Posted on 01/10/2007 12:44:45 PM PST by looscnnn
A lawyer whose client is on trial for having "militia" weaponry says he'll ask questions and raise arguments about the 2nd Amendment, and then let the judge rule whether or not the Bill of Rights can be discussed in a federal courtroom these days.
A federal prosecutor in the Arkansas case against Hollis Wayne Fincher, 60, who's accused of having homemade and unregistered machine guns, has asked the judge to censor those arguments.
But lawyer Oscar Stilley told WND that he'll go ahead with the arguments.
"I'm going to ask questions, what else can I say?" he said. "There is a 2nd Amendment, and it means something, I hope."
"His (Fincher's) position is that he had a legal right to bear arms that are suitable and customary to contribute to the common defense. If it's a militia army, it's what customarily would be used by the military suitable for the defense of the country," Stilley said.
The objection to constitutional arguments came from Assistant U.S. Attorney Wendy Johnson, who filed a motion several days ago asking U.S. District Judge Jimm Larry Hendren to prevent Fincher and Stilley from raising any such issues.
"Yes, that is correct – the government does not want to allow the defense attorney to argue the law in Mr. Fincher's defense," Michael Gaddy wrote on Freedom Watch.
"If a defendant is not allowed to base his/her defense on the Constitution, the supreme law of the land, we are certainly doomed. If we allow these criminal acts perpetrated on law-abiding citizens to continue, we might as well turn in all our guns and scheduled a fitting for our chains," he wrote.
"Yes, Hollis Wayne Fincher goes on trial on January 8th – but so does our Constitution, our Liberty and our right to own firearms. If Mr. Fincher loses this battle, we all lose," he said.
{snip}
It's about responsibilities that accompany the rights outlined in the Constitution's Bill of Rights, he said.
The motion seeking to suppress any constitutional arguments will be handled by making his arguments, and letting the government make its objections, and then letting the court rule.
The motion from the federal prosecution indicated the government believes Fincher wants to argue the gun charges are unconstitutional, but it is asking that the court keep such decisions out of the jury's hands.
The government also demanded to know the items the defense intends to use as evidence, the results of any physical examinations of Fincher and all of the witnesses and their statements.
Fincher was arrested Nov. 8 and has been held in custody since then on a bond of $250,000 and other conditions that included posting the deed to his home with the court and electronic monitoring.
Police said two of the .308-caliber machine guns, homemade versions of a Browning model 1919, allegedly had Fincher's name inscribed on them and said "Amendment 2 invoked."
There have been laws since 1934 making it illegal for residents of the United States to own machine guns without special permission from the U.S. Treasury Department. Federal law allows the public to own machine guns made and registered before 1986 under certain conditions.
{snip}
You summarized our entire system with your statement -
"Justice has nothing to do with our legal system these days..."
We do not have justice, we have a "legal system"...
Legal can mean whatever our criminal masters want it to mean.
You don't have inalienable rights granted by God; you have whatever rights the criminal fascist syndicate occupying Washington decide to give you.
The only way we re-establish our rights is when there are consequences to the people who take away our rights.
On the other hand, nothing in the Constitution would have forbid the government from imposing sufficient punishment to ensure that they don't get back out on the street.
Do you dispute my statement that nearly all people who would pose an unacceptable danger to society if allowed to acquire a firearm would pose an unacceptable danger to society even if forbidden from acquiring one?
I would suggest that while there probably are a few convicted felons for whom a prohibition on firearm ownership would significantly reduce the danger they pose to society, such people are dwarfed in number by those who either would not pose a danger with or without being allowed firearms and by those who would pose a danger with or without firearms.
Sound like another emotional plea:
But you can't hold a whole fraternity responsible for the behaviour of a few sick, perverted individuals. If you do, shouldn't we blame the whole fraternity system?
And if the whole fraternity system is guilty, then isn't this an indictment of our educational institutions in general? I put it to you, Greg. Isn't this an indictment of our entire American society?
Well, you can do what you want to us but we won't sit here and listen to you badmouth the United States of America!
I'm certainly not espousing taking guns away from citizens.
At 162:
if you are trying to make a case for the average citizen being permitted to carry machine guns, you haven't yet done so.
And now:
"-- no, weapons should not be allowed on public transportation systems; and no, felons should not be permitted to carry weapons; and yes, some licensing requirements that ensure only law abiding citizens have firearms are not only prudent, but constitutional. --"
You certainly are espousing taking guns away from citizens, - in my opinion.
We can debate semantics, but the fact remains, governments do have the power to curtail certain rights for the overall protection of society. And government does not have to wait until a crime is committed. It can and does take many actions to prevent harm to society before that harm can take place. Are all these restrictions reasonable and prudent? Of course not. But at least in our federal republic, we, the citizenry, have the ability to challenge laws in several venues. Most countries do not have these built-in safeguards, including 1st world democratic nations.
Inscribed on a plaque in the stairwell of the pedestal of the Statue of Liberty is the following from Ben Franklin: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”
With all due respect, that's a most overused and little understood statement. It may be the most repeated cliche on FR ever. It is used to challenge every law ever enacted, including about everything in the Patriot Act. With no disrespect to Mr. Franklin, he was not living in the world we live in today. Government must not only secure the rights of its citizens, but must ensure a safe and secure society. When it cannot do both, it will in time fall.
Centrists and liberals love them. They {and others] are perfect examples of the techniques / thinking / arguments that have been used to reduce our freedoms to the level that exists today. When will our government close out our Second Amendment rights {and others} ?
Answer: Immediately after it no longer fears us. We are dangerously close now. Free men fear their American government already. Was that a Founding Father concept?
The key to understanding our point of view lies in identifying "What do we wish to be restricted/punished?"
The instruments {endless possibilities} used to commit evil?
Or the evil man / evil act itself?
I don't disagree, but the issue is whether a government can keep a working machine gun out of the hands of its citizens. I believe the court will rule that it can. Perhaps one day someone will want a nuclear bomb and argue that the 2d Amendment guarantees his right to it. Apparently the 2d Amendment doesn't apply to Iran or North Korea...thank God.
I did so state, however the "if so" conclusion doesn't follow and the rest of the logic is bad too.
"Yes, if you cannot effectively argue your point, try the wakeup issue.
When you can grasp and understand the concept of emancipation, then your judgment in the matter might carry weight. Until then, it is just as empty as your proposition that they have any right whatsoever to carry a gun to school as they see fit.
Re: It can't be imposed retroactively, which the '68 GCA and the Lautenberg amend did.
" And that has what to do with what we are discussing?
The matter pertained to murderers being forbidden from possessing firearms. THey are included in those laws under the classification of felon.
"Thank God most Americans and the government do not agree with that. I can just see all the Muslim pilots moving up in the airline industry who at least won't have to use boxcutters next time."
When you can demonstrate that the pilots are terrorists, belong to terrorist orgs, express terrorist sympathies AND the carriers themselves provide no control over a clear threat, then you'd have a point. Until and unless you can show that, there is no justification for imposing a legal restriction.
"You keep your emancipation; "
LOL! ...
"You posed the 2d Amendment as if it were a right completely unfettered. The 6 year old example was merely to point out that of course the 2d Amendment can have restrictions which are reasonable and prudent."
Obviously grasshopper!
"weapons should not be allowed on public transportation systems"
The 2nd Amend clearly prohibits such legal restriction. "The right of the people to keep and bear arms shall not be infringed"! There's no conditional clause given. That's the law!
"and yes, some licensing requirements that ensure only law abiding citizens have firearms are not only prudent, but constitutional."
No licensing requirements are Constitutional, as I pointed out. Nor are any schemes that infringe on the people's right to keep and bear arms, especially one's that restrict access to any type of priviledged class, including govm't. The @nd Amend to the Bill of Rights doesn't say the govm't can keep and bear arms, nor does it contain any exception clauses to justify any infringement whatsoever!
"I'll keep my safe and secure society."
MOLON LABE!
But if they chose not to purchase a business license, they would not be permitted to exercise their "First Amendment rights". In other words, they have restrictions.
The channels refer to the use of EM radiation of particular frequency. Congress determined that EM radiation of particular frequency was a national/public resource to be allocated by a licensing scheme. Neither the resource, nor it's use is covered by the 1st Amend., except that it shall not be allocated in a fashion repugnant of the 1st, nor regulated that way.
I will say I agree with you completely. In other words, the founding fathers did not see the future with all of its changes. They did not know what a machine gun was or how it could be used. So given that, just as with your argument of the airwaves, governments must make judgments based on the good to society as a whole, with little guidance from Madison, Hamilton and Jay.
A business licence. That allows them to engage in commerce. The licence may not restrict in a fashion repugnant of the 1st Amned.
I will guarantee you that if that newspaper printed pictures or words that were patently offensive to the senses, that business license would be revoked. Newspapers of today would simply not be permitted to print some of the stuff the papers of the 1800s frequently did.
No fiirst Amend rights can be violated there, because the matter is entirely a question of commerce and the allocation of EM rad use privaledges.
I don't see broadcast media restrictions anywhere in the First Amendment.
I agree. Many here do not.
The weapon itself is perfectly consistent with the second amendment. The Miller court implied that weapons that had "some reasonable relationship to the preservation or efficiency of a well regulated militia" are protected by the second amendment.
Now, as to who may keep and bear those weapons they didn't say. Everyone? Militia members? The state itself in an armory?
I believe that is a state decision.
You agree then that certain restrictions on the 2d Amendment are legitimate. The issue then is how much.
Gun grabbers are increasingly trying to separate the right to keep and bear arms from its constitutional underpinnings. To everyone but liberals and gun grabbers the word militia implies a body organized for military use. The Supreme Court Miller decision of 1939 held that the militia was 'A body of citizens enrolled for military discipline.' And further that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
To begin with, only the national government was represented at the trial. With nobody arguing to the contrary, the court followed standard court procedure and assumed that the law was constitutional until proven otherwise. If both sides were present, the outcome may have been much different.
However, since only one party showed up, the case will stand in the court records as is. As to the militia, Mr. Justice McReynolds related the beliefs of the Founding Fathers when commenting historically about the Second Amendment. He stated that, ". . .The common view was that adequate defense of country and laws could be secured through the militia- civilians primarily, soldiers on occasion.
"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.
It is clear that the firearms that are most suited for modern-day militia use are those semi automatic military pattern weapons that the yellow press calls "assault weapons". Since nations such as the Swiss trust their citizenry with true selective fire assault rifles, it seems to me that this country ought to be at least able to trust its law-abiding citizenry with the semi automatic version.
Self-defense is a vital corollary benefit of the constitutional right to keep and bear arms. But its primary constitutional reason for being is for service in the well-regulated militia which is necessary to the security of a free state. WE must be prepared to maintain that security against even our own forces that are responding to the orders of a tyrannical government, and the only viable way to counter a standing army's qualitative advantage is with a huge quantitative one. Don't let the gun grabbers and their politician allies separate us from the constitutional reason for the right to keep and bear arms. Miltary pattern weapons are precisly the weapons that should be MOST constitutionally protected. Even defenders of the right often neglect the constitutional aspect of it, and concentrate on their near non-existent use in crime.
If we don't constantly emphasize the constitutional reasons for the Second Amendment than we shall surely lose it, because hunting, while a worthy enterprise, is too trivial a reason to maintain it has a constitutional protection. We need to emphasize to our hunting bretheren that maintenance of the second amendment's constitutional rationale serves to protect their rights to continue to own firearms for hunting. The second amendment is literally the final check for the preservation of our republic from the depredations of untrammeled tyranny. We need to constantly remind the people what the militia in the 2nd amendment is REALLY for..... A citizen body organized for military purposes and by extension, logically equipped with weapons of military utility. Just consider that the founders of our nation had just finished defeating the greatest military power on the planet, thanks in no small part to a citizen militia, armed with military weapons such as the smooth bore Brown Bess musket, and often technologically superior rifled muskets. It is the height of absurdity to think that the second amendment in the Bill of Rights is primarily concerned with shooting bunny rabbits.
True. But they form the unorganized militia.
The second amendment only protects a "well-regulated" militia. Unorganized hardly qualifies.
The justification for govm't is to protect rights. In particular this thread is concerned with the right to keep and bear arms. The law of the land says that "the right to keep and bear arms SHALL NOT BE INFRINGED". There is no execption made for safety.
"in our federal republic, we, the citizenry, have the ability to challenge laws in several venues."
The Republic was founded by a minority that provided for that. They also gave us the 2nd Amend as the law of the land. You want to violate that? MOLON LABE!
Re: Franklin's wisdom
"With all due respect, that's a most overused and little understood statement. It may be the most repeated cliche on FR ever. It is used to challenge every law ever enacted, including about everything in the Patriot Act."
The appropriateness of any use of his conclusion depends on the logic contained in the comparison. In this case it fits and hand waiving about any other situations is irrelevant.
"Mr. Franklin, he was not living in the world we live in today."
LOL! There's no difference. People are the same.
"Government must not only secure the rights of its citizens, but must ensure a safe and secure society. When it cannot do both, it will in time fall."
Govm't can't secure any rights whatsoever when it takes them away. They can't really take them away from anyone though. Their exercise can only be surrendered in fear, under the threat of death and imprisonment.
I've lived in the US all my life and I trust my fellow citizens that keep and bear arms. I do not trust gun grabbers in any way. They are rights violators, decievers, thieves, cutthoats, tyrants and most of all killers and jailers. It matters not that they justify their acts by the numbers that deserve niether liberty, not safety, because they've abandoned it and reason for BS and bliss. This is a free country, not a serfdom.
I agree that felons that are too violent to possess firearms should be kept in prison. Those who can be trusted with walk among free, law abiding humans should have the right to bear arms. There is no need to quibble about the 2nd amendment itself.
It's not whether a government can, but whether the federal government can.
The states and their localities have always regulated guns, the Second put no restrictions upon that. Neither has the Second been incorporated (yet) under the 14th to forbid them from doing so.
But this is a federal case. There is no apparent Constitutional authority for this law, and the Miller case is precedence against it. It's a good case if this fellow can afford to appeal.
I see you've returned to push your anti-gun agenda. The right to keep and bear arms existed before the Constitution. The 2nd amendment says "the right to keep and bear arms shall not be infringed". The lead-in about "A well regulated militia militia being necessary to a free state" is no restriction on the issue of being able to keep and bear. It is a description of why it is desirable. Well regulated refers to individuals who gather and practice on a regular basis. It has nothing to do with "regulation" as a form of laws created by government to restrict and control activities.
The purpose of the Bill of Rights is to restrict the government from infringing upon the rights of individual citizens. The government already has a list of enumerated powers that includes the power to raise an army. The government doesn't need the second amendment to craft or define an militia.
Please amplify the jury nullification part!
Semper Fi
An OLd Man
The main argument is that in the late 18th and early 19th Centuries, the federal government depended on defense from attack primarily from the state militias. Most states required a citizen to have arms to react to a call up, since few armories existed. That's not the case today.
And for you MAC, it's fine to say that the 2A guarantees a RTKABA but you have to expound a bit. Is the RTKABA only indicated for squirrel hunting?
Actually, it would include pheasant, quail, rabbits....
Seriously, laws should not prohibit law abiding citizens from owning reasonable firearms for their own protection if not for hunting. The issues of reasonable and law abiding are the ones most apt to look to the courts to solve. We agree that such rights exist, even though the original reason for the amendment no longer exists, but the issue of how far governments can go in curtailing those rights for the protection of society as a whole is more complex than some here see it.
While I do know we have rights to own and carry firearms, I'm not ready to concede those rights include weapons of every type. I think it is reasonable for governments to regulate certain types of weapons and ammunition that have capabilities not even imagined by the founding fathers. If the judge in this case finds for the prosecution, I would lose no sleep over it. If a judge finds that a handgun or rifle were not permitted a law abiding citizen, I would loose much sleep.
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