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Camp Lone Star - "a Fundamental Right"

Camp Lone Star - "a Fundamental Right"

Gary Hunt
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.

Constitutionality

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?  "Felon in Possession of a Firearm" is Not Legal o....

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.

Commerce Clause

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 federal government."

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;… that no 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?)  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 - "a Fundamental Right"

 

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Comment by Gary Hunt on March 2, 2015 at 9:39am

I believe that a lot of us have more in common than we realize. Only time and events bring that reality closer to acceptance.

Comment by Henry Massingale on March 2, 2015 at 9:33am

You and I have something in common.

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Ten Commandments of Human Relations

The fundamental issue in human ethical behavior is summarized by Jesus in what we have come to call "The Golden Rule." Jesus put it this way:

So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets (Matthew 7:12 TNIV).

It asks us to test our treatment of others by putting ourselves in their place. Treat others the way you would want them to treat you in the same or similar circumstance.

Somebody took that principle and translated it into Ten Commandments of Human Relations. You may have seen this anonymous piece, for it circulates in a variety of settings. In case you have missed it, I am reproducing it here.

Speak to people. There is nothing as nice as a cheerful word of greeting.

Smile at people. It takes 72 muscles to frown, only 14 to smile.

Call people by name. It is music to anyone’s ears to hear the sound of his or her name.

Be friendly and helpful.

Be cordial. Speak and act as if everything you do is genuinely a pleasure. If it isn’t, learn to make it so.

Be genuinely interested in people. You can like almost anyone, if you try.

Be generous with praise, cautious with criticism.

Be considerate of the feelings of others. There are usually three sides to a controversy — yours, the other fellow’s, and the correct one.

Be alert to serve. What counts most in life is what you do for others.

Live with a good sense of humor, a generous dose of patience, and a dash of humility appropriate to being human.

Made in God’s image, all of us have something to be valued!

The great challenge in human experience is not work skills, but people skills. That is, research has shown that the majority of people who fail in their vocation do so because they cannot get along with people.

You might think through the meaning of these ten common-sense ideas for your own workplace and personal activity. But what about the larger setting for your daily life? These principles work everywhere you go, for they are about showing respect to the people you meet in all those places.

Made in God’s image, all of us have something to be valued, affirmed, and acknowledged by others. But let it begin with us to acknowledge it in them. As the cycle of giving and receiving enlarges, the human community comes alive.

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