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}
no comparison, unless you're trying to compare murder with yelling fire in a crowded theatre, or if you're suggesting that you need to be licensed to own vocal chords.
Ironic that you wrote that on a computer, considering that you probably expect the 1st amendment to apply to your communications via computer.
Familiarize yourself with the caselaw surrounding this issue and you might just have a different view on things. Perhaps an educated view.
This fellow definitely set himself up for trouble, but the constitutional issues and findings, particularly as they relate to militias, support his position. However, he is gonna get steamrolled by a judiciary/legal system that will not allow a case citing United States vs. Miller (1939) to reach a jury.
Example being, some states (most now) have some form of conceal and carry, allowing individuals to carry a gun on their person. But the city of Chicago doesn't even allow handguns within city limits. What is considered a right in the majority of the nation, is outlawed in Chicago. Basically the 2nd amendment is null and void in Chicago.
The defense can argue that while crying "Fire" in a crowded theater can be reasonably expected to cause harm to persons therein, the mere posession or manufacture of a machine gun, absent the criminal misuse thereof or reasonable expectations of such criminal misuse does not present a reasonable expectation of injury to other persons or to the public in general.
and my current situation precludes the purchase of a class 3 firearm. however, if the NFA'34 (with all ammendments) is repealed, the prices will drop by 90% or more overnight.
"Ordinance" is something that your local busybody county commission passes to keep your dog on a leash.
Ordnance is what you put on target to kill the enemy.
Of course, in Miller the feds went ahead with the case even though the defendant was dead, with predictable results.
United States of America v. Ronald Wilson Stewart, Jr
On November 13, 2003, the Ninth Circuit Court of Appeals issued an opinion vacating Stewart's conviction for violating 18 U.S.C. § 922o, but affirmed his convictions for being a felon in possession of a firearm. Using the Morrison test, the Ninth Circuit ruled 18 U.S.C. § 922o did not have a substantial effect on interstate commerce and was unconstitutional as applied. In its opinion the circuit court wrote:
"...a homemade machine gun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is greatly attenuated."
"...section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce."
"...there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machine gun business. More likely, section 922(o) was intended to keep machine guns out of the hands of criminals—an admirable goal, but not a commercial one."
What you really want is repeal of 922(o).
The prisoners at Gitmo have it better than this guy.
Then please explain Miller vs. US. 1933. Otherwise, "Hey Retard STFU"
Pretty hard to distinguish. Exercising your right to cry fire doesn't mean anyone was required to react. There are numerous laws curbing "free speech", just as there are numerous laws curbing the ownership and use of firearms. Should a 6 year old be allowed to own and use a firearm? How about a felon? As long as the licensing doesn't prohibit reasonable ownership and use, it doesn't violate the 2d Amendment, and it will likely be held so.
Ahh yes, the old "you can't yell fire in a crowded theater" bit. That can be argued against. Such as:
You can if it is part of a play.
You can if the crowd knows about it in advance.
You can if there is crowd participation.
You can if there is a fire.
and oh so much more. There is no law stating that you can't yell fire in a crowded theater. As you stateed laws can be enacted to ensure that that right does not endanger or infringe of the rights of others; that does not mean that they can ban certain words from being spoken or to require expensive "licenses" to use such words.
However, the whole, those weapons didn't exist back then arguments is pretty weak at best and definitely doesn't apply to all the weapons involved.
do you like cheese ?
There are many preemptive laws on the books. Waiting until someone is shot before reasonably regulating firearms does not protect society. And yes, cars are dangerous, which explains the licensing requirements as well as the safety and use requirements.
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