In a bold counter assault that could affect countless State and Federal convictions and result in damages claims for untold millions of dollars, Terry Smith has challenged both the sufficiency of his indictment and the constitutionality of 18 U.S.C., Section 922, a Federal statute purporting to make it unlawful for any person convicted of a felony crime to thereafter possess a firearm.

It should first be noted that, under the precise language of Count 3 of Smith’s indictment, it was alleged that “On or about February 8, 2014, in Clay County, in the Eastern District of Kentucky, Terry R. Smith, having been convicted in a court of a crime punishable by imprisonment for a term exceeding a year, did knowingly possess in and affecting interstate commerce several firearms....”  Smith was arrested on or about August 21, 2013, and has since been in custody.  Smith asserts that he couldn’t have possessed any firearm on February 8, 2014, as all firearms had long since been in Federal custody.

Secondly, Smith notes that Section 922 is a long, rambling statute proscribing numerous things throughout its dozens of subsections.  The only portion of the statute charged as applying to Smith are subsections (g)(1): “It shall be unlawful for any person – (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year...”  These subsections say nothing about possession of a weapon.  They constitute, in fact, a vague, incomplete sentence, failing to convey a clear and complete thought.

Beyond vagueness, this statute appears to be wholly arbitrary.  Without any consideration of whether the triggering conviction charges conduct that is violent or nonviolent, whether it involves a weapon or no weapon, or whether it is against person(s) or property, the convicted person is forever to be stripped of his or her Constitutional right to bear arms.  Why “a term exceeding one year,” as opposed to a term exceeding 30 days or 20 years?

The statutory application is wholly arbitrary.  Regardless, Smith argues that the language of 18 U.S.C. Section 922(g)(1) states no indictable offense.  Smith challenges the facial defects of both the indictment and statute: Through reliance on the flawed statute, the charging terms of the indictment is flawed by the facial invalidity of the statute.  Both fail to allege any violation.  According to Smith, the only way the petit jury could have made any sense of these charging terms would have been though a de facto amendment to both the statute and indictment.  In so doing, they necessarily ventured beyond the charge levied by the grand jury.

According to Smith, the confiscated guns, found 60 miles away in Berea, belonged to his wife, a registered gun owner.  Smith notes that those  guns were locked away in a safe for which he had no combination.  Still, he states that the jury was instructed that they could find him guilty based on the prospects that the guns were subject to come under Smith’s control.  Smith alleges that it constituted plain error to permit the petit jury to venture beyond the veil of facts into the murky ethers of speculation and theory.  The Grand jury charged possession, and it was an unconstitutional amendment of the indictment to allow the petit jury to convict on any evidence less than actual possession.

Moreover, Smith termed the statute and its legislative intent “an arbitrary exercise of tyrannical power not vested in any organ of government.”  He argues that neither State nor Federal legislatures have authority to usurp or circumvent the functions of grand or petit juries.  Legislative proscriptions, after all, must be filtered through the grand and petit juries, and no legislature has the right to reopen or amend an old indictment or a stale judgment.  Whatever happened to collateral estoppel and res judicata?

In presuming to make a new felony crime out of an old State or Federal felony conviction, the legislature opens up a Pandora’s box of constitutional violations: Reliance on the statute, 18 U.S.C. Section 922 denies the accused due process, which, at a bare minimum, requires notice, the right to contest and the right to appeal any unfavorable decision.  Smith insists that, prior to the instant Federal indictment, no grand jury ever apprised him that his right to bear arms was in jeopardy; the matter was never argued in any court, nor found against him by any petit jury.  Finally, he was never afforded the right to any appeal.

Guns and the right to bear them are protected by the Second Amendment to the U. S. Constitution.  Guns also represent valuable property, and even a small gun collection can be worth thousands of dollars.  As Smith argued before the Court, “the Fifth Amendment to the U. S. Constitution...holds in pertinent part that ‘No person...shall be deprived of life, liberty or property without due process of law.’”

Yet, while 18 U.S.C. Section 922 magically presumes to strip a convicted felon of his right to bear arms, no procedural, judicial or other mechanism has been devised to provide the convicted person with the notice, right to contest and right to appeal that due process requires.  Nor has any mechanism been devised to compensate convicted gun owners or their family members who may have vested interests in or need for those assets.  It would appear that some such mechanism is sorely needed--a gun court, if you will.  A Gun Court could be convened, although certainly not on a bifurcated basis.  A bifurcated proceeding would unconstitutionally permit a petit jury to sit in appellate review of a judgment it had just handed down.  Still, at some point, due process must apprise the newly convicted felon of his or her unworthiness to further exercise his or her Second Amendment rights to bear arms.  That Court should also be duly authorized to award compensation at fair market value.

Smith denied possession or ownership of any firearm, and while no credible evidence linked Smith to ownership or possession of any weapon, two or three of the self-confessed drug-users and drug-traffickers who made statements against him variously alleged having seen him in possession of a Beretta, a Luger or a 9mm Browning.  No weapon matching the description of these firearms was found.

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