Liberty or Laws?
“Felon in Possession of a Firearm”
is Not Legal or Lawful
by Gary Hunt
November 25, 2014
There are six provisions of the Constitution that are subject to your consideration and interpretation, when we look into what has become a means of punishment rather than any semblance of Justice — which was the purpose of the Constitution. We will consider these provisions in light of the historical enactments of “Felon in Possession of a Firearm” laws and their use, today, as a means of punishment of those who have committed no crime, in recent years, though the government has chosen to punish them with both illegal and unlawful prosecution/persecution.
We will start with what is referred to as the “Commerce Clause”. It is a power granted to the federal government to enact laws. It is found in Article I, Section 8, clause 3, and reads:
The Congress shall have the Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
Now, “regulate” is a word that was commonly used by the Founders. So, let’s see what it meant to them, at the time of the writing of the Constitution, from Webster’s 1828 Dictionary:
To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
To put in good order; as, to regulate the disordered state of a nation or its finances.
To subject to rules or restrictions; as, to regulate trade; to regulate diet.
Now, if we were to desire to regulate commerce between the states, those regulations should be equal, and not be to the disadvantage of one state, or to the advantage of another. Obviously, this would apply to the citizens of each state, as well. Its purpose is to make equal between the states, conferring no advantage, or prohibition, on one over another. To achieve this, they can make rules and restrictions. These would only be rules and restrictions that apply in the act of commerce.
Now, being one of commerce “among the several States”, then it would only occur at the borders between states, not within a state. You might compare it to an elevated walkway crossing a street. The stairway goes up from one sidewalk, a walkway across the road, and down on to the sidewalk on the other side of the road. Commerce, to the extent granted by the Commerce Clause, is only the stairways and the walkway. To extend it up and down the sidewalk would be to intrude upon the rights of the state.
The “Felon in Possession of a Firearm” is codified in 18 U. S. Code § 922 (g)(1). The initial law was enacted in the early Nineteen-thirties, during the gangster era. Since the federal jurisdiction was, then, limited to interstate commerce (we will go there, shortly), the states were encouraged to enact similar laws, in accordance with their respective constitutions.
They did this because the Constitution provides, in Article IV, § 4, that “The United States shall guarantee to every State in this Union a Republican Form of Government”. Further, the Tenth Amendment to the Constitution, to wit:
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.
This provides that if a power is not delegated to the United States, the state may consider it reserved for their disposition, and, when that is not applied, then the people retain the power. Therefore, the states could enact felony possession laws, which they did because of this provision.
The federal government could criminalize sending, transportation, and receiving, through interstate commerce, and the states could punish those who could not be prosecuted for possession that was not directly involved in commerce. States varied in their form of punishment, as well as the length and extent of punishment. The states, then, had jurisdiction once the firearms left the stairways at each end of the walkway. It was only those either sending (stairway), transporting (walkway) or receiving (stairway) who were subject to federal law. This is made clear in that portion of the federal law, when it says, “It shall be unlawful for any person [who has been convicted of felony] 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.”
So, we must ask ourselves what this law really says. Well, “to ship or transport” is quite clear. It is the first stairway and the walkway. Surely, if a felon owned a firearm and then sold it to someone who was not a felon, and that second person then shipped or transported that firearm, the felon would not be in possession, since it is the stairway that begins the process. Neither would affect commerce, since the felon is out of the picture, at that time. So, now we get to receive. Receive is an act, in itself. The wording, now this is important, states, “which has been shipped or transported”. When the law was written, those who use words to create the rules of action that we were to be bound by, chose the word “has”, as opposed to the word “had”. “Has” is 3rd person present, meaning active in the action just completed, where “had” is past tense, meaning in a previous situation. If they had the lawful authority to extend the prohibition, the criminal act, they would surely have used “had” instead of “has”. “Had” would extend the prohibition indefinitely. This would explain the necessity of state prohibitions, and leave the jurisdiction fully within the state, if the firearm moved, absent commerce.
Now, in the above, we are discussing commerce. Commerce is, well, commercial, meaning that is done for compensation, for a fee, as a business. Is it commercial if I move myself from one state to another? Surely, it is not, because Article IV, Section 2, clause 1, says, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That means that I can travel freely between states, without penalty by the state that I enter. This would also mean that the federal government is not a party to my free movement between the states. Only if I hire someone to transport my goods does that property enter the commerce realm, and then, it might still be questionable as to whether I could carry my property, as the commercial aspect is only one of movement, not of commerce leaving one state and entering another. It would be absurd to think that if I carried my firearm with me, from a state that manufactured firearms, to a state that did not, that I would not have the same “Privileges and Immunities”, once I travelled freely to another state.
So, what happens if a federal statute contradicts another federal statute? Better yet, what if a federal statute had the appearance of conflict, via one interpretation, though had no apparent conflict, by another interpretation? Wouldn’t it make sense that statutes cannot be in conflict with other statutes?
Let’s consider the explanation given above, with regard to 18 U. S. Code 922 (g). Then, let’s look at what statute was enacted in providing detail of the Second Amendment, the Amendment that reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
In support of this Amendment, we find 10 U.S.C. §311, et seq, pertinent parts:
311 – Militia: composition and classes – tells us who is in the militia. “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 [note: this has to do with ages of officers], under 45 years of age…” It goes on to explain both organized and unorganized militia. The next section tells us who is exempt from the militia, to wit:
312 : US Code – Section 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.
Well, I have read that five times, and I cannot find that there is an exemption for someone that has been convicted of a felony. There must be a reason that this exemption was not included. Perhaps it has to do with a better understanding of what the Constitution granted Congress.
So, if the militia “consists of”, it appears to be obligatory and consistent with the Amendment. And, since felons are not exempted, then they are a part of the militia. The militia, however, must be able to “keep and bear Arms”. So, if this statute makes me a member of the militia, then it cannot infringe my right to “keep and bear Arms”. Now, this is not inconsistent with Congress’ authority to regulate commerce, if that regulation is as stated above. However, if we have already demonstrated a weak interpretation the government is currently using to target and punish people, then we have a very serious conflict between the government’s interpretation of the statute and the Constitution, as so far presented. Who is to decide what is right and what is wrong?
Let’s look at how the government is trying to desecrate the Constitution (now, not in the thirties) by trying to use words to increase federal authority beyond what was intended. In 1990, the federal “Gun-Free School Zones Act” was enacted as a part of the “Crime Control Act of 1990”. Its language was modeled after that language used in 18 U. S. Code 922 (g), and was codified in 18 U. S. Code 922 (q). In 1995, the Supreme Court overturned the law by their decision in United States v Lopez 514 US 549 (1995).
In overturning the Gun-Free statute, Chief Justice Rehnquist said:
The Act exceeds Congress’ Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly those terms are defined… Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite… nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government’s contention that 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States.
Rehnquist recognized that such authority was an authority of a state, not a federal, nature. He explained that the tie to commerce has to be either direct, or of an “economic enterprise”. It had to have a “nexus with interstate commerce”.
So, what did the Congress do? Janet Reno, then Attorney General of the United States, recommended changes to the Gun-Free provision that would give her department extraordinary power by obfuscating the tie to commerce. This was enacted in 1997, and we find that the tie to commerce has been rewritten in a form that doesn’t even sound like what you would expect a law to read, rather, it talks about why Congress enacted the law (warm and fuzzy), providing no substance, only flowers. For the sake of conservation of the length of this article, I will leave to you further research into “18 U. S. Code 922 (q)”. We need only understand that if the Supreme Court overturns an act for unconstitutionality, the government will endeavor to circumvent the prohibition, by whatever means they have, whether legal, lawful, or not.
Now, we shall enter into the world of Jurisdiction. Often, people will say, “that law is unconstitutional”. Here is the stickler; the law is possibly constitutional, though the question of “where” the law applies becomes the consideration, not of constitutionality, rather of jurisdiction, or, where it is applied.
We have just seen that with regard to the “Commerce Clause”, but we need to venture even further. There are two provisions that give Congress authority beyond what we usually perceive as the limitations imposed by the Constitution:
Article I, Section 8, clause 17 says:
Congress shall have the Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
Article IV, Section 3, clause 2 says:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Briefly, the Constitution does not define limits, in these instances, though practice, especially during the first 70 years of this government, have established the limits of those authorities. For those who wish a more thorough understanding of what was intended, I would suggest reading Habeas Corpus – The Guardian of Liberty. Otherwise, suffice it to understand that the limitations we have been discussing do not fall within those areas of exclusion — that an act of Congress (such as the Act of 1825, in the linked article) can appear to be unconstitutional, though it is only unconstitutional if applied outside of those lands that come under the extraordinary jurisdiction.
So, with this understanding, we, as the People of these United States of America, must allow the government to continually trample upon that sacred document, the Constitution, or must decide that they are not the proper party to make such judgment, as was true of Parliament and the King, when they enacted unconstitutional laws and imposed them on the colonies. If so, then we need to use whatever means necessary in assuring that the government abides by that document, or we resort to the provision of the Declaration of Independence, which declares that “when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”
“Are the people to serve the Government, or, is the government to serve the People?“