Date: Sat, 02 Jul 2011 10:45:22 -0400 From: "James M. Atkinson" Organization: Granite Island Group To: tscm-l2006@googlegroups.com Subject: Fourth of July Reading Materials Here are the first 71 paragraphs of the Complaint which spells out the law, in a way that most non-lawyers can understand it. It is very good to read this over the Fourth of July holiday, and to meditate on what the government is trying to do illegally. "All animals are equal but some animals are more equal than others." - George Orwell, "Animal Farm" -jma IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS CASE# 11-CV-11073-NMG 2nd AMENDED COMPLAINT 1. Comes now the Plaintiff, JAMES M. ATKINSON, who is a U.S. Citizen by birth; a civil libertarian; a disabled U.S. Veteran with Honorable Service; Plaintiff Atkinson hereby allege as follows: COMPLAINT 2. This action for deprivation of civil rights under color of law, and also challenges to various unconstitutional Massachusetts statutes in regard to the keeping and, or of bearing arms to the extent that they prohibit otherwise qualified private citizens from keeping or carrying arms for the purpose of self-defense. 3. This action is also for Civil Racketeer Influenced and Corrupt Organizations Act (�RICO�) violations, violations of federal wiretapping statutes, violations of the False Claims Acts or obtain Federal Funds, and violation of electronic communications laws, Monopolies and Restraint of Trade violations, Economic Espionage Act, 18 U.S.C. 1831 violations, as well as criminal violation of the laws and statutes of the United States of America and of the Commonwealth of Massachusetts by state agents, agencies, and private entities working in concert with the state and acting under color of law. 4. Plaintiff seeks a declaratory judgment, injunctive relief, actual damages, general damages, special damages, compensatory damages, punitive damages, attorney�s fees, costs, and other relief this court deems appropriate. OVERVIEW 5. The right to arms is understood by all Americans, and recognized by law to be a right, a privilege, and/or immunity of citizenship of the United States. 6. The U.S. Supreme Court has ruled that the 2nd Amendment right to keep, and to bear or carry arms applies to the States by virtue of application of the 14th Amendment, and thus neither the Federal Government, nor any state agency, nor agent of the state may interfere with the unqualified right to keep and bear arms. 7. Second Amendment rights are no different then First Amendment rights, nor the 4th, 5th, 6th, 7th, 8th, 9th, or 14th Amendments, nor for that matter any other part of the Constitution or Bill of Rights. 8. The government cannot exercise prior restraint in either matters of the First Amendment, nor in matters of the Second Amendment. 9. The government (neither State nor Federal) may not prohibit the possession of a high volume printing press any more then they may prohibit a high capacity firearm magazine, a high capacity feeding device for a firearm, a high capacity firearm, nor a high capacity or low capacity assault weapon. 10. A high volume printing press in and of itself is no more or less dangerous than a high capacity firearm or a high capacity firearm magazine. In both cases, a citizen is responsible or the use or misuse of either, but the government may not impose prior restraint on either. 11. A printing press, arms of various sorts, and holy books are all equally protected under the Bill of Rights. Not the States, nor the Federal Government may outlaw or license a religion, may not mandate a certain thickness or page count of the Holy Bible, nor the scripting of prayers by the faithful, define the size of a Prayer Rug, mandate that Mass be spoken in High Latin or English, nor impose the desires of the Government in regards to religion or political choices, nor may they impose undue control or restraint on the keeping and bearing of arms, or of the press. 12. All firearms, arms, ammunition, accessories, or attachments utilized by law enforcement for individual defense of the officer or for entering homes, buildings, or vehicles are suitable examples that these same or similar weapons are well suited for defense of the home of citizens. 13. The firearm itself, the configuration of the magazines, of feeding devices, the ammunition used, and the manner it which it is deployed by police officers are all evidence that a weapon is well suited for home defense of citizens. 14. By their very design, firearms are dangerous, they are supposed to be dangerous, and they are supposed to be deadly, any fool knows this. People train to become proficient with arms in order to use them in a dangerous and controlled manner, and in some cases a deadly manner. Any assertions that a particular modern arm is more or less dangerous then another is sheer and utter lunacy. 15. The �dangerousness� of any particular firearm lies in the intent of the hands that wields it, and if those hands have evil intentions and they lack access to one type of arm then they will turn to other weapons and arms that are equally or more dangerous than firearms, but more available to them. 16. Even a very small automobile or truck is dramatically more dangerous, as a lethal weapon than a firearm, pistol, revolver, shotgun, rifle, sniper rifle, or other related arms. The energy and mass of a moving motor vehicle exceeds that of a bullet or pellet by many orders of magnitude. Anybody who has professional training on arms and of the tactical use of vehicles, or of combat driving, or protective driving understands this well. Students at numerous government schools are actually taught to utilize motor vehicles as readily available weapons, and as a weapon that it dramatically more deadly than a firearm, or other kinds of weapons or arms. 17. A high capacity magazine or feeding device is protected under the 2nd and 14th Amendment, the government may not dictate any aspect of the arms that a person may choose for defense, not the ammunition feeding device or magazine, nor the type of ammunition used. Yje Military and the police routinely carry magazines with 15, 19, 20, 30, and even 40 round magazines, and there is no legitimate reason to obstruct the law abiding public from possessing or carrying the same things. The U.S. Supreme Court affirms this right, immunity, and privilege in both District of Columbia v. Heller, 554 U.S. 570, 592 (2008), and McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010) decisions. Hence, no State may restrict, control, or license either a high capacity magazine, a high capacity feeding device, or any form of high capacity firearm. 18. Any weapon used by a SWAT team for home or business entries of a tactical nature and/or raids is strong evidence that the same weapon is particularly suited for home defense. Otherwise, logically, the SWAT Team would not be using such weapons. 19. Logically then, any and all firearms which a law enforcement officer, or SWAT team member, would normally carry on a day to day basis or deploy anywhere in the country, or which is endorsed for, sold for, endorsed as, or in any way considered as a firearm suited for individual law enforcement officers to carry or use is prima facia evidence that it is suitable for home defense as it is generally accepted as safe for citizens to keep, to carry, or to bear. The same holds true of any firearm, magazine, feeding device, or ammunition in common use by law federal, state, and local law enforcement officers, or the military, or intelligence officers. 20. Under the equal protection clause of the Bill of Rights (14th Amendment), the police are not entitled to any greater or lesser protection than that of the common law abiding citizen. Nor may any law abiding citizen be denied the ability to keep arms identical to, or similar to those carried by the police of the military. In effect, by application of the Equal Protections clause of the 14th Amendment the citizens of the United States and allowed to possess arms, up to and equally those issued to, carried by, authorized by, or used by members of law enforcement or the various states or Federal agencies, or Military. Thus, if a police officer or soldier is permitted to carry a type of arm, then so are members of the public. 21. In McDonald v. Chicago, Justice Thomas states that: �African Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers. In the years immediately following the Civil War, a law banning the possession of guns by all private citizens would have been nondiscriminatory only in the formal sense. Any such law�like the Chicago and Oak Park ordinances challenged here�presumably would have permitted the possession of guns by those acting under the authority of the State and would thus have left firearms in the hands of the militia and local peace officers. And as the Report of the Joint Committee on Reconstruction revealed, see supra, at 24�25, those groups were widely involved in harassing blacks in the South.� 22. The U.S. Supreme Court ruling in Heller and in McDonald allows the occupant of the home to determine which firearms are primarily useful for home defense, and does not allow the government to dictate which weapons be kept, or used in this regard. In fact, the law permits the possession and use of not only firearms, but also that of any arms available to the person. 23. This weapon selection is highly personal, and can range from little more then a pointy stick, to an edged weapon, a bayonet, a sword or cutlass, or if they so choose a firearm of the sort they feel is most suitable. 24. Conversely, should a citizen feel strongly against the keeping, or the bearing of arms they are well within their rights not to possess or to carry same, but they may not impose their religious, philosophical, and social choices regarding arms or self defense upon other citizens. 25. The state however, may not restrict the mere possession or �keeping� of arms, nor can the state restrict the �bearing of arms� by normal law abiding citizens, and at most may only control the manner in which they are carried with a minimum of interference or control. The state is thus prohibited from imposing any kind of licensing or permitting scheme to either possess or to carry arms. 26. The state may not prohibit the keeping, carrying, or bearing arms, but may, within very narrow considerations which involved the mode by which the arms may be carried. The state may not mandate that firearm be carried in an unloaded condition, as this would violate the Heller decision. Thus, a citizen is allowed to maintain their arm, full loaded, and readily available to use., and carried in a way that permits rapid access and deployment. This then restricts the state into mandating is arms may be openly carrier, or carried concealed, or carried covertly. The State could under Heller, mandate that a High ride holster should be used, or that a drop rig is mandate, but they may in no way restrict of control the actually act of carrying or bearing of said arms. 27. At most the state may impose certain controls to keep arms out of the hands of convicted felons or those who are adjudged insane, but they may not otherwise control, license, or ban arms. 28. The Bill of Rights, and the interpretations and decisions of the U.S. Supreme Court does not permit the state to prohibit the possession of a Holy Bible, the Torah, or the Quran, or any other holy book which the state may not like, but may control the retail sale of such to a very limited extent. Nevertheless, the State cannot control or license mere possession nor use of said holy books. 29. There is no requirement under the law to obtain a license for any sort for a holy book of any religion or denomination, not a Bible, not a Sermon Book, not a Prayer Book, not a Psalm book, or a Crucifix, or prayer rug, not Statues, not candles, not high capacity church pews, not ornate prayer rugs, not pipe organs, not grand pianos, not banners, not musical instruments, nor Arks, not standards, not religious iconography, not bells, not chalices, not fonts, not baptisms, not incense, not crosses, not religious symbols, not stained glass, not wafers, not hosts, not a hiram, not relics, not a Yarmulkah or Yarmulke, nor Chalice Paten, nor Communion Paten, nor Ciborium, nor Host Box, nor Missal, nor Chasuble, nor Albs, nor Altar Cloths, nor Purificator, nor Finger Towels, nor Bread Trays, nor Cup Trays, nor Bema, nor Shulcahn, nor Ner Tamid, nor Corporals, nor Amices, nor Palls, nor Cincture, nor Oil Stock, nor Pyx, nor Menorah, nor Kiddush Cup, nor Vademecum, not head dresses, not a hijab, not vestments, nor Tallit or Tallis, nor choir robes. 30. Neither is any government permission or license, or ID card (which is a defacto license if it can be revoked) required for keeping Holy Bibles or other religion artifacts in ones home, or to bear them up or carry them in practice of ones chosen religion. 31. The Bill of Rights, and the interpretations and decisions of the U.S. Supreme Court does not permit the state to prohibit the possession of a modern printing press (or Holy Bible) which the state may not like, but may control the retail sale of such a press should it be overly dangerous to operate, or should the Holy Bible be printed of plastic explosive sheets, or be in an inherently dangerous form. However, the State cannot control or license mere possession of said printing press (nor of the Holy Bible), nor for that matter arms of various types. 32. There is no requirement under the law to obtain a license of any sort for a printing press ownership, not for a quill pen, not a bottle of ink, not a fountain pen, not a sheet of paper, nor an inkjet printer, or even a high capacity laser printer, nor high capacity word processor, nor even a super computer. Not type faces, not type, not metal plates, not inking pads, nor composing sticks, not type cases, nor other tools of the printing trade. 33. Neither is any government permission or license, or ID card (which is a defacto license if it can be revoked) required to keep arms in ones home, or to bear them up or carry them in defense of others, or even in defense of the State. 34. The Second Amendment �guarantee[s] the individual right to possess and carry weapons in case of confrontation,� District of Columbia v. Heller, 554 U.S. 570, 592 (2008), and is �fully applicable against the States,� McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010). 35. However, the Commonwealth of Massachusetts steadfastly refuses to update the statutes of Massachusetts to reflect either the District of Columbia v. Heller and McDonald v. Chicago U.S. Supreme Court decisions. 36. The Commonwealth continues to arrogantly, and illegally ignore both the Constitution of the United States, the Bill of Rights, and the decisions of the Supreme Court, to the level that the Commonwealth exhibits an attitude, and conducts legal matters related to firearm with utter disregard for the civil rights of the citizens, complete, willful arrogance in regards to the 2nd and 14th Amendments, and even bolder affront to the U.S. Supreme Court, and even the Constitution of the Commonwealth of Massachusetts, whereby the Commonwealth now chooses merely to ignore the ruling by this nations highest court, and to harass, molest, arrest, charge, indict, and incarcerated citizens who are lawfully in possession of arms. 37. The Commonwealth of Massachusetts further demonstrates their evil intentions by foisting a ruse of various licensing scheme that exists for no reason but to deprive law abiding citizens of defensive arms in their home or businesses. 38. As if this arrogance of the Commonwealth could not run more afoul of the U.S. Constitution; the Bill of Rights; Freedmen�s Bureau Act of 1866 (which acknowledged the existence of the unqualified right of all citizens to keep, carry, or bear arms); the various rulings of the U.S. Supreme Court; and Massachusetts Constitution, Part The First, Article XVII, the Commonwealth continues to unlawfully and with ill and criminal intent forcibly and with deceit enter law abiding businesses, and homes of citizens who are fully qualified by law to possess arms, and to take those arms away by force and by deception in direct violation of Federal law, and they do so with the approval of the Attorney General of the Commonwealth, and with a approval of the District Attorneys, who then empanel Grand Juries, so that the Attorney General and District Attorneys are �making law� and trying to illegally force precedent, and misusing the Grand Jury system for political power and social controls, instead of obeying the law themselves. In some cases, the police or the district attorneys will trick a Judge or Magistrate into issuing a search warrant or an arrest warrant, even when it is prohibited by law. 39. The Commonwealth encourages law enforcement officers to lie and to perjure himself or herself in order to gain arrest or search warrants, and to confect a gross deception on the court system. These law enforcement officers do this knowing that neither the District Attorneys nor the Attorney General will prosecute then, even when they are caught in this state sponsored deception and perjury. 40. Plaintiff seeks to establish that the recognition and incorporation of the Second Amendment � the right to possess and carry weapons in case of confrontation � renders the State�s present regulatory choice unconstitutional. Whatever the contours of a constitutional scheme might be, the Second Amendment renders a ban on the keeping and, or carrying or arms, or firearms impermissible. 41. Plaintiff seeks immediate declaratory judgment and injunctive relief. JURISDICTION AND VENUE 42. This Court has subject matter jurisdiction pursuant to 28 U.S.C. �� 1331, 1343, 2201, 2202; 42 U.S.C. � 1983; 18 U.S.C. �� 1961-1968, 31 U.S.C. �� 3729�3733, 47 U.S.C. �� 2.1-1305, and 18 U.S.C. �� 2510-2522. 43. This Court has personal jurisdiction over each of the Defendants because, inter alia, they acted under the color of laws, policies, customs, and/or practices of the Commonwealth of Massachusetts and political sub-divisions, and/or within the geographic confines of the Commonwealth of Massachusetts. 44. Venue is proper pursuant to 28 U.S.C. � 1391 because virtually all of the Defendants may be found in this district, and because the events and omissions giving rise to this action are State laws enacted in the State capital of Boston. CONSTITUTIONAL PROVISIONS AND PRIOR CASE LAW 45. The Constitution of the United States was adopted on September 17, 1787, by the Convention in Philadelphia, Pennsylvania, and ratified by conventions in each U.S. state in the name of "The People." The Constitution has been amended twenty-seven times; the first ten amendments are known as the �Bill of Rights.� 46. The Constitution of the United States was ratified by the Commonwealth of Massachusetts on February 6, 1788, with a vote of 187 for, and 168 against, and thus became law. 47. The Bill of Rights was introduced by James Madison to the 1st United States Congress in 1789 as a series of legislative articles and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States. 48. On March 2, 1792, Massachusetts became the 12th state to ratify the Bill of Rights, which included provisions for the public to be allowed to keep, and the bear or carry arms. 49. The Second Amendment of the Constitution (the Bill of Rights) provides: �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.� - U.S. Constitution Amendment II. 50. The Second Amendment guarantees individuals a fundamental right to carry operable arms in all non-sensitive public places for the purpose of self-defense. 51. The Fourteenth Amendment was ratified and passed into law on July 9, 1868. Thus the 14th Amendment was accepted by the Commonwealth of Massachusetts as law. 52. Under Section 1 of the Fourteenth Amendment, the Bill of Rights (including the 2nd Amendment), must be obeyed by the Commonwealth of Massachusetts, and others, and forbids the making or enforcing any law which infringed on any immunities or privileges of citizenship: �All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.� 53. The Fourteenth Amendment incorporates the requirements of the Second Amendment against the States and their units of local government, and political sub-divisions. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3042 (Jun. 28, 2010). 54. Thus, the Commonwealth of Massachusetts is prohibited from making or enforcing any law, which abridge the privileges or immunities of citizens to keep, carry, and to bear arms of their choosing (with extremely narrow limitations). Thus, any such laws are automatically null and void, and an infringement of the privileges or immunities of citizens of the United States. 55. In explaining why examining the history of the right to bear arms in England was necessary, the Heller Court stated that "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.'' And, in further describing the scope of the Second Amendment, the Court again pointed to the First Amendment for several direct analogies, all indicating similarities rather than differences between the two provisions: Heller, 128 S. Ct. at 2791-2792 �Just as the First Amendment protects modern forms of communications ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. � �There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not.... Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. � 56. If those passages were not enough, the Heller Court also quotes approvingly from an 1825 Massachusetts Supreme Judicial Court opinion and an 1868 constitutional law treatise that make the direct analogy between the right to bear arms and the freedom of the printing press: Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 313-14 (1825)) �The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep firearms, which does not protect him who uses them for annoyance or destruction.� �The [Second Amendment] clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libelous abuse, is protected.� 57. The States retain the ability to regulate the manner of carrying handguns within constitutional parameters; to prohibit the carrying of handguns in very specific, narrowly defined sensitive places; to prohibit the carrying of arms that are not within the scope of Second Amendment protection; and, to disqualify specific, particularly dangerous individuals (convicted criminals and the adjudged mentally insane) from carrying handguns. 58. The States may not ban, nor compel a license to possess or carry handguns or other arms for self defense, may not deny individuals the right to carry handguns or other arms in non-sensitive places, may not deprive individuals of the right to carry handguns in an arbitrary and capricious manner, or impose regulations on the right to carry handguns or other arms, or impose any licensing scheme of any sort which that are inconsistent with the Second Amendment. 59. Another reason that the Heller decision is appropriate for the Court to consider in free press cases is that Heller's approach is, in fact, very similar to how the Court has already discussed the Free Press Clause, in those relatively few cases in which the history of the Free Press Clause has come up. The Supreme Court has recognized that a prepublication licensing requirement-a prior restraint-is a violation of the First Amendment," reminiscent of the history of abuses of the British Crown under the notorious Printing Acts. As Justice Scalia explained: Thomas v. Chi. Park Dist., 534 U.S. 316, 320 (2002) �The First Amendment's guarantee of "the freedom of speech, or of the press" prohibits a wide assortment of government restraints upon expression, but the core abuse against which it was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the "evils" of the printing press in 16th- and 17th-century England. The Printing Act of 1662 had "prescribed what could be printed, who could print, and who could sell.� 60. The States also may not restrict, or license the possession of firearms, pistols, rifles, revolvers, swords, foils, daggers, or other useful arms that the citizen selects as being most suited to their own defense, and which have been historically useful in defending the home or business. 61. The States are not allowed to dictate which weapons may or may not be kept within the home, only that certain overly unstable or overly dangerous firearms (by reason of a design flaw). For example, a large carriage-mounted, decrepit, badly corroded and cracked cannon would be most unsuited for defense inside the home; however, any modern shotgun, rifle, pistol, revolver, or edged or impact weapons or other weapons this is in good repair and/or commonly used by the police or the military would be well suited to home, business, and property defense. 62. In Archuleta v. Wagner, 523 F.3d 1278, 1282 (10th Cir. 2008) �[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.� Id. at 1282-83 (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)). �Once the qualified immunity defense is asserted, . . . the plaintiff must demonstrate that the defendant�s actions violated a constitutional or statutory right� and that �the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.� 63. In determining whether a constitutional right was clearly established, we look at the specific context of the case. Bowling v. Rector, 584 F.3d 956, 964 (10th Cir. 2009). �A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits. There need not be precise factual correspondence between earlier cases and the case at hand, because general statements of the law are not inherently incapable of giving fair and clear warning. The right must only be sufficiently clear that a reasonable official would understand that what he is doing violates that right.� 64. Further in Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) the court states. �The requisite causal connection is satisfied if the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.� �Any official who �causes� a citizen to be deprived of her constitutional rights can also be held liable.� Snell, 920 F.2d at 700 (quotation omitted). 65. The 10th Cir. Court has demonstrated causation by showing an affirmative link between the constitutional deprivation and the officer�s or government officials exercise of control or direction. 66. The Supreme Court has already ruled on this matter, and poses the first question of conduct in Wilson v. Layne, 526 U.S. 603, 609 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991). The threshold inquiry is whether the plaintiff's allegations, if true, establish a constitutional violation. Hope v. Pelzer, 122 S. Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001); Siegert, 500 U.S. at 232. In the first question, The right to keep and bear arms is a defacto �Constitutional Right� under the 2nd and 14th Amendments, and any infringement or deprivation attempt by any government official or government agency �pierces and rips asunder the veil� of either absolute immunity, qualified immunity, prosecutorial, and even judicial, or immunities of any other types or descriptions. Hence, any government officer, employee, or agent that violates, or attempts to violate a citizen�s Constitutional right does so at the cost of forfeiting all forms of immunity of their office or position, and hence they stand naked and vulnerable before the court, with no immunity of any form whatsoever. 67. The second question by the Supreme Court is whether the right was clearly established before the time of the alleged violation. That question is necessary because those acting under color of authority should be on notice that their conduct is unlawful before they are subject to suit. Hope, 122 S. Ct. at 2516-18; Anderson v. Creighton, 483 U.S. 635, 638-40 (1987). On the second Question by the Supreme Court is that if the right being �clearly established� in that the right is understood by the common man, is well ingrained into the training of any member of the military or law enforcement, and in fact is taught in most High School civics and government courses. In short, the question is that is it a commonly understood, and commonly accepted civil right. The answer in this case is that indeed, most high school graduates would recognize the right, as would any member of the military, most college graduates, and as would all police officers in the Town of Rockport, or elsewhere. The question of whether a right is clearly established is an issue of law for the court to decide. Elder v. Holloway, 510 U.S. 510, 516 (1994), but it can be assumed that the state actors were well aware that the right was indeed �clearly established� or � well understood� by them. 68. The third question is whether a reasonable agent of the state, acting under color of law, similarly situated, would understand that the challenged or prohibited conduct violated that established right. Swain v. Spinney, 117 F.3d 1, 9 (1st Cir. 1997). On the third question, the reasonableness inquiry is also a legal determination, although it may entail preliminary factual determinations if there are disputed material facts (which should be left for a jury). Swain, 117 F.3d at 10. 69. �[T]he concept of due process is equivalent to �fundamental fairness.�� Newman v. Massachusetts, 884 F. 2d 19, 23 (1st Cir. 1989) (citation omitted). Due process requires that impacted individuals be �entitled to the Constitutional minimum of �some kind of hearing� and �some pre termination opportunity to respond.�� O�Neil v. Baker, 210 F. 3d 41, 47-78 (1st Cir. 2000) (quoting Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (footnote omitted). �The ubiquity of the �notice and opportunity to be heard� principle as a matter of fundamental fairness is deeply engrained in our jurisprudence.� Oakes v. United States, 400 F. 3d 92, 98 (1st Cir. 2005) citations omitted. 70. In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are �so rooted in the traditions and conscience of our people as to be ranked as fundamental.� As the Supreme Court has found in the McDonald, and Heller decisions, the right to keep and bear arms, particularly within the sanctity of one�s home, is an ordered liberty of United States citizenship fundamental and beyond the pale of discretionary, subjective regulations by the States. 71. Plaintiff Atkinson, respectfully submits that any statutory scheme which invades the fundamental liberty right of self defense within the home by enacting any scheme which attempts to regulate the possession and/or storage of any firearm(s) providing a basis to interfere in any way or attempt to revoke or impinge upon such a right without the barest of fundamental fairness and due process such as a Loudermill type hearing, is fatally flawed and wholly prohibited under the application of the Second Amendment to all of the States in light of the newly decided authority contained herein. Under the present status of jurisprudence, in light of newly decided authorities, it is respectfully submitted that without a prior showing cloaked with the fairness of a Loudermill type hearing that an individual is either a convicted felon or legally and previously adjudged insane, any interfere with a Massachusetts citizen�s unqualified right to keep arms within the sanctity of the citizen�s home is per se unreasonable and prohibited. 72. Although McDonald�s five Justice majority reached the conclusion that the right to keep and bear arms is a protected liberty interest under the Second Amendment in different ways, under either the Due Process Clause or Privileges or Immunities Clause, a majority confirmed that �the Second Amendment right is fully applicable to the States.� McDonald at 3026. Where a �fourteenth amendment liberty interest is implicated�the state therefore must adhere to rigorous procedural safeguards.� Valdivieso Ortiz v. Burgos, 807 F. 2d 6, 8 (1st Cir. 1986); see also Kuck v. Danaher, 600 F. 3d 159, 165 (2d Cir. 2010) (same). 73. The Supreme Court�s prior restraint doctrine mandates higher standards: �It is settled by a long line of recent decisions of this Court that an ordinance which� makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official � as by requiring a permit or license which may be granted or withheld in the discretion of such official � is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.� [snip] -- James M. Atkinson President and Sr. Engineer "Leonardo da Vinci of Bug Sweeps and Spy Hunting" Granite Island Group jm...@tscm.com http://www.tscm.com/ (978) 546-3803