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Feds respond to Firearms Freedom Act lawsuit

• LibertyForAll
The MFFA declares that any firearms, ammunition or firearms accessories made and retained in Montana are not subject to federal regulation under the power given to Congress in the U.S. Constitution to regulate commerce “among the several states.” The MFFA is a states’ rights challenge on Tenth Amendment grounds, with firearms serving as the vehicle for the challenge. 

3 Comments in Response to

Comment by Ken Creamer
Entered on:

 

I could suggest that you go to my website, poorclydesalnamac.info, and read the article “Gun Control,” but for some, that may be more work than what they think they might gain from it.  ‘so I’m dropping the article here without having to do anything but read on.  A summary follows.

 

GUN CONTROL

 

 

The little known fact about gun control is that a) Congress does not have the authority to legislate gun control in any one of the 50 Union States and b) it hasn’t.  But before we divulge why Congress hasn’t written any legislation with respect to gun control applicable in any one of the 50 sovereign Union States, we need to understand the linguistics of federal legislation.  The following dissertation is written to convey the legislative semantics for the terms “include” and “including”

 

 

On The Meaning Of "Includes"-- A Brief Review

 

 

 

As is discussed in detail in 'The Law Means What It Says' in CtC[1], when deployed in the Federal law, the term "includes" is a term of "limited expansion".  That is, the enumerated list provided in any definition which deploys the term "includes" is to be understood as a list of characteristics, or representative members, of a class, in which other things not listed which share those characteristics can be legally presumed to be included and partakes of the doctrines expressed by the United States Supreme Court as:

 

"…a word is known by the company it keeps (the doctrine of noscitura sociis).  This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving “unintended breadth to the Acts of Congress.”  Jarecki v. G. D. Searle & Co., 367 US 303, 307 (1961)”  Gustafson v. Alloyd Co. (93-404), 513 US 561 (1995)

 

 

 In order to know what Congress means when it uses the term “includes” we look first at what the Supreme Court and other Courts have to say regarding the term as well as other legal authorities such as Legal Dictionaries.

 

It is the canon of statutory construction that the inclusion of certain provisions implies the exclusion of others. The doctrine inclusio unius est exclusio alterius 'informs "the court to exclude from operation those items not included in a list of elements that are given effect expressly by the statutory language.”'” In re TMI, 67 F3d 1119, 1123 (3rd Cir 1995)(Quoting Williams v. Wohlegemuth.540 F2d 163, 169 (3rd Cir 1976)" United States v. McQuilkin, 78 F3d 105, 108 (3rd Cir 1996)

 

 

“Inclusio unius est exclusio alterius.  The inclusion of one is the exclusion of another.  The certain designation of one person is an absolute exclusion of all others.    This doctrine decrees that where the law expressly describes [a] particular situation to which it shall apply, and irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded.”  Black’s Law Dictionary, 6th Edition.

 

 

It is axiomatic (and the law) that terms and phrases within a statute for which definitions are provided DO NOT have there common meanings as used therein.

 

 

"It is axiomatic that the statutory definition of the term excludes unstated meanings of that term."  Meese v. Keene, 481 U.S. 465 (1987))

 

 

Include or the participial form thereof, is defined to comprise ‘within’; ‘to hold’; to contain’; ‘to shut up’; and synonyms are ‘contain’; ‘enclose’; ‘comprehend’; ‘embrace’.”  Montello Salt Co. v. Utah, 221 U.S. 452, at 455, 466.

 

This fact only underscores our duty to refrain from reading a phrase into a statute when Congress has left it out.  ‘[W]here Congress includes particular language in one section of a statute but omits it in another …, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’”  Russello v. United States, 464 U.S. 16, 23, 78 L Ed 2d 17, 104 S. Ct. 296 (1983)

 

 

It [is argued that] the word "including" means "moreover", or "as well as"; but if this was the meaning of the legislature, it was a very embarrassing mode of expressing the idea."  Chief Justice Marshall of the United States Supreme Court, United States v. The Schooner Betsey and Charlotte, 8 U.S. 443 (1808).  Marshall proceeds to observe that the proposition that "moreover" or "as well as" is, in fact, what is meant by the legislative use of "including" (or, by extension, includes) is nonsense.

 

 

It should also be axiomatic that Congress is precluded from defining a term used in the federal Constitution simply due to the fact that the linguistics of the federal Constitution define specific powers by the semantics of the terms used at the time of its ratification.  To allow Congress to redefine any of these terms is tantamount to allowing Congress to self alter its power without any authority from We the People, the bottom up sovereigns of our Republic.  On the other hand, when Congress does in fact redefine a term used in the federal Constitution, it becomes a self-evident exclusive conclusion and a “red flag” that Congress is legislation under its Constitutionally granted power by either Article I, Section 8, Clause 17 or Article IV, Section 3, Clause 2, which is the power to exclusively legislate within the territory over which is the Seat of Government and other property the federal government has acquired for Constitutional purposes.

 

 

Now, let’s get back to Gun Control.

 

Title 18 of the U.S. Code contains all the law for federal crimes and Chapter 44 contains the law for all crimes related to firearms.  So let’s start with the key definitions for the gun crimes found at section 921 in Chapter 44.

 

 

§ 921. Definitions

 

 

a) As used in this chapter—

 

 (1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.

 

 (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. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).  (emphasis added)

 

 

Concentrating on the definition of “interstate or foreign commerce” and capitalizing on our knowledge gained above with respect to the semantics for the terms “include” and “including” we are now equipped to analyze the actual scope and breadth of federal jurisdiction as it relates to gun control.   But first, we must take cognizance of the red flag here due to the fact that Congress is redefining a term from the federal Constitution which designates one of its powers listed in Article I, Section 8, Clause 3.   As mentioned above, when we find Congress redefining a term used in the Constitution such as “interstate and foreign commerce” and “state” we can axiomatically conclude that Congress is legislating under its power granted in Article I, Section 8, Cause 17 and Article IV, Section 3, Clause 2 which was the exclusive power to legislate within its own territory.  Since both terms have semantic concepts which existed at the time of the ratification of the Constitution, Congress is not at liberty to alter those in any way except where it was granted the exclusive legislative power to do so and as you know from reading the Constitution, such power exists only in federal territory.

 

 

First, looking at the definition at § 921(a)(2), we see the term “State” redefined.  Does the term “State” as used anywhere in Chapter 44 include any one of the 50 Union States like New Jersey or Nevada?  Of course not.  “State” here means and includes only instrumentalities or territory under the exclusive legislative control of the United States Congress, i.e., federal territory.  

 

 

 

Now looking again at “interstate of foreign commerce” we see that the only commerce associated with federal gun laws or Chapter 44 crimes must be a commercial transaction transpiring between a place in a federal “state” as defined “and any place outside of that State, or within any possession of the United States or the District of Columbia.”  To conclude that the definition for “interstate and foreign commerce” is confusing is understandable because one reading could leave the reader with the conclusion that the interstate commerce transaction must be consummated totally within federal territory while the other reading could leave one with the conclusion that if either end of the commercial transaction, the initiation or the consummation, occurred in federal territory, it fits the definition set out above and comes under the scrutiny of the federal government.  But one thing is for sure, if the commercial firearm transaction does not go through federal territory regardless of whether the actual acts associated thereto are listed in the federal criminal statutes or not, no federal crime can have been committed.  Any federal prosecutor who attempts to prosecute a federal crime under the guise of the interstate commerce clause in the Constitution is committing fraud upon the defendant and could be made liable for the fraud and possibly abuse of process damages in a Union State court of law if the commercial transaction didn’t transpire somewhere in federal territory.   That is to say, any transaction that neither was initiated nor consummated within federal territory is not a transaction occurring in interstate commerce as defined for federal prosecution under federal firearm control laws.  End of Story!

 

Bottom Line

 

 

It should be obviously self evident from the above analysis that none of the 50 Union States needs to despair over the federal governments attempting to upset their FFA legislation.  There is no need to defend such legislation in federal court by arguing the Interstate Commerce because “interstate Commerce” has been redefined to apply only in federal territory, and any attempt by any federal agent or official to charge a Union State Citizen for a Chapter 44 Crime occurring in a Union State is itself a Crime within the laws of that Union State and therefore actionable in the Union State Courts under both criminal and civil laws.  If the Union States want their Sovereignty back, they’re going to have to stand up and be counted by understanding completely the redefinitions of Constitutional terms used in federal legislation causing the application of such acts to be limited to federal territory.

 


[1] Cracking the Code by Pete Hendrickson, 2003.  Much of the discourse on “includes” and “including” has been quoted from Pete’s book or pieces from his web site, losthorizons.com, to aid the reader in understanding the legal semantics of the terms “includes” and “including.”

Comment by Kitty Antonik Wakfer
Entered on:

I'm repeating the comment I made at the source article yesterday - to which I've seen no response.

Maybe I am missing something here, but why the lawsuit “to validate the MFFA”? Why not simply conduct activities in Montana according to this new law and see what the Feds do?
Presumably the Montana law enforcement agents would not permit federal agents to arrest anyone or seize property as part of some federal law “violation”. If that doesn’t happen however, then everyone will have to question Montana government officials as to why the MFFA was not enforced.

**Kitty Antonik Wakfer

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Comment by Ken Valentine
Entered on:

 Maybe I'm being too finicky here, but I think that the fedgov (as well as others) should acquaint themselves with what is known as a Dictionary.

"Commerce" is the exchanging of goods and services through a process we call "buying and selling" -- although trade and barter could also be included in this classification as well.

"Interstate Commerce is buying, selling, trading, or bartering goods and services from one State to another. Like raising cattle in Colorado and selling them in Chicago.

If I (for example) mount a fifty caliber machine gun on my Toyota and drive to Florida, visit Disney World, and drive back home with that machine gun still mounted on my car, I'm NOT engaging in interstate commerce -- transportation yes . . . commerce, no.

Why doesn't anybody point this out to the feds?

The Interstate commerce clause was created so that (for example) Bee Keepers in New York couldn't lobby Albany for a ban on the importation of Vermont Maple Syrup which competes in the market with their honey.


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