Schuyler Barbeau Gun Case Pits Principle Against Precedents

By David Codrea

Schuyler Barbeau believes he has a right to keep and bear arms. The government insists he does not. (Facebook photo)
David Codrea in his natural habitat.

USA – -(Ammoland.com)-An honorably discharged Marine and one-time bodyguard to rancher Cliven Bundy insists government has no delegated power to violate his rights in a transcribed statement provided  to AmmoLand Shooting Sports News. Despite his protests, Schuyler Barbeau has been incarcerated at the SeaTac Federal Detention Center since his December 2015 arrest.

The complaint, filed in the United States District Court for the Western District of Washington at Seattle, is posted along with links to other legal documents and numerous reports at LibertyUnderAttack.com. It accuses Barbeau of:

“knowingly possess[ing] a firearm which was not registered to him in the National Firearms Registration and Transfer Record, as required by law, namely, a particular black, semiautomatic AR-15 5.56mm caliber assault rifle with a 10.5 inch barrel and holographic sight, a rifle having a barrel of less than 16 inches in length.”

There are plenty of smears against Barbeau, notably by those who make a lucrative living off ad hominem insinuations like the Southern Poverty Law Center. There’s also no shortage of gun owners ostensibly “on our side” who will argue this isn’t the right case to back, and they’ll cite Barbeau’s own words and actions, being exploited by SPLC and others, to throw him under the bus.

Two sets of laws?

It’s interesting to note that a year-and-a-half after his arrest, Barbeau remains behind bars awaiting trial on a short barrel rifle possession charge. Compare that to, say, Ted Kennedy’s bodyguard, arrested with two submachine guns and ammunition in Washington D.C. and released on his own recognizance.

Here’s Barbeau’s rationale from a transcribed handwritten note:

STATEMENT OF SCHUYLER BARBEAU

“The 2nd Amendment to the United States Constitution declares the right to bear arms shall not be infringed yet at the same time, Congress has the power to tax and regulate interstate commerce –

There are two kinds of firearms – the 2nd Amendment firearms and the interstate commerce firearms – because manufacturers, importers, and dealers are engaging in commerce, and there's a whole industry and market for firearms, Congress can regulate them.  Even tell those businesses that they cannot make certain firearms (i.e. machineguns) for the civilian market, or can require registration before the manufacturer makes certain firearms (i.e. SBR's and suppressors). What I did, after researching the law and Constitution to understand this, was to build my own firearm instead of buying one out of the commerce stream. I am not a business or even engaging in business where Congress would have jurisdiction to impose any requirements or prohibitions on me. I am a private citizen and I made my own gun to use for lawful purposes.

There is no delegated power in the Constitution for Congress to regulate what I do with my two hands in my own home. Congress does not have the power to regulate or prohibit me from making my own gun for my own personal use. Not even the States with their “Police Power” can regulate or prohibit someone making their own gun because the 2nd Amendment extends to the State governments through the 14th Amendment.

The Supreme Court has decided that people making their own guns can still affect interstate commerce because “an object might enter the interstate market and affect supply and demand.”  The Judicial Branch has unconstitutionally extended the reach of the Legislative Branch.

How can people exercise their right to keep and bear arms if they cannot make the arms in the first place? How can the people exercise their right to make and keep and use their arms un-infringed upon if the courts are extending Congress' reach and expanding their powers where the Constitution forbids?

The 5th Amendment requires that no person shall be deprived of the life, liberty, and property without Due Process of Law. I made something with my hands. It was my personal property. Now the government is taking away what I created without any due process. Due Process requires Notice of the Deprivation and an opportunity to have objections heard. Think Eminent Domain. There is a serious deprivation of liberty – to make, keep, and use my personal arms – and property – my rifle – because I have never received any due process. Criminal charges and prison is not Due Process.

If I would have bought an AR-15 complete rifle from a dealer, or if I would have bought a lower receiver for my build that was made by a licensed manufacturer – with a serial number – I would have registered it and got my Tax Stamp for the rifle as a Short-barreled rifle, and I wouldn't have built is as select-fire. That's how I read and understand the law's requirements. But I chose to buy and 80% lower because it is not a “firearm” yet, under the law and is not regulated. I machined it myself and built the rifle. Having an understanding of Congress' limited powers in the Constitution and the Bill of Rights, I read and understood the laws to not apply to me because I am not engaging in business and I didn't buy a “firearm” out of interstate commerce. The 2nd Amendment must still exist and I found it – outside interstate commerce.  But the government disagrees, so I must fight, for all of us. There has to be a line and I am trying to make a bold one in the sand.”

Taking this tack is a reason why he has dismissed court-appointed attorneys reluctant to present such a defense.  Barbeau, assisted by a pro-bono paralegal, wanted to raise the points so they would be on the record if needed for appeal. *

Wayne Fincher found out how courtrooms work the hard way.

The judge has reportedly denied Barbeau’s May 24 motions, and is intent on the case proceeding based strictly on the complaint charge, without allowing arguments based on Constitutionality. That recalls another case from years past, that of Hollis Wayne Fincher, convicted on “illegal weapons” charges. That judge would not allow the Second Amendment to be raised in “his” courtroom as a defense.

“The trial is due to begin Monday, June 5 at 9 a.m,” a spokesperson for Barbeau advises. “We are submitting Motions this week to the Court for a continuance based on newly discovered evidence. It will probably be denied but we have to at least try.”

It’s true, based on existing precedents, this case is (putting it mildly) problematic, and as far as prevailing public sentiments go, Barbeau’s past statements do not make him the ideal sympathetic defendant.  It’s also true this is but one more example of being set up by a provocateur/informant that established and then betrayed trust, something we all ought to be on guard against. If the provocative words attributed to Barbeau were actionable, we’d have seen criminal charges. They are irrelevant to the core issue. Diverting the focus to the defendant's internet presence serves only to prejudice minds against him as a person, and have nothing to do with the actual charge.

What’s Barbeau supposed to do? Take one for the team?

If you ignore the noise and focus strictly on the Second Amendment, why shouldn’t he be able to possess whatever gun he wants?

Why shouldn’t you?

—–

* A source close to the case says the defense has also received advice from famed trial attorney Gerry Spence, noted for, among other cases, winning a $10.5 M settlement for the family of Karen Silkwood and successfully defending Randy Weaver against murder and gun charges after the Ruby Ridge standoff. At this writing, The Spence Law Firm has not responded to a request for a statement.

UPDATE (from seattle pi)

“Schuyler Pyatte Barbeau was one day into a jury trial in which he was representing himself when he pleaded guilty to possessing a machine gun and a related count, which likely will carry a prison sentence.”

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.

  • 12 thoughts on “Schuyler Barbeau Gun Case Pits Principle Against Precedents

    1. I believe we have the right and moral obligation to send all the corrupt judges and politicians packing their bags because they “might” infringe on our rights. Hell, let’s arrest their sorry asses because they “might” rape someone. They all possess the “equipment” to rape. If this schmuck judge can use “might” to circumvent due process then so will I .

      Steve “whats good for the goose is just as good for the gander” G.

    2. “an object might enter the interstate market and affect supply and demand.”

      Unfortunately, that horse left the barn with Wickard v. Filburn. It is precedent, that’s how it is, and there is nothing you can do about it, because since it has been in place for over 70 years, it has gained “longstanding” credibility as settled law.

      This is the country we live in. You have two choices – live with it, or don’t, and go to jail.

      Just. That. Simple.

      It ain’t pretty, but there ya have it.

      1. So we should never attempt to correct unjust laws etc., with your way of thinking we would still be able to own slaves, women would not have any rights etc. Oh wait you must be a democrat, that explains it………..

      2. @BH, It is hard to be right when the government is wrong. But if the judge “is intent on the case proceeding based strictly on the complaint charge, without allowing arguments based on Constitutionality.” Then has he not built in an automatic appeal?
        The government is charging him with a NFA violation. This seems like a perfect opportunity to strike down the NFA using the president of that Murdock case that stands for the proposition that a Civil Right can not be taxed or a fee charged to exercise a Civil Right. Nor has the Constitutionality of the NFA ever been challenged. No NFA, no violation.

      3. The same argument can and will be used to defend gun bans in the future. That is not how the constitution was set up, despite what law schools say. A written constitution limiting powers was created specifically to end the type of common law nonsense that gun banners use.

    3. There are any number of points where his argument is wrong on the law. A good lawyer will explain it to him, but would not try to make such silly arguments in court.

      Otherwise, his own pride and ignorance will cost him his freedom.

    4. Quote} It’s interesting to note that a year-and-a-half after his arrest, Barbeau remains behind bars awaiting trial on a short barrel rifle possession charge {quote
      That sounds like ILLEGAL IMPRISONMENT when he has his freedom restricted with NO TRIAL and over 18 months without a hearing.
      That is NOT to disregard the illegal laws they used to arrest him and are using to Prosecute him.
      TYRANNY at its most blatant exposure.

    5. Wonder if this court is the same one of that notorious and corrrupt/bought-off judge that first “ruled against” President Trump concerning his EO on foreign travellers from certain select areas known to be problematic/ THAT judge never had the authority to take up the Washington and Minnesota vs Donald Trump case…..

      if its THAT judge, I fear this round will go to the boys with the REAL big guns and bottomless taxpayer filled pockets.

      This man has some VERY valid points… he is in jail because he made something with his own hands in his own home for his own use. And NO Mother May I Paperwork nor fees paid to Government-as-god.

    6. Judges ignoring the Constitution is a very scary thing. It points to doing away with the Constitution and sliding into the one world order. How can these lunitics be stopped? They took an oath to uphold the Constitution. If you can’t fire them then there is only one way to get rid of them.

    7. Because the government is “bigger” than most individuals, it wins most fights, regardless of right or wrong, makes sense or is patently idiotic. Because the government is “bigger” it gets to decide what laws are and are not going to be enforced. Check the 2nd Amendment and look very carefully for the words “except, unless, if.” Shall not be infringed “except…” or; Shall not be infringed “if…” or; Shall not be infringed “unless….”

      You don’t have to like it, accept it or even believe it. The government’s answer: TS!

    8. We all have a duty to nullify laws that were not made in persuance of the constitution – and a law saying a rifle that is 15 inches is illegal while the exact same rifles an inch longer are legal is a perfect example of arbitrary nonsense. What constitutional basis was used to determine a 16 inch barrel is legal but anything under that is illegal?

      1. Becasue they get to pass these stupid laws which forces us to pay for attorneys to fight them. Yes we win eventually but there is no punishment against these politicians that play the system.

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