Memorandum of Law - The Authority of the County SheriffSubmitted by hawkiye on Tue, 02/12/2013 - 15:02
It is amazing to me that so many important laws and rulings have fallen into such obscurity that when you tell people about them they scoff or even try and ridicule you. We wonder why the constitution is ignored so much it is simply because of a lack of knowledge by the people and even the officers of the law and courts.
So I have put together this memorandum of law on the Authority of the County Sheriff where it derives from and why the county Sheriff could save America if he understands his oath to uphold the constitution and rises to the occasion. They could be the heroes of America if they do so. Anyway without further delay here it is:
Memorandum of Law - The Authority of the County Sheriff
The County Sheriff is a long established icon for keeping the peace and administering the law. Not only in American Jurisprudence but also in English and UK jurisprudence and in history along with many other European nations and even India.
The Sheriff is the only Officer of the law that is duly Elected by the people and thus answers to them and no one else as will be shown by this memorandum. He is not appointed and therefore is directly chosen by the people as their duly elected representative and defender of their rights. This is a very important point that has been forgotten and largely lost in these modern times.
Therefore it is the Sheriffs duty to serve and protect those who have entrusted him with their delegated authority to keep the peace and protect their rights. This is a great responsibility and not to be taken lightly. It is the hope that this memorandum of law citing the law and Rulings of the Supreme court that we can reestablish the importance of this Sacred office and educate the people and the county Sheriffs to the awesome responsibility the office of Sheriff holds in protecting the freedoms of the people of his county.
Let us look at the law and some supreme court rulings on the matter:
U.S. Constitution, Article Six, Clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
(The Supremacy Clause of the U.S. Constitution)
Here we have the US Constitution established as the supreme law of the land and the Judges in every state are bound by it. This is very important. All the state constitutions also very closely resemble the US Constitution. This means the Bill of Rights applies in every state and Judges and officers are bound by it and obligated to uphold these rights and take an oath to uphold the US Constitution.
Marbury v. Madison : 5 US 137 (1803):
“No provision of the Constitution is designed to be without effect,” “Anything that is in conflict is null and void of law”, “Clearly, for a secondary law to come in conflict with the supreme Law was illogical, for certainly, the supreme Law would prevail over all other laws and certainly our forefathers had intended that the supreme Law would be the bases of all law and for any law to come in conflict would be null and void of law, it would bare no power to enforce, in would bare no obligation to obey, it would purport to settle as if it had never existed, for unconstitutionality would date from the enactment of such a law, not from the date so branded in an open court of law, no courts are bound to uphold it, and no Citizens are bound to obey it. It operates as a near nullity or a fiction of law.”
Norton v. Shelby County 118 USR 425:
“An unconstitutional act is not law. It confers no rights, it imposes no duties, it affords no protections, it creates no office. It is in legal contemplation as inoperative as though it has never been passed.”
Here in Marbury v. Madison with Norton v. Shelby corroborating the supreme court has ruled that if any law is passed that comes into conflict with the Constitution it is null and void from the minute it has been passed and there is no obligation to obey nor power to enforce and it is as if it had never existed. This is very important for Peace officers to understand and adhere to. These rulings have never been over turned and are landmark cases in American Jurisprudence.
Title 5, US Code Sec. 556(d), Sec. 557, Sec.706:
Courts lose jurisdiction if they do not follow Due Process Law.
Title 18, US Code Sec.2381:
In the presence of two or more witnesses of the same overt act, or in a open court of law, if you fail to timely move to protect and defend the Constitution of the United States and honor your oath of office, you are subject to the charge of capital felony treason.
This is very important for all officers of the law to understand for their oaths of office are to uphold the Constitution. This is explicitly to protect the people and their rights from being abused. It is hoped that all officers think and ponder deeply on this especially in this information age when errant officers whose actions have reflected badly on the rest have been broadcast nationally. Further more officers should reflect on any acts they enforce and whether they are constitutional. As we shall see in more rulings it is not just for the courts to decide as many now believe.
16Am Jur 2d., Sec. 97:
“That the constitution should receive a literal interpretation in favor of the Citizen, is especially true, with respect to those provisions which were designed to safeguard the liberty and security of the Citizen in regard to person and property.”
Bary v. United States - 273 US 128
“Any constitutional provision intended to confer a benefit should be liberally construed in favor of the clearly intended and expressly designated beneficiary”
We the people are the express beneficiaries of the US Constitution.
Mudook v. Penn. 319 US 105:(1943)
“A state may NOT impose a charge for the enjoyment of a right granted by the Federal Constitution... No state may convert any secured liberty into a privilege and issue a license and a fee for it.”
This is another land mark case. We see here the supreme court as ruled that no state can charge a fee to exercise a right nor can it convert a secured liberty into a privilege and issue a license and fee for it. This is violated daily now in America. This ruling has not been overturned. Violation of this provision happens largely because both the people and officers are unaware of this ruling and its daily violation has become a matter of routine therefore tolerated as a necessary evil so to speak. One wonders how such an important Supreme court ruling could fall into such obscurity?
Shuttlesworth v. Birmingham Al. 373 US 262:(1962)
“If the state does convert your right into a privilege and issue a license and a fee for it, you can ignore the license and a fee and engage the right with impunity.”
Here the supreme court has ruled that such acts can be ignored with impunity. Again how does such an important landmark case fall into obscurity? Isn't it time for Americans to rediscover their history and rights?
Now let us look at a specific landmark Case brought by two County Sheriffs against the Federal government and the important implications of this case in regards to the County Sheriff's Authority and who he answers to. These Sheriff's were Sheriff Jay Printz of Montana and Sheriff Richard Mack of Arizona. This was in regards to the enforcement of the Brady Bill by Local Sheriff's and their refusal to do so however its rulings extend far beyond just that. This clarifies where the Sheriffs authority is derived from and that its the people who elected him and his duty to use his authority to protect their rights.
Printz v. United States (95-1478), 521 U.S. 898 (1997)
"We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: "The Federal Government may not compel the States to enact or administer a federal regulatory program." Id., at 188. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule."
"Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption."
Here the court clearly states the Federal government has no authority in the County Sheriff's Jurisdiction and even states that the opposite of having any authority is the case. This is significant as we will see in further rulings.
...the Guarantee Clause, Art. IV, §4, which "presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights," Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment's assertion that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Here the Court upholds the Sovereignty of the States and the people reaffirming the tenth Amendment and even quoting part of it and that there are rights the people have that are not listed and they are every bit as binding as those listed in the Bill of Rights.
And now for perhaps the most important part of this ruling:
***"The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U.S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident[s]"). As Madison expressed it: "The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245. [n.11]"***
Read that again if you will! Local or municipal authorities form distinct and independent portions of the supremacy and are not subject to the General authority any more then it is subject to them within its own sphere. Did you hear that? The Sheriff is not subject to the state authority nor the federal Authority within his own sphere anymore then they are to him!!! That means the Sheriff is the highest officer of the law in his jurisdiction and the only authority he answers too is the People! That means he has the authority to protect his county from federal encroachment and enforcement of unconstitutional acts statutes and polices.
Now to any Sheriffs who may be reading this do you see your awesome responsibility of the authority that has been conferred on you? Will you protect the people of your county from Federal agents who enforce unconstitutional laws now knowing your authority? Especially since the Supreme court has ruled in several cases (and none of them have been over turned) that an unconstitutional law is null and void from inception and is as if it had never been passed? Please dear Sheriff's think and ponder long and hard on this and resolve to uphold your oaths! We are either a nation of laws or we are not!
Let us look at a few more provisions of this Land mark ruling
This separation of the two spheres is one of the Constitution's structural protections of liberty. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory, supra, at 458.
To quote Madison once again:
"In the compound republic of America, the power [delegated] by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, at 323.
***"When a "La[w] . . . for carrying into Execution" the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a Law . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely an act of usurpation" which "deserves to be treated as such."***
Again we have reiteration that any unconstitutional act is not law and should be treated as such from inception! There is no need to wait for a court ruling on the law we already have the court rulings many of which our listed in this memorandum.
"Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered."
Obviously the point is now made with no room for misunderstanding. A link is provided to the case if one wishes to read the entire case. Also Sheriff Richard Mack has written a book on his experience and discovery of the importance of the office of Sheriff called "County Sheriff Americas Last Hope" which everyone is strongly encouraged to read especially Sheriff's http://sheriffmack.com/
In conclusion here is a partial list of Sheriffs who have exercised their authority in their counties and prevented the federal government from enforcing unconstitutional statutes:
Sheriff Jay Printz Montana
Sheriff Richard Mack Arizona
Sheriff Dave Mattis Wyoming
Sheriff Gary Aman Idaho
Sheriff Tony DeMeo Arizona
There are more and one can do an internet search on any of their names to learn more.
Sheriffs who know and understand their authority really are Americas last hope and it is gratifying to see more and more of them speaking out and affirming our constitutional rights to keep and bear arms during this time. It is our hope that this memorandum of law affirming that they have authority to prevent federal agents from enforcing unconstitutional acts will embolden them to rise to the occasion. Please forward to any and all Sheriffs nation wide and let them know the law and the People are on their side if they are willing to uphold their oaths of office!