The First Question is Always Jurisdiction

Earlier this month, I posted an article about the ATF’s recently-opened comment period on the planned Federal ban on bumpfire stocks. In it, I recommended that SurvivalBlog readers post their comments with the ATF, and I suggested several major areas that should be individually addressed:

    • Constitutional issues (Under the 1st, 2nd, 4th, 5th, 6th, 8th, 10th, and 14th Amendments!)
    • Imprecise Terminology
    • Agency Over-Reach (creating new legal definitions, bypassing congress)
    • Vague Wording
    • Technical and Historical Inaccuracies

These were all sound recommendations. However, SurvivalBlog Reader Richard T. reminded me that I had left out a fundamental law issue in my list of objections, namely: Jurisdiction. I suggest that folks study this issue because the implications go far beyond the attempted restriction of plastic rifle stocks.  Jurisdictional challenges are apropos in any case where various levels of government have over-stepped their bounds.

Proviso: Keep in mind that I am not a Juris Doctor nor an attorney, and hence I do not give legal advice. So the following is based on my research as a layman that therefore purely informational. If you have legal questions, then consult an attorney.

When most people have interactions with the law, they usually fail to ask the key preliminary question: Does this law apply to me, and where I live? That is, does the agency or court have the proper jurisdiction to establish their nexus to me and my affairs?

Types of Jurisdiction

To begin, I should remind readers of something covered in any good Civics course, that there are three different types of jurisdiction, in American law. These are: Subject Matter jurisdiction, Personal jurisdiction, and Territorial jurisdiction. Even the leftist, collectivist, and statist-biased Wikipedia gets a few thing straight. Here are their thumbnail definitions:

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. A judgment from a court that did not have subject-matter jurisdiction is forever a nullity.

Personal jurisdiction is a court’s jurisdiction over the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law and facts involved in the suit. If a court does not have personal jurisdiction over a party, its rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign having jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit.

Territorial jurisdiction in United States law refers to a court’s power over events and persons within the bounds of a particular geographic territory. If a court does not have territorial jurisdiction over the events or persons within it, then the court cannot bind the defendant to an obligation or adjudicate any rights involving them.

If a court lacks jurisdiction, then it cannot proceed against you.  And if it lacks jurisdiction yet still proceeds, then everything that follows thence is null and void. (A nullity.)

See:   “Rhode Island vs. Massachusetts, 37 U.S. 657 (1838)” (“However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties.”)


Joyce v. United States, 474 F.2d 215 (3d Cir.1973)”. (“Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction.”)


Speak Up, Or Get Steamrollered

It is a long-standing precept of law that the first in the order of pleadings is to the jurisdiction. If you fail to challenge the jurisdictional authority of an agency or a court, then you can only argue the facts and merits of your case. So speak up about jurisdiction early, and at length!  Although jurisdiction can be challenged at any time (Basso v. Utah Power & Light Co. 495 F 2d 906, 910. 1974), it is best to bring this up from the outset of any interaction with authorities.

If you are called before a court and intend to challenge jurisdiction, then it is important that you first do so from outside the courtroom. Once you enter the railing of a courtroom without first challenging jurisdiction, you are making yourself a de facto party and defendant. I have read that if you are served court papers, then it is best to challenge jurisdictional authority first in writing (with a jurisdictional challenge in a motion to dismiss), then again verbally from outside the dock (outside of the inner courtroom railing), and then at least once again, if you are forced to be seated inside the dock.

ChallengING Jurisdiction

Typically, modern statutory jurisdictions will attempt to brush aside jurisdictional challenges with disdain. A judge will often say:  “Of course we have authority…”  or: “Of course this court has jurisdiction…” But the annals of case law have shown that jurisdiction cannot be merely assumed. Once challenged, it must be proven. And if the authorities cannot clearly articulate their jurisdiction with referenced specificity, then properly they cannot proceed. (Although they often do, anyway!)


“The law provides that once State and Federal Jurisdiction has been challenged, it must be proven.” Maine v. Thiboutot , 100 S. Ct. 2502 (1980)

“A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court” OLD WAYNE MUT. LIFE ASS’N v. McDONOUGH, 204 U.S. 8, 27 S. Ct. 236 (1907).

“Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction.” John J. Joyce v. United States of America, Appellant, 474 F.2d 215 (3d Cir. 1973),  Also see F.R.Civ.P. 12(h) (3), supra note 1.

“Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.” TOWN OF LANTANA, FLORIDA. v. HOPPER, 102 F. 2d 188; Chicago v. New York 37 F Supp. 150

“Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.” Christine Roth Melo, Appellant, v. United States of America, Appellee, 505 F.2d 1026 (8th Cir. 1974)

Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. Bradbury v. Dennis, 310 F.2d 73 (10th Cir. 1962), cert. denied, 372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d 733 (1963). The party invoking the jurisdiction of the court has the duty to establish that federal jurisdiction does exist, Wilshire Oil Co. of Texas v. Riffe, 409 F.2d 1277 (10th Cir. 1969), but, since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence. City of Lawton, Okla. v. Chapman, 257 F.2d 601 (10th Cir. 1958). Thus, the party invoking the federal court’s jurisdiction bears the burden of proof. Becker v. Angle, 165 F.2d 140 (10th cir. 1947)

Therefore, if they do persist and proceed without first fully answering the questions of their jurisdiction, then you need to voice another objection, perhaps something like this:

“Your Honor, I object and protest. You are proceeding with the facts and/or merits of this case while there is still a challenged and unresolved substantive law issue, which is the jurisdiction of this court.”  Then in detail cite all of the cases referenced above. You should also cite any applicable State court precedents, if it is a State or local case.

But if the court still persists without first backing up to answer your jurisdictional challenge, then say “I again must object and protest for the reasons previously stated, which have gone unanswered. I hereby put this court on notice  that I intend to appeal directly to the supervisory control of the next higher court, in the nature of a writ of error, or a similar more modern pleading or action.”

It Probably Won’t Work

As I’ve written before in SurvivalBlog, the jurisdictional challenge defense approach is rarely properly recognized by modern statutory law courts. But I believe that on principle these objections must still be made, and made early.  If nothing else, it provides you with one more avenue for appeal.

But let’s be realistic: Good luck citing the aforementioned decisions in today’s courts! In most instances they will simply be ignored. The courts are no longer concerned with what is right, fair, and just. Rather, they are concerned with gathering revenue and perpetuating their new-found powers.

The only good news that I have to offer is that although jurisdictional challenges have been consistently ignored, there has at least been some success in getting juries to nullify bad laws. I enthusiastically support the Fully Informed Jury Association.

Regardless of your outcome of your jurisdictional challenge, if your case proceeds to a jury trial, it is important that you raise pertinent constitutional issues (see my previous articles) and inform your jury of their right to weigh not just the facts of the case but the law itself. All it takes is one juror with some brains and the result is a hung jury.

In summary: We The People have failed to convince the judges that they lack jurisdiction in most cases. But at least we can still educate the juries of our peers, and convince them to nullify bad laws, on a case-by-case basis. As long as there is still a jury system for criminal trial in this country, then there is still hope for justice.

If ever you end up in court fighting an unconstitutional felony charge or if you are at risk of losing custody of your children to the state, then yes by all means, challenge the court’s jurisdiction from the very outset. But if you fail that, then do your utmost to educate the jury that they have the long-established power to weigh both the facts of the case and the validity of the law itself. Lex mala, lex nulla! And jury nullification can work regardless of the wording of the Jury Instructions from the court. Remind your jury that they are are the ones in control and that they have the right to ignore their jury instructions. In the end, once the jury room door is shut, the judge is powerless and your fate it is entirely up to the jury.

Getting Back to Those Bump Stocks

Now, to return to the issue at hand: Bumpfire stocks.

All of the fallaciously-assumed Federal authority over firearms and ammunition is derived from the Commerce Clause (Art. 1, Sect. 8, Clause 3), which mentions jurisdiction over only interstate commerce.

The jurisdictional challenges that we should make to the ATF in our formal Comments could include the following:

1.) The ATF lacks jurisdiction over second-hand bumpfire stocks. Once any item has dropped out of interstate commerce it becomes an mere object of intrastate commerce (“used goods”.) That is, anything sold second hand inside of a sovereign State by one private party to another private party inside the same State. In that circumstance the Federal government loses any nexus and jurisdiction, under the Commerce Clause. Reader Richard T. wrote to mention that this position was bolstered by United States Court of Appeals for the Seventh Circuit, in the firearms case United States v. D.J. Vollmer & Co. 1 F.3d 1511; 1993. Therein, the court ruled: “… the BATF has jurisdiction over the first sale of a firearm imported in to the country, but they don’t have jurisdiction over subsequent sales.”

2.) Likewise, the ATF lacks jurisdiction over home-made bumpfire stocks. These can be carved from wood or printed on a 3D printer. Any item that is created within the confines of a State is purely an object of intrastate commerce. It may subsequently be sold by one private party to another private party inside the same State, and the Federal government never gains nexus nor jurisdiction.

3.) Lastly, the ATF lacks jurisdiction over the owners of commercially-made bumpfire stocks if they never entered interstate commerce. So if a bumpfire stock were manufactured within the confines of a State and then sold to a resident of that same State without it ever leaving that State then it is purely an object of intrastate commerce. And again, it may subsequently be sold by one private party to another private party inside the same State, and the Federal government never gains nexus nor jurisdiction.

Two specific examples of this are:

A.) Slide Fire brand stocks are made in Texas.  So a resident of Texas who bought one from a distributor or dealer in Texas, or directly from Slide Fire Solutions, would own a bumpfire stock that has never moved in interstate commerce.  It would therefore presumably be exempt from any ATF rulings.

B.) Bump Fire Systems brand stocks are made in Florida. (They were originally challenged as a patent infringement, but later made under a licensing agreemnt from Slide Fire Solutions.) So a resident of Florida who bought one of these from a distributor or dealer in Florida, or directly from Bump Fire Systems, would own a bumpfire stock that has never moved in interstate commerce.  It would therefore presumably be exempt from any ATF rulings.


Please get active in commenting to the ATF about bumpfire stocks. Make your objections specific, and be polite. If we fail to speak up, then we stand to lose a lot more than just the right to own bumpfire stocks. All of our magazines over 10 round capacity and the guns that can accept them are in peril! – JWR






  1. So, whether a b.f.stock were part of intra or interstate commerce it could then be sold within the current state as a private party sale and be nullified from batfe jurisdiction. I.e….I’ll sell you mine if you sell me yours for the same price and a clean bill of sale….within the same state regardless of origin? Would that be a true statement in theory or fact?

    1. Short answer – nope. Longer answer – the Supreme Court rulings regarding interstate commerce also give the feds the authority to regulate anything that has an effect on interstate commerce. These rulings are so broad that Congress can find a federal nexus between you scratching your nose or winding your watch and it’s subsequent impact on interstate commerce. Reading these cases in Con Law was quite the shock for me (JD 2000, been practicing for 18 years).
      I’m not saying it’s “right” – it’s certainly not what the Founders envisioned – but it’s what we have to deal with.
      And our host is correct about this point – challenging jurisdiction, regardless of whether you’re behind or in front of a bannister in the courtroom, is likely to be an exercise in futility.

    2. The UNITED STATES is a corporation domiciled in the District of Columbia and its territories, Guam, Puerto Rico, ect. The City of ????, the County of ?????, the State of ????, are all franchises of the U.S. Corp. So_____government agent only have jurisdiction on land owned buy The United States of America, demand a certified copy of the deed in that name!!!

      1. From my earlier comment: “Last point: the reference in this article to, “Rule 12(h)(3) of the Federal Rules of Civil Procedure” and any cases that are CIVIL in nature will have little, if any, any bearing on cases brought under federal CRIMINAL STATUTES (this is the issue that the Sovereign Citizen movement stumbles on in federal court 95% of the time…i.e. UCC and Rule of Civil Procedure to try and explain away or cover their violations of the CRIMINAL CODE)”..state governments and the federal government are not corporations…this is a false teaching that lives on the internet and in some books from left-field. And the gold-rimmed US Flag in many federal offices and in federal courts does not representing a nautical flag for the Admiralty either….use of CAPITAL letters does make anyone a coporate enity…there is no secret account if money linked to anyones name or social security number…yes, you have the right to travel, but not drive a car without a driver’s license…and finally, filing non-sense paperwork, signed in crazy colors (or with fingerprints) and seals with the names of states or fictitious countries just gets added to the trash heap known as ‘MISC FILING’ and your fee goes to the treasury or the end of year office party fund.
        Please to do not take offense, but research or ask a legitimate lawyer for assistance with federalism and constitutional law.

        I am not a lawyer, I just sit in courts for a lot.

  2. Excellent reminder that Question #1 is Jurisdiction.

    Yes, sadly it is futile. I dare folks to question the United States’ jurisdiction of the countries we have attacked or invaded — Afghanistan, Iraq, Syria, Libya, Yemen.

  3. It saddens me to say….”we no longer live in a Constitutional Republic, we live in a Corporate State” There is a reason you are no longer called a “citizen”, when dealing with the courts you are called a “customer”.

  4. Why on earth anyone would allow themselves to dragged before a “court” for exercising their right to life, liberty, and property in today’s vile system of “statutory law” is beyond me. The only possible outcome of this is to spend time in one of their cages.

    As has already been said, the “courts” will ignore your pleas of protest. I remember some one saying back in the 1990s with regards to the income “tax” that “every argument against the income tax that can be argued in a court of law has already been argued”.

    The government, their paid enforcers, and the stuffed shirts that head up the “courts” are not listening.

    The question now is what do we, the people, going to do about it?

  5. I am not an attorney but have been in several hundred court hearings.

    This inter versus intra-state argument is such a valid argument that the large gun manufacturers DO NOT SELL OR TRANSFER firearms DIRECT to FFL’s or individuals from the state they manufacture firearms in. They usually rely upon a distributor OUTSIDE the state they are in to ship/transfer the firearm so that the INTERSTATE nexus is ‘met’ allowing federal oversight. I have witnessed many cases in federal court where anytime a firearms charge is laid out, special verbiage is used at the outset to establish that the firearm used to convict TRAVELED or WAS IN INTERSTATE COMMERCE. Additionally, anything that passes via USPS can be said to be in federal jurisdiction. A special note should be said about the agreement UPS has with USPS: some UPS packages are shipped via USPS (look into it)…these items now fall under federal jurisdiction.

    Last point: the reference in this article to, “Rule 12(h)(3) of the Federal Rules of Civil Procedure” and any cases that are CIVIL in nature will have little, if any, any bearing on cases brought under federal CRIMINAL STATUTES (this is the issue that the Sovereign Citizen movement stumbles on in federal court 95% of the time…i.e. UCC and Rule of Civil Procedure to try and explain away or cover their violations of the CRIMINAL CODE)

  6. I may take a ton of grief for this notion from my fellow preppers ( and yes I know that .gov encroachment on our constitutional rights has become egregious) but what if we were to trade regulation of bumpfire stocks for say 50 state concealed carry law. If you have a CCW permit in your state then it shall grant you carry rights in any other. We would give up a sort of silly device in terms of practical usage for a greater freedom to carry across the country. Just putting it out there.

    1. I’ve heard that idea bandied about before, and it seems to be popping up more recently. The problem with it is that it continues to allow the state to push the notion that 2nd Amendment rights are not rights at all but privelages. The second issue is the reciprocity can be utterly neutered based upon the localities you’re traveling in. Sure, Chicago PD May “recognize” your CCW, but do they also recognize your 15+1 Glock 19 as legal there? Unlikely. So all the good your piece of paper did you as you sit in Cook County Holding with the strung out crackheads and Gangster Disciples awaiting arraignment. And finally, it assumes the good will of people like Rahm Emanuel, Bill DeBlasio, or that nutjob they have running the show in Philly. If you’re prepared to sacrifice your freedom and property based upon there willingness to properly enforce the law, I suspect someone somewhere has a bridge to sell you…

      As someone who negotiates complex and oftentimes high pressure contracts for a living, I can attest to the fact that bartering principles is always ineffective. Both sides have nothing to offer one another that either side wants. In this case, the left thinks it can offer us safety. We reject there notion of safety and the means they mean to employ to reach that aim. They reject our interpretation of our God-given rights and the means we mean to employ to keep them. Since neither side has anything the other wants, there’s nothing to compromise, and no deal to be made. This is a zero-sum situation. There will, by necessity, be only a winner and a loser.

  7. We keep playing prevent defense, giving a little ground in order to not give a lot of ground. If you keep it up, sooner or later they WILL score. We need to start taking back some of the ground that has been lost.

    The left will overreach and we need to strike hard to get back some of what has been lost.

    The latest stuff after Parkland demonstrate the idiocy of the left’s arguments. Prominent example is telling us that the kids calling for more gun control are wise and we should embrace their demands. Yet, one thing they are calling for is the raising of the age to buy long guns to 21 because people younger than that are not responsible enough to own firearms. Really? Let them write laws, but don’t let them buy guns.

    1. What’s worse: there is a move, given more impetus by the youth movement fueled by the Parkland school shooting, to lower the voting age to 16. I heard this on NPR yesterday. The argument is over whether 16 year olds are mature enough to vote. I think there is another issue entirely: having life experience. Of course, the commentator mentioned Parkland, so the assumption is the 16 and 17 year olds will vote for gun control. But someone over 18 who lives alone, on her own, works at night, and notices someone following her home, and wishes she had a firearm for protection, might vote differently on that issue. That is the value of having life experience in the real world.

  8. All the gun laws to come mean nothing if there isn’t enough of LE out there who are willing to give their lives in an effort to enforce said laws. I say there aren’t enough LE willing and folks will get to keep their goodies that they have now.

  9. THE JURY? I can second that, on the jury is the key.

    I sat on a jury two years ago, and helped a young fellow go free. They had treated the young fellow as if he had been a murderer. Went to his grandmother’s house where he lived, scared her almost to death (kind of a Waco treatment police event- or pile on 9-11 hero deal). Didn’t even let him put on his clothes. Handcuffed, still in a PJ bottoms, no shirt, no shoes, and the court shows us (the jury) this taped questioning with no lawyer, etc.

    FAST FORWARD So I was able to swing the only two black folks on the jury to vote my way. As you said in your article, about the court instructing you what you have to do. I just let the members of the jury know that “we are the jury”, not the judge. The jury foreman (a woman, disclaimer- I’m not PC), was a white spoiled (inset unkind name). While I am an old white man , right wing, veteran that believes in the death sentences an such, this whole setup smelled. So the young black man went free. The lesson that day was for the Nazi state, and they way they do business. Now, knowing I made a difference, please send me another jury notice.

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