Outpost of Freedom blog

Burns Chronicles N^o 15
So, what is the Law?

Gary Hunt
Outpost of Freedom
March 21, 2016

It is appropriate to start off with some Constitutional wisdom from the Father of the Constitution, before we proceed.

It poisons the blessing of liberty itself.  It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

James Madison, Federalist N^o 62

In the previous article, “Which Came First, the Rooster or the Egg?“, we were focused on the original charge, violation of 18 US Code § 432, which was the charge in the original Indictment, dated February 3, 2016.  Though the government did the intimidation, the defendants are charged with that crime, there is nothing to demonstrate that the defendants intimidated or threatened anybody.

Just over a month later (I guess it took the United States Attorneys that long to try and find something a little more, well, tenable, to charge the defendants with), a Superseding Indictment was filed on March 8, 2016.  It is with Count 2 of the Superseding Indictment that we will be discussing, here, along with both logical and historical perspectives.

Before we proceed, you may want to refresh your memory, from another earlier article, in which it was apparent to Representative Greg Walden, in his Speech on the Floor of the House of Representatives (Published January 8, 2016 – 24 minutes), that if Congress makes a law, pursuant to the Constitution, it doesn’t mean that the Administrative Agencies are going to abide by that law, or, perhaps, interpret it contrary to its intent.

So, let’s look at Count 2, as it appears in the Indictment:

COUNT 2
(Possession of Firearms and Dangerous Weapons in Federal Facilities)
(18 U.S.C. §§ 930(b) and 2)

On or about January 2, 2016, and continuing through February 12, 2016, in the District of Oregon, defendants AMMON BUNDY, JON RITZHEIMER, RYAN PAYNE, RYAN BUNDY, BRIAN CAVALIER, SHAWNA COX, JASON PATRICK, DYLAN ANDERSON, SEAN ANDERSON, DAVID LEE FRY, JEFF WAYNE BANTA, SANDRA LYNN ANDERSON, WESLEY KJAR, COREY LEQUIEU, JASON CHARLES BLOMGREN, DARRYL WILLIAM THORN, GEOFFREY STANEK, TRAVIS COX, ERIC LEE FLORES, and aided and abetted by each other and by others known and unknown to the grand jury, did knowingly possess or cause to be present a firearm or dangerous weapon in a federal facility located at the Malheur National Wildlife Refuge, and counseled, commanded, induced and procured the commission thereof, with the intent that the firearm or dangerous weapon be used in the commission of a crime, to wit: 18 U.S.C. § 372, Conspiracy to Impede Officers of the United States, in violation of Title 18, United States Code, Sections 930(b) and 2. [Emphasis mine]

Now, you can see that there is a presumption of guilt by asserting that the firearms were used “with the intent that the firearm… be used in the commission of a crime.”  Not, also, that even absent a crime, the pertinent part of the Statute, 18 US Code § 930 (b), reads:

(b) Whoever, with intent that a firearm or other dangerous weapon be used in the commission of a crime, knowingly possesses or causes to be present such firearm or dangerous weapon in a Federal facility, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.

However, to get a proper perspective, assuming that the Grand Jury were given the entire statute and did not have to make a presumption of guilt, let’s look at a bit more of the statute:

(a) Except as provided in subsection (d), whoever knowingly possesses or causes to be present a firearm or other dangerous weapon in a Federal facility (other than a Federal court facility), or attempts to do so, shall be fined under this title or imprisoned not more than 1 year, or both.

(b) [above, (c) not applicable]

(d) Subsection (a) shall not apply to—

(1) & (2) [not applicable] or

(3) the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.

Given “(a)”, simply possessing the weapon in the “Federal facility”, without a presumption of guilt or commission of a crime, we are directed to the exception in (d).  This provides that (a) shall not apply, if the carrying of a weapon is “in a Federal facility incident to hunting or other lawful purposes.”

So, the United States Attorney did not want the Grand Jury to know that if the purpose was lawful, that there would be no probable cause, or indictable offense.  We might note that the last time this statute had any changes was on January 7, 2008.

Now, the Congress, you know the branch of government that holds “All Legislative Powers” in the Constitution (Art.  I, § 1), in reaffirming their limitations with regard to the Second Amendment, enacted a provision in 16 US Code § 1a-7b, on May 22, 2009, protecting the people’s right to keep and bear arms.  They had done so (as explained in the Statute) because:

(a) (6) Although the Bush administration issued new regulations relating to the Second Amendment rights of law-abiding citizens in units of the National Park System and National Wildlife Refuge System that went into effect on January 9, 2009 –

(A) on March 19, 2009, the United States District Court for the District of Columbia granted a preliminary injunction with respect to the implementation and enforcement of the new regulations; and

(B) the new regulations –

(i) are under review by the administration; and

(ii) may be altered.

(7) Congress needs to weigh in on the new regulations to ensure that unelected bureaucrats and judges cannot again override the Second Amendment rights of law-abiding citizens on 83,600,000 acres of National Park System land and 90,790,000 acres of land under the jurisdiction of the United States Fish and Wildlife Service.

(8) The Federal laws should make it clear that the second amendment rights of an individual at a unit of the National Park System or the National Wildlife Refuge System should not be infringed.

And, then by adding:

(b) Protecting the right of individuals to bear arms in units of the National Park System and the National Wildlife Refuge System The Secretary of the Interior shall not promulgate or enforce any regulation that prohibits an individual from possessing a firearm including an assembled or functional firearm in any unit of the National Park System or the National Wildlife Refuge System if –

(1) the individual is not otherwise prohibited by law from possessing the firearm; and

(2) the possession of the firearm is in compliance with the law of the State in which the unit of the National Park System or the National Wildlife Refuge System is located.

Now, Oregon, and specifically, Harney County, provide for open carry.  Unless state law had a specific exclusion, say a courthouse or church, then the possession of a firearm in a “Federal facility” would be legal, as per 16 US Code § 1.

Before we go to the next Count, it might be worth noting what the Framers, and their immediate successors understood about the limitation of federal jurisdiction.  There will be a subsequent article on “Public Lands”, however, at this time, we must broach that subject, with regard to the specific subject under discussion, authority on public lands, which is undisputed by the government.

Article I, section 8, clause 17, grants Congress the power “to exercise exclusive legislation” over lands ceded to the United States by the state in which the land lies. [Black’s Law Dictionary, Fifth Edition – Cede. To yield up; to assign; to grant; to surrender; to withdraw. Generally used to designate the transfer of territory from one government to another.]

An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes.  (March 3, 1825)

“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the site whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”

Now, this law was enacted just 35 years after the first Congress sat under the Constitution.  What did they know that we do not know?  For them to punish you for crimes against property of the United States, the property had to be on land ceded to the United States, and jurisdiction also ceded to the United States.  That means the state had to relinquish both the land and the jurisdiction over the property.  Can there be any doubt that the Congress, in 1825, understood the limitations of their authority under the Constitution?

So, is one subject to 18 US Code § 930(b), or is there some protection afforded by 930 (a)?  And, is either of these consistent with 16 US Code § 1?  Well, yes, 930 (a) would not be inconsistent with 16 US Code § 1.

But, is there any federal jurisdiction, at all, if the early legislators in this country realized that absent the ceding from Oregon, the public lands are not really under federal jurisdiction, absent the ceding by the state, so, it all comes under local laws, as per the ultimate limitation imposed by 16 US Code § 1.

If Laws are Rules of Action, then we must know what they are.  When the United States Attorney appears to not know what the laws are, then, at least, the Grand Jury should be apprised of all of the possibilities, as the Grand Jury represents the people not the government.