Who has jurisdiction over arms?

by Ed Lewis
April 27, 2001

Recently, U.S. District Judge Steward Dalzell questioned the constitutionality of a federal anti-gun law stating that convicted felons may be prosecuted federally for mere possession of a firearm. Judge Dalzell filed an opinion that such gun cases should not be tried in federal courts but, instead, prosecuted in state courts as has been customary. 

The writer must confess he had not read The Firearms Owners Protection Act of 1986 so he searched for and found an excellent site giving the analysis not only of the Act, but the history behind the act. What he found is titled "The Firearms Owners Protection Act: A Historical and Legal Perspective" at this link:

http://www.2ndlawlib.com/journals/hardfopa.html. 

After reading about half of it, it was clear that the definition of a felony is the same as that of Missouri except that certain business practices were exempted and "under indictment for a felony" added. A felony is defined as any crime so designated or if persons convicted thereof may be sentenced to death or imprisonment for a term which is in excess of one year.

Just because a person has been convicted of a felony, does that necessarily mean he should not be permitted to own, keep, and carry a firearm? After all, there are dozens of dozens of felonies in which no firearm or use of a firearm is involved, plus many cases in which a person was defending himself with a firearm and prosecuted as a felon for doing so. 

The fact is most Americans could probably be indicted and convicted under obscure, little enforced laws which just might happen to carry a punishment of a year in prison or just be designated as a felony. Or, for example, what if a person is convicted fraudulently for income tax evasion after learning no citizen with domestic earnings only is made liable for federal (or state) income tax? 

Thus, one might conclude "felony" is just sort of a generalized catch-all category that could be used to nail someone who has been designated a target specifically, or as an "example" by the government coercing others into complying with unconstitutional laws, or to prevent as many as possible from owning firearms. 

Of course, we all know the government would never make and apply any law against a citizen of the United States of America erroneously or with the intent of distorting the law to suit their purposes. Thus, we all can rest easy that our constitutional rights are being stringently protected by our benevolent public servants in the federal government, that Article I, Section 8 provisions are never exceeded or manipulated so as to expand federal authority to situations in which there is, in fact, none.

We also know for certain our respective state general assemblies and officials in political subdivisions would never violate their oaths of office by enacting and enforcing laws that are unconstitutional, including all those dealing with our unalienable, self-evident rights. 

Or that any judge of any level in the justice system would ever make a ruling against their oaths of office to uphold the Constitution, that each and every one of them assures to each and every one of us that justice established by the common law secured by the Constitution will be served, that a citizen is never ruled against in the favor of government.

Ah, but if this were only true. If it were, we would not have any firearm laws, no direct tax of any type whether on income or property, no business licenses, no auto registration and licensing, no driver’s licenses, no property taken by the federal government or laws concerning the use of one’s own property by any level of government, no marriage licenses, no requirement to buy a product such as auto insurance, no over-loaded courts, fabricated evidence and crooked cops, and no spending of billions needed to look for, catch, prosecute, and then support prisoners who have been unconstitutionally incarcerated. In short, we would have very little interference in the privacy of our lives.

However, as we all know, government is not limited as intended and, instead, assumes plenary power even at the political subdivision level. Legislators and other executive/legislative-like branch representatives make laws as if it justifies their being. Contrary to all that is good, though, virtually every law made in the past 100 years or more which affects us daily is unconstitutional. 

This can be controlled. Officials violate their oaths of office in passing and enforcing unconstitutional laws. It doesn’t matter if it is on the federal, state, or political subdivision level. 

The people can force impeachment or other proper removal of officials not obeying their oaths of office. Individual or group actions can be taken against such officials. Don’t be bashful about it. Elected officials and those they hire or appoint to fill governing positions have a sacred trust, and a subscribed to requirement, to uphold the rights of the people. If they are not willing to do so, they should not hold their positions. 

Although most believe themselves to be above the law, even judges can be impeached. It may take the actions of enough people to force the issue, but increased numbers of people are finding out the facts concerning the power of judges verses the power of juries. Increasing numbers are recognizing the need to insist on juries being used as the lawful (and intended) voice of the people. And, of course, the need of judges and prosecutors being held to proper behaviors of due process of law rather than giving erroneous orders and misleading tactics used by judges, prosecutors, and, I might add, defense attorneys. 

There are means to stop any unconstitutional law from being passed, or to force its repealing if already passed whether the majority of legislators want it that way or not. And, there is, of course, the power of all to simply ignore unconstitutional laws and force justice in a system where injustice now prevails. 

What of jurisdiction? The Constitution states that all citizens have the right to keep and bear arms. It does not qualify this with any statement the 2nd Amendment is applicable only if the federal or state governments allow it, or any statement that specific groups or categories do not have the right expressed in the amendment. 

The Constitution also doesn’t give the federal government the authority to place citizens owning and bearing firearms under interstate control. The only authority given concerns taxing firearms imported at the time of importation. Other than that, the federal government hasn’t any authority to make laws concerning arms in the 50 states.

Does a state have authority to enforce firearm laws? How can they since the Constitution doesn’t give them the authority? Where does it say in the 2nd Amendment, or elsewhere in the Constitution, that a state may give a citizen the privilege to own a firearm? Or, the authority to not permit carrying of a loaded firearm? In fact, states are expressly prohibited from passing any law repugnant to the Constitution.

Does a political subdivision have the authority to make or enforce firearm laws? Actually, political subdivisions have little authority to do anything other than making ordinances concerning traffic, parking, and public places, and none concerning private property. 

Although Judge Dalzell should be noted for mentioning jurisdiction, the fact is federal and state governments haven’t any jurisdiction over citizens’ private property, including the firearms they own. Only the sovereigns, the citizens themselves, have jurisdiction over themselves limited by the prohibition of interference in the rights of others. They are, therefore, constitutionally free to make, purchase, keep, and bear any arms they wish.

When are we going to get officials in all levels and branches of government to understand that being a good public servant is not making and enforcing laws; that being a good official is protecting what is constitutionally lawful? Or, maybe more important, get all the people to understand the same and then force all officials to be public "servants", not "rulers" of the public.

Jurisdiction is clearly established with sovereignty remaining with the people. The supreme Law of the Land, which all laws must comply with, protects the people from oppressive, unconstitutional laws. Courts are clearly established with one primary purpose, to preserve and protect the rights of the people secured by the supreme Law of the Land. Judges are bound by sacred oath to never rule or act against the Constitution, as are prosecutors, law enforcement, legislators, and all those thousands of people, even the few that are useless, filling government positions. 

Few are meeting their oaths and those few who do speak out, do so only occasionally and in partial support of the Constitution. Even then, they speak not very loudly, not for any length of time, nor do they carry a big stick to courts demanding justice. 

We must consider this. Let’s assume the federal government decides Judge Dalzell is correct. Is the person prosecuted based on an unconstitutional law going to be any less prosecuted by a state than it would have been by the federal government? Will it make any difference to the person indicted and convicted for doing no more than expressing a constitutional right? I.e., is a heavy fine and/or imprisonment any less because it was given by a state rather than the federal courts? 

For these reasons, this writer did not jump and down concerning the judge’s opinion but, instead, wondered just when the devil a major judge is going to start campaigning against his peers (other judges, that is) and with his constituents to stop enforcement of unconstitutional federal firearms laws applied in the many states of the union? In other words, when are the prosecutions and convictions in violation to the very law courts are sworn to protect going to cease?

Probably it will be when the people of this nation realize that the greatest threat to the safety and freedom of our people is, in reality, NOT being armed. And, that the worst threat of all comes not from some local criminal type but, instead, from every level of government as each willfully and intentionally violates the Constitution of the united States of America. 

Let’s pray the realization comes and - IF it comes - that it isn’t too late.