by James Wesley Rawles, Survival Blog:
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!)
Agency Over-Reach (creating new legal definitions, bypassing congress)
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!)