1st and 2nd Amendments

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO New Mexico Court of Appeals 32,326 Second Judicial District Court No. DV-12-234 BARRIE LEE DERRINGER, Appellee/Petitioner, v. DAVID BRIAN DERRINGER, Appellant/Respondent, DAVID DERRINGER, APPELLANT’S MEMORANDUM IN STATEMENTS OF 2ND AMENDMENT RIGHTS AND PERJURY AND FRAUD IN THE UNDERLYING DV-12-234 COMES NOW the Appellant/Respondent Pro-Se with his Memorandum as stated above. At all times David Derringer preserved his 2nd Amendment rights, as under Constitution rights are guaranteed and do not have to be protected day by day or from person to person. Yet at all times from the onset of the hearing of February 21, 2012 and ongoing in both DV-12-234 and DM-12-610 David Derringer has continued to state his rights to both firearms, a profession of professional outfitter/big game hunter No. 32 in New Mexico as registration with NM Game and Fish, and a right to an occupation by case laws exclaiming that a "profession" is a property right, which brings it under jurisdiction of the US Code Title 42 Section 1982. Muckleroy v. Muckleroy, 498 P.2d 1357 N.M.,1972. A constitutional right is a legal right of its citizens (and possibly others within its jurisdiction) protected by a sovereignty's constitution. The United States Constitution has several articles and amendments that establish constitutional rights. Although debated in political circles, the 2nd Amendment "right to bear arms" establishes a right to own, possess, and use firearms for lawful purposes, and the fairly recent ruling by the US Supreme Court No. 10-1521 established the right for firearms as a "personal right" "not to be infringed", under the meaning of right to "bear" meaning right to possess and hold. The 2nd Amendment involving “firearms” includes such tangible items as “personal property” as defined available for all citizens under US Code Title 42 Section 1982. City of Memphis v. Greene, Tenn. 1981 101 S. Court 1584, 451 US 100, 67 L.Ed.2d 769 rehearing denied 101 S. Ct. 3100, 452 US 955, 69 L.Ed.2d 965 “Private Individuals-This section [Title 42 U.S.C. Section 1982] guaranteeing all citizens of the US the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property is directly applicable to private parties.”. Not only can there be “no infringement” of the right to firearms under the 2nd Amendment, but under US Code Title 42 Section 1982 there can be no “interference” with owning, using and possession of “personal property of firearms”. Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 (1968) No. 645 “All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. Congress provided that the right to real and personal property was to be enjoyed equally throughout the United States, and that right was to be secured against interference from any source whatever, whether governmental or private.” The “justice” in New Mexico is somewhere between the Spanish Inquisition and burning at the stake, having nothing to do with Constitution or law, but only the egotistical tyranny and oppression of judicial persons in power; New Mexico known as the “land of entrapment”. David Derringer “protected” his 2nd Amendment rights from the unlawful DV-12-234 that was held without due process, equal protection, without legal service of summons, under provable perjury and fraud, and with a proven bias and prejudiced Commissioner Cosgrove/Aguilar that hates “men”, and without any standard of proof mandated, and with no criminal charges of “domestic violence”. The Commissioner stuck an Order of Protection against David Derringer for a period of two years, summarily taking Constitutional rights under the 2nd Amendment as a matter of illegal “regularity” by a standardized “form” blanketed against all that enter this court. “Order of Protection” 2: Consequences of entry of order of protection (B) “if you are the spouse or former spouse of the other party, an individual who cohabitates with or has cohabitated with the other party, or if you and the other party have had a child together, federal law prohibits you from possessing or transporting firearms or ammunition, you should immediately dispose of the firearm or ammunition.” Clearly, without due process of law, and without any domestic violence violation, and without any criminal conviction of either a firearms violation or domestic violence violation, “federal law” does not presume that the citizen is guilty of any matter to prevent possession, use or ownership of firearms. US Citizens are innocent until proven guilty. The “standardized” form of the 2nd Judicial District Court Order of Protection simply, without due process or cause takes Constitutional rights as a matter of every citizen that comes before them. In this matter involving David Derringer, there is no evidence whatsoever to support the order of protection in the record as Barrie Derringer produced no witnesses, no doctor’s report of injury or bruises, no photographs of bruises and no evidence of keeping her from leaving; in short here is no evidence whatsoever to sustain the Order of Protection. On the contrary, David Derringer has the police report of 2-4-2012 of APD showing no domestic violence, a witness Bruce Davis testifying later in DM-12-610 that there was no domestic violence, and pages of Sprint text phone print outs showing Barrie Derringer is not afraid of David Derringer and Barrie Derringer’s own testimony that she states that “David Derringer would never hurt me physically” in the court record of DV-12-234 on February 21, 2012. The trial court “refused” to allow David Derringer’s witness, Bruce Davis at the hearing of February 21, 2012 proving not only a bias of the court that mandated dismissal of the case, but deprivation of due process and equal protection that rendered the trial court without jurisdiction or judicial capacity in “fundamental error”. The trial court sustains an order of protection without any evidence in the court record and defies the Constitution 2nd amendment and US Supreme Court No. 10-1521 in blatant “judicial terrorism” against David Derringer. The “federal law”, namely US Code Title 18 Section 922, does not allow David Derringer’s second Amendment rights to be taken by a “simple civil allegation” of Barrie Derringer that David Derringer did domestic violence, when she impeaches herself that “David Derringer would never hurt me physically.”; thus clearly no domestic violence occurred to even apply or gain any Order of Protection; an act by Barrie Derringer of a 4th degree felony. David Derringer immediately “appealed” the findings of the Commissioner to Judge Hadfield, who disregarded and summarily denied the legal appeal by simply stating “denied” without any authorities or reasons for the denial, save the total corruption of the New Mexico family court system. “This Court previously has recognized–even with respect to another statute the legislative history of which indicated that courts were to have “wide discretion exercising their equitable powers,” 118 Cong. Rec. 7168 (1972), quoted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)–that “discretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgement is to be guided by sound legal principles.’ ” Id., at 416, quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). Thus, a decision calling for the exercise of judicial discretion “hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.” Albemarle Paper Co., 422 U.S., at 416.”” United States v. Taylor, 487 U.S.326, 108 S. Ct. 2413, 101 L. Ed. 2d 297,56 U.S.L.W. 4744. (Emphasis added) “At a minimum, the district court must listen to a party’s arguments and give reasons for its decision.” Schwarz v. Folloder, 767 F.2d 125 (5th Cir. 08/01/1985). Not only then did the Respondent appeal this matter to this New Mexico Court of Appeals under No. 32,326, but filed a “Petition for Writ of Superintending Control” with the New Mexico Supreme Court under No. 33,826, showing the violations of Constitution, Oath, Code of Judicial Conduct and Canon, exposing the “public corruption” of Judge Hadfield. Consequently, the entire “judicial circle” of New Mexico knows of the egregious acts against Constitution by Judge Hadfield and Commissioner Cosgrove/Aguilar, and will do nothing about the corruption, with the NM Supreme Court “denying” the Petition for Writ of Superintending Control. David Derringer has also turned in both the Commissioner and Judge Hadfield to both head Judge Ted Baca and the 2nd Judicial District court administrators and to the Commission on judicial standards, with no action taken to stop a judge violating Constitutional rights without due process and without any standard of proof whatsoever. In the meantime, David Derringer has been denied his Constitutional rights for a year, deprived income by legal occupation involving firearms, and made homeless and destitute by the public corruption of New Mexico, mandating this court to legally correct this matter by reinstating Constitutional rights; sanctions and punishment for all involved in taking 2nd Amendment rights and profession; Order for law enforcement criminal prosecution against Barrie Derringer for perjury and fraud; federal investigation of public corruption including violations of oath and “conspiracy against rights” and “deprivation of rights under color of law” that involves removing Commissioner Cosgrove/Aguilar and Judge Hadfield from the bench; and restitution for David Derringer in extreme amounts of money from the justices involved and from the State of New Mexico. “When an alleged constitutional rights is involved, most courts hold that no further showing of irreparable injury is necessary” (citing 11A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure 2948.1 (2d.ed 1995) see also Suster v. Marshall, 149 F.3d 523, 533 (1998). “...the loss of Amendment freedoms, for even minimal periods of time constitutes irreparable injury”. Code of Judicial Conduct Canon 3 (D)(1) Disciplinary responsibilities: “A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A Judge having “knowledge” that another judge has committed a violation of this Code that raises a substantial question as to the other judge’s fitness for office shall inform the appropriate authority”. Thus, the “corruption” of New Mexico justices knows no bounds, and is instrumental in taking all rights from a US citizen without legality. In this matter, David Derringer’s citizenship and Constitutional rights are taken by a fraudulent “civil allegation” of Barrie Derringer, with facilitation of public corrupt justices not interested in seeking to maintain a marriage, and without a rational decision to have both parties undergo some counseling to save the marriage, with Barrie Derringer admitting to being suicidal under oath, and while under her bipolar drugs, in PTSD, and possibly back on cocaine, with her mental state in question and her emotional state in turmoil. New Mexico is not a functional part of the union, and a rogue instrument of sedition and tyranny to any that come or reside here. A quote from U.S. Supreme Court Justice Tom C. Clark in Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961), as follows: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."” (Emphasis added). The provisions providing for rights under the Bill of Rights were originally binding upon only the federal government. In time, most of these provisions became binding upon the states through selective incorporation into the due process clause of the 14th Amendment. When a provision is made binding on a state, a state can no longer restrict the rights guaranteed in that provision. The 2nd Amendment right cannot be restricted or denied by the Order of Protection as simply a write in of a pre-select form, that always incorporates a deprivation of use, ownership and possession of firearms as a standard of any order of protection against any person that comes before the court. In this matter, the original due process and equal protection provisions of the 5th and 14th Amendment were already violated by DV-12-234 without legal service of summons in personam, discharge of duties and rights to present evidence, have witnesses, and proper cross examination deprived. These egregious acts in the original hearing of February 21, 2012 make it without jurisdiction and judicial capacity in "fundamental error". The egregious acts that followed violate every provision of the Constitution, both Federal and State, as well as violations of federal property rights laws under the US Code Title 42 Section 1982, that includes a New Mexico case law support of an occupation and profession being also a "property right". Roberts v. State Bd. of Embalmers and Funeral Directors, 434 P.2d 61 N.M.,1967 Recently, on December 11, 2012, Barrie Derringer again commits perjury and fraud again to attempt to reopen the legally defective DV-12-234 again to take away David Derringer's 1st Amendment rights. The corruption of the 2nd District Court's family court division is extreme, and Commissioner Cosgrove/Aguilar has already “denied” a motion to state what standard of evidence and proof will be used by the court in deprivation of 1st Amendment rights, just as none was used to deny David Derringer’s 2nd Amendment rights, and Commissioner Cosgrove/Aguilar “refuses” to recuse for cause. In short, when a proper pleading asks the court if the law will be followed, the DV-12-234 court declines to follow the rules of civil procedure or the law. The various provisions of the 1st Amendment, guaranteeing the freedoms of speech, the press, government, and assembly, and the provisions of the 2nd Amendment guaranteeing the "right to bear arms" are fundamental rights that "cannot be infringed". No simple "allegation" of claimed and yet totally unsubstantiated "domestic violence" by Barrie Derringer is far less than sufficient for any court to rule against the Constitution in violation of Oath, making such Order or Protection both in violation of the Supremacy Clause, as well as sedition and treason against the United States under the meaning of the 14th Amendment Section 3. Doe v. Pringle, 550 F.2d at 596 (10th Circuit 1976) at 599 “A federal district court may exercise jurisdiction in relations to review of alleged federal constitutional due process or equal protection deprivations.”; In re Aquinda, 241 F.3d 194 “Presumption exists that a judge will put personal beliefs aside and rule according to the laws as enacted, as required by his or her Oath. 28 USCA 455(a)”.; Adamson v. C.I.R. CA9 1984, 745 F.2d 541 “Federal Courts cannot countenance deliberate violations of basic Constitutional rights; to do so would violate judicial oath to uphold Constitution of United States.” The State of New Mexico also has a Constitution patterned after the US Constitution that not only supports all aspects of the US Constitution, but grants even more privileges, immunities and rights. The New Mexico State constitution cannot reduce legal protections afforded by the federal charter, but it can and does provide additional protections for David Derringer and all other citizens. California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 77 l.Ed.2d 1171 (1983). Even where the text of a state constitution matches verbatim that of the federal constitution, the state document may be held to provide more to the citizen. The preformed Order of Protection that is held against each and every person that comes into contact with the 2nd judicial domestic violence civil division violates the Supremacy Clause of the Constitution Article VI particularly when there has in this matter been no "criminal charges" of domestic violence, no arrest, no criminal indictment or conviction, and wherein Barrie Derringer provably impeached herself and her bogus and fraudulent "allegations" of domestic violence when she stated under oath on February 21, 2012; "David would never hurt me physically" which is in a total contradiction to the writing under notary oath of her "Petition for Order of Protection", making Barrie Derringer provably committing a forth degree felony. “Where the state is not in compliance with the federal regulations because of judicial constructions that circumvent or undermine the legislative intentions of the act, a new question arises as to the legitimacy of the state’s participation in the federal program. Because federal regulations and laws cannot infringe upon the Constitutional rights of United States Citizens, it can be presumed that those rights are protected under the federal mandates. If the state is going to make rules or practice procedures, which deny those rights, then the state actions become void, and this issue prevails over any other under consideration. And where the Constitution of the state or the state statutory laws are subverted through similar means, the people have no duty to perform unless under threat or coercion by further illegitimate means in order to protect their very lives.” This NM Court of Appeals, as was the lower court, is bound by the “supremacy clause” that mandates dismissal of the Order of Protection, re-instatement of David Derringer's Constitutional 2nd Amendment rights to use, own, possess and sell and convey firearms, as well as use them in an occupation or profession, under both provisions of the 2nd Amendment, US Code Title 42 Section 1982 and under the NM Constitution. The 4th Amendment of the US Constitution prohibits unlawful search and seisure, upon which this trial court both seizes and denies possession of firearms without due process and equal protection in a hearing that is jurisdictionally defective, of which rights are guaranteed to David Derringer as a "personal possession" in the recent ruling of the US Supreme Court No. 10-1521 that allows "firearms" to be used not just as a "militia" but as "personal protection". The United States Constitution 4th Amendment IV: Security from Unwarrantable Search and Seizure- “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the person or things to be seized.” The "probable cause" in this matter was a woman, Barrie Derringer seeking revenge, retribution and retaliation of not being able to obtain all of the Derringer's family moveable property on February 4, 2012, when shut down in the break-in by David and APD, she carefully planned with 12 other friends, bosses and criminal accomplices, and two days later, without any domestic violence actions by David Derringer perjured herself in fraud to "allege" that David Derringer had done domestic violence on that date simply to gain both “revenge” and a no-contact order so that David Derringer could not find all of the personal property stolen by Barrie Derringer and her 12 criminal accomplices. In fact, on that date the 12 other person with Barrie Derringer, including, but not limited to Debbie Harms and Irwin Harms did criminal assault and battery on David Derringer due to David Derringer telling them to leave his property alone and to remove themselves from the premises owned and leased by David Derringer which was in every effect the right of David Derringer. The Order of Protection of DV-12-234 used in legal error and “judicial terrorism” against David Derringer all underlying this entire malicious filing of divorce DM-12-610 must be dismissed and released immediately against David Derringer. The Constitution of the State of New Mexico Article II Bill of Rights Section 4: Inherent rights-“All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, and acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.” The New Mexico Constitution, thus grants David Derringer even more rights to protect his profession, his property including firearms, and use of firearms legally to protect and defend his own life and the lives of his livestock and animals. The Order of Protection DV-12-234 was without legal service of summons, and David Derringer notified the court before hearing so that the hearing had to be dismissed. The material witness Bruce Davis was denied by Commissioner Cosgrove/Aguilar and this bias and prejudice makes the hearing jurisdictionally defective, although Bruce Davis testified under oath on August 23, 2012 in DM-12-610 that no domestic violence occurred between David Derringer and Barrie Derringer but that criminal assault and battery did occur by 12 persons with Barrie Derringer, with obviously Barrie Derringer as “accessory”. Barrie Derringer lied in criminal perjury and fraud in the “Petition for Order of Protection” on February 6, 2012, by statements that on February 4, 2012 David Derringer had knocked her down and hurt her hip, caused bruises, kept her from leaving and wherein Barrie Derringer is very afraid of being hurt physically by David Derringer. Instead, testimony proves that at no time did David Derringer ever “touch” Barrie Derringer on February 4, 2012, even when Barrie Derringer came rushing to calm and console her husband after the assault and battery by Barrie Derringer’s own gang of 12 persons, and wherein Barrie Derringer placed her hands on David Derringer’s cheeks, and said “Calm down, you’re OK”, David Derringer still did not physically touch, hug or kiss, or make any other actions with contact of Barrie Derringer. On that day, nor at any other time in the history of the Derringer’s relationship or marriage did any domestic violence occur by David Derringer, but Barrie Derringer admitted under oath on August 23, 2012 to hitting David Derringer in the face multiple times in “domestic violence” of her own, not reciprocated by David Derringer. DV-12-234 arose out of only criminal perjury of Barrie Derringer “accusing” David Derringer of on February 4, 2012 knocking Barrie down, hurting her hip, causing bruises and keeping her from leaving. Cosgrove defied rights of due process to keep David Derringer from having his witness Bruce Davis testify that as a witness before placing the order of protection against David Derringer on February 21. 2012. All of Barrie Derringer’s false statements in the Petition for Order of Protection were “fraud and perjury” as a fourth degree felony. Bruce Davis has now testified in DM-12-610 on August 23, 2012 that all statements of Barrie Derringer to gain the Order of Protection are false, fraud and perjury. There are also other witnesses of the incident that prove the perjury and fraud of Barrie Derringer, as was proven by the APD police report of February 4, 2012, proven again by the conflict of Barrie Derringer’s own testimony, proven again by the testimony of David Derringer and Sprint phone texts printouts of the Derringer’s phones and proven by witness of Bruce Davis in the trial of August 23, 2012 in open court of DM-12-610. At no time could any justice deny David Derringer’s rights to bear arms under no evidence, no prior record of criminal activity and no present criminal accusations of Barrie Derringer due to US Supreme Court No. 10-1521 ruling that a firearm is a personal right under the 2nd Amendment. Dunn v. McFeeley, 984 P.2d 760, 127 NM 513, 1999-NMCA-084 cert. denied “A legal point is clearly established, when it has been decided by either the highest court where the cause of action arose, by a United States Court of Appeals, or by the United States Supreme Court. The district Court knew that the Order of Protection violated all Constitutional rights to bear arms under the 2nd Amendment as well as knew, as does this court that it violates the ruling of the US Supreme Court No. 10-1521. Judge Hadfield “did not” deny David Derringer’s “appeal” of DV-12-234 with facts that deprivation of 2nd Amendment rights against David Derringer are supported by substantial evidence, as there was “no evidence”. Judge Hadfield simply denied an appeal of DV-12-234 with no mandated hearing on the matter, and without any explanation whatsoever, and did so without any jurisdiction on May 6, 2012 after losing all jurisdiction of the case when an appeal (No. 32,113) was taken legally on May 4, 2012. The deprivation of Constitutional rights was willful and malicious and without legal ability. On June 6, 2005, the United States Supreme Court ruled that. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail...” in Gonzales v. Raich, No. 03-1454 SEE United States v. Colorado Supreme Court, No. 98-1081, 10th USCA. DV-12-234 has violated the Supremacy Clause by attempting to regulate an area of federal law controlled in the Second Amendment. Alexander v. Delgado, 84 NM 717, 507 P.2d 778 (1973); State v. Sedillo, “it appears that the Supreme Court necessarily decided the issues underlying the claim” in US Supreme Court No. 08-1521 in 2010. Stoneking v. Bank of America, 132 NM 79, 43 P. 3d 1089. “Under Article VI of the Constitution, the laws of the United States “shall be the supreme law of the land; any thing in the Constitution or laws of any State to the contrary notwithstanding”. US Constitution Article VI Cl.2 “The Supremacy Clause prohibits the application of state laws which conflict with federal laws.” Home Mortgage Bank v. Ryan, 986 F.2d 372, 375 (10th Cir. 1993).” This places not only this court in mandate to release the Order of Protection but also mandates that Order issue to arrest and prosecute Barrie Derringer for the 4th degree felony of “perjury” in a notarized statement meant for fraud and false criminal allegations against husband David Derringer for corrupt purposes of malicious prosecution and harassment, retaliation and retribution against David Derringer, wherein the “plan” of stealing all Derringer property of any kind on February 4, 2012 before any divorce filing was thwarted by David Derringer calling 911 and the APD putting a stop to the deceit of Barrie Derringer and 12 persons engaged in the attempt to take all community property, Barrie Derringer property and David Derringer property and to leave David Derringer with “nothing” before even the filing of divorce by Barrie Derringer. State v. Miller, 92 NM 520, 590 P>2d 1175 (1979). In the process, serious judicial jurisdiction defects abound, to include but not limited to lack of service of summons, forcing David Derringer to continue with a hearing in which he was not served and gave notice of such before hearing, (no service in personam) Constitutional violations, due process and equal protection violations, violations of US Supreme Court ruling No. 10-1521, and violations of the Supremacy Clause of Section VI of the Constitution, and proven contradictions in the testimony of Barrie Derringer, and whereas there was not only no “preponderance” of evidence to sustain Barrie Derringer’s Petition, but no evidence whatsoever for the Petitioner but her false statements. State v. Hargrove, 81 NM 145, 464, P.2d 564 (Ct. App. 1970). Barrie Derringer fails and “refuses” to account for the personal property of David Derringer including both firearms and ammunition and Barrie Derringer does “fraud” to her husband. Mead v. O’Connor, 66 NM 170, 344 p.2d 478 (1959). Barrie Derringer has after December 2011 low or no moral fiber and has done extensive misconduct, and criminal acts that show bad or no moral character so as to show the lies and deceit of Barrie Derringer over many of the issues in both DM-12-610 and DV-12-234 as provable perjury. As DV-12-234 is the basis of the divorce proceedings, and such must be dismissed, also making the DM-12-610 both brought in malicious prosecution and for improper purposes, DM-12-610 must also be dismissed with prejudice with no possible “divorce” available for Barrie Derringer. In the United States of America, a citizen is presumed innocent of any and all allegations against him, until a valid court of law is convened under civil or criminal circumstances deems that citizen “guilty”, that would disrupt Constitutional and statutory rights, privileges and immunities by evidence in extreme so as to allow any disabling of those rights. Mere “allegations” by another citizen, or the mis-use of a court without jurisdiction, without judicial capacity and without or with mis-use of power is not enough to take away Constitutional rights or rights to a profession under “private property rights” as with the meaning of the US Code Title 42 Section 1982. 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. Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller, the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units. Moreover, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints. However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home or an occupation that requires such use Moreover, this right applies not just to the federal government, but to states and municipalities as well, making it impossible for an Order of Protection issued by a domestic violence court to deprive Constitutional rights. The Order of Protection thus is “federally illegal” against David Derringer. In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the law made it impossible for citizens to use arms for the core lawful purpose of self-defense. The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule. Further, the Court distinguished United States v.Miller, in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes. In McDonald v. Chicago, the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Under the unlawful Order of Protection David Derringer, nor any other citizen subjected to the pre-formed Order by the 2nd Judicial District Court is denied self-defense as a matter of course of any person affected by an order of protection without any reasoning or cause. The US Supreme Court has already reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. In this matter, several Derringer pets have been killed needlessly by coyotes due to the prevention available if only David Derringer had had his firearms to protect them. David Derringer has also been under a “death threat” with no means of protecting himself. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. U.S. v. Emerson (1999 - 5th Judicial Circuit - Texas, Louisiana, and Mississippi) - reversed the conviction of a man prohibited from owing a gun as part of a marital restraining order on grounds that this deprived him of his Second Amendment rights. The 2nd Amendment guarantees the rights of people, the word "people" to mean citizens as individuals; otherwise the founding fathers would have said the rights of states. Well-armed individuals can defend themselves better from crime, studies citing an estimated 2.5 million defensive gun usages (DGU) a year. Gun ownership is a personal freedom because you can determine your own fate, and this right is near the top of the list of fundamental freedoms. Civil Rights Act of 1866. “That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom.”. The word "people" or “persons” are to mean the collective body, as in the American people. "Keep and bear" are the retention of personal firearms in the home, the free carrying of them elsewhere, and David Derringer is a US citizen that falls under those rights. The words "Keep and bear" are instilled in the meaning of the US Code Title 42 Section 1982 guaranteeing all citizens of the US the same right as is enjoyed by white citizens to inherit, purchase, lease, sell, hold, and convey real and personal property is directly applicable to private parties.” The word "arms" definitely includes “firearms” and is not restricted to any other weapon that is not capable of discharge for effect at some distance. The US Supreme Court No. 10-1521 is the case, McDonald v. Chicago, was the logical follow to the court's 5 to 4 decision in District of Columbia v. Heller. That 2008 decision established for the first time that the Second Amendment's "right to keep and bear arms" referred to an individual right, not one related to military service. The decision that there is a right to keep a gun in one's home did not state exemption of New Mexico resident David Derringer. Justice Anthony M. Kennedy, one of the five in decision stated that: “the point of their ruling -- that the right to bear arms was fundamental to liberty.” "If it's not fundamental, then Heller is wrong, it seems to me," Kennedy said. The US Supreme court already has incorporated most of the Bill of Rights through a part of the 14th Amendment that says states may not "deprive any person of life, liberty, or property, without due process of law." David Derringer did not receive due process or equal protection of the laws in DV-12-234 and rights were taken anyway in corruption of the courts. The combination of both Constitution and US Code rights under Title 42 Section 1982 forbids laws that abridge "the privileges or immunities of citizens of the United States." as does the DV-12-234 Order of Protection. The U.S. Supreme Court held that the right of an individual to keep and bear arms is protected by the Second Amendment to the United States Constitution and is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The right to own a handgun in your home, the 2nd Amendment now affirmed as an individual right and enforced against the states, is quite unambiguously to "keep and bear." That means carry, and an order of protection that prohibits that is “unconstitutional”. In 1857, the Supreme Court denied the Bill of Rights to blacks by disregarding the privileges and immunities clause, just as DV-12-234 has done against rights of David Derringer. What the court said back then was illegal and stunning: "It would give to persons of the negro race, . . . the right to enter every other State whenever they pleased, . . . the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. " and it denied those rights to blacks. The Dred Scott case was wrongly decided and the basic privileges of citizenship were well-known, and clearly discussed by the court. "Keep and carry arms wherever they went" is an old, traditional, well-grounded part of being a free man and a citizen, and David Derringer’s “citizenship” has been taken by a mere unfounded and fraudulent “allegation” that was impeached by the very person claiming; Barrie Derringer. David Derringer is a “free” citizen in New Mexico never convicted of any crime, and has certainly done no crimes against Barrie Derringer, a wife that David Derringer loves with all of his heart, despite a strong possibility of emotional and mental disorders requiring medications by Barrie Derringer in a bi-polar condition that necessitates attaining a “balance” from the taking of prescription drugs of tranquilizers, anti-depressants, anti-anxiety, hormone medications and pain medications with addictive drugs included such a codeine (such drug can be a hallucinogen and can distort reality for users), such as, but not limited to ibuprofen, pseudovent, oxycodone, flonase, benzonatate, hydrocodone, allegra, promethazine, estradiol, guaifen, acetaminophen with codeine, and singulair. All of these drugs when combined with any alcohol or absolutely with any use of marijuana, cocaine, meth or heroin would cause an explosion of delusions or death or strong suicidal tendencies; and the strong possibility of Barrie Derringer again as in the past history doing alcohol abuse, marijuana and cocaine that disrupt her way of thinking and indeed create a penchant to “lie”. As exposed on the Internet, Peter R. Breggin, MD recent studies show that those antidepressants that are supposedly helping emotionally challenged people like Barrie Derringer actually are making them crazy, violent, suicidal, agitated, and Barrie Derringer has admitted under oath to being suicidal in DM-12-610 on August 23, 2012. “Accusing” David Derringer of domestic violence that never happened, while Barrie admits to actually doing domestic violence against David Derringer is of court record. The fact that every one of the recent suicide killers was either on or had been on one of these drugs and that psychiatric drugs are the second-largest category of drugs, makes the Order of Protection unfounded both in facts and law. Clearly, Barrie Derringer does not need “protection” from a man that loves this woman and has her best interests in mind at all times, but needs counseling and “protection” from herself, and depriving David Derringer his Constitutional rights does not at all address a marriage situation, but only penalizes the husband against being a US citizen, and properly caring for and loving his own wife. In the past marriage with living with David Derringer, Barrie was happy and secure in the love between the couple. However Barrie Derringer used very little of any prescribed drugs and to the knowledge of husband David Derringer did not drink alcohol and did not use any illegal drugs at any time. So for the corruption of the NM courts to illegally defy oath and condone Constitutional deprivations against an American citizen, who can travel freely between the United States without permission, passports, or papers, can speak freely in public or private, and can freely defend himself is profoundly unclear. The latest action of Barrie Derringer in DV-12-234 is to attempt to take away the 1st Amendment, causing more waste of tax payer dollars as David Derringer will have to defend himself against a new onslaught of criminal fraud without cause. In 1857 in Dred Scott actions were taken to make someone less than a full citizen, exactly what the NM courts are doing to David Derringer in DV-12-234, stating that just because of unfounded accusations by Barrie, David was not and could not be a citizen and therefore did not have the protection of the Constitution afforded all full citizens free travel, speech, or carrying arms wherever you went to be a free man and citizen of the United States. Heller makes right to bear arms an individual right, and clearly McDonald v. Chicago does not reverse Heller or change Heller at all; it is consistent with Heller and incorporates the 2nd Amendment against the States. It is now a matter of settled law from the US Supreme Court that David Derringer has a right to possess, own, use and carry firearms and certainly has a right to use those in a profession of New Mexico Big Game outfitter/hunter #32 whenever he chooses to use that occupation. Neither the trial courts of Commissioner or Judge Hadfield, nor this NM Court of Appeals have any legal ability to “over-rule” the US Supreme Court. Disregarding David’s age, indeed, the notion of the collective right of any man capable of joining a militia to provide for the common defense would be entitled to keep and bear military weapons, so-called assault rifles, and similar, and the Order of Protection would not hold. United States citizen and “rights” have long been synonyms. The only way a man could be denied these fundamental rights by a woman’s whim or perjury could be by making David Derringer less than a full citizen, or unable to be a citizen at all in doing as in the case of Dred Scott of 1857; Barrie Derringer does to David Derringer in 2012. People have lives outside their homes and the constitutional rights apply outside their home. The case DV-12-234 has had “fundamental error” from the onset, to where the 2nd Amendment violations are simply a culmination of the extreme egregious acts of prior violations of the 4th, 5th and 14th Amendments, and the upcoming attack on the 1st Amendment by Barrie and Commissioner Cosgrove/Aguilar and Judge Hadfield running rampant and out of control in a total disregard all former case laws, disregard the US Supreme Court rulings and violations of “due process and equal protection” wherein public officials all “swore to God” to uphold the law of the United States and instead performs acts of their own agenda and personal beliefs as simply acts by “judges” without jurisdiction acting without law, but not acts that are “judicial in nature” where both Cosgrove, and Hadfield, simply will not comply with any law of Constitution, NM statutory laws, US Code, or case laws blaspheming their Oath; constituting “criminal perjury” of the justices involved that must be prosecuted to protect the integrity of the judicial system. In re Williamson, 43 BR 813 “An oath is an affirmation of truth of a statement, which renders one willfully asserting an untruth punishable for perjury.”; Canon: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.” Phelps v. Hamilton, 122 F.3d 1309, 1323 (10th Cir. 1997). “manifest error of law is clearly present.”; McBeth v. Nissan Motor Corp. USA, 921 F. Supp. 1473 “DSC 1996 When any court discerns what it considers to be improper activity during litigation, it is court’s sworn duty to eliminate that conduct for the prompt and fair administration of justice.” DV-12-234 is without legal doubt a “conspiracy against rights” to obtain no due process or equal protection. US v. Guest, US Ga. 1966, 86 S.Ct. 1170, 383 US 745, 16 L.Ed.2d 239 “This section (Title 18 Section 241) pertaining to conspiracy against rights of citizens encompasses due process and equal protection clauses of USCA Constitution Amendment 14 and is not unconstitutionally vague.” This places DV-12-234 in a lack of jurisdiction and judicial capacity wherein the entire DV-12-234 must be dismissed with prejudice, reinstating David Derringer’s rights including, but not limited to the 2nd Amendment. REQUEST FOR RELIEF Respondent/Appellant David Derringer requests the following relief mandated by law to be Ordered by a court working under Constitutional provisions. 1. Order reinstatement of all of David Derringer’s Constitutional and citizen’s rights in the United States, that include the 1st, 2nd, 4th, 5th and 14th Amendments and rights under all US Code to include Title 42 Section 1982. 2. Order the dismissal with prejudice DV-12-234 in its entirety as “fundamental error” with no jurisdiction or judicial capacity and “void” under Constitutional violations. 3. Order under Canon 3 (D)(1) duties, the permanent removal from the bench of Commissioner Cosgrove/Aguilar and Judge Alisa Hadfield for violations of oath, and the 14th Amendment section 3. 4. Order sanctions and damages subjecting David Derringer to one year of deprivation of Constitutional rights, citizen privileges and immunities, and deprivation of income and emotional distress by all persons of Barrie Derringer, attorney Alain Jackson, Commissioner Cosgrove/Aguilar, Judge Hadfield and from the State of New Mexico, for $50,000,000.00 to be awarded David Derringer from each of the above persons that did the “conspiracy against rights” and “deprivation of rights under color or law” under the meaning of US Code Title 42 Sections 1983, 1985, 1986 and Title 18 Sections 241 and 242. 5. Order law enforcement for investigation and prosecution of Barrie Derringer for perjury, fraud, falsification of the court record, conspiracy and malicious prosecution. 6. Order by mandate that the “standardized” form of the domestic violence courts delete the actions of taking 2nd Amendment rights without due process or equal protection. 7. Any and all other relief as is deemed just and proper. Respectfully submitted by:________________________________________ David Derringer, Pro-Se Box 7431 Albuquerque, New Mexico 87194 CERTIFICATE OF SERVICE 1-24-12 I hereby certify that I hand delivered a copy of this pleading to: NM Court of Appeals Albuquerque branch New Mexico Court of Appeals clerk P.O. Box 2008 Santa Fe, New Mexico 87504 I further certify that I sent by mail a copy of this pleading to: Petitioner’s attorney of record Alain Jackson, 423 6th St. NW Albuquerque, New Mexico 87102 David Derringer, Box 7431, Albuquerque, New Mexico 87194