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}
Also, crying "fire" in a crowded theater when there is no fire is not speech it is the equivalent of assault. Crying "fire" when there is a fire is necessary speech. Being silent when there is a fire in a crowded theater can be considered negligent malfeasance. None of the above is political speech which was the target of the first amendment. Just as the second amendment is about individuals bearing arms for homeland defense. In the 1A congress is prohibited from making any law, etc. But in the 2A the INDIVIDUAL right is spelled out and assumed to exist.
Hey retard,STFU
I'm pointing out that all of our rights guaranteed by the Constitution have reasonable curbs to permit society to safely conduct business. If this particular law is too restrictive, I suspect a judge will so rule. But licensing and use requirements for firearms exist in every jurisdiction. Most do not infringe on the 2d Amendment.
They all infringe on the 2nd. Note that the 2nd acknowledge that it's a right, not a priviledge, so alllicencing schemes are repugnant to the Constitution and bogus.
As a dealer, not common citizen. It doesn't cost $4000, and all the ensuing compliance costs push it much higher - IF you can even get one. Even then, it doesn't help much unless you're talking large volume, as you're stuck with pre-'86 stuff unless you can get cozy (i.e.: demonstrate need via department letterhead) with military or police.
Just throwing this out there...
The right to bear arms... could be interpreted as covering only the arms that are normaly carried.
LOL - that is what I get for not checking the spell checker.
So yes, not allowing people to appeal to the BoR for remedy is now part of modern "jurisprudence". Justice has nothing to do with our legal system these days...
Can't it be used for jury nullification?
That argument keeps popping up, and keeps getting knocked down.
The Founding Fathers made it very clear, both in law and in commentary, that absolutely no limitation thereon was intended. Note that the 2nd Amendment says "shall not be infringed" but says nothing indicating any limitations.
Remember, it was written by guys who owned working cannons decorating their front lawns - and used them to eject tyrants.
That is how I found this article.
Also, back then, citizens owned ships mounted with cannons. So technically, anything smaller than a fully loaded Destroyer is covered by the Second Amendment.
Except for the quotes from the Founders saying "every terrible implement of the soldier is be every Americans birthright".
What is unreasonable about a law abiding American citizen owning the weapon that he used in the service of his country? Owning an M16 is perfectly consistent with the second amendment. In fact, we should follow Israels lead and take our M16's home with us when we leave active duty.
Your prior restraint argument is going nowhere.
Not in all jurisdictions. Vermont & Alaska have none. Georgia and many other states only require a permit to carry concealed. Licensing to _own_ is actually only in a minority of jurisdictions.
_Use_ may be regulated, but mostly amounts to "don't do anything stupid/dangerous" in most areas.
Jefferson and Madison both agreed that the only limits on Individual Rights were the equal Rights of others. My Right to own a machine gun/tank/F-18E in no way interferes with any of your Rights. Period. End of story.
LOL, now tell him what you really think about him.
Did he appeal? should have. Exactly what appeals courts are for.
A howitzer, cannon, etc. can be operated by one person, not efficiently though. So therefore they are not ordinance.
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