concurring. — I concur in the result reached by the majority, but I write separately because the majority answers the wrong question.
The majority reasons that, although the 1994 statutory amendment is punitive, it punishes only future conduct and, thus, does not violate ex post facto principles. In so reasoning, the majority assumes that the punishment of which Schmidt complains is that flowing from his 1997 conduct. This is simply wrong. Schmidt tells us in plain words that the 1994 amendment increased the punishment for his 1988 conviction because a “vested right in the possession or ownership of firearms was erased.”
Thus, Schmidt does not argue that his 1997 conviction and sentence for unlawful possession of a firearm increased the punishment for his 1988 conviction. Rather, he argues that his punishment was increased when the 1994 amendment became law. And, his 1988 punishment was increased *306whether or not he later violated the new law because the increased punishment consisted of taking away his right to possess a rifle.
Schmidt warns us against applying the “mere truism” analysis used in State v. Watkins, 76 Wn. App. 726, 887 P.2d 492 (1995). We should heed his warning. Under Watkins, a new statute that takes away rights or imposes additional burdens on previously convicted felons will always survive an ex post facto challenge so long as the statute attaches a new penalty for its violation. This is so because the Watkins court and the majority here pass right over the effect of the 1994 amendment and look only at the violation of the statute as ex post facto punishment. But a new criminal statute will always punish conduct that occurs after the statute was passed. Watkins simply does not address Schmidt’s issue: Did the 1994 amendment by its terms increase his punishment by taking away his right to possess a rifle? To answer this question, we must examine the intent and effect of the statute.
Our Supreme Court has done such an analysis in State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994), which involved an ex post facto challenge to Washington’s sex offender registration statute. The sex offenders in Ward argued that the requirement to register increased the punishment for their previous crimes. Ward, 123 Wn.2d at 496. To address this issue, the court considered whether the statute was punitive. And, in determining whether the statute was punitive, the court looked both at the Legislature’s intent and the actual effect of the statute. Ward, 123 Wn.2d at 499. After analyzing both, the court concluded that the statute was not punitive, although failure to register is a criminal offense punishable as either a gross misdemeanor or a felony. Ward, 123 Wn.2d at 494, 510-11; see RCW 9A.44.130(9). Accordingly, the statute did not violate the ex post facto clause.
The Ninth Circuit has used a similar analysis in considering an ex post facto challenge to Oregon’s firearm statute. United States v. Huss, 7 F.3d 1444 (9th Cir. 1993). When *307Huss was originally convicted, the Oregon statute prohibited him from possessing any gun except a long gun or rifle. Later, Oregon amended the statute to include rifles, and Huss was convicted of the federal offense of being a felon in possession of a firearm, using the Oregon conviction as the predicate offense. Huss argued that applying the Oregon law retroactively violated ex post facto principles. Huss, 7 F.3d at 1445-46. The Ninth Circuit looked at the overall design and effect of the statute and concluded that “the Oregon weapons restriction does not impose punishment for prior crimes, but rather furthers the substantial and legitimate safety interest in preventing the misuse of firearms.” Huss, 7 F.3d at 1448.
Without going through a detailed analysis, I would hold that the 1994 amendment is not punitive and, thus, does not violate ex post facto principles. The Legislature did not intend the amendment to be punitive. See Laws of 1994, 1st Spec. Sess., ch. 7, § 101. And, because Schmidt was prohibited from possessing certain firearms at the time he was convicted, the “marginal effect of adding long guns to the otherwise exhaustive list of restricted weapons does not amount to punishment for ex post facto purposes.” Huss, 7 F.3d at 1448.
Review granted at 142 Wn.2d 1006 (2000).