A chance to make case law – the risk, 10 years


“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!” – Patrick Henry, March 23, 1775

Quinlan, TX – It’s the kind of nervy double-down only a true filibuster would make; KC Massey III is determined to make law, one way or another.

His moral stance is simple enough. He is totally unsatisfied that the federal government is doing justice or anything like it in the performance of its ministerial duty to defend the nation’s borders, as enumerated in Section 8 of Article 1 of the U.S. Constitution. He means business, and he’s backing it up with a risky wager.

If U.S. District Judge Andrew S. Hanen decides to suppress the evidence that Border Patrol Agents and the Justice Department both insist constitutes a violation of the Commerce Clause of the U.S. Constitution – that Massey as a convicted felon had no right to possess a firearm as he patrolled private property at an Audobon Society bird sanctuary in the “no man’s land” located between the border fence and the Rio Grande in the Southmost neighborhood at Brownsville – the G will no doubt appeal to the Fifth Circuit Court of Appeals at New Orleans.

That would open up the possibility of a Supreme Court challenge to the notion that federal authorities can regulate firearms because they were at one time or another since the date of their manufacture shipped from state to state, or from nation to nation.

If Judge Hanen denies his motion, Massey is equally determined to stand a jury trial for the offense. If convicted under 18 U.S. Code § 922 (g)(1), he would face a sentence of at least 10 years, according to federal sentencing guidelines. His appeal on bond or from behind bars would thereby be made even more difficult.

He and another man named John “Jesus” Foerster were charged with the offense in October after an August incident in which a Border Patrol Agent fired five shots at Foerster when he startled him during an interdiction operation in a brushy area at the river’s edge. Foerster is also a convicted felon.

The Offense https://youtu.be/Fyy9PQxwfEU

The risk was not unexpected.

I was prepared to lose it all when I walked away from my home,” he declared. It’s a home he and his wife have built during a successful career as an electrical contractor following a long climb out of the ignominy of a burglary conviction he sustained two and a half decades in the past.

State law says that he’s street legal to carry a long gun in the place where he lives (Tex. Penal Code 46.04), and to wear a sidearm on private property because it’s been more than five years since the date of his conviction.

He shakes his head and stops short of declaring what he will do if his gamble craps out. But that certain look is in his eyes, in the set of his jaw; it tells the story. This outfit has made up his mind he’s got the right to carry a firearm and use it in defense of himself, his family, his home, his place of business, or his nation, if necessary, because the Second Amendment to that same Constitution states unequivocally, “…the right of the people to keep and bear Arms, shall not be infringed.”

Again, The Look blazes up in his eyes, and he states, as in a declaration, “Hunting has absolutely nothing to do with it.”

The offense: “…(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; 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.”

It just flat doesn’t apply to the circumstances of his arrest, according to his reasoning. “I bought my firearms from a private individual – here in Texas…I was not involved in commerce; I was never involved in commerce.”

Congress has the duty “…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;…” according to the Second Clause of Article 1, Section 8, of the U.S. Constitution.

But it doesn’t say anything about regulating who may go armed on private property to defend against the encroachment of trespassers who are engaged in the illegal trafficking of humans or the highly lucrative, but illegal importation of contraband, such as illegal drugs.

Here is what it does state, equally plainly:

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.” – Tenth Amendment, U.S. Constitution

The Defense https://youtu.be/2jGv0bjZwM0

The issues are torn from the pages of recent history in the making.

Last week, a federal Grand Jury at Austin indicted Williamson County Court-at-Law Judge Timothy L. Wright on multiple counts of selling firearms to a person unauthorized to possess them under federal law, and further alleged that he did so knowing the ultimate destination of the guns would be Mexico. He is also accused of lying to a federal agent.

Judge Hanen is involved in the current conservative clash with liberal sensibilities in his February 16, 2015, injunction prohibiting the Government from going ahead with a presidential executive order that would have given illegal immigrants legal status and protection and let them apply for work permits, in contravention of immigration law and the absence of an act of Congress. The Obama Administration appealed the injunction ordered by Hanen in the 5th Circuit, and is scheduled to offer argument on April 17 on whether it should lift the temporary hold so that the program can proceed while the lawsuit continues (State of Texas, et al. v. United States of America, et al. (Civil No. 1-14-CV-254).

April 17 is an auspicious date in the dispute leveled in federal court by 28 states because that is the deadline Judge Hanen gave Massey’s attorney to offer his pleadings in support of his motion to suppress the evidence against Massey, and to dismiss the criminal charge against him. His ruling is expected on April 20. Hanen, an appointee of President George W. Bush, was forced to cool his heels during the Clinton Administration when Senators declined to confirm his original appointment by President George Herbert Walker Bush. He is an honors graduate of Baylor Law, the valedictorian of his class.

So it goes.

– The Legendary

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“Southmost,” jokingly called by residents, “The Gated Community”

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