ANDREA V. DENOLF Case Study
No. 07-0268
__________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_____________
ANDREA “ANDY” SOMMERVILLE,
Petitioners-Appellants
v.
WLLIAM DENOLF
Respondent-Appellee
-------------------------------------------------
On Writ of Certiorari to the United States
Court of Appeals for the Seventeenth Circuit
_____________
BRIEF FOR RESPONDENT
_____________
QUESTIONS PRESENTED FOR REVIEW
1) Whether the Gun Free School Zone Act of 1997 (18 USC 922 q) applies to DeNolf and whether it violates the Second Amendment to the United States Constitution
2) Whether the United States government, in enacting 18 USC 922 q, exceeded its constitutional powers granted by the Commerce Clause, Article I, Section 8, Clause 3.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR …show more content…
REVIEW…………………………………………………… ii
TABLE OF CONTENTS………………………………………………………………………... iii
TABLE OF AUTHORITIES……………………………………………………………………. vi
Cases on Record…………………………………………………………………………. vi
Supreme Court Cases……………………………………………………………. vi
CONSTITUTIONAL AND STATUTORY PROVISIONS …………………………………. vii
STATEMENT OF THE CASE………………………………………………………………….ix
SUMMARY OF THE ARGUMENT……………………………………………………..xi
ARGUMENT ……………………………………………………………………………
I. WILLIAM DENOLF IS NOT VIOLATING THE GUN FREE SCHOOL ZONE ACT OF 1977 BECAUSE OF THE FACT THAT HE WAS IN HIS HOME.…………………………………………………………xi
A. Possession of a firearm is forbidden on school grounds.………………………………………………….. xi
B. Licensing was not required by the state of Olympus.……………………………..xii
C. William Denolf had a clear separation of the school and workshop which confirms that his children were not at danger with the firearms.……………………………………………………………………..……….. xii
II. THE SECOND AMMENDMENT GIVES WILLIAM DENOLF THE RIGHT TO HAVE THE FIREARMS IN HIS HOME.…………………….. xiii
A. The rights entitled in the 2nd Amendment……………………………………….. xiii
B .No US Code should adjust the meaning of the law laid by the Constitution. If this is done, it is malum in se.…………………………xiv
C. An individual has the right to possess a firearm…………………………………….xv.
D. The acknowledgement of gun violence and the involvement of children was observed and educated upon in William Denolf’s home……………………………………….xvi
III. THE UNITED STATE GOVERNMENT IS EXCEEDING ITS CONSTITUTAINAL POWERS GRANTED BY THE COMMERCE CLAUSE BY CONVICTING WILLIAM DENOLF OF HIS OWN RIGHTS………………………………….xvii
A. Congress exceeded Authority in enacting the interstate commerce clause on William Denolf………………………………………………………xvii
IV. IV. DENOLF’S WAS ON PRIVATE GROUNDS WHICH CONCLUDES HE WAS NOT IN VIOLATION OF THE Gun Free School Zone Act…………………………………xix
V. CONCLUSION……………………………………………….xx
TABLE OF AUTHORITIES
Cases on Record
Supreme Court cases.
Gonzales v. Raich, 545 U.S. 1 (2005)………………………………………viii-c, ix-c
Parker v. District of Columbia, (No. 04-7041 (D.C. Cir., March 9, 2007)…………………………… ix-a, x-b
Rohrbaugh v. State 607 S.E.2d 404 (W. Va. 2004) ………………………………….…..ix-a
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. den., 536 U.S. 907 (2002)………..…………………………………...ix-a, x-a, xi-c, xii-c
United States v. Lopez, 514 U.S. 549 (1995)……………………………………..xii-a, xiv-a
United States v. Parker, 362 F.3d 1279 (10th Cir. 2004) …………………………..ix-a, x-a,b, xi-b
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Gun Free School Zone Act of 1997
18 USC § 921
Definitions (a) As used in this chapter—
(2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).
(25) The term “school zone” means—
(A) in, or on the grounds of, a public, parochial or private school; or
13
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
(26) The term “school” means a school which provides elementary or secondary education, as determined under State law.
(18 USC 922 q) Unlawful Acts
(1) The Congress finds and declares that—
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves—even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection.
(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B)
Subparagraph (A) does not apply to the possession of a firearm -
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is -
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.
(3)
(A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.
(B) Subparagraph (A) does not apply to the discharge of a firearm -
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.
(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.
STATEMENT OF THE CASE
The following facts have been stipulated to by both parties in the Record. William Denolf and his wife homes schooled their children. The home school system that William Denolf abides by is the Olymous Home School and Mr.Denolf has a valid permit which is require by the provisions of the Olympus Home School Registration Act of 1982. Along with the provisions in this act, the Denolf’s have to abide by the home school laws of the state of Olympus which they have effective done thus far. On February 18, 2006, Pantego Police reported to suppose gunshots in the home of Denolf. It was founded to be true that the gunshot derived from his home and it was the production of the “testing” of a gun to confirm that the gun was in good condition. William Denolf is a part-time gunsmith whom operates inside of his home and has a personal home workshop where he manufactures firearms, cleans firearms and also repairs them for multiple people within the community. The state of Olympus does not impose any restrictions on the regulation of firearms nor the licensing to possess one, discharge one nor manufacture one. Upon arriving to the Denolf’s residence, The Pantego Police were granted permission to enter the business/home/school by William Denolf and also notified that he partakes in a home-school program and is also a gunsmith from home. William Denolf also affirmed that his children partake in self-defense courses supervised by him and his wife where they learn the steps on discharging a weapon. These self-defense courses that William Denolf included his children in were under strict supervision at all times and also was a part of his own curriculum of his home-schooling program. Upon examining the workshop inside the Denolf’s home, Pantego Police discovered almost 200 firearms in the work area. Denolf’s gunsmith business bought in about $300.00 annually into the interstate economy and also holds a gross income revenue of roughly $10,000. Denolf is in full compliance of the IRS tax laws and restrictions with his business. Furthermore, the student’s homeschool program partook in a room adjacent to the workshop which at the time was unlocked. The Pantego Police wrapped up their investigation in the home of Mr.Denolf and submitted their report to the Police chief. Upon brief examination, the accusing of a violation of 18 USC 922 q arose. On June 5, 2006, Denolf was accused of this violation by the FEDERAL Grand Jury and on September 13, 2006, Denolf moved to dismiss this indictment.
SUMMARY OF THE ARGUMENT
The following argument exemplifies that William Denolf was not in violation of the Gun Free School Zone Act of 1997. The spirit of the law is to protect children within the school system from the assumed dangers of a weapon. In William Denolf’s home, the education of the dangers of a weapon existed and also the provision and allowance of self-defense with the use of guns was promoted for the safety of a child. The use of 18 USC 922 q to convict William Denolf is also in violation of the Second Amendment to the United States Constitution with malum in se and violation of the individual’s right to bear arms within the privacy of his/her home. The United States government enacting of 18 USC 922 q, exceeds its constitutional powers granted by the Commerce Clause, Article I, Section 8, Clause 3 with the intrusion of the combining of interstate commerce and the Gun Free School Zone Act of 1997. There is no clear and concise evidence to prove that William Denolf is in violation of the interstate Commerce Clause. With this being said, William Denolf should not be convicted of the supposed violation of 18 USC 922 q.
ARUGUMENT I. WILLIAM DENOLF IS NOT VIOLATING THE GUN FREE SCHOOL ZONE ACT OF 1977 BECAUSE OF THE FACT THAT HE WAS IN HIS HOME.
a. Possession of a firearm is forbidden on school grounds.
The provisions given by the Olympus Home School Registration Act of 1982 and also the home school laws of the state of Olympus, are required to be obeyed when attending children are going through home school (OL No. 22-32-38-44-45 ). Since the providers of this home school system are providing an environment of a school “system” it is required that the provider complies with the laws that come with the school “system” but there is not clear understanding of how these laws adjust to home jobs and personal living standards. In the United States Code, 18 USC 922 q, it clearly states that there should be no possession of firearms within a school zone yet there are no exceptions specified that could apply to the home school. Seeing that there are no exceptions, it can merely be assumed that a privacy of a home is excluded because though that is the “schooling” for your children, the privacy of a home should be respected (18 USC 921). A school, despite its location, is specifically established under state law and so is a handling of a business under the Olympus Home School Registration Act of 1982. William Denolf was operating a school in his home along with his business, but was not breaking any laws laid in place by the Olympus Home School system. After reviewing 18 USC § 922 (q) (b) (i) it reveals that the possession of a firearm can be kept on a private property, not part of school grounds which, William Denolf was effectively doing by keeping his firearms in a workshop away from the home school attendees. Since in the state of Olympus, it is not required to get a licensing to obtain a gun, William Denolf is also in accordance to 18 USC § 922 (q) (b) (ii).
b. Licensing was not required by the state of Olympus.
Under the State of Olympus law, it does not have any provisions for licensing to possess, use, discharge, manufacture of trade in firearms, which means that William Denolf was not committing any illegal acts, by having his business in his home (18 USC § 922 (q)) .With the business being in his home, the firearms can be loaded because it is part of Denolf’s business and schooling for his children. The curriculum used in the Denolf’s home school included a self-defense course, which will need the usage of guns according to the facts laid by Williams Denolf when police arrived at his home. There are no provisions for these so Denolf was acting upon his right for freedom of expression which is instilled in the First Amendment. William Denolf was open with the police officers because the operations that he did in his home were acceptable and also protected under his freedom. There is no difference in William Denolf having a gun in his home and educating his children of the dangers of these weapons, and another law abiding citizen having a gun in their home and not educating their children. Mr.Denolf acted constitutionally and rightfully by possessing a gun and also allowing his children to partake in self-defense classes. c. William Denolf had a clear separation of the school and workshop which confirms that his children were not at danger with the firearms.
Denolf had a separate are in his home where he had workshop and where he conducted schooling for his children as clarified when he spoke with the cops. The guns were not accessible to the children without supervision according to William Denolf and close supervision included the education of self-defense which was a course in his home schooling The children were not exposed to the guns all the time during their schooling and also were not at danger with these guns being in the home because the home was always supervised. William Denolf educated and laid the boundaries to the usage of the guns in his home and was under the belief that his children understood these restrictions; hence the reason Mr.Denolf has never had a problem with the guns in his home before. Not allowing Mr. Denolf to have firearms in his home goes against the rules laid by the state of Olympus, because Olympus does not require licensing from the state to obtain gun. Similar to Gonzales v. Raich (2005), where the Supreme Court disallowed a claim that would allow the federal government to prosecute an individual for growing marijuana in a state where it is legal; it should be prohibited for the federal government to prosecute William Denolf for running a gun business in his home, where the operation of gun’s and the gun business is legal. There are not specifications in the laws laid by Olympus about handling and possessing a gun, so why Denolf should be punished for doing this in the privacy of his home, it goes against the provision laid in Gonzales v. Raich (2005).
II. THE SECOND AMMENDMENT GIVES WILLIAM DENOLF THE RIGHT TO HAVE THE FIREARMS IN HIS HOME. d. The rights entitled in the 2nd Amendment
The Second Amendment states, “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”; in simpler words, an individual has the right to bear arms. These are rights granted to an individual in the Constitution and is entitled to Denolf. If Denolf cannot keep the firearms in the privacy of his home, where is he expected to keep them? The appellate court decisions of, Parker v. District of Columbia No. 04-7041 (D.C. Cir., March 9, 2007) and U.S.. v. Emerson 270 F.3d 203 (5th Cir. 2001), cert. den., 536 U.S. 907 (2002), a state supreme court decision, Rohrbaugh v. State 607 S.E.2d 404 (W. Va. 2004), and a recent interpretation of the Second Amendment offered by the Office of Legal Counsel, http://www.usdoj.gov/olc/secondamendment2.pdf, all support this reasoning of Denolf acting constitutionally and also exemplify that this right is being violated by the amendments stated in 18 USC 922 q. In Parker v. District of Columbia, the government exemplified the meaning of the Second Amendment and the restriction it lays in relation to the national government and also state governments. Parker, claimed that the government attempt to “organize militias to provide security of state” was at danger with the restrictions laid by the Second Amendment. The laws laid by the Second Amendment allow for the state to collectively organize state militias, and the amendment lacks the explanation of an individual right to possess a firearm outside of a well regulated state militia. The lacking part that is brought to light by Parker is one that William Denolf falls under. The government did not lay down the laws that give provision to an individual right so William Denolf is in the right by possessing a firearm and hosting a business outside of his home. In U.S. v. Emerson 270 F.3d 203 (5th Cir. 2001) the understanding that the government cannot regulate the conduction of guns if it impairs on the individuals rights laid by the constitution is implied. The right to bear arms, and also the freedom of an individual is laid in the Constitution so Emerson case shows that convicting William Denolf will be a violation of his rights.
e. No US Code should adjust the meaning of the law laid by the Constitution. If this is done, it is malum in se.
In Parker, the D.C. circuit court looked at the actual meaning of the phrases instilled in the Second Amendment and the spirit of the law when talking about the right to possess a firearm (Parker v. District of Columbia No. 04-7041 (D.C. Cir., March 9, 2007)). The Parker Court concluded that
“[W]e concludes that the Second Amendment protects an individual right to keep and to bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense.”
With this being stated, Denolf has the right to bear arms, and also use the guns in his home laid for self-defense, for himself and his kids (Parker v. District of Columbia, 2007). Code 18 USC 922 q limits the rights given in the Second Amendment, which makes this code malum in se. Malum in se is the Latin reference to an act that is “wrong in itself”. In Second Amendment, the laws laid in 18 USC 922 q is being adjusted and this is exemplified by the case Parker v. District of Columbia (2007) which means that William Denolf has the right to bear arms, in his home, and contradiction of this or the conviction of this under 18 USC 922 q will go against his Second Amendment rights. f. An individual has the right to possess a firearm.
The U.S. v. Emerson 270 F.3d 203 (5th Cir. 2001) case displays the connection of the alleged violation and the issue that Mr.Denolf is exhibiting. Emerson demonstrates how the “Brady Laws” is being violated by 18 USC 922(g) (8). Along with the Brady Laws being violated, the spirit of the law in relation to the individual’s rights granted in the Second Amendment is also in question. In relation to William Denolf, the spirit of the law granted Mr.Denolf the right to obtain a weapon, even with the restrictions laid by the Olympus Home School Act. The Emerson court stated
“. . . There is no need to torture the meaning of its substantive guarantee into the collective rights or sophisticated collective rights model which is as plainly inconsistent with the substantive guarantee's text, its placement within the bill of rights and the wording of the other articles thereof and of the original Constitution as a whole. [The court held that] the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification.”
The government can pass reasonable regulations on conduct in relation to guns (U.S... v. Emerson (2001)). Reasonable being the key word in this situation. These regulations are not supposed to “impair the core conduct upon which the right was premised”. The provisions laid in 18 USC 922 q impair the rights to bear arms by ignoring the spirit of the law with the Second Amendment. With the restrictions that in 18 USC 922 q provide, the Second Amendment cannot fully be exercised which shows the issues that arise in the current case of William Denolf. g. The acknowledgement of gun violence and the involvement of children was observed and educated upon in William Denolf’s home.
The spectated purpose of 18 USC 921 is to protect children from gun violence. Denolf even exclaimed himself, the children were always supervised when the usage of guns was needed and this was only when the children was learning self-defense techniques. The children were not being harmed in any way but instead being educated on not only the dangers of a gun but also how to appropriately use a gun By William Denolf educating his children on how to appropriately use a gun, the children were not being put in danger but instead being taught how to prevent dangers. For example, in homes that do frequent hunting is it socially unacceptable to lay restrictions on the age that the individuals can start to teach their kids how to hunt because it is understood that this is a family choice, and a personal freedom right. Hunting homes promote gun usage and it is accepted in today’s society so why should we punish William Denolf for promoting gun usage with self-defense in his home? Denolf’s usage of a gun provides substantial lessons for his children and the gun usage is always supervised by an experienced adult; either Denolf himself or his wife.
III. THE UNITED STATE GOVERNMENT IS EXCEEDING ITS CONSTITUTAINAL POWERS GRANTED BY THE COMMERCE CLAUSE BY CONVICTING WILLIAM DENOLF OF HIS OWN RIGHTS.
h. Congress exceeded Authority in enacting the interstate commerce clause on William Denolf.
Congress has knowingly exceeded its constitutional grant of authority in the instant case in respect to Denolf. The legislation is supposed to show that there is a substantial and rational connection between commerce and the regulated conflict, which has not been exposed in the William Denolf case. The use of the commerce power enacted to Congress completely unbalances the separation of federal and state power. In Denolf’s offense, the state power is intruding on the federal power, which in return is leading to a misleading conviction against him. Congress has set in place three categorized of legislation permitted under the Commerce clause.
“(1) Regulation of “the use of the channels of interstate commerce,” Heart of Atlanta Motel, supra, at 256, (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and (3) regulation of “activities that substantially affect interstate commerce.” See United States v. Lopez, 514 U.S. 549 (1995),
In Denolf’s case, his activities that included the manufacturing and repairing of guns that has crossed state boundaries which then has an effect on interstate commerce, is all out of Denolf’s control and he cannot be punished for the actions of others. As stated in a dissent in the Lopez case by Justice Breyer,
“Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce--both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy.”
In relation to William Denolf’s case, the courts should determine which the effects are “substantial” and then distinguish whether it was local versus regional or national charter. When looking at the cumulative effects of Denolf’s business, and the findings of the Denolf case the Congress clearly violated the regulation of their behavior and is convicting Denolf for interstate commerce that he did not have control over. The usage of guns in William Denolf home has not had any substantial affect upon interstate commerce which makes his original conviction of a violation of 18 U.S. §922 invalid. i. The purpose of the Gun Free School Zones Act is to protect students. William Denolf was not putting his children at any harm with the usage of guns in his home so the Gun Free School Zones Act is still serving its purpose.
The purpose of the Gun Free School Zones Act is to protect students in school’s yet how are Denolf’s children at danger here? They are not. The children of Denolf are fully aware of the dangers of guns and educated of them so they are not in danger as shown in Denolf’s explanation to the police officers. The government regulating the guns in the stream of commerce or the activities that have an effect on interstate commerce is allowable but that is in respect to the Gun free School Zones Act which is in question in this case. With the Gun free School Zones Act, the commerce clause is not taken into consideration. It is also claimed that the protection of children cannot be related to interstate commerce yet conviction under 18 U.S. §922 directly violates this ruling. With that being said, Denolf is not violating this act in any way. Protecting children cannot be” substantially related to the interstate economic activity” so the Commerce clause was abused in Denolf’s case.
IV. DENOLF’S WAS ON PRIVATE GROUNDS WHICH CONCLUDES HE WAS NOT IN VIOLATION OF THE Gun Free School Zone Act.
18 U.S. §922(2b) (i) states that school zones restriction do not apply if it is on a “private property not part of school grounds”. If we were supposed to charge Denolf with being in violation to the Gun Free School Zone Act, we are not taking into consideration the last part of the US Code that allots William Denolf the right to have a gun on private property. At the end of the day, this “school” is also his home and he should be allowed to do what he pleases in the privacy of his home. In this case, running a gun business is not in violation of the Olympus State nor Gun Free School Zone Act because it was on private grounds. The students, in this case Mr.Denolfs own children, were knowledgeable about guns and were not at risk but instead educated about defense mechanisms and guns. Looking at the spirit of the law, William Denolf was not in violation of the Gun Free School Zone Act because the children at the school were in no way at risk or being harmed by Mr. Denolf's at home business.
V. CONCLUSION:
William Denolf was not in violation of 18 U.S. §922 nor the Gun Free School Zone Act because he was effectively using his Second Amendment right to bear arms.
__________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_____________
ANDREA “ANDY” SOMMERVILLE,
Petitioners-Appellants
v.
WLLIAM DENOLF
Respondent-Appellee
-------------------------------------------------
On Writ of Certiorari to the United States
Court of Appeals for the Seventeenth Circuit
_____________
BRIEF FOR RESPONDENT
_____________
QUESTIONS PRESENTED FOR REVIEW
1) Whether the Gun Free School Zone Act of 1997 (18 USC 922 q) applies to DeNolf and whether it violates the Second Amendment to the United States Constitution
2) Whether the United States government, in enacting 18 USC 922 q, exceeded its constitutional powers granted by the Commerce Clause, Article I, Section 8, Clause 3.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR …show more content…
REVIEW…………………………………………………… ii
TABLE OF CONTENTS………………………………………………………………………... iii
TABLE OF AUTHORITIES……………………………………………………………………. vi
Cases on Record…………………………………………………………………………. vi
Supreme Court Cases……………………………………………………………. vi
CONSTITUTIONAL AND STATUTORY PROVISIONS …………………………………. vii
STATEMENT OF THE CASE………………………………………………………………….ix
SUMMARY OF THE ARGUMENT……………………………………………………..xi
ARGUMENT ……………………………………………………………………………
I. WILLIAM DENOLF IS NOT VIOLATING THE GUN FREE SCHOOL ZONE ACT OF 1977 BECAUSE OF THE FACT THAT HE WAS IN HIS HOME.…………………………………………………………xi
A. Possession of a firearm is forbidden on school grounds.………………………………………………….. xi
B. Licensing was not required by the state of Olympus.……………………………..xii
C. William Denolf had a clear separation of the school and workshop which confirms that his children were not at danger with the firearms.……………………………………………………………………..……….. xii
II. THE SECOND AMMENDMENT GIVES WILLIAM DENOLF THE RIGHT TO HAVE THE FIREARMS IN HIS HOME.…………………….. xiii
A. The rights entitled in the 2nd Amendment……………………………………….. xiii
B .No US Code should adjust the meaning of the law laid by the Constitution. If this is done, it is malum in se.…………………………xiv
C. An individual has the right to possess a firearm…………………………………….xv.
D. The acknowledgement of gun violence and the involvement of children was observed and educated upon in William Denolf’s home……………………………………….xvi
III. THE UNITED STATE GOVERNMENT IS EXCEEDING ITS CONSTITUTAINAL POWERS GRANTED BY THE COMMERCE CLAUSE BY CONVICTING WILLIAM DENOLF OF HIS OWN RIGHTS………………………………….xvii
A. Congress exceeded Authority in enacting the interstate commerce clause on William Denolf………………………………………………………xvii
IV. IV. DENOLF’S WAS ON PRIVATE GROUNDS WHICH CONCLUDES HE WAS NOT IN VIOLATION OF THE Gun Free School Zone Act…………………………………xix
V. CONCLUSION……………………………………………….xx
TABLE OF AUTHORITIES
Cases on Record
Supreme Court cases.
Gonzales v. Raich, 545 U.S. 1 (2005)………………………………………viii-c, ix-c
Parker v. District of Columbia, (No. 04-7041 (D.C. Cir., March 9, 2007)…………………………… ix-a, x-b
Rohrbaugh v. State 607 S.E.2d 404 (W. Va. 2004) ………………………………….…..ix-a
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. den., 536 U.S. 907 (2002)………..…………………………………...ix-a, x-a, xi-c, xii-c
United States v. Lopez, 514 U.S. 549 (1995)……………………………………..xii-a, xiv-a
United States v. Parker, 362 F.3d 1279 (10th Cir. 2004) …………………………..ix-a, x-a,b, xi-b
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Gun Free School Zone Act of 1997
18 USC § 921
Definitions (a) As used in this chapter—
(2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).
(25) The term “school zone” means—
(A) in, or on the grounds of, a public, parochial or private school; or
13
(B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.
(26) The term “school” means a school which provides elementary or secondary education, as determined under State law.
(18 USC 922 q) Unlawful Acts
(1) The Congress finds and declares that—
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves—even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection.
(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B)
Subparagraph (A) does not apply to the possession of a firearm -
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is -
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.
(3)
(A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.
(B) Subparagraph (A) does not apply to the discharge of a firearm -
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.
(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.
STATEMENT OF THE CASE
The following facts have been stipulated to by both parties in the Record. William Denolf and his wife homes schooled their children. The home school system that William Denolf abides by is the Olymous Home School and Mr.Denolf has a valid permit which is require by the provisions of the Olympus Home School Registration Act of 1982. Along with the provisions in this act, the Denolf’s have to abide by the home school laws of the state of Olympus which they have effective done thus far. On February 18, 2006, Pantego Police reported to suppose gunshots in the home of Denolf. It was founded to be true that the gunshot derived from his home and it was the production of the “testing” of a gun to confirm that the gun was in good condition. William Denolf is a part-time gunsmith whom operates inside of his home and has a personal home workshop where he manufactures firearms, cleans firearms and also repairs them for multiple people within the community. The state of Olympus does not impose any restrictions on the regulation of firearms nor the licensing to possess one, discharge one nor manufacture one. Upon arriving to the Denolf’s residence, The Pantego Police were granted permission to enter the business/home/school by William Denolf and also notified that he partakes in a home-school program and is also a gunsmith from home. William Denolf also affirmed that his children partake in self-defense courses supervised by him and his wife where they learn the steps on discharging a weapon. These self-defense courses that William Denolf included his children in were under strict supervision at all times and also was a part of his own curriculum of his home-schooling program. Upon examining the workshop inside the Denolf’s home, Pantego Police discovered almost 200 firearms in the work area. Denolf’s gunsmith business bought in about $300.00 annually into the interstate economy and also holds a gross income revenue of roughly $10,000. Denolf is in full compliance of the IRS tax laws and restrictions with his business. Furthermore, the student’s homeschool program partook in a room adjacent to the workshop which at the time was unlocked. The Pantego Police wrapped up their investigation in the home of Mr.Denolf and submitted their report to the Police chief. Upon brief examination, the accusing of a violation of 18 USC 922 q arose. On June 5, 2006, Denolf was accused of this violation by the FEDERAL Grand Jury and on September 13, 2006, Denolf moved to dismiss this indictment.
SUMMARY OF THE ARGUMENT
The following argument exemplifies that William Denolf was not in violation of the Gun Free School Zone Act of 1997. The spirit of the law is to protect children within the school system from the assumed dangers of a weapon. In William Denolf’s home, the education of the dangers of a weapon existed and also the provision and allowance of self-defense with the use of guns was promoted for the safety of a child. The use of 18 USC 922 q to convict William Denolf is also in violation of the Second Amendment to the United States Constitution with malum in se and violation of the individual’s right to bear arms within the privacy of his/her home. The United States government enacting of 18 USC 922 q, exceeds its constitutional powers granted by the Commerce Clause, Article I, Section 8, Clause 3 with the intrusion of the combining of interstate commerce and the Gun Free School Zone Act of 1997. There is no clear and concise evidence to prove that William Denolf is in violation of the interstate Commerce Clause. With this being said, William Denolf should not be convicted of the supposed violation of 18 USC 922 q.
ARUGUMENT I. WILLIAM DENOLF IS NOT VIOLATING THE GUN FREE SCHOOL ZONE ACT OF 1977 BECAUSE OF THE FACT THAT HE WAS IN HIS HOME.
a. Possession of a firearm is forbidden on school grounds.
The provisions given by the Olympus Home School Registration Act of 1982 and also the home school laws of the state of Olympus, are required to be obeyed when attending children are going through home school (OL No. 22-32-38-44-45 ). Since the providers of this home school system are providing an environment of a school “system” it is required that the provider complies with the laws that come with the school “system” but there is not clear understanding of how these laws adjust to home jobs and personal living standards. In the United States Code, 18 USC 922 q, it clearly states that there should be no possession of firearms within a school zone yet there are no exceptions specified that could apply to the home school. Seeing that there are no exceptions, it can merely be assumed that a privacy of a home is excluded because though that is the “schooling” for your children, the privacy of a home should be respected (18 USC 921). A school, despite its location, is specifically established under state law and so is a handling of a business under the Olympus Home School Registration Act of 1982. William Denolf was operating a school in his home along with his business, but was not breaking any laws laid in place by the Olympus Home School system. After reviewing 18 USC § 922 (q) (b) (i) it reveals that the possession of a firearm can be kept on a private property, not part of school grounds which, William Denolf was effectively doing by keeping his firearms in a workshop away from the home school attendees. Since in the state of Olympus, it is not required to get a licensing to obtain a gun, William Denolf is also in accordance to 18 USC § 922 (q) (b) (ii).
b. Licensing was not required by the state of Olympus.
Under the State of Olympus law, it does not have any provisions for licensing to possess, use, discharge, manufacture of trade in firearms, which means that William Denolf was not committing any illegal acts, by having his business in his home (18 USC § 922 (q)) .With the business being in his home, the firearms can be loaded because it is part of Denolf’s business and schooling for his children. The curriculum used in the Denolf’s home school included a self-defense course, which will need the usage of guns according to the facts laid by Williams Denolf when police arrived at his home. There are no provisions for these so Denolf was acting upon his right for freedom of expression which is instilled in the First Amendment. William Denolf was open with the police officers because the operations that he did in his home were acceptable and also protected under his freedom. There is no difference in William Denolf having a gun in his home and educating his children of the dangers of these weapons, and another law abiding citizen having a gun in their home and not educating their children. Mr.Denolf acted constitutionally and rightfully by possessing a gun and also allowing his children to partake in self-defense classes. c. William Denolf had a clear separation of the school and workshop which confirms that his children were not at danger with the firearms.
Denolf had a separate are in his home where he had workshop and where he conducted schooling for his children as clarified when he spoke with the cops. The guns were not accessible to the children without supervision according to William Denolf and close supervision included the education of self-defense which was a course in his home schooling The children were not exposed to the guns all the time during their schooling and also were not at danger with these guns being in the home because the home was always supervised. William Denolf educated and laid the boundaries to the usage of the guns in his home and was under the belief that his children understood these restrictions; hence the reason Mr.Denolf has never had a problem with the guns in his home before. Not allowing Mr. Denolf to have firearms in his home goes against the rules laid by the state of Olympus, because Olympus does not require licensing from the state to obtain gun. Similar to Gonzales v. Raich (2005), where the Supreme Court disallowed a claim that would allow the federal government to prosecute an individual for growing marijuana in a state where it is legal; it should be prohibited for the federal government to prosecute William Denolf for running a gun business in his home, where the operation of gun’s and the gun business is legal. There are not specifications in the laws laid by Olympus about handling and possessing a gun, so why Denolf should be punished for doing this in the privacy of his home, it goes against the provision laid in Gonzales v. Raich (2005).
II. THE SECOND AMMENDMENT GIVES WILLIAM DENOLF THE RIGHT TO HAVE THE FIREARMS IN HIS HOME. d. The rights entitled in the 2nd Amendment
The Second Amendment states, “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”; in simpler words, an individual has the right to bear arms. These are rights granted to an individual in the Constitution and is entitled to Denolf. If Denolf cannot keep the firearms in the privacy of his home, where is he expected to keep them? The appellate court decisions of, Parker v. District of Columbia No. 04-7041 (D.C. Cir., March 9, 2007) and U.S.. v. Emerson 270 F.3d 203 (5th Cir. 2001), cert. den., 536 U.S. 907 (2002), a state supreme court decision, Rohrbaugh v. State 607 S.E.2d 404 (W. Va. 2004), and a recent interpretation of the Second Amendment offered by the Office of Legal Counsel, http://www.usdoj.gov/olc/secondamendment2.pdf, all support this reasoning of Denolf acting constitutionally and also exemplify that this right is being violated by the amendments stated in 18 USC 922 q. In Parker v. District of Columbia, the government exemplified the meaning of the Second Amendment and the restriction it lays in relation to the national government and also state governments. Parker, claimed that the government attempt to “organize militias to provide security of state” was at danger with the restrictions laid by the Second Amendment. The laws laid by the Second Amendment allow for the state to collectively organize state militias, and the amendment lacks the explanation of an individual right to possess a firearm outside of a well regulated state militia. The lacking part that is brought to light by Parker is one that William Denolf falls under. The government did not lay down the laws that give provision to an individual right so William Denolf is in the right by possessing a firearm and hosting a business outside of his home. In U.S. v. Emerson 270 F.3d 203 (5th Cir. 2001) the understanding that the government cannot regulate the conduction of guns if it impairs on the individuals rights laid by the constitution is implied. The right to bear arms, and also the freedom of an individual is laid in the Constitution so Emerson case shows that convicting William Denolf will be a violation of his rights.
e. No US Code should adjust the meaning of the law laid by the Constitution. If this is done, it is malum in se.
In Parker, the D.C. circuit court looked at the actual meaning of the phrases instilled in the Second Amendment and the spirit of the law when talking about the right to possess a firearm (Parker v. District of Columbia No. 04-7041 (D.C. Cir., March 9, 2007)). The Parker Court concluded that
“[W]e concludes that the Second Amendment protects an individual right to keep and to bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense.”
With this being stated, Denolf has the right to bear arms, and also use the guns in his home laid for self-defense, for himself and his kids (Parker v. District of Columbia, 2007). Code 18 USC 922 q limits the rights given in the Second Amendment, which makes this code malum in se. Malum in se is the Latin reference to an act that is “wrong in itself”. In Second Amendment, the laws laid in 18 USC 922 q is being adjusted and this is exemplified by the case Parker v. District of Columbia (2007) which means that William Denolf has the right to bear arms, in his home, and contradiction of this or the conviction of this under 18 USC 922 q will go against his Second Amendment rights. f. An individual has the right to possess a firearm.
The U.S. v. Emerson 270 F.3d 203 (5th Cir. 2001) case displays the connection of the alleged violation and the issue that Mr.Denolf is exhibiting. Emerson demonstrates how the “Brady Laws” is being violated by 18 USC 922(g) (8). Along with the Brady Laws being violated, the spirit of the law in relation to the individual’s rights granted in the Second Amendment is also in question. In relation to William Denolf, the spirit of the law granted Mr.Denolf the right to obtain a weapon, even with the restrictions laid by the Olympus Home School Act. The Emerson court stated
“. . . There is no need to torture the meaning of its substantive guarantee into the collective rights or sophisticated collective rights model which is as plainly inconsistent with the substantive guarantee's text, its placement within the bill of rights and the wording of the other articles thereof and of the original Constitution as a whole. [The court held that] the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification.”
The government can pass reasonable regulations on conduct in relation to guns (U.S... v. Emerson (2001)). Reasonable being the key word in this situation. These regulations are not supposed to “impair the core conduct upon which the right was premised”. The provisions laid in 18 USC 922 q impair the rights to bear arms by ignoring the spirit of the law with the Second Amendment. With the restrictions that in 18 USC 922 q provide, the Second Amendment cannot fully be exercised which shows the issues that arise in the current case of William Denolf. g. The acknowledgement of gun violence and the involvement of children was observed and educated upon in William Denolf’s home.
The spectated purpose of 18 USC 921 is to protect children from gun violence. Denolf even exclaimed himself, the children were always supervised when the usage of guns was needed and this was only when the children was learning self-defense techniques. The children were not being harmed in any way but instead being educated on not only the dangers of a gun but also how to appropriately use a gun By William Denolf educating his children on how to appropriately use a gun, the children were not being put in danger but instead being taught how to prevent dangers. For example, in homes that do frequent hunting is it socially unacceptable to lay restrictions on the age that the individuals can start to teach their kids how to hunt because it is understood that this is a family choice, and a personal freedom right. Hunting homes promote gun usage and it is accepted in today’s society so why should we punish William Denolf for promoting gun usage with self-defense in his home? Denolf’s usage of a gun provides substantial lessons for his children and the gun usage is always supervised by an experienced adult; either Denolf himself or his wife.
III. THE UNITED STATE GOVERNMENT IS EXCEEDING ITS CONSTITUTAINAL POWERS GRANTED BY THE COMMERCE CLAUSE BY CONVICTING WILLIAM DENOLF OF HIS OWN RIGHTS.
h. Congress exceeded Authority in enacting the interstate commerce clause on William Denolf.
Congress has knowingly exceeded its constitutional grant of authority in the instant case in respect to Denolf. The legislation is supposed to show that there is a substantial and rational connection between commerce and the regulated conflict, which has not been exposed in the William Denolf case. The use of the commerce power enacted to Congress completely unbalances the separation of federal and state power. In Denolf’s offense, the state power is intruding on the federal power, which in return is leading to a misleading conviction against him. Congress has set in place three categorized of legislation permitted under the Commerce clause.
“(1) Regulation of “the use of the channels of interstate commerce,” Heart of Atlanta Motel, supra, at 256, (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and (3) regulation of “activities that substantially affect interstate commerce.” See United States v. Lopez, 514 U.S. 549 (1995),
In Denolf’s case, his activities that included the manufacturing and repairing of guns that has crossed state boundaries which then has an effect on interstate commerce, is all out of Denolf’s control and he cannot be punished for the actions of others. As stated in a dissent in the Lopez case by Justice Breyer,
“Courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce--both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy.”
In relation to William Denolf’s case, the courts should determine which the effects are “substantial” and then distinguish whether it was local versus regional or national charter. When looking at the cumulative effects of Denolf’s business, and the findings of the Denolf case the Congress clearly violated the regulation of their behavior and is convicting Denolf for interstate commerce that he did not have control over. The usage of guns in William Denolf home has not had any substantial affect upon interstate commerce which makes his original conviction of a violation of 18 U.S. §922 invalid. i. The purpose of the Gun Free School Zones Act is to protect students. William Denolf was not putting his children at any harm with the usage of guns in his home so the Gun Free School Zones Act is still serving its purpose.
The purpose of the Gun Free School Zones Act is to protect students in school’s yet how are Denolf’s children at danger here? They are not. The children of Denolf are fully aware of the dangers of guns and educated of them so they are not in danger as shown in Denolf’s explanation to the police officers. The government regulating the guns in the stream of commerce or the activities that have an effect on interstate commerce is allowable but that is in respect to the Gun free School Zones Act which is in question in this case. With the Gun free School Zones Act, the commerce clause is not taken into consideration. It is also claimed that the protection of children cannot be related to interstate commerce yet conviction under 18 U.S. §922 directly violates this ruling. With that being said, Denolf is not violating this act in any way. Protecting children cannot be” substantially related to the interstate economic activity” so the Commerce clause was abused in Denolf’s case.
IV. DENOLF’S WAS ON PRIVATE GROUNDS WHICH CONCLUDES HE WAS NOT IN VIOLATION OF THE Gun Free School Zone Act.
18 U.S. §922(2b) (i) states that school zones restriction do not apply if it is on a “private property not part of school grounds”. If we were supposed to charge Denolf with being in violation to the Gun Free School Zone Act, we are not taking into consideration the last part of the US Code that allots William Denolf the right to have a gun on private property. At the end of the day, this “school” is also his home and he should be allowed to do what he pleases in the privacy of his home. In this case, running a gun business is not in violation of the Olympus State nor Gun Free School Zone Act because it was on private grounds. The students, in this case Mr.Denolfs own children, were knowledgeable about guns and were not at risk but instead educated about defense mechanisms and guns. Looking at the spirit of the law, William Denolf was not in violation of the Gun Free School Zone Act because the children at the school were in no way at risk or being harmed by Mr. Denolf's at home business.
V. CONCLUSION:
William Denolf was not in violation of 18 U.S. §922 nor the Gun Free School Zone Act because he was effectively using his Second Amendment right to bear arms.