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}
That's what this trial will hopefully address. I do know that a nuclear weapon would be. Look at Iraq and ask how many and what types of weapons are capable of destabilizing or destroying the security of a society.
The unorganized militia consist of "people" who are not protected by the second amendment. The well regulated militia consists of "people" who are protected by the second amendment.
Given that the second amendment contains a qualifier, it's disingenuous of you to compare it to other amendments which do not.
That's a silly read. The real tools that exist are the constitutional amendment process, the voting rights we possess and our ability to petition government. When was the last time the 2d Amendment rights were used successfully to confront our government?
You need only look at what happened under Hitler, Stalin, Mao and Pol Pot to comprehend what happens when the citizens are disarmed and the government is free to do as it pleases.
And you need only look at Iraq to comprehend what happens when the citizens are so completely armed that the government is powerless to provide the security to its people that is is mandated to do.
Well clearly I don't see the language that way at all, but you are entitled to your opinion of course.
How does that stack up against "the right of the people to keep and bear arms, shall not be infringed"?
The constitution is not something that can be changed by reinterpretation or by mere legislation. It must be amended to change it.
While the types of arms we are talking about may not have existed at the time the 2nd amendment was ratified, the constitution and it's meaning have not changed. The right to keep and bear arms shall not be infringed.
The only reason I would desire an automatic weapon is as a curio. I might be interested in owning a weapon capable of short bursts (3 rounds), but a fully automatic weapon just doesn't seem very effective to me, unless it's mounted on a tripod or something else to make the recoil manageable.
A hand held fully auto weapon is just a way to waste ammo.
However, that doesn't mean I think the government has the authority to ban them without first amending the constitution.
Many innocent passengers would likely be killed, electrical systems would be compromised or destroyed, and if well enough planned, the cockpit would be taken. Few Americans would want that, and few would agree that the 2d Amendment requires that we permit the arming of travelers.
Congress defined a well regulated Militia when they wrote the Militia Act of 1792. That's the context of "well regulated" that I'm going by, not someone's appetite.
Yes it has, and it's about time some recognize that there is a balance between the rights of individuals and a secure society. Government has both obligations. You don't seem upset over all of the 1st Amendment restrictions that exist.
I don't condone it at all. It's an irrelevant argument since felons who have served their time for violent crimes are released daily. If you accept the concept of federalism, you also accept that states set their own laws concerning the release of felons.
Since we don't have to fortitude to keep felons off the street, it is even more important not to disarm law abiding citizens who need to protect themselves from the government's failure to keep violent felons separated from the law abiding. The revolving door stinks.
I agree completely.
You see, here is where you are bass-ackwards. The Second doesn't "permit" us to do anything. It FORBIDS you from disarming us.
You sound as if you would prefer the loss of thousands of lives, and billions in property damage, than have one plane lost because those on board had the means to resist.
It may also result in the death of innocent passengers, the destruction of vital electrical equipment and the possible compromise of the cabin, depending on the ammunition used.
Using frangible ammunition complete eliminates any possibility of breaking windows or piercing the aircraft skin. That is standard issue with the air marshals.
I'm not concerned about the air marshals, but about all of those others who by using their 2d Amendment rights are carrying weapons capable of much more.
How does making us more vulnerable to attack make us more "secure"?
And how does the Militia Act treat "well regulated"?
C&P me an example please.
Not me. They are arms whether you like it or not. And a number on here have agreed to that. Does the 2d Amendment refer only to guns?
Pitiful digression. -- Why can't you admit that you believe machine guns are capable "-- of destabilizing or destroying the security of our society --"? Could it be that admitting such a belief is akin to membership in the Brady bunch?
You may not set the agenda here. The issue is whether government has the duty to place restrictions on some types of weapons, but not others. If it has no such constitutional authority, then machine guns of all type including 20mm used on aircraft, rockets of all types, and yes nuclear, chemical and biological weapons are included. If it does have a duty, then the issue of machine guns is valid, and the court could so rule. I'm willing to wait to see what happens, because I'm not nearly as intelligent as those here who believe Franklin's thoughts are part of the Constitution.
Many things that are capable of "destabilizing or destroying the security of a society" are available at home depot or your local supermarket. Are you going to support banning ammonia because it can be used to make a deadly gas?
I just don't understand why people claim to support the 2nd Amendment, yet are willing to give Fedgov or any of their subsidiary Stategovs complete power over the possession, and use of weaponry. Kinda sounds like liberals who "support the troops" but not their mission.
Why is it that female lawyers in the DOJ are among the most vehemently pro-government control than anyone else in the legal profession.
This case is going to be decided by the PERSONAL BELIEFS OF THE JUDGE more than anything else.
It is not a qualifier. It is a subordinate clause meaning it is subordinate to, and does not affect the independent clause except in descriptive terms. Grammar is not you gun grabber's strong point is it?
You've been informed of this many times.
I believe you are taking the wrong lesson from this. It would appear that most of the mayhem is being spread by foreigners who are coming in armed by a foreign state.
If I lived in Iraq, I'd sure as hell have weapons for my defense, as the government can't protect it's people any better than ours can.
No, it helps ensure that only law abiding citizens legally have arms.
Age is not one of them. The unemancipated has no right to sovereignty of will at all. That rests with their parents, or guardians. The 2nd Amend doesn't apply to the unemancipated, those judged a danger to themselves, or others, or to that have had their rights infringed as a consequence of being convicted of certain crimes.
None of that is in the 2d Amendment. You are merely stating that certain restrictions are valid even if not stated in the Amendment.
They can not regulate ownership, other than as given above. They can regulate use, except to deny effective self defense.
In other words, according to you, even though restrictions are not mentioned in the 2d Amendment, certain restrictions are constitutional as long as those restrictions are in agreement with your philosophy. Do I have that summarized correctly?
The commerce in all nuclear devices is regulated, regardless, of whether, or not they are, or can be a part of arms and the regulation is based substantially on other concerns unrelated to armaments. The commerce in all arms is also regulated and in many cases there's infringement of the 2nd Amend. You'll notice though, that most folks don't bitch much about it, especially with the more expensive, devastating and crew served weapons.
Again, you seem to agree that regulation of certain weapons is okay, but others are not. That is the whole issue with the machine gun trial.
Yes, the old slippery slope argument is used by almost everyone who has a concern over a law, whether its abortion rights, gay marriage rights, or in this case, the licensing of machine gun owners. It is not a good argument when the "slippery slope" is needed to bolster the constitutionality of the issue at hand.
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