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}
All you have done is merely to suggest that there are limits on the exercise of a right. And if you don't like the fire analogy, then look to the other thousands of laws involving the 1st Amendment, many which involve prior restraint.
Many innocents would be killed? As opposed to all of them being killed if they do nothing? Not all citizens shoot like cops to anyway. Provided none of the passengers were feds or cops, collateral damage would probably be kept to a minimum. Then again, we could just have only the terrorists be armed. I'm sure that would make things so much better.
Few Americans would want that, and few would agree that the 2d Amendment requires that we permit the arming of travelers.
Funny. In the 50's and early 60's, you could walk onto an airplane with a rifle, shotgun, or handgun, and noone cared other than that it was stored properly. We didn't have problems with passengers shooting up the cabin.
When I was young, taking a rifle to school didn't rate a call for swat teams.
We've become a nation of squeemish worms who have been indoctrinated to think that the government will "protect" us, even though the courts have stated on many occasions that they have no duty whatsoever to do so. Even when, through their own actions, they've turned you into a completely disarmed victim, they are under no duty to protect any individual. That's because they write the rules, and they know that sheep are easier to manage than wolves.
Personally, I prefer wolves, especially in a country that is drifting more towards the evil of "democracy" every day.
Prior to the Gun Control Act of 1968, it was common for travelers to have loaded weapons in their possession on domestic flights. The airline hijackings didn't start until AFTER GCA68 disarmed everyone. I don't think that is a coincidence.
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.
It might disturb the meal service too. It's a rare occurrence and much better than allowing the aircraft to be employed in the manner on 9-11-2001. Aircraft are typically multiply redundant. Lots of damage has to be done in mulitiple places to put the aircraft in jeopardy of not being able to fly safely. A hijacker is likely to be inflicting harm on innocent passengers as well. It's a matter of whether everyone is forced to wait like sheep to be slaughtered or has a means of putting a rapid end to the problem.
Dude, have you paid any attention whatsoever with what has gone on in Britain (and AU as well) in the past decade or so ragarding firearms? This isn't theoretical pondering. We've actually seen progress right down the road untill now they are considering restrictions on sharp objects. Cricket bats will surely be on the list of prohibited items soon enough if they continue the road they've been on for some time now.
Yet you'd have us march right down behind them? Again, this isn't just a theory of a possible path of action. It is now history in Britain, much to their eternal shame.
Nice statement, but not realistic. There is a balance to be obtained in which both can be protected. And that means putting reasonable restrictions on some rights in order to permit a secure society. It's just a matter of how deep those restrictions go. Most here even though they disagree with my thesis, agree that nuclear weapons should be kept out of the hands of citizens, and 6 year old children should not be carrying.
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 hate to break this to you, but the Constitutional Convention in 1787 decided that there was essentially a tad too much freedom, resulting in the Constitution we now have. Freedom is a wonderful thing, but a secure society is also important. The freedom that exists today in Iraq at the expense of a secure society illustrates what can happen if the 2d Amendment were treated as some here want.
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.
Right.
Reasonable is an arbitrary and empty term. It's used as euphoric head candy by con men to sway their marks.
Yeah, sorta like MOLON LABE....
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.
BINGO! You think Iraq is different from any other group of people? You think this Country does not have groups who would oppose other groups? The only difference is that here we don't permit the unlimited arming with every conceivable weapon so that these opposing groups can engage in civil conflict and even endanger the government.
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.
Not at all. Peaceable and law abiding citizens have a right to keep and bear arms. But that right is not unlimited. The government has the duty to ensure that only law abiding citizens have guns and that some weapons are not permitted to be kept by private citizens.
"So you are telling me that Regnery or other book printers do not have to have licenses?"
They have business licenses, they don't have/need licenses to print books. There is a difference.
"And as for yard sales, in many jurisdictions you need a permit."
Permit is not the same as a license. Quite often you can get a permit without having to pay anything, you can't get a license without paying something. Also, you have no protected right to sell nor to have a business.
"Where does the First Amendment say that? And who determined that channels are "public" and subject to a restriction of the right to free speech?"
The "public" airways are used for more than tv and radio. They are used for communications by police, fire depts., military, aviation, etc. They are licensed to prevent signal theft, interference with communications of police, etc. and so on. Not having free access to the "public" airways does not take away your 1st Amendment rights, you will still be able to use your rights if you aren't able to get a license for a channel, just like you have in the past and currently.
"Newspapers require commercial licenses and permits involving the sale of papers."
Again, they are business licenses not a license for journalism. Do you really think that John Stossel has a license to that he can write his articles and to work for ABC? No.
"Laws exist which prevent the ownership of both print and broadcast media and which would seem to curb First Amendment rights."
They are there to protect 1st Amendment rights by preventing against say Algore from buying up a ton of media companies and preventing any anti global warming facts, etc. from being heard.
Ah. I see now. We're all potentially homicidal lunatics itching to kill our neighbors, and are only restrained by the mighty and goodly power of the State to restrain our murderous impulses.
Kinda like the blood that flows in the streets every day because some states have been foolish enough to believe that citizens are perfectly capable of being armed, yet restrain themselves from erupting in murderous rage every time we're cut off in traffic.
Trust me, We're upset. I know that emotions tend to get elevated on these threads, so let's not be silly.
To generalize, we "gun nuts" understand that the best way for wanna-be dictators to get their power fix is to FIRST render the Second Amendment meaningless. Then you will definitely see the "Fairness doctrine" and worse.{Kiss Free Republic good by, also} You will see the end of jury trials, the end of the concept of innocence until proved guilty. When the Second is gone and the law abiding are only armed with pitchforks, why should any redress of grievances be taken seriously?
No citizen has an unfettered right to own any type of weapon he can afford to purchase, if that weapon has the capability of destabilizing or destroying the security of our society.
You are now openly saying that ownership of any weapon capable "-- of destabilizing or destroying the security of our society --" can be "fettered".
Are machine guns capable "-- of destabilizing or destroying the security of our society --"?
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.
The issue as you framed it has become, "-- are machine guns capable "-- of destabilizing or destroying the security of our society --"?
You want to divert that question by comparing nukes to guns:
Not me.
Specious, seeing that your next words were:
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?
The 2nd refers to people bearing arms, not CNB weapons of mass destruction having the capability of destabilizing or destroying the security of our society.
Perhaps one day someone will want a nuclear bomb and argue that the 2d Amendment guarantees his right to it.
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.
You've tried to do exactly that by digressing from machine guns to CNB weapons. Admit it.
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.
Hyperbole. -- The issue is whether governments have the power to infringe [place prohibitive restrictions] on our right to bear some types of arms, but not others. -- We can all agree that CNB weapons of mass destruction having the capability of destabilizing or destroying the security of our society can be severely but reasonably restricted, as indeed they are to date.
We do not agree on machine guns of all type including 20mm used on aircraft, rockets of all types, etc.
-- In fact, I know an individual that owns a Scud missile, 20mm machine guns and larger cannons, -- along with the tanks they are mounted on. He also owns a machine shop capable of making them operational.
If it does have a duty, then the issue of machine guns is valid, and the court could so rule.
There you go, claiming our courts could 'rule' our rights invalid. -- Such rulings are unconstitutional, null and void. -- Read Marbury for the reasoning.
I'm willing to wait to see what happens,
Yep, you're willing to wait to see a court 'rule away' your rights. Weird way of defending the Constitution all of us are sworn to support.
because I'm not nearly as intelligent as those here who believe Franklin's thoughts are part of the Constitution.
Franklin's thoughts influenced the structure of our constitution. It's pretty unintelligent to say otherwise.
Using that logic, why should people under 18 have different restrictions on their driving? Again, and using the above statement from you, if they are given all other rights back how is it not against the 14th Amendment that they can't have their 2nd Amendment rights back? How is that equal protection?
If I understand you correctly, you are suggesting that all felons once released should have the right to carry arms? Since most, including me, would immediately question that as contrary to a secure society, it would make no sense. And any government that would permit felons (at least violent felons) to carry arms would be failing in its duty to protect society. .... She's not as much of a threat as a felon convicted of a violent crime. But I'm not sure where the equality issue plays in here.
You state all felons, then you state "at least violent felons" and that it is about a "secure society". Martha Stewart is a felon because of her insider trading conviction (a "white collar" crime). Would society be less secure if people like her were able to own firearms? If we prevent only violent felons from owning there is no equal protection. Laws against felons possessing firearms does not stop them from having them, as proven many times in the news (ie. we are not a secure society). So tell me how removing the laws so that there is equal protection of the 2nd to felons would make us less secure?
Police and military would certainly be better trained and more trustworthy than say, your average bank robber. But if you are trying to make a case for the average citizen being permitted to carry machine guns, you haven't yet done so.
Better trained huh? Like the DEA guy that shot himself in a classroom full of kids? Like the cop that was evidently play draw and shot a mirror in a hotel room? There are many instances that can be listed that would argue such. Also, police only get range time once a year. Most gun owners get range time more than that. I have yet to read about an "accidental" discharge by a bank robber. Even if you were to show any, I bet articles about the "better trained and more trustworthy" would out number the robbers. Oh and the more trustworthy part is a load of crap also, just more elevating them to super citizens. As far as making the case, if you are blind to the fact that it is an infringement of the 2nd then nothing will change your mind.
Even the police and military must secure their weapons to ensure they are not taken or otherwise used in a nefarious manner.
Nice change of subject there. This has nothing to do with securing weapons, but about ownership, infringement, etc.
Huh? So if the government says that a bottle of wine is a machine gun then you would be ok with that? Sorry, but that has nothing to do with Libertarian thinking it is completely lacking in common sense. Are you also ok with the government determining that a shoestring is a machine gun also? If so, you had better turn yours in as you are in violation of the NFA '38 & GCA '68.
We live in a republic, and most recognize that in any society laws must be enacted for the protection of society as a whole.
So your say that if we do it for the good of society or even "for the children" then it is ok with you. Hmmm... sounds liberal to me or even socialist. Well then if it is about a secure society (per a prior post by you) then maybe you need to work with HGI/Brady Bunch to ban all firearms for the good of society and to have a secure society. That way not only the current felons will be barred from possessing but also law abiding citizens who could possibly go on a shooting rampage in the future.
Frankly, given today's policed and monitored world with huge standing armies and a huge Federal government, it seems very odd that people would NOT need access to heavy weaponry.
The purpose of the second amendment is not about hunting but about securing the free state of the people. That free state cannot be secured as long as the government maintains a monopoly on weaponry.
Very good point!
They decided no such thing. They had determined that they didn't have the power to protect rights and effect fairness in the interstate marketplace and other such problems. Most of them valued Freedom and the constitution would never have been accepted w/o the promise of the Bill of Rights. The 1st amend of which included a complete and absolute prohibition on infringing on the free speech rights of the people and exercise of religion. The 2nd Amend provided for an absolute and complete prohibition on infringing on the right to keep and bear arms.
"Most here even though they disagree with my thesis, agree that nuclear weapons should be kept out of the hands of citizens, and 6 year old children should not be carrying."
You just don't know and understand why the restrictions are valid and why they don't apply to adults and personal arms whatsoever.
Re: "Security is never obtained by violating the rights of the people.
"Nice statement, but not realistic. There is a balance to be obtained in which both can be protected. And that means putting reasonable restrictions on some rights in order to permit a secure society. It's just a matter of how deep those restrictions go."
No. There is no security at all except for the rights violators. There is no freedom, except for the rights violators to do as they see fit. Even the meaning of words is determined by the rights violators.
Re: Reasonable is an arbitrary and empty term. It's used as euphoric head candy by con men to sway their marks.
" Yeah, sorta like MOLON LABE...."
No. The word reasonable as the grabbers use it, is just what I said. MOLON LABE maeans come and get them, I will not hand them over. If you get them, it will be over my dead body. There's nothing arbitrary, or empty about that notice. There is also nothing contradictory about it as there is with the grabbers use of the term reasonable, since there is nothing whatsoever reasonable about disarming a free and peacable people that support and stand for freedom.
"Freedom is a wonderful thing, but a secure society is also important. The freedom that exists today in Iraq at the expense of a secure society illustrates what can happen if the 2d Amendment were treated as some here want.
As I said, there is no security w/o freedom, except for those in power. Your comparison with Iraq is rubbish, because the fractions fighting in Iraq are not fighting for freedom, they are fighting to subjugate and dominate their fellows, just as the socialist grabbers are fighting to do here. There is a big difference between fighting for freedom and fighting on behalf of some authoritarian scheme, whatever the color and flavor of that acheme is. The only justificaiton for fighting is to protect and promote rights and freedom, not "safety and security". Safety and security, as I said are arbitrary and their meaning when used by rights violators is empty.
"Peaceable and law abiding citizens have a right to keep and bear arms. But that right is not unlimited. The government has the duty to ensure that only law abiding citizens have guns and that some weapons are not permitted to be kept by private citizens."
The US law that governs the matter is the 2nd Amend. It says, "the right to keep and bear arms, shall not be infringed." The right is unlimited and the govm't is forbidden, by that law, from placing any limits on exercise of that right. Where in "shall not be infringed" do you find, "can limit"?
I wondered when you would come out from under the rock. Who the heck is Greg? How the heck is making a statement that the "Constitution, our Liberty and our right to own firearms" goes on trial become badmouthing the US? This case will challenge the Constitutionality of the laws that he violated, etc.
Gun laws make gun owners criminals.
"I'm saying that every right carries the responsibility of government to ensure they don't endanger the society as a whole. That requires some limitations, regardless of the language."
The 2nd Amend is the law of the land. It applies to all legislative powers under the Constitution, not to the people. THe right to be protected is the people's right.
" I have pointed out numerous examples of the First Amendment which contains plain English also."
They've been addressed and it's been pointed out that you were wrong, which you ignored.
It really helps to know that some of those criminals have seats in the legislature of our own country. Is it not ironic that the likes of Ted Kennedy are among those that would prefer that the government have a monopoly on firearms?
Merely concerned? Not even a huff? Reminds me of a quote:
'First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left to stand up for me.' - Martin Niemöller
By the way you sure are in good company when you want to take things away for the good of the public/society.
"Banning guns addresses a fundamental right of all Americans to feel safe." - Sen. Dianne Feinstein quoted by AP on Nov. 18, 1993
"We're going to take things away from you on behalf of the common good." -- Sen. Hillary Clinton"
"Handguns are a public health issue." - then U.S. Surgeon General Jocelyn Elders in USA Today, Nov. 9, 1993
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