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}
False analogy. Banning guns is like taping theater goers' mouths shut, because they might shout "Fire" when there was no fire. (Of course they couldn't shout fire if there were one either). It's called "prior restraint" and is not allowed with regard to the exercise of other rights.
In both cases one can be punished after the fact for misuse of the right. You can be sued for libel or slander, or prosecuted for inciting to riot, giving false testimony, etc, and you can be punished for shooting someone without just cause.
And it might not. Cannon were definitely crew served weapons, and it was well understood that those fell under the protection of the second amendment. So did ships armed with multiple cannon.
Well said. Have you seen the cases I cited in post 130?
Got an original 18th century source for that assertion?
It seems highly unlikely that having just gone through a revolution which was triggered by the authorities trying to confiscate cannon, some of which were privately owned, that the founders would fail to protect such ownership from a similar grab by the new federal government.
Security is never obtained by violating the rights of the people.
"Those rights must also ensure that they can be accommodated within a social structure. If not, then the government will fall."
The only social structure worth fighting for is freedom. That's the condition where all men respect the rights of their fellows. If the social structure respects neither rights, not freedom, it deserves to fall, and fall hard and fast.
"I doubt anyone wants your guns."
LOL! You're joking right?
"I guarantee that the bunker mentality is not one that is going to keep the 2d Amendment alive and well."
What bunker mentality? Obviously the fact gunowners are not known to be criminals engaged in criminal enterprises doesn't matter to the grabbers. It seems our rights and freedom in general is rubbish to them. MOLON LABE is not a bunker mentality, the line's been drawn in the sand and it's a promise, not a threat.
"I wonder if Madison and company would have reconsidered the 2d Amendment if they thought individuals believed they should own nuclear weapons?"
Fine. Wonder. I wonder what he would have thought and said about the rights violators and their bliss ninnie supporters.
"Nice words, but we live in a society that can only exist with reasonable restrictions placed on its citizenry."
Reasonable is an arbitrary and empty term. It's used as euphoric head candy by con men to sway their marks.
"simply read the daily papers on the "progress" in Iraq. If segments of the population are better armed than the government, then of course, the government is in danger, and by default, putting the society at peril."
This is about maintaining freedom and protecting rights in a free country. The only anology I see with Iraq is that some clowns are insistent on abolishing freedom and installing their own arbitrary socialist rule.
"The government will then fall either by force of arms, or by the society, since it (government) can no longer assure the security of the people."
If you're so worried about peacable gun owners in a free country, then there must be something you're hiding that you'd like to do to them that they would appreciate.
Indeed you could, how else could you defend yourself against pirates, or privateers from a hostile nation?
The Letter of Marque was a hunting license, to hunt ships belonging to a hostile foreign power. It made you a privateer rather than a pirate.
Use of the phrase "well regulated" at different times, some here close to "constitutional" times. Note that in 1812, it referred to "accuracy"!
1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
1714: "The practice of all well-regulated courts of justice in the world."
1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
No he wasn't dead. Neither he, nor Layton the other person charged in the original case, were deceased. They weren't represented at the Supreme Court, but they weren't dead at the time the Court considered the case, but Miller was killed, .45 in hand, just days before the decision was released. Layton plea bargained on the original charge, and was given probation, which he successfully served out.
"The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it."
That's why I suggested an M16. They've been around since the 1960's, so there should be a pre-ban one available someplace. And it would be impossible for the government to argue that such a weapon is not suitable for military use, given the government's own large-scale acquisition of such weapons for that purpose.
Problem is, what would happen in that case, is that if you had a group with funding sufficient to challenge the thing all the way to the supreme Court, the government would always have the option of not appealing any lower court ruling so as not to make a nation-wide precedent, which is essentially what happend in both the RIA and Dalton cases.
Ah, but there's the wrinkle. The government can drop a case against someone without having to acknowledge any particular reason for doing so. The government is not allowed to just hand out money, however, without legal justification. The government can't issue a refund of the tax paid without acknowledging the legitimacy of the refund, which would in turn require acknowledging the illegitimacy of collecting the tax.
I'm sure some bureaucrat would try to figure some way around that, but Thomson/Center was able to get a case to the Supreme Court (they won, btw) using precisely the approach described. In their case, however, the "weapon" was a kit containing a 14" barrel, an 18" barrel, a Thompson Contender, a stock, and a notice that the stock must never be assembled with the short barrel. The BATF claimed that was a "short-barreled rifle", while T/C claimed it wasn't. The Court sided with T/C.
I'd say that's a matter for her parents. In general they'd say no, but I would have said yes in the case of one of my nephews. He was a very responsible 6 y/o, and now "Dead Eye" is what we should call him, but then so are his Dad, Grandfather and namesake Uncle. (Not me, I'm embarrassed to shoot with my in-laws, but they are nice folks and don't rub it in).
My younger daughter was pretty good with a S&W 922 when she was about that age as well, but her I wouldn't have trusted on her own until a few years later than that.
I'ver read about that, but it has been a while. Do you have a reference for the opinion? I suspect it would be an interesting read.
The government can't issue a refund of the tax paid without acknowledging the legitimacy of the refund, which would in turn require acknowledging the illegitimacy of collecting the tax.
Good point. I kind of like the 'hoist by their own petard' aspect of that too.
Not true of any NFA weapons except machine guns. The 1986 GOPA only banned them, not the others.
If a legislature passes a law that makes people convicted of certain felonies slaves of the state, it may do so (per the Thirteenth Amendment). Further, if a person has been sentenced to prison for a term of years and the state decides to grant parole, the state would have the right to treat the person as a slave until such time as the term of the imposed sentence has completed. Since the Second Amendment does not and never has applied to slaves, it would not forbid states from forbidding such slaves from owning weapons. That having been said, I'm not sure how keeping someone locked up for a few years hear and there, letting them out for a few months at a time to commit more crimes until they finally get a life sentence, is more economical than simply keeping people locked up once it becomes clear that they are too dangerous to be trusted.
What does a 6 year old have to do with this? Nada.
This is an adult who BUILT the arms in question. Not someone neither old enough nor conversant enough in the handling and use of firearms to do so safely. This is NOT a safety issue.
Go here, Federalist Papers and read Federalist Paper No. 46. Or, download the whole book here (Gutenberg.org, scroll past the header info to get to the book, save the page to keep a copy.) This is what the RKBA is about, not duck hunting.
There are no licenses for printers, booksellers, nor even journalists. Other than general business licenses which apply regardless of the nature of the business. You can't even selectively tax them. (A tax specifically on newsprint and printers ink was thrown out on the basis of Freedom of the press) Broadcast licenses are for use of the public airways, if you broadcast just on cable, no such license is required.
Society has long held that unemancipated minors are almost completely under the authority of their parents. Legislation which forbid the sale of firearms to unemancipated minors without parental consent would be constitutional if the terms of enforcement were not onerous; since minors have few rights to do anything without parental consent, such a law would serve to uphold parents' rights to control their children, rather than infringing anyone's legitimate rights.
Of course, if the law required excessive background checks, record keeping, etc. in the supposed name of preventing minors from claiming to be adults, that would be another story. The authority over unemancipated minors does not imply authority to harass adults.
Opps, bad edit- if a citizen could possibly afford a nuclear weapon...
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