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.
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!)
“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