(dissenting).
[¶ 18.] The Legislature’s amendment defining sexual contact with a child under sixteen as a crime of violence was not a form of retroactive punishment. Trower was punished not for his earlier felony, but for the new and separate crime of which the prior felony was an element. The Legislature specifically enacted a gun control law prohibiting violent felons discharged from prison less than fifteen years before the commission of the principal offense from possessing or controlling a firearm. SDCL 22-14-15. This might be a different case if the prior felony, now designated as violent, was used because of the violent label to enhance Trower’s sentence on a new conviction. However, laws retrospectively prohibiting felons from owning guns are not considered punitive. As the United States Supreme Court stated, such laws impose an “essentially civil disability.” Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 922, 63 L.Ed.2d 198 (1980). See Meinders v. Weber, 2000 SD 2, ¶¶ 13-14, 604 N.W.2d 248, 255 (upholding sex offender registration as remedial public safety measure, not ex post facto punishment).
[¶ 19.] A majority of courts have upheld as not violative of state and federal ex post facto clauses statutory amendments prohibiting prior convicted felons from possessing firearms. These enactments are not considered retroactive punishment. They are considered public safety laws enacted to lessen the “high potential of danger to the public” and to reduce the probability that convicted felons might continue their criminal activity. State v. Vainio, 466 A.2d 471, 475 (Me.1983). As the Vainio court held, “The Legislature could justifiably conclude there was a need for [more] gun control legislation in the case of convicted criminals.” Id. (Brackets in original). Here, just as significantly, the Legislature could conclude that those convicted of child molestation pose a danger and should not be allowed to be armed. As we recognized in Meinders, in response to “the pernicious impact of crimes against *600children^]” our Legislature in recent years has revised the laws pertaining to sex offenses. Meinders, 2000 SD 2 at ¶ 29, 604 N.W.2d at 260 (citing State v. Bonner, 1998 SD 30, ¶ 28, 577 N.W.2d 575, 583). See also State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz.Ct.App.1997) (not ex post facto violation when amended statute increased number of crimes constituting felonies, as overview of legislative scheme showed intent to restrict firearm possession to protect public rather than punish for past offenses).
[¶20.] The majority relies on U.S. v. Davis, 936 F.2d 352 (8th Cir.1991). Many courts examining Davis have either sharply distinguished its holding or disagreed outright with its rationale. A most recent example is the Nebraska Supreme Court’s decision in State v. Peters, 261 Neb. 416, 622 N.W.2d 918, 924 (2001)(upholding statute against allegation that law prohibiting felons from possessing firearms constituted ex post facto law, the court said, “Davis is neither persuasive nor applicable....”) See also U.S. v. O’Neal, 180 F.3d 115, 124-25 (4th Cir.1999) (disagreeing with Davis); Forster v. Pierce County, 99 Wash.App. 168, 991 P.2d 687, 696 (2000)(disagreeing with Davis to extent that it found Minnesota law applied to past conduct); People v. Mills, 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310, 314-15 (1992); Hand v. State, 107 Nev. 577, 816 P.2d 468 (1991); People v. Tice, 220 Mich.App. 47, 558 N.W.2d 245, 246-47 (1996); Dodson v. Commonwealth, 23 Va.App. 286, 476 S.E.2d 512, 516 (1996). Davis is a minority decision and should be limited to its peculiar facts.
[¶ 21.] I respectfully dissent.
[¶ 22.] MILLER, Chief Justice, joins this dissent.