MILITIA LEADER'S GUN CASE OPENS LEGAL CAN OF WORMS

By Juan Montoya

The indictment of self-styled militia leader Kevin L. Massey following his arrest in a wooded area near the Rio Grande River for possessing firearms after being convicted of a felony burglary 26 years earlier has escalated into a constitutional battle weighing the government's right to regulate interstate commerce over Americans' Second Amendment right to bear arms.

Massey (in photo with Gov. Greg Abbott) was indicted by the federal government on November 2014, after he was arrested on Aug. 29 by law enforcement agents who were pursuing suspected illegal aliens in heavy brush when they encountered him and fellow militiaman John Frederick Foerster.

A Border Patrol agent allegedly perceived Forester as a threat and discharged his weapon at lesast five times but did not strike him. Forester placed his weapon on the ground.

When Massey and other members of the group arrived in the area of the shooting, he was allegedly armed with a .45 caliber pistol and a 7.62 x 39 mm rifle.
The indictment alleges both Massey and Foerster were previously convicted of burglary and are therefore prohibited from possessing firearms.

Foerster, of Brownsville, pleaded guilty Wednesday to possessing a firearm while a felon before U.S. District Judge Andrew S. Hanen.

Massey was arrested Oct. 20, 2014, outside a motel in Brownsville, at which time he was armed with a .45 caliber pistol and agents found another .45 caliber pistol located in his motel room, according to court records. At that time, more than 1000 rounds of ammunition were allegedly seized in connection with the search of his truck and motel room.

That same day, federal agents showed up at his home in Quinlan, Texas, and attempted to enter the home without a warrant to look for firearms. Massey's wife denied them permission.

Massey contends that in the face of the U.S. Government's failure to control the invasion of illegal immigrants, he and his fellow militiamen felt it was their civic duty to patrol the border and assist the Border Patrol.

"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."

The federal government's case rests upon Congress' power to regulate interstate commerce. In his response to Massey's motion to dismiss his case,  Asst. U.S. Attorney William Hagan asserts that the power given to the federal government to regulate commerce between states, foreign nations and Indian tribes should prevail since the weapons were manufactured in another state or country and that they were shipped though interstate commerce.

Massey was convicted and served time for burglary in 1988. There is no mention of the use of a firearm during the offense in the record.

Massey does not deny that he had he was "in possession" of the firearms, but contends that the federal application of the law contained in  18 U.S.C. § 921(a)(20), is unconstitutional because it is "overbroad in its judicial reach and the selection of prohibited persons, is based on less than compelling interests and explicitly denies similarly situated persons of their constitutional rights in unequal fashion."

Further, he claims that the interstate commerce nexus and the government's interest in preventing firearm ownership are not "compelling." That "distant tie" should not be a jurisdictional blank check and suffice to invoke full Congressional power to act under the Commerce Clause, he stated in his motion.

Massey contends that the U.S. Supreme Court "has repeatedly insisted that there must be 'substantial' effect on interstate commerce to warrant federal intervention in what is normally a local matter." 

In Texas, a person loses his right to vote and to own firearms after a felony conviction. Additionally, as a condition for parole, he is not allowed to have contact with other convicts until he finishes with his sentence and parole requirements.

Massey asserts that Texas has legislated that it is legal after five years for felons to own guns and protect their property and that once that right is restored, the federal government is violating his Second Amendment rights by using the dubious link between regulating interstate commerce and a person's right to bear arms.

"The possession would not be an issue because if the gun was manufactured in Texas there would be no charges," he states in his motion. "The interstate commerce began and ended with the Federal Firearm License dealer's involved. After importation into Texas, the guns are under Texas jurisdiction. Thus, the laws of Texas apply, not (those of ) the federal government." 

The Texas Penal Code states in "Section 46.04 Unlawful Possession of Firearm: 

(a) A person who has been convicted of a felony commits an offense if he possess a firearm: 

(1) After conviction and before the fifth anniversary of the persons release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.

Massey contends that just as Texas is able to restore the basic Second Amendment right  “In accordance with 18 U.S.C. § 921(a)(20), a conviction does not necessarily disqualify an individual from possessing firearms if the person convicted ‘has had civil rights restored.’"

In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant’s civil rights have been restored and whether such action has nullified the conviction’s incidental prohibition on firearms possession."

"It is clear, " he states in his motion, that "strict scrutiny applies and a law that sweeps so widely cannot be considered 'necessary to promote a compelling government interest.'"

Just as a felon's First Amendment right to express his opinion through the restoration of his right to vote and his right to assembly is automatic under state law, so should this Second Amendment rights be restored and not be made permanent by the federal government, his social media supporters assert.
"The phrase 'the people' in the Second Amendment must mean the same as in other Amendments such as the First, the Fourth and the Ninth," his motion states. "Despite having a conviction history, (Massey) still has the right to free speech, he still has the right to exercise whatever religion he believe in, and the Fourth Amendment speaks to the right of the people to secure their persons, houses, papers and effects against unreasonable search ans seizures...District of Colombia vs. Heller (the Washington D.C. gun ban case) holds that all 'Americans' have a right of a firearm for self-defense."

Supporters say Massey's defense on the firearm possession charges are unconstitutional and cite state law that states that:"Pursuant to Section 11.002 of the Texas Election Code (the "Code"), once a felon has successfully completed his or her punishment, including any term of incarceration, parole, supervision, period of probation, or has been pardoned, then that person is immediately eligible to register to vote."

"We don't see the federal government prosecuting felons for voting," wrote one. "One can liken casting a vote to owning a firearm, and arguably, sometimes voting for some people does more damage than someone merely possessing a gun."

Massey's supporters have been vocal about his defense and that has made government prosecutors apprehensive in trying his case. During the most recent hearing, snipers were situated on the roof of the federal courthouse and a full contingent of security was deployed inside.

The case is being heard by U.S. District Judge Andrew Hanen. Brownsville attorney Luis Sorola  is Massey's court-appointed counsel.