[OPF List] Camp Lone Star - "a Fundamental Right"
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Sun Feb 22 05:55:01 JST 2015
Camp Lone Star - "a Fundamental Right"
Outpost of Freedom
February 21, 2015
It is normal, in any criminal proceeding, for the Defense Attorney to file a
Motion to Dismiss. Most often, these are simple appeals about nothing of
significance, though they do add chargeable hours.
In K. C. Massey's case, however, we find a "Motion to Dismiss Indictment
", with merit. Perhaps not in a legal sense, but in a truly lawful sense -
The difference that is anything can be enacted (legal), though unless it is
firmly based upon the powers and authorities granted in the Constitution, it
may be unlawful.
Massey's attorney, Louis S. Sorola, begins by explaining the Texas law
(Texas Penal Code, §46.04) which allows Massey to possess a firearm, for his
own protection. This and other aspects that will be addressed here are
dealt with in detail at Liberty or Laws?
<http://www.outpost-of-freedom.com/blog/?p=956> "Felon in Possession of a
Firearm" is Not Legal or Lawful.
He supports this by reference to, "the right of the people to keep and bear
Arms, shall not be infringed", in reference to the 2008 Supreme Court ruling
in "District of Columbia v. Heller" (554 US 570), where the Court held that
the Second Amendment gives individuals the right to keep firearms at their
homes for their self-protection. This decision is consistent with the Texas
law that allows such possession five years after completion of a sentence as
a result of a felony. However, the federal statute that Massey is charged
with presumes a lifetime prohibition, if incorrectly interpreted (see
Commerce Clause, below).
He further argues that the term "people", as used in the Second Amendment is
also used in the 1st, 4th, and 9th Amendments, and in none of those is there
an exception that would allow rights to be taken away. The only notable
legal exception is in the Supreme Court decision found in "Sampson v.
California" (547 US 843), which allows a different criteria if one is a
prisoner or a parolee. It does not extend beyond that period of time when
the person is in custody, or is under conditions of parole, in which he can
be searched outside of constitutional constraints.
The question as to what extent the Commerce Clause (Article I, §8, cl. 3,
Constitution) grants authority to the federal government is raised. Heller
addressed the Second Amendment, but did not address the Commerce Clause,
however another decision, "United Sates v. Lopez" (514 US 549) addressed the
Commerce Clause, but did not address the Second Amendment. In Lopez, the
extent of the Commerce Clause did not grant blanket jurisdiction, which
resulted in the overturning of the federal Gun-Free School Zone law. If the
ruling in Lopez was applied to Massey's case, it would necessarily require a
"substantial effect on Interstate Commerce.
As Sorola argues, "[t]he interstate commerce began and ended with the
Federal Firearm License dealers involved. After the importation into Texas
the guns are under Texas jurisdiction. Thus the laws of Texas apply, not the
Equal Protection Clause
What is meant by Equal Protection was best defined by the Supreme Court in
their ruling in "Yick Wo v. Hopkins" (118 US 356 - 1886):
[E]qual protection and security should be given to all under like
circumstances in the enjoyment of their personal and civil rights;
impediment should be interposed to the pursuits of any one, except as
applied to the same pursuits by others under like circumstances; that no
greater burdens should be laid upon one than are laid upon others in the
same calling and condition; and that, in the administration of criminal
justice, no different or higher punishment should be imposed upon one than
such as is prescribed to all for like offenses.
Now, it must be understood that the Equal Protection requirement is federal,
not to be confused with state laws. Otherwise, all state laws would be
equal, but, they are not -- they are enacted in accordance with the State's
constitution. (See Which Constitution Am I Protected By?
<http://www.outpost-of-freedom.com/blog/?p=768> ) Where it does apply is in
the application of federal laws, as described in Yick Wo.
If different states have different laws as to what a felony is and how much
time is served, is it equal protection if one state might consider it third
degree and have a light sentence while another state might hold a higher
penalty and mandatory 1 year (federal criteria) in prison? The federal
government has not even attempted to establish a uniform criteria for the
applicability of 18 USC §922(g)(1) - the charge against Massey). This lends
support to the Commerce Clause limitation, above, where the law would only
apply to Interstate Commerce, not to the right of the people, in general.
In a Circuit Court decision, the court decided that, in enacting the
statute, Congress superimposed a patchwork of state law over a broad piece
of federal legislation in a manner bound to produce anomalous results.
(McGrath v. United States, 60 F.3d 1005)
Perhaps what is most important about this Motion to Dismiss is the fact that
it is, without a doubt, a challenge to federal jurisdiction, a preservation
of State's Rights, and the rights of the People.
This article can be found on line at Camp Lone Star -
<http://outpost-of-freedom.com/blog/?p=1050> "a Fundamental Right"
<http://www.outpost-of-freedom.com/> Outpost of Freedom
The past is infinitely important. However, it pales in importance to the
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