Peter J. Mancus, SBN 52606


Victorian Square


876 Gravenstein Ave. So., Suite 3


Sebastopol, CA 95472


(707) 829-9050


 


Attorney for Respondent, James Smith, Sr.


 


 


 


 


 


SUPERIOR COURT, COUNTY OF CONTRA COSTA


 


CITY OF PITTSBURG,


                       


                        Petitioner,


 


            vs.


 


JAMES SMITH, SR.,


           


                        Respondent.    


                                                                    /


 


 


 


 


 


 



CASE NO. NO2--0068


 


MEMORANDUM OF POINTS AND AUTHORITIES OPPOSING PETITION SEEKING JUDICIAL DETERMINATION RE RETURN OF FIREARM OR DEADLY WEAPON; DECLARATIONS OF DR. MARK FALLS, JAMES A. SMITH, SR., ALBERT SMITH, JR., MARION SMITH, JAMES SMITH, JR., SARAH MYSHELL WARD, ALEXANDER SCOTT, PHIL GRAF, AND GARY COCKRIELL


 


Date: July 10, 2002


Time: 9:45 a.m.


Dept.: 6


Place: 725 Court Street, Martinez, CA


 


MEMORANDUM OF POINTS AND AUTHORITIES


I. INTRODUCTION


            This case involves civil authority’s confiscation of Constitutionally protected private property--a handgun, and it presents the Court with an opportunity to function as a Guardian of Liberty by enforcing Constitutional bright lines which civil authority transgressed.  II. STATEMENT OF FACTS 


            James Smith, Sr., on December 18, 2001, after being told he was fired and could not comment about his supervisor’s ethnicity, out of frustration, said, “Why don’t I just go home, put a gun to my head, and pull the trigger?” No firearm was exhibited before, during, or after Mr. Smith made this statement. Smith’s statement was a rhetorical question made in frustration by a man subjected to excessive political correctness. Smith’s exasperated statement was blown out of proportion by persons whose motives are unclear. Smith’s statement is not a clear intent to commit suicide nor a direct [or indirect] threat against anyone.


            After Mr. Smith made his statement, someone promptly reported him to Dorothea Carlin, the administrator where Mr. Smith worked. Ms. Carlin, who was not a percipient witness to what Mr. Smith did or said, reported to Walnut Creek PD Mr. Smith had an argument with his supervisor, hit a desk with a wrench, “made other threatening comments,” and left. Nothing in this report, per the dispatcher’s notes, mentions a firearm, suicide, or Mr. Smith’s family.


            Per Pittsburg Police Officer Joe Terry’s sworn declaration, the alleged facts are:


2. On December 18, 2001, I was dispatched to 30 Oakbrook Place in the City of Pittsburg. Dispatch had been advised that Respondent James Smith Sr. (“Respondent”) had been in an argument with his family in the City of Walnut Creek. He told his family that he was leaving and was going to commit suicide with a handgun that he kept in his truck. Respondent reportedly showed family members a loaded magazine to a handgun.


3. At the residence in Pittsburg, Respondent said that his family was “crazy” and denied threatening suicide to his family.


 


            Officer Terry, in his report, stated,


“. . . at 1255 hours I was dispatched to [Mr. Smith’s residence.] . . . . We placed him into handcuffs for our safety. . . . I had V-Smith placed on 72-hour medical hold for evaluation and treatment. He was transported to Contra Costa Medical Facility in Martinez . . . . I confiscated the firearm pursuant to W.I. 8102 for a 30-day hold.”


 


            Officer Terry declared in his sworn declaration: “4. Respondent was evaluated and released from the hospital on December 18, 2001.” [Emphasis added.]


            Officer Terry’s anticipation of the Mr. Smith he would find was probably colored by multiple hearsay that probably prejudiced his attitude toward Mr. Smith. The hearsay chain is: an ex-co-worker told something to Ms. Carlin; Ms. Carlin reported X to Walnut Creek PD; Walnut Creek PD reported something to Pittsburg PD; a Pittsburg PD dispatcher probably reported an evolving something to Officer Terry, which caused Officer Terry to have a pre-conceived assessment of Mr. Smith; what Officer Terry reported to Mr. Smith is Y, and to this court, is Y+1. X is not Y+1. Y+1 is distortion. To exacerbate matters, a Walnut Creek PD officer who telephoned Mr. Smith and kept him on the line until Pittsburg PD arrived, aggravated Mr. Smith. Pittsburg PD aggravated Mr. Smith more when they entered his home, unannounced, without a warrant, and immediately handcuffed him, even though he was not gravely disabled and did not present as an unreasonable risk of harm to himself or to others. Pittsburg PD further ruined Mr. Smith’s tranquility when they told Mr. Smith things which he knew were not true. Mr. Smith’s understandable annoyance, frustration, and protestations as to such behavior and false attributions, superficially seemed to confirm Pittsburg PD’s orientation toward Mr. Smith.


            There is no credible evidence that Mr. Smith displayed a firearm when he made his statement at work. His remark was not a threat to commit suicide nor to harm anyone. Officer Terry made contact with Mr. Smith at 12:55 p.m. on December 18, 2001. Mr. Smith was released from a 72-hour § 5150 hold on December 18, 2001 at 4:30 p.m. after California licensed, government employed, mental health experts deemed Mr. Smith to not be an unreasonable harm to himself, to another, nor to be gravely disabled. Those experts’ opinions are unchallenged, except by Officer Terry, who lacks those experts’ credentials.  Six months later Mr. Smith has not attempted suicide and has not tried to harm anyone. Mr. Smith, as a matter of principle, has rejected civil authority’s proposed pragmatic solutions for resolving this dispute.


            Dr. Mark Falls, a licensed clinical psychologist who examined Mr. Smith on June 26, 2002, has declared under oath that Mr. Smith is not an unreasonable harm to himself, to another, nor gravely disabled, and it is reasonably safe to return Mr. Smith’s handgun directly to him without any pre-condition imposed.


III. POINTS AND AUTHORITIES


THE CITY OF PITTSBURG HAS NOT SATISFIED ITS BURDEN TO PROVE THAT IT WOULD BE DANGEROUS TO RETURN MR. SMITH’S HANDGUN TO HIM.


 


            The City of Pittsburg has the burden of proving that returning Mr. Smith’s handgun to him would be dangerous. W&I C § 8102(c); Rupf v. Yan (2000) 84 Cal.App.4th 411, 420. But there is no credible evidence that Mr. Smith made a serious suicide threat, threatened anyone, is an unreasonable risk of harm to himself or to another, is gravely disabled, or that returning the firearm to him would be dangerous. Civil authority’s mental health care experts, with knowledge of what law enforcement reported to them about Mr. Smith allegedly threatening suicide with a gun and requesting a 72-hour hold, promptly released Mr. Smith to the general population. Mr. Smith, who has access to other firearms, six months later, has not committed suicide nor threatened anyone.  Dr. Mark Falls, an experienced clinical psychologist, examined Mr. Smith on June 26, 2002 and declared under oath that it would not be dangerous to release Mr. Smith’s handgun to him. Mr. Smith is a twice honorably discharged veteran who does not have a criminal record. He should be judged by his behavior, not by unreasonable fear or a Statist desire to disarm and/or control armed citizens. Citizen control is the antithesis of Liberty. Political


correctness and myopic, unenlightened, unconstitutional, demonization of firearms and/or their owners--even in this state, are not the law.


            In Watts v. U.S. (1969) 394 U.S. 705, a jury found a man guilty for willfully threatening to kill or inflict bodily harm on the U.S. President. This person said, “. . . If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” The U.S. Supreme Court reversed. It reasoned: This man made his statement expressly conditioned on an event--induction into the military; government has the burden of proving a true, unconditional, threat. The U.S. Supreme Court respected the First Amendment’s  bright line that separates civil authority’s power from citizens’ free speech rights. By analogy, the City of Pittsburg should not overreact to Mr. Smith’s rhetorical question, which was not a serious, unconditional threat to commit suicide. Mr. Smith had a right to say what he said. First Amend., U.S. Const.; Article I, Sec. 2, Calif. Const. What he said was not hate speech, a crime, nor a threat. It was triggered by an oppressive supervisor, frustration, and his co-workers’ political correctness. There simply is no credible evidence of anything to use against Mr. Smith to justify destroying Mr. Smith’s handgun without paying him for its fair market value. The City of Pittsburg is attempting to use subterfuge in the guise of legitimate police power to destroy a firearm, without compensating Mr. Smith for that firearm.


W&I C § 8102, ON ITS FACE AND AS APPLIED, VIOLATES THE U.S. CONSTITUTION AND CALIFORNIA’S CONSTITUTION.


 


            Mr. Smith’s confiscated handgun is his private property. Civil authority may not deprive him of that property without due process of law, a jury trial, and just compensation. Fifth Amend., U.S. Const.; Article I, Sec. 19, Calif. Const. W&I C § 8102, however, unconstitutionally grants a judge power to order Mr. Smith’s handgun destroyed, pursuant to civil authority’s exercise of its police power to promote public heath and safety, without a jury trial and without paying Mr. Smith “just compensation.” W&I C § 8102 is overly broad. It violates Mr. Smith’s rights. U.S. Constitution, Article I, Section 10(1), Article IV, Section 2(1), Article V through Article VII, inclusive, and the First, Second, Fourth, Fifth, Seventh, Ninth, Tenth, and Fourteenth Amendments, Section 1; California’s Constitution’s Preamble and Article I, Sections 1, 2, 4, 6, 7, 9, 13, 16, 19 and 24; July 4th, 1776 Declaration. No exception exists in the Fifth Amendment, U.S. Constitution or in Article I, Section 19,  California’s Constitution, for confiscation and destruction of privately owned handguns without payment of just compensation.


            It is Constitutionally illegitimate to treat Mr. Smith’s right to his firearm as inconsequential and to treat his handgun as condemnable private property without due process of law and compliance with Constitutional provisions. The City of Pittsburg’s power to destroy his handgun is arbitrary or Constitutional. If arbitrary, it must be rejected. If Constitutional, Mr. Smith must, at a minimum, be provided a jury trial, and, if civil authority insists upon destroying his handgun, it must pay Mr. Smith “just compensation”--which he is free to use to buy a replacement.


            There is no credible evidence that “the return of a firearm . . . would be likely to result in endangering” Mr. Smith or another. The judiciary is suppose to protect citizens from civil authority’s unconstitutional acts. Civil authority must not be allowed to get away with labeling Mr. Smith as falling within W&I C § 8102 without credible evidence. The standard for confiscating Mr. Smith’s handgun cannot Constitutionally be materially different from, or lower than, the standard for keeping Mr. Smith from buying a handgun. Mr. Smith may still legally buy a handgun. If civil authority can destroy Mr. Smith’s handgun without paying him just compensation, it acts unconstitutionally. If civil authority can do that, it can do that to anything and anybody--capriciously. Privately owned handguns must be to private property under the Fifth Amendment and Article I, Section 19 what speech is to the First Amendment and Article I, Section 2: fully protected. Mr. Smith must be judged by his behavior, per the Constitutional Rule of Law, not by political correctness or social engineering in contravention of the Constitution.


            W&I C § 8102 states that the test to be applied by the hearing judge is “to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others”.  This test is seriously Constitutionally infirmed. This test is a prior restraint, an infringement, based on what one person--a judge--believes a citizen might do. As bad as this test is, the District Court of Appeal in Rupf v. Yan (2000) 85 Cal.App.4th 411, 427, 433, invented, and approved, a more alarming test: if a person, in a judge’s opinion, per a preponderance of the evidence, appears to be “the least bit mentally imbalanced,” that person’s confiscated firearm(s) should be destroyed. “[T]he least bit mentally imbalanced” criteria is a reckless reduction of  § 8102's test and is without benefit of a Constitutional or statutory basis. This “least bit mentally imbalanced” test is also without any licensed, professional, mental health care recognition. This test is vague, imprecise, arbitrary, and subjective. Per this test, 1%, or 00.01%, of perceived, “mental imbalance,” warrants forcing a citizen to be involuntarily disarmed and vulnerable to plunder--by common criminals and/or by an oppressive civil authority. But few, if any, enjoy 100% perfect mental health, let alone sustained, 100%, perfect mental health. Many of us are neurotic, anxious, compulsive, obsessive, etc. For many, our mental health frequently varies wildly. Per the judiciary’s invented test, since it is well known that law enforcement officers have a disproportionately high rate of divorces and alcoholism, and many are immature,  authoritarian, racists, and many have a proclivity to resort to violence prematurely, many law enforcement officers should be barred from having a firearm. If absolute, perfect, sustained mental


balance were a legal prerequisite for the exercise of fundamental Constitutional rights, most citizens would be able to exercise few rights, if any. Rupf’s invented test is horrible.


            The Framers and Ratifiers knew that, historically, the unscrupulous have smeared good people with the stigma of “mentally imbalanced;” therefore, to prevent such mischievousness, the Framers and Ratifiers drew clear, absolute, uncompromising, Constitutional bright lines. One such line is: “. . . the right of the people to keep and bear arms, shall not be infringed.”


            Consider this juxtaposition, with commentary:


A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. [Second Amendment]


 


            The Second is found in a document titled “Bill of Rights.” The Second states that the right guaranteed belongs to the people, not to the states nor to civil authority. The Second does not state that a pre-condition for an individual right to arms is that one must first belong to the “militia” nor be a government employee. It does not state that the “militia” is a “government regulated militia.” The referenced militia, was, and is, the people’s army, one that does not receive a government paycheck. When militia members marshaled, they showed up as civic minded volunteers, with their privately owned, unregistered, firearms, which they took home with them when they disassembled. The referenced militia was not, and is not, the forerunner of the National Guard, which is supplied with government owned arms, which are kept in armories when the Guard is not deployed. United States v. Miller (1939) 307 U.S. 174.


            [S]hall is a command. [N]ot  is a negative. Infringed means restraint; curtailment; pre-condition. [S]hall not be infringed” means citizens are judged by their behavior.


            The men who loathed the Crown’s arbitrary rule, who declared independence, who stood toe to toe with Redcoats, who shivered and starved at Valley Forge, who wiped their butts with leaves, who lived off the land for years, who risked death for Liberty, who defeated one of the world’s greatest superpowers, were not stupid, illiterate, nor careless. But advocates for more victim disarmament laws argue that: (a) the Framers, via the Second Amendment, intended to give civil authority an additional power to have a monopoly on firearms; (b) when the Framers wrote “right of the people,” they really intended to write “right of the state”--even though it is clear that the Framers demonstrated in the Tenth Amendment that they knew--and made--a distinction between people and state, just as they did in the Second; (c) when the Framers used “people” in the First, Fourth, Ninth, and Tenth Amendments, they meant “people,” and they intentionally switched the meaning of “people” in the Second to mean “state”--even though they left no record  to support that claim, and every relevant record severely undercuts that claim; (d) even though the Framers loathed Red Coats, they intended, via the Second, to deny themselves a right to arms so they would be at risk of being plundered by the army of the new civil authority they created; (e) the Framers put this additional civil authority power in a document titled “Bill of Rights”; (f) the Framers thought civil authority’s monopoly on arms would promote public confidence in government--because colonials who loathed Red Coats loved the idea of a standing army in their midst, which had a monopoly on arms; (g) civil authority can be trusted with a monopoly on arms; (h) a right can be regulated without being infringed; (i) the Framers did not understand the distinction between a right and a privilege; (j) the general welfare is promoted when civil authority reduces rights to privileges, which civil authority may arbitrarily deny, condition, or suspend, and has a monopoly on arms; and (k) it is legitimate for self-anointed Elitists to unilaterally pervert language to interpret away a right--allegedly to promote the alleged general welfare, according to their view of the world and the law or what they think the law should be.


            Self-Anointed, Freedom Haters, Liberty Thieves, and Anti-Rights [for unwashed peasants] Elitists, demonize privately owned firearms. This crowd uses language as a weapon, to pervert, and to interpret away, a vital right. Consider their typical re-write of the Second Amendment.


Civil Authority’s regulated A well regulated militia Armed Forces, National Guard, and Law Enforcement, being necessary to secure Civil Authority’s power, to the security of a free state, the right of Civil Authority to keep and bear arms, and to disarm citizens, shall not be infringed. the right of the people to keep and bear arms, shall not be infringed.


 


But civil authority’s alleged right to have a monopolistic “right to arms,” which “shall not be infringed,” is a classic definition of a police state.  To exacerbate matters, advocates of more victim disarmament laws do not adhere strictly to logic or to their own corrupt version of the Second. This is because they impose restrictions against the time, place, and type of arms used by the armed forces, National Guard, and law enforcement, which is contrary to “shall not be infringed.” Parchment barrier Constitutional bright lines and logic have not stopped advocates of more victim disarmament laws, tyrant wannabees and/or their useful idiots. Consider:


“The court will be candid that the Court finds that the nature of these particular assault weapons are inappropriate in the hands of anybody with the least bit of mental imbalance . . . .” Rupf v. Yan (2000) 85 Cal.App.4th 411, 433, fn 3


 

“Appellant argues . . . that his return of his firearms is a fundamental right under the Second Amendment . . . and that the constitutionality of section 8102 is therefore subject to strict scrutiny review. Clearly this is not so. . . . regulations of firearms is a proper police function. . . . ‘the Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia’” [citing United States v. Miller (1939) 307 U.S. 174, 178.]  Rupf v. Yan (2000) 85 Cal.App.4th 411, 421


 


            Rupf’s analysis in support of its holding that the Second does not guarantee an individual, fundamental right to arms is skimpy and non-meritorious. The Framers and Ratifiers believed that such a right was so vitally important that they included it among the Bill of Rights. They did so prudently. Historically, privately owned firearms have proven to be the best pragmatic means to deter tyrants, to preserve Liberty and/or to restore Liberty. Such firearms are a practical method to preserve life. It is difficult, if not impossible, to exercise other rights when one is murdered or maimed. The U.S. Supreme Court in United States v. Miller, supra, held that if a firearm [not an individual] has “some reasonable relationship to the preservation or efficiency of a well regulated militia,” or, if the firearm “is any part of the ordinary military equipment or that its use could contribute to the common defense,” one’s right to such a firearm is protected per the Second. Per the attached declarations of Mr. Scott, Mr. Graf, and Mr. Cockriell, Mr. Smith’s Colt Commander easily comes within these tests. Rupf, therefore, illustrates well how, between 1791 and 2002, some judicial officers have manifested civic malpractice and how modern Americans are burdened with a too frequent judicial despotism that manifests sloppy legal research or an inexplicable, myopic, hostility toward the Second Amendment and privately owned firearms.


            The only place where “immunities” is stated in the original U.S. Constitution is Article IV, Sec. 2(1). The judiciary, however, devalued U.S. citizenship when it invented, for itself and for all branches of government, and for many of civil authority’s agents--a new immunity. This illegitimate immunity reduces the First Amendment’s Right to Petition government for redress of grievances to a sham. Such immunity equals unaccountability. Civil authority, often with the judiciary’s support, has placed itself above, and against, the U.S. Constitution and U.S. citizens, who, in theory, are suppose to be the master. Today, however, the master is controlled by his servant--who no longer functions as if tied down by the Constitution’s chains. Advocates of more victim disarmament laws are so intent on  demonizing privately owned firearms and their owners that they pervert other Constitutional bright lines. Civil authority, including much of the judiciary, has squandered its legitimacy and its credibility. This situation is dangerous. To illustrate, consider what Rupf, in effect, did to re-write Article I, Sec. 19 of California’s Constitution.


 


 


Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court, for the owner.  Privately owned firearms shall be taken or damaged for public use without just compensation and without a jury trial.


 


            California’s Supreme Court in People v. Camacho (2000) 23 Cal.4th 824, a Fourth Amendment narcotic case, hit a grand slam home run when it opined, “[C]onstitutional lines are the price of constitutional government.” But some California judges have manifested disjointed, fragmented thinking. Some judges are willing to enforce Constitutional bright lines that they like [typically arising from the First, Fourth, Fifth, and Sixth Amendments] but are apparently unwilling to enforce Constitutional bright lines that they loathe [typically arising from the Second Amendment.] As an example, compare the majority decisions in In re Englebrecht (1998) 67 Cal.App. 4th 486 [dealing with First and Fourth Amendment protections of gangs using pagers] and People v. Camacho, supra, [dealing with a narcotics dealer’s Fourth Amendment rights] versus Kasler v. Lockyer (2000) 23 Cal.4th 472 and In re Jorge M. (2000) 23 Cal.4th 866 [both dealing with so-called assault weapons--which treated inanimate objects in a demonic fashion.]


            U.S. Supreme Court Justice Louis Brandeis warned against such disjointed, fragmented thinking: “If we desire respect for the law, we must first make the law respectable.” If people knew their history, they would understand why George Washington, the “Father of the Country” and first U.S. President, described privately owned, unregistered firearms as Liberty’s teeth. The ultimate, Constitutionally sanctioned, purpose of such arms, is, when everything else fails, to use them to protect life and property, to deter tyranny, and to preserve or to restore Liberty. This is precisely why tyrant wannabees loathe privately owned, unregistered, firearms.


            Mr. Smith enjoys inalienable rights. July 4th, 1776 Declaration. That Declaration is this nation’s first organic law, the life sustaining root that anchors the Tree of Liberty, of which the U.S. Constitution is the major trunk. Inalienable means: not transferable to another nor capable of being repudiated, denied, curtailed, suspended, infringed; not created by mortals; inherent to Man because of Man’s nature; originating in Nature and/or from a Creator. Mr. Smith’s inalienable rights are a gift to him from his Creator. They do not come from civil authority. His inalienable rights pre-existed, and survived, the formation of civil authority. These inalienable rights are codified in the U.S. Bill of Rights, which is Mankind’s greatest achievement. The State of California officially recognizes, and sanctions, these concepts. Calif. Const.’s Preamble; Article I, Sec. 1. Every July 4th, we celebrate these concepts on a national holiday--some in earnest, some paying lip service. Unfortunately, too many undermine Liberty the remaining 364 days.


            Mr. Smith’s inalienable rights include “ life, liberty and the pursuit of happiness” [’76 Dec.] and “enjoying and defending life and liberty, acquiring, possessing, and projecting property, and pursuing and obtaining safety, happiness, and privacy.” Calif. Const. Article I, Sec. 1. These rights are a sham without the pragmatic means to enforce these rights. An effective means of enforcing rights, to defending life, and to preserving Life, Liberty and Safety, is the retention of privately owned, unregistered firearms in the hands of citizens loyal to the Constitutional Rule of Law. Mr. Smith also has a right of “liberty of conscience” to believe, and to exercise his belief, in a responsible manner that does not harm another, that a Creator, not civil authority, is the source of his inalienable rights. First Amend., U.S. Const.; Article I, Sec. 4, Calif. Const.


            The original U.S. Bill of Rights has its own preamble. The authority for this statement is the U.S. National Archives, which is the United States’ official custodian of records. See www.nara.gov/exhall/charters/ billrights/. The U.S. Bill of Rights’ preamble, in part, states:


The Conventions of a Number of the States having at the Time of their adopting the Constitution, expressed a Desire, in Order to prevent Misconstruction or Abuse of its Powers, that further declaratory and restrictive Clauses should be added: And as extending the Ground of public Confidence in the Government will best insure the beneficent Ends of its Institution, [Emphasis added.] . . . .


            The U.S. Constitution created a federation of one central government [the federal government] and thirteen state governments [the thirteen original states/ex-colonies.] These fourteen governments formed one federal system of Government. Federal means a league, or compact, among the states to become united under one central government, which, as a whole, is the “Government” referenced in the Bill of Rights’ preamble. The definitive points here are these: (1) the Framers and Ratifiers of the Bill intended to codify laws calculated to guarantee individual rights which would be a restriction on “Government’s” [federal and state] powers; (2) this document is titled a Bill of Rights, not a Bill of Civil Authority’s Additional Powers; (3) this Bill declares restrictions on civil authority’s powers and it codifies inalienable rights; (4) these individual rights were intended “to prevent Misconstruction or Abuse of [Government’s--federal and state] Powers;” (5) the intent was to give individuals legal guarantees that Government [federal and state]  would not eliminate or infringe the rights codified; (6) the public’s confidence in this Government would not be increased if it was understood that the Second Amendment denied an individual right to arms and, instead, granted civil authority a monopoly on arms and the power to disarm citizens; (7) every state that ratified and joined the Union knew that they joined a federal system of government subject to a written Constitution that declared that it was the supreme law of the land, binding on all state judges; and (8) this Bill has been binding on the states from the beginning to date, because that is what the Constitution and the Preamble to the Bill state, that is what the Framers and Ratifiers agreed to, and the Constitution unambiguously and unequivocally declares that it--and all laws “made in pursuance thereof” [as in conformity with it] alone, is the supreme law of the land, which excludes all statutory law, case law, administrative law, and the outcome of any election, that is contrary to the supreme law of


the land. Thus, the U.S. Bill of Rights, in correct legal theory, “have become bulwarks; . . . against arbitrary legislation”. Hurtado v. California (1884) 110 U.S. 516, 531-532.


            Federal law is enforceable in state courts; the Supremacy Clause forbids state courts to dissociate themselves from federal law. Howlett By and Through Howlett v. Rose (1990) 496 U.S. 356. The Bill’s purpose is to place rights beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624. Civil authority must honor constitutional protections even when it is inconvenient and/or dangerous. Reid v. Covert (1957) 354 U.S. 1. Civil authority’s agents cannot promote the general welfare by laws which deny Constitutional rights; the federal Constitution is the supreme law of the land, and no official  “can war against the Constitution;” otherwise, “the Constitution itself becomes a solemn mockery”. Cooper v. Aaron (1958) 358 U.S. 1. The judiciary has a solemn obligation to honor its noble heritage by honoring its duty to enforce Constitutional rights against all rules which would abrogate those rights. Miranda v. Arizona (1966) 384 U.S. 436.


IV. CONCLUSION


            The Supreme Law of the Land, the facts, and expert opinion support Mr. Smith. The Court, therefore, should honor its solemn oath and issue an order which orders that Mr. Smith’s Colt Commander, magazines, and cartridges be returned to him forthwith, without any pre-condition imposed.                                


                                                            Respectfully submitted,


 


Dated: June 26, 2001                                                                                         


                                                            Peter J. Mancus