This is a standing invitation to my fellow Americans: If congress ever enacts a law mandating the registration and/or a production ban of detachable magazine semiautomatic rifles then you are hereby invited to the town square of your local community. There, burn barrels will be set up and we will publicly burn Form 4473s, FFL Bound Books, state and local registration records, and the sales receipts for every firearm in the United States. On that same day, FFL holders and public officials holding electronic firearms records will simultaneously erase those records, permanently and irretrievably. (Using special file erasure software such as Blancco, X-Ways, and Stellar Wipe, or though the physical destruction of disk drives.)
Spontaneous Gatherings, Spontaneous Combustion
This burn barrel day–likely to be held the day after the President signs any new draconian legislation–will include speeches, public prayers, and the blessing of those who have gathered by ministers, rabbis, and priests.
The core of the activities on that day will be stalwart public defiance of any new unconstitutional law(s), the open and notorious destruction of records that might be used to enslave us, and vocal public affirmations of solidarity of free men and women, in the face of tyranny. This will be a defining moment for America–a line drawn in the sand. We will forthrightly declare that we will not obey any unconstitutional law and that we will treat it dismissively, as if it had never been enacted — nunc pro tunc. We will pledge ourselves to the defense of liberty, both individually and collectively. We will vow that if ever called to jury duty, we will nullify any unconstitutional laws, vacating the charges against the accused, in accordance with our long-standing right as jurors. (See: www.FIJA.org.)
The Law is On Our Side
We will publicly re-affirm some long standing precepts of American jurisprudence, to wit:
§ 195 Generally
The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law(1) but is wholly void(2) and ineffective for any purpose.(3) Since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it,(4) an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed(5) and never existed;(6) that is, it is void ab initio.(7) Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.(8)
Since an unconstitutional law is void, it follows that generally the statute imposes no duties,(9) confers no rights,(10) creates no office(11) or liabilities,(12) bestows no power or authority on anyone,(13) affords no protection,(14) is incapable of creating any rights or obligations,(15) does not allow for the granting of any relief,(16) and justifies no acts performed under it.(17)
Once a statute is determined to be unconstitutional, no private citizen or division of the state may take any further action pursuant to its provisions.(18) A contract that rests on an unconstitutional statute creates no obligation to be impaired by subsequent legislation.(19) No one is bound to obey an unconstitutional law,(20) and no courts are bound to enforce it.(21) A law contrary to the United States Constitution may not be enforced.(22) Once a statute has been declared unconstitutional, courts thereafter have no jurisdiction over alleged violations.(23) Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines paid.(24)FOOTNOTES:
1 Commissioners of Roads and Revenues of Fulton County v. Davis, 213 Ga. 792, 102 S.E.2d 180 (1958); State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328 (1953); McGuire v. C & L Restaurant Inc., 346 N.W.2d 605 (Minn. 1984); People v. Corley, 91 Misc. 2d 255, 397 N.Y.S.2d 875 (City Crim. Ct. 1977).
2 Lewis v. Uselton, 224 Ga. App. 428, 480 S.E.2d 856 (1997); State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995); State v. Clark, 367 N.W.2d 168 (N.D. 1985); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915 (Okla. 1989); Weegar v. Bakeberg, 527 N.W.2d 676 (S.D. 1995); Almond v. Day, 197 Va. 419, 89 S.E.2d 851 (1955).
3State v. One Oldsmobile Two-Door Sedan, Model 1946, 227 Minn. 280, 35 N.W.2d 525 (1948); Grieb v. Department of Liquor Control of State, 153 Ohio St. 77, 41 Ohio Op. 148, 90 N.E.2d 691 (1950); Hunter v. School Dist. of Gale-Ettrick-Trempealeau, 97 Wis. 2d 435, 293 N.W.2d 515 (1980).
4 Shirley v. Getty Oil Co., 367 So. 2d 1388 (Ala. 1979); Oliver v. State, 619 So. 2d 384 (Fla. Dist. Ct. App. 1st Dist. 1993); Lewis v. Uselton, 224 Ga. App. 428, 480 S.E.2d 856 (1997); Trout v. State, 231 S.W.3d 140 (Mo. 2007); State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995); Texas Dept. of Family and Protective Services v. Dickensheets, 274 S.W.3d 150 (Tex. App. Houston 1st Dist. 2008).
5 Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Commissioners of Roads and Revenues of Fulton County v. Davis, 213 Ga. 792, 102 S.E.2d 180 (1958); Briggs v. Campbell, Wyant & Cannon Foundry Co., Division Textron Am. Inc., 2 Mich. App. 204, 139 N.W.2d 336 (1966), judgment aff’d, 379 Mich. 160, 150 N.W.2d 752 (1967); McGuire v. C & L Restaurant Inc., 346 N.W.2d 605 (Minn. 1984); State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995); State v. Clark, 367 N.W.2d 168 (N.D. 1985); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915 (Okla. 1989); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover Tp., 589 Pa. 135, 907 A.2d 1033 (2006); Franks v. State, 772 S.W.2d 428 (Tenn. 1989); School Districts’ Alliance for Adequate Funding of Special Educ. v. State, 149 Wash. App. 241, 202 P.3d 990, 242 Ed. Law Rep. 383 (Div. 2 2009); City of Fairmont v. Pitrolo Pontiac-Cadillac Co., 172 W. Va. 505, 308 S.E.2d 527 (1983).
6 Thomas v. North Carolina Dept. of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff’d, 346 N.C. 268, 485 S.E.2d 295 (1997); Weegar v. Bakeberg, 527 N.W.2d 676 (S.D. 1995).
7 People v. Manuel, 94 Ill. 2d 242, 68 Ill. Dec. 506, 446 N.E.2d 240 (1983); Lovgren v. Peoples Elec. Co., Inc., 380 N.W.2d 791 (Minn. 1986); Nevada Power Co. v. Metropolitan Development Co., 104 Nev. 684, 765 P.2d 1162 (1988); Town of Islip v. Paliotti, 196 A.D.2d 648, 601 N.Y.S.2d 926 (2d Dep’t 1993); American Mfrs. Mut. Ins. Co. v. Ingram, 301 N.C. 138, 271 S.E.2d 46 (1980).
8 Commissioners of Roads and Revenues of Fulton County v. Davis, 213 Ga. 792, 102 S.E.2d 180 (1958).
9 Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So. 2d 244 (1941); State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995); Franks v. State, 772 S.W.2d 428 (Tenn. 1989).
10 People v. Harvey, 379 Ill. App. 3d 518, 318 Ill. Dec. 756, 884 N.E.2d 724 (1st Dist. 2008); State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995); Nevada Power Co. v. Metropolitan Development Co., 104 Nev. 684, 765 P.2d 1162 (1988); Ethics Com’n of State of Okl. v. Cullison, 1993 OK 37, 850 P.2d 1069 (Okla. 1993); General Motors Corp. v. Oklahoma County Bd. of Equalization, 1983 OK 59, 678 P.2d 233 (Okla. 1983); Franks v. State, 772 S.W.2d 428 (Tenn. 1989); Geeslin v. State Farm Lloyds, 255 S.W.3d 786 (Tex. App. Austin 2008).
As to the effect of and rights under a judgment based upon an unconstitutional law, see Am. Jur. 2d, Judgments § 17.
As to the res judicata effect of a judgment based upon an unconstitutional law, see Am. Jur. 2d, Judgments § 752.11 Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So. 2d 244 (1941); Franks v. State, 772 S.W.2d 428 (Tenn. 1989).
12 Liddell v. Heavner, 2008 OK 6, 180 P.3d 1191 (Okla. 2008).
13 Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So. 2d 244 (1941).
14 Nevada Power Co. v. Metropolitan Development Co., 104 Nev. 684, 765 P.2d 1162 (1988); Ethics Com’n of State of Okl. v. Cullison, 1993 OK 37, 850 P.2d 1069 (Okla. 1993); Franks v. State, 772 S.W.2d 428 (Tenn. 1989).
As to the limitations to which this rule is subject, see § 196.15 State ex rel. Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).
16 Helvey v. Dawson County Bd. of Equalization, 242 Neb. 379, 495 N.W.2d 261 (1993) (a court may not grant any relief based upon a statute which is nonexistent or a statute which has become nonexistent by reason of a judicial declaration of unconstitutionality).
17 Millet v. Rizzo, 2 So. 2d 244 (La. Ct. App. 1st Cir. 1941); Board of Managers of James Walker Memorial Hospital of Wilmington v. City of Wilmington, 237 N.C. 179, 74 S.E.2d 749 (1953); State ex rel. Tharel v. Board of Com’rs of Creek County, 1940 OK 468, 188 Okla. 184, 107 P.2d 542 (1940).
As to the effect of a declaration of unconstitutionality on acts performed under it, generally, see § 196.18 Thomas v. North Carolina Dept. of Human Resources, 124 N.C. App. 698, 478 S.E.2d 816 (1996), aff’d, 346 N.C. 268, 485 S.E.2d 295 (1997).
19 Jones v. Columbian Carbon Co., 132 W. Va. 219, 51 S.E.2d 790 (1948).
20 Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So. 2d 244 (1941); Amyot v. Caron, 88 N.H. 394, 190 A. 134 (1937).
21 Chicago, I. & L.R. Co. v. Hackett, 228 U.S. 559, 33 S. Ct. 581, 57 L. Ed. 966 (1913); Payne v. Griffin, 51 F. Supp. 588 (M.D. Ga. 1943); Flournoy v. First Nat. Bank of Shreveport, 197 La. 1067, 3 So. 2d 244 (1941).
22 Painter v. Shalala, 97 F.3d 1351 (10th Cir. 1996); Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987), opinion reinstated on reconsideration, 824 F.2d 1240 (D.C. Cir. 1987).
23 U.S. v. Baucum, 80 F.3d 539 (D.C. Cir. 1996).
24 Neely v. U.S., 546 F.2d 1059, 41 A.L.R. Fed. 331 (3d Cir. 1976).
From: § 195, American Jurisprudence 2d, Volume 16 (Conflict of Laws to Constitutional Law 1-359).
Never Again!
Recognizing the many sad lessons of civilian disarmament and subsequent genocides in the 20th Century, we will make bold and forthright statement: Never Again! We will not submit to the unlawful decrees of tyrants. We will not meekly go their jails and internment camps. We will fight for our liberty, to our dying breath.
Come Armed, Come Masked
I recommend that all adults who publicly assemble at these burn barrel events do so armed, as is our right. And those who come armed should also wear masks, to protect themselves from malicious prosecution. I plan to wear a Guy Fawkes mask, but you can wear a bandana, face muffler, or the face mask of your choice. Joining you, also wearing masks, will be many mayors, sheriffs and their deputies, chiefs of police and their officers, town council members, clergy, and people of all walks of life. We vastly outnumber the tyrants. The tyrants deserve nothing but our scorn and derision. Their fate is already sealed.
Plausible Denial
After this fateful day has come and gone, FFL holders and public officials will be able to recount: “I had no choice. My records were taken by men with guns who were wearing masks!” (So they’ll have no excuse if they don’t cooperate with this nationwide display of civil disobedience.)
God Bless The Republic. Down with Tyrants. We Will Prevail!
– James Wesley, Rawles – January 28, 2013
Note: Permission to reprint or re-post this piece in full by any method (printed or electronically) is granted by the author (James Wesley, Rawles), as a long as it is not altered in any way and it is reproduced in full.