Outpost of Freedom blog

Camp Lone Star — Down to the Wire

Ninth Amendment Rights

Gary Hunt
Outpost of Freedom
September 27, 2015

As was explained in “The King Can Do No Wrong, or Can He?“, Massey’s attorney had brought two matters up in his Second Motion to Dismiss Indictment. They were the Tenth Amendment and Intrastate v. Interstate commerce. The government, through their apparently novice attorney, Corley, argued that Massey did not have standing to challenge the government’s prosecution of him (sort of a “bend over, we will take care of everything” mentality).

This past Wednesday (September 23rd), Judge Andrew Hanen filed his Opinion and Order, addressing all three of the sought actions.

First, he addressed the government’s, stating that “Massey makes a… claim – that § 922(g)(1), as applied to him, impermissibly regulates intrastate activity. Therefore, he has standing to challenge § 922(g)(1).” So, we have dispensed with the government’s feeble effort to claim that Massey had n standing to challenge the government’s interpretation of the law he was charged with violating..

Next, he addresses the Tenth Amendment claim. Unfortunately, being a District Court, the Judge is bound by previous decisions of the Fifth Circuit, to which it is subordinate. Justice, perhaps not, but still the rules of the corrupt game for what passes for justice, in these times.

However the final ruling, this one has, apparently, not been addressed by the Fifth Circuit, at least to the extent that Massey’s attorney, Louis Sorola, has taken it. In what Hanen has described as “The Purely Intrastate Claim”, he states:

“Since the Government bears the burden of proving this element, and since the trial has yet to be held, the facts upon which Massey’s claim stands have not yet been established one way or the other. Until evidence has been presented, the Court is unable to evaluate this claim.”

“Therefore this argument is denied without prejudice because it is not yet ripe. Massey may reassert it at trial should he conclude that the evidence supports this claim.”

So, it appears that Judge Hanen is willing to venture into a substantive argument with regard to the difference between Interstate and Intrastate commerce. He has also placed the burden on the government to prove its jurisdiction. This leads us to review some things that have been brought up in discussion, though, perhaps, not in Court. We will revisit a previous article, “Massey is Protected by State Law” to put this argument before the people, if not the Court.

To begin with, the State of Texas has granted authority for federal agents certain powers with the enactment of Texas Penal Code, Art. 2.122. SPECIAL INVESTIGATORS. From that law (pertinent portions only):

(a) The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only:

(1) Special Agents of the Federal Bureau of Investigation;

(3) Special Agents of the United States Immigration and Customs Enforcement;

(4) Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;

(9) Marshals and Deputy Marshals of the United States Marshals Service;

 (c) A Customs and Border Protection Officer or Border Patrol Agent of the United States Customs and Border Protection or an immigration enforcement agent or deportation officer of the Department of Homeland Security is not a peace officer under the laws of this state but, on the premises of a port facility designated by the commissioner of the United States Customs and Border Protection as a port of entry for arrival in the United States by land transportation from the United Mexican States into the State of Texas or at a permanent established border patrol traffic check point, has the authority to detain a person pending transfer without unnecessary delay to a peace officer if the agent or officer has probable cause to believe that the person has engaged in conduct that is a violation of Section 49.02, 49.04, 49.07, or 49.08, Penal Code, regardless of whether the violation may be disposed of in a criminal proceeding or a juvenile justice proceeding.

So, the extent of the authority to arrest, which would also include detaining a person, is only “the powers of arrest and search and seizure as to any offense under the laws of this state [Texas].”

Though the Tenth Amendment argument has been denied, there can be little doubt that the above enactment, by the State of Texas, is an assertion of the State’s rights (not the individual’s right, as per denied motion) to limit federal authority within the State.

So, it would be rather interesting to discover if the government’s witnesses are aware of this grant of authority, and the limitations imposed upon them, by Article 2.122. If they are not, was the government remiss in advising them, or did the government hope that they would assert authority not granted to them so that the federal government would have a broad reign over activities within the State, in the hope that case law would help affirm authority beyond that which was left to them by the State grant?

So, if the federal authority is limited by “any offense under the laws of this state”, they exceeded their authority by the detention of people who were not witness to any crime that might have been a felony under state law, and the only possible violation of that law was committed by the BPS shooter, and, perhaps even those who illegally detained (kidnapped) Massey and Varner.

Let’s revisit state law regarding firearms. From Texas Penal Code Section 46.04 Unlawful Possession of Firearm

(a) A person who has been convicted of a felony commits an offense if he possess a firearm:

(1) After conviction and before the fifth anniversary of the persons release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) After the period described by Subdivision (1), at any location other than the premises at which the person lives.

So, this law makes it illegal to possess “at any location other than the premise”. However, apparently exception was made in another provision, Texas Penal Code, Sec. 46.02. UNLAWFUL CARRYING WEAPONS (again, pertinent portions):

(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.

(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.

(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.

(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

Since Massey is no longer prohibited from possessing a weapon, and where we have a definition of “premises” (re: 46.04) and the ability to transport a weapon, then it is clear that Massey was not in violation of state law, and if in violation, it would only be a misdemeanor, unless he was in a place that sold alcoholic beverages, then clearly the state has no objection to his possession of a firearm under the circumstances surrounding Massey, throughout this entire ordeal.

Now, the enumerated right is the right to keep and bear arms. The government argues that 18 USC 922(g)(1) includes any firearm that is:

(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

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.

Intrastate Commerce

Now, let’s look at how 18 US Code defines “interstate commerce”:

18 U.S.C. § 921 : US Code – Section 921: Definitions

(a) As used in this chapter –

(2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State…

However, I find no definition of “Commerce” in 18 US Code, so we will look at the legal authority, Black’s Law Dictionary (5th Edition):

“The exchange of goods, productions, or property of any kind; the buying, selling, and exchange of articles…”

So, commerce is the exchange of goods, barter, sale, trade, or any other means, to be “in and affecting commerce” would require that one be involved in such a transaction.

Defining that even further, we have “interstate or foreign commerce” specifically excluding “intrastate” commerce, to wit:

“but such term does not include commerce between places within the same State but through any place outside of that State”

So, if Massey had purchased (commerce) a firearm within the state, it would take a real stretch to include “interstate”. However, Massey never purchased (commerce) any firearm, he merely possessed a firearm. Even if Massey had received it as a gift, it is inconceivable that this could create the necessary nexus to interstate commerce that the statute addresses. However, the government cannot even prove that he owns a firearm, and that is the burden that is placed upon them, by Hanen’s Opinion.

Now, that is twice removed from the apparent extent of the charges brought under 18 USC §922(g)(1). No interstate, and, no commerce.

Since the Fifth Circuit has ruled on the Tenth Amendment, and it is no longer a legal defense for Massey, it does not preclude the state from passing laws that are consistent with the Tenth Amendment, which, obviously, they have done.

So, let’s refer to this as the Ninth Amendment argument. The federal government has raised no objection to the state laws referred to above, so they must be constitutional. The Ninth Amendment reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The question is whether Massey has the right, under the Ninth Amendment, to possess a firearm, if he is totally in compliance with state law, and has not been involved in interstate commerce.