Outpost of Freedom blog

Camp Lone Star – The King Can Do No Wrong, or Can He?

Gary Hunt
Outpost of Freedom
September 13, 2015

At the last hearing, Judge Hanen had told KC’s attorney, Sorola, that the Motion to Dismiss Indictment wasn’t written correctly. That motion had been denied in, which is discussed in Act II – A Kangaroo Court – Scene 1 – How Case Law Subverts the Constitution. Judge Hanen allowed that Sorola might submit a supplemental motion, and said that he was willing to hear a jurisdictional argument. AUSA Hagen was not pleased with the decision; however, dates were set for both the motion and opposition to be submitted to the Court.

Sorola filed his Second Motion to Dismiss Indictment, which “incorporates” the previous Notion to Dismiss. So we will look at what has been entered in support of the jurisdictional aspect of the case.

18 U.S.C. § 922(g)(1) Violates The Tenth Amendment

The Tenth Amendment provides: the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. As this Amendment makes clear, and as the Supreme Court has long-recognized, the federal government is one of enumerated, limited powers. See, e.g., McCulloch v. Maryland. Accordingly, the federal government may act only where the Constitution so authorizes. Cf. New York v. United States, 505 U.S. 144 (1992).

A corollary to this rule is that Congress may not act in areas prohibited to it. As Justice Thomas noted in his concurrence in Printz v. United States, 521 U.S. 898, 937 (1997) (Thomas, J., concurring), the Constitution “places whole areas outside the reach of Congress,” such as the First Amendment’s preventing “Congress from ‘prohibiting the free exercise’ of religion or ‘abridging the freedom of speech.'” Id. Justice Thomas went on to explain that the “Second Amendment similarly appears to contain an express limitation on the government’s authority,” and stated: This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the federal government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. Although Printz dealt with a successful challenge to the Brady Act’s requirement that state law enforcement officers conduct background checks on prospective handgun purchasers, the logic of Justice Thomas’s reasoning is compelling with respect to § 922(g)(1): the Tenth Amendment limits federal power; the Second Amendment specifically prohibits the federal government from infringing the individual right to bear arms; thus, it surely cannot be constitutional for the federal government to prohibit a person’s purely intrastate possession of firearms.

For the reasons stated above, Mr. Massey respectfully requests that the Court find 922(g)(1) unconstitutional as applied to him and dismiss the pending indictment.

Of course, AUSA Hagen has to answer this Motion, who knows, maybe even his future as a United States Attorney is in jeopardy, since this is a high profile case and Hagen has stated that he has been pressured from above to win this case. However, it appears that Mr. Hagen was not up to answering Sorola’s Motion, so we have a new player, AUSA Jason Corley (the new King), who filed the “Government’s Response” to Massey’s Motion.

Massey’s motion was simply three pages, the above being the substantial portions thereof. However, the Government’s Response was 24 pages. And, as I began reading the Government’s Response, a quote from W. C. Fields popped into my mind:

“If you can’t dazzle them with brilliance, baffle them with bullshit.”

As I continued reading, I realized that the position Corley was taking, he was asserting as if he were King. He has his interpretation of what something means, and there is absolutely no attempt to balance justice with what he believes. This brought to mind another historical quote, most often expressed shortly before the ousting, or abdication, of a King, who refused to abide by the constitution or exercise any semblance of justice. – The King can do no Wrong!

Now, to restrain you from falling asleep or rolling on the floor laughing, I will only address some of the aspects of the government’s argument.

First, we will talk about legal theory, since that seems to be an important consideration on the government’s part. The following, though interspersed through the Motion, are consolidated simply to demonstrate their concern:

1. Defendant’s motion is not ripe for consideration as a factual matter. Defendant has presented merely a legal theory, namely that “purely” intrastate possession of a firearm cannot be infringed by the federal government of the United States. Defendant has not, however, presented any facts whatsoever let alone “sufficient facts which, if proven, would justify relief.” (page 4)
2. Defendant now files a motion to dismiss the indictment based solely on a proposed legal theory that “purely” intrastate possession of a firearm by a felon (or presumably any other individual) cannot be regulated or criminalized by the federal government. (page 6)
3. But this factual issue does not tangentially create a legal dispute on a matter not in controversy, namely an unrelated constitutional theory cloaked as a suppression issue. (page 7)
4. Article III of the United States Constitution grants the Court authority to adjudicate ‘cases’ or ‘controversies’, not irrelevant and tangential legal theory… Defendant does not have standing to challenge any supposed government regulation or criminalization of “purely” intrastate possession of a firearm. (page 8)
5. Because Defendant’s second motion to dismiss proposes an irrelevant and tangentially reached legal theory, and because Defendant does not have standing to challenge that issue, the government respectfully requests that the Court deny the motion to dismiss the indictment. (page 8)
6. Because both legal theory and binding case law are contrary to Defendant’s proposition, the Government respectfully requests that Defendant’s second motion to dismiss be denied. (page 11)
7. The legal theory postulated by Defendant is just that, a legal theory. Other legal theory supports the proposition that the federal government through an act of Congress may indeed have the authority to criminalize “purely” intrastate possession of a firearm by a felon should Congress make the requisite findings that it is necessary and proper to criminalize possession of a firearm by a felon to promote the general welfare of the American people, insure domestic tranquility, and establish justice. (page 15)

So, let’s look at what he has said. In #1 and #2, he suggests that it is a “legal theory” the “‘purely’ intrastate possession of a firearm cannot be infringed by the federal government”. Well, the Second Amendment notwithstanding, the Commerce Clause is based ” foreign Nations, and among the several States, and with the Indian Tribes”. And, the government has yet to directly control intrastate commerce under the provision.

There is little doubt that the government has tried, by twisted abuse of our language (See Motion to Dismiss Indictment), tried to extent their authority to any firearm that had been in interstate commerce, though, as we will discuss, they change the language when it suits their purpose.

In #3 and #4, he suggests that it is an “unrelated constitutional theory”. In this same document, he cites the Constitution as the authority, as he sees it, as absolute, as if spoken by the King, himself. So, there is no theory allowed on the public side, since only the government side can cite their interpretation of the Constitution as legitimate. This kinda makes you wonder why they even use a pretext of justice when they simply want to imprison someone.

In both #4 and #5, he suggest that it is “irrelevant” that Massey challenge the Indictment because he has no standing, presumably, to defend himself. Once again, the King has spoken.

In 1936, in the Supreme Court decision of Ashwander v. Tennessee Valley Authority (297 US 288), Justice Brandeis, in a separate but concurring decision, provided insight into the evolving role of the United States Supreme Court, wherein he said:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

[Rule] 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation…”

It was clear that the matter of standing had to do with matters brought to that Court, on certiorari, or error. It did not provide a means whereby a trial on criminal charges, in the lowest court of the federal system, could deny standing to challenge the law or the jurisdiction of the matter upon which one was charged.

In #6 and #7, he tends to give credence to the legal theory by stating that theory and case law are “contrary to [Massey’s] proposition”. However, we must understand that the government proposed another “legal theory”. That “theory” is suggested in the following excerpt:

Were Congress to make the proper findings and act in the interest of the “general Welfare” of the people of the United States, it is theoretically possible Congress could, and theoretically possible Congress does, have the constitutional power to regulate and criminalize all possession of firearms by felons. Congress, however, has not chosen to act pursuant to alternative powers and has instead relied on the Commerce Clause. Because of this, an interstate nexus relating to possession of the firearms is an element of the crime and any challenge the Defendant is raising in regard to “purely” intrastate possession is a factual challenge, not a constitutional one.

Now, this brings us into a whole new world of conjecture. He theorizes that Congress could, do, and does have the power to, criminalize any possession by any felon, anywhere within this (mythical) Kingdom. It has bee clearly established, when Equal Protection was discussed, that if a firearm or ammunition were manufactured in a state, those possessing such firearms and ammunition are not subject to criminal charges, since the firearm and/or ammunition had not entered interstate commerce. So, is Corley suggesting that Congress is too damned stupid to see the loophole that have left for those who live in certain states, or that they are wise enough to know that those living in those states are not the type that the felon in possession law was intended for, regardless of the fact that those with felony convictions are still felons. Or, his the King (government), perhaps, capable of doing wrong?

If his theory were correct, under the “general Welfare” provision of the Constitution, they (Congress) could dictate any, and every, aspect of our lives. Now, there is little doubt that they are slowly creeping in that direction, but AUSA Corley seems to think that we have already arrived.

Moving right along, we find, on page 6 of the Government’s Response:

“Article III of the Constitution grants the Judicial Branch authority to adjudicate ‘Cases’ and ‘Controversies.’ In our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc. and DaimlerChrysler Corp. v. Cuno. “A controversy is mooted when there are no longer adverse parties with sufficient legal interests to maintain the litigation.” “Accordingly, an actual, live controversy must remain at all stages of federal court proceedings, both at trial and appellate levels.”

Talking about stretching the hell out of an argument, the controversy here is a criminal charge brought by the US government against Massey. It is not a dispute between parties, it is an accusation based upon the misapplication of a statute. Is it even conceivable that someone, especially a highly paid public servant attorney, could deny an accused person of challenging the misrepresentation? Or, can the King (Corley) do no wrong?

Now, I expect that you are getting as bored at reading this as I am at having to wade through it (I do have my boots on), to find the little gems that (if I were a psychiatrist) demonstrate the insanity, or at least the mental instability, of the person who prepared the Government’s Response. Surely, not even the King would allow him to pass the background check, on mental grounds, to own a firearm.

But, there are two more rather interesting point that warrant our attention. Sorola cited McCulloch v. Maryland with reference to “limited powers” of government, according to the Constitution. In what appears to be a DOJ (Department of Justice) boilerplate insert (page 10), he suggests that the limited powers of government have a broad interpretation. From the Government’s Response:

In citing from McCulloch:

“This government is acknowledged by all, to be one of enumerated powers.

“But, there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the Tenth Amendment, which was framed for the purpose of quieting excessive jealousies which had been excited, omits the word ‘expressly,’ and declares only, that the powers ‘not delegated to the United States, nor prohibited to the states, are reserved to the states or the people;’ thus leaving the question, whether the particular power which may become subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.”

“So with respect to the whole penal code of the United States; whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may, legitimately punish any violation of its laws; and yet, this is not among the enumerated powers of congress.”

Then, in Corley’s own words (the King has spoken):

It should come as no surprise then that the Supreme Court ruled in McCulloch v. Maryland that Congress had the power to incorporate a bank despite having no specifically enumerated power to do so. The precedent set nearly two hundred years ago in McCulloch v. Maryland works against Defendant, not for him.

Now, he talks about if not prohibited, and in the case of the matter of McCulloch, dealing with the creation of a bank, there is no prohibition against the government so doing.

But, the “legal theory” presented makes clear that there is a prohibition against the government’s intervention into the right to keep and bear arms, known as the Second Amendment, and the prohibition therein is called “infringement”.

Nowhere does the constitution address the government’s inability to infringe upon the creation of banks. In fact, there is much said about coin and currency, all implying such powers as necessary with regard to banks. So, just how does that work “against the Defendant”?

The second is an effort to conjoin “Militia” and “people”, as expressed in the Second Amendment, as only the “body of the people” (pages 11-13). He cites a “Second Amendment constitutional scholar”, which, apparently, he places the opinion of above the written laws.

If we consider that the framers of the Constitution were far more particular in the choice of words that the AUSA, we can easily dispute the effort to co-join, since they used both “Militia” and “people”. And Congress, surely, is more meticulous than the AUSA, when they enacted the following:

10 U.S.C. § 311: Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are –

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

So, here we have “members of the militia”, who are, clearly, individuals, like people. However, that doesn’t stand as the only element that suggests individuality.

10 U.S.C. § 312: Militia duty: exemptions

(a) The following persons are exempt from militia duty:

(1) The Vice President.

(2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

Though some are general in nature, others are, without a doubt, applied to individuals of certain character. So, if the “theory” of the AUSA is correct, and whether the Congress wanted to us the “general Welfare” provision, or the Commerce Clause, they would have, if what Corley wants to suggest, surely have included a class of people known as “felons”.

So, I wonder what the King will have to say about the obvious, and rather discomforting, exclusion of “felons” from the most logical source of limitation of the right to bear arms. Is it possible that the King (Congress) can do no wrong, and accordingly, will not “infringe”, except via the “Commerce Clause”?