taking my right to keep and bear
arms is certainly a punishment, and I never got a trial when the new punishment
ANALOGY TO CONSIDER
If Congress passed a law
today making speeding a felony and declared that people convicted of
it from this day forward could not own firearms for the rest of their
lives, it would not violate the ex post facto prohibition. (Such
a law would be unwise, but we're talking about Congress.) However, if
they made it retroactive to anyone ever convicted of speeding
even prior to the law's enactment, it would be an ex post
facto law, expressly prohibited by Article I, Section 9 (Federal)
and Section 10 (State), and thus unconstitutional on its face.
DOUBLE JEOPARDY VIOLATION,
And what about the 5th
Amendment prohibition on double jeopardy? It says, in plain English:
"...nor shall any
person be subject for the same offense to be twice put in jeopardy
of life or limb..."
In 1987, I was released
without even having to pay a fine -- time served. I pled guilty to get
out of jail at a time when doing so did not affect my right to own
firearms even for a day, let alone for life.
Nine years later, Congress
passed a law that effectively intended to punish me again -- stripping
my gun rights away for the rest of my life! -- for a misdemeanor.
How can the state or federal
government justify giving me additional punishment 9 years after I
served the six days the judge imposed as full and final punishment?
Congress and the courts may say it was not intended as additional
punishment -- but its effect is certainly punitive.
HOW IS THIS AFFECTING ME?
A year ago I thought I was a
good American -- hard working and honest. I hunted regularly, but
always made sure to research and obey all game laws applicable. I was
also about to apply to the local Sheriff's Office for a position as a
reserve deputy, like my uncle before me. If I can be of service to my
local community, count me in. I care about law and order, and I deeply
respect the men who bravely deal on a regular basis with real
But now I read in the paper
that the background check system kept firearms out of the hands of X
number of criminals last year, and I realize that I'm one of them. I'M
I can't apply to the
Sheriff's Office if I can't carry a firearm. I can't hunt too well
with a slingshot. I'm required by the coast guard to carry a flare gun
in my sailboat when I go off shore, but I could get 10 years in prison
if I have to use it.
I'm banned from having a
firearm for self-defense even in my own home!
It's distressing to know that
I've been rendered less of an American than everybody else. Most
Americans have the rights I should have. And I haven't done anything
to deserve losing them. I'm "guilty" of defending myself
against serious bodily injury, using the least amount of force I could
and without causing my attacker any significant injury in the process.
If I was a foreigner, even
from an terror-sponsoring country, as long as I was here on a legal
visa and stayed 90 days without getting arrested, I could buy all the
firearms I wanted. I guess they deserve more rights than I do, too.
Also, there's a concern in
relation to this new background check that we truck drivers are going
to have to undergo to keep our haz-mat endorsements on our licenses.
We will have to pay for these background checks, raising the cost of
my license from $90.00 to $190.00. That's just another cost of doing
business. Yet I can't help but wonder if they will use my misdemeanor
conviction against me in relation to my haz-mat status. If they do, I'll lose
I may be able to get another
job not requiring a haz-mat, but at half the pay -- too big a loss to
take. Even if they don't take my haz-mat at this time, what about
tomorrow? If the government passes ex post facto laws and gets
away with it -- even where the most fundamental of rights is stripped
away permanently -- what's to stop them from passing yet another
unconstitutional retroactive law that requires my employer to fire me
because of a 17-year-old misdemeanor?
I'm supposedly too dangerous
to be trusted with a gun, but they'll trust me with 45,000 pounds of
explosives or chemicals on the highways. Does that make sense?
Finally, if the ban extends to my
house, it also extends to my wife, who is guilty of nothing. She is essentially
being told that if she wants the right to bear arms -- and the legal ability to
protect herself -- that she must never be with her husband. And that's a punishment
enforced against her, over a misdemeanor guilty plea long before I met her that did
not include such harsh terms.
WHAT ARE MY OPTIONS?
At this stage, I have few
options available. Maine has no mechanism for expunging convictions or
sealing records, so the only recourse in that direction is a
governor's pardon. They just sent me a pardon application, but the
chances of getting one even considered are probably slim to none. It would be
politically problematic for a governor to issue a pardon over domestic violence
due. Left wing women's groups and the Lefty media would crucify the governor for
doing this, regardless of what the Constitution says.
The other options I've been
A) Convince a senator to
introduce a bill to retract or clarify the ex post facto
aspects of federal law that are blatantly unconstitutional. IF we as
a society are committed to banning the Second Amendment for life
over a misdemeanor, then we've got to clarify that this prohibition
cannot apply to misdemeanor convictions that happened prior to
September 30, 1996 -- when Lautenberg was signed into law -- unless
we amend the U.S. Constitution to allow ex post facto laws.
B) Convince a lawyer to
take this case through the judicial branch to the Supreme Court and
hope they do the right thing by taking the case and ruling in accordance with
the U.S. Constitution.
C) Leave the country and
find a place where I can legally defend myself and my wife.
D) Accept that my rights
are being denied via an unconstitutional ex post facto law,
and accept being an easy target for criminals until the day I die.
That last one is not an
option. Can anybody tell me what I can do here? Are there any
attorneys listening? Is anyone else going through this nightmare? I
can't be the only victim of this anti-Constitution insanity.
Please contact me if you are
willing to team up and work toward a solution. This is nuts. I seem to
have a good test case here. I've been working on this since I was
denied a firearm in May, and I'm willing to do whatever it takes to
fix this mess as long as it is ethical, moral and above-board. I have
plenty of character witnesses who will take the stand on my behalf -- male and
female, including a female law enforcement officer.
But I need some partnership, teamwork, guidance and experience to know
what the best course of action might be. I don't want to fix this just
for me; I want to end the nightmare for others I know must be out
Documentation validating what
I've shared with you is found below. Thank you, kindly, for taking the
time to consider this situation. The ban on ex post facto laws
was put into the Constitution because King George was doing the same
thing to colonialists that's been done to me -- and I doubt they
enjoyed it any more than I do.
Terry James Landry, Jr.
DOCUMENTATION CORROBORATING WHAT
|This is FBI's initial two
page response after I inquired about why I was denied the
ability to buy a firearm so my wife could protect herself.
Note on Page 2 that both charges have "MISD" after
them -- for misdemeanor. Also note on Page 2 that the
arrest took place on July 16, 1987 and the case was disposed of
seven days later:
|This is FBI's NICS
"Firearm Denial Appeal Acknowledgement" -- a
three-page letter responding to my inquiry as to why I
was unable to buy a firearm. This letter is dated June 12,
|This is FBI's NICS
"Firearm Denial Appeal Review" -- another
three-page letter expounding even further upon why I am
unable to purchase a firearm and explaining that that's just
the way it is. This letter is dated October 16, 2003:
|Pictures of the scar on my
wrist -- an injury described above, delivered by the willful
wielding of a broken beer bottle, for which I delivered one
open-handed slap to stop the attack: