Posted on 01/12/2007 2:09:53 PM PST by Wasichu
Fincher Guilty In Machine Gun Case Friday, January 12, 2007 3:37 PM CST
It took a jury just under five hours to find Hollis Wayne Fincher guilty of owning illegal machine guns and a sawed-off shotgun.
Closing arguments in federal court in Fayetteville wrapped at mid-morning and the case went to the federal jury about 10:30 a.m. The jury returned its verdict about 3:20 p.m.
The National Guard is only part of the state militia. Most states have one or two other components. One is an organized group usually called the State Guard, the other is the called variously the "Reserve Militia" or "Unorganized Militia". Texas has both. I don't know if Arkansas has a State Guard, but I'd guess they probably do.
In the years I've been in Texas the State Guard has gone from barely organized and rarely used to a well organized part of the State Defense forces, including both an Army and Air component. They help run the armories of the National Guard, especially when the Guard called into federal service. They provide disaster relief and serve other functions as well.
The Reserve Militia portion is males 18-45 in Arkansas, it's all legal residents 18-60, male and female, except a few defined public officials.
Of course they can, but not before the jury. Under those federal rules, the judge determines what the law is, including if it's a law at all, while the jury determines the facts of the case. That is, did the defendant violate the "law", not "what is the law, is it valid or not?".
Had Miller and Layton gone to trial, they would have been able to argue the suitability of a short-barreled shotgun before a jury. That the Supreme Court failed to take judicial notice that such an instrument was or was not suitable for military use meant that the issue had to be determined as a factual matter in trial court.
The government's end-run around this was rather clever, and a number of lower courts have gone along with it, citing the syllabus from Miller as opposed to the decision itself. The bottom line (literally) on Miller was that the case was remanded to trial court for further proceedings. Such proceedings would have included factual matters raised by the Supreme Court. The syllabus omits this little detail, however, and so do the courts that cite it.
No, because then the guns would be on trial and the Constitutional issues raised then, not the defendant. The defendant's also 60 and doesn't fit the statutory, unorganized militia age group. That part must be a determination made in habeas corpus. All the trial court could determine is, if the guns were indeed the kind referred to in the fed laws and if the defendant had them.
" Of course they can, but not before the jury.
The issues involved would have the effect of putting the law directly on trial. That can't be done in a trial court. The trial court must take the law and precident at face value.
And then only when the feds let the state borrow it. Various court cases have determined that a governor has no power over his state's National Guard, if the feds want to use it for something. All guardsmen, and I was one long ago and in far away land (called Oklahoma), are also dual hatted as members of the federal military reserve. Those officers that are to be appointed by the governor according to the Constitution are mostly, but not entirely, people commissioned into the federal military, or in most cases into the federal reserves (ie. ROTC grads, OTC/OCS graduates, or even Academy grads). Those few actually appointed by the states still have to be "federally recognized", which means that the feds could not recognize them, and thus have a veto over what is a power of the states as defined by the US Constitution.
So it's something of a legal fiction that the National Guard is even a part of the State Militia.
That's not true of the State Guard, which is a true militia (although most of the officers are still former federal military officers (but then again George Washington was once an officer in the British Royal Militia). But even the State Guard is not "The" State militia or "the Militia" it's only part of it.
Remember when the judge ordered Bobby Seale, the Black Panther, to be bound and gagged at his trial?
Ohio is another example...they obviously have their National Guard, but also have an Ohio Organized Militia (state-sanctioned) and UOMA (Unorganized Militia of Ohio.)
Fincher apparently was claiming to be part of the general, unorganized militia; however the state made their case on the fact that he wasn't part of the State Militia.
He may be 60, and officially too old to be part of the "militia" but a true patriot is militia until he dies of old age.
You gotta be a lawyer....
What was the business with the sawed off shotgun?...That is a weapon for armed robbery not defense. I believe it is also a violation of Arkansas gun laws as well...
I don't understand your question....
If he's a veteran under 64, then he is a member. §311 refers to §313 which extends the age to 64 for veterans. 17-45 is for non-veterans; 17-64 for veterans.
No big deal, you answered mine.
<<What was the business with the sawed off shotgun?...
I can't speak for Fincher's motives, but one could surmise that this was part of a plan to challenge the SC '34 Miller decision. In that decision the feds argued (and lied) that the sawed off shotgun was not a military weapon, so it did not qualify as a legal weapon for the citizens. In actuality, the troops used said shotguns in WW1 and the feds knew it.
Maybe Fincher was looking to challenge that faulty ruling with two weapons that ARE used by our soldiers, the Machine gun and a sawed off shotgun. Remember, the SC ruled that the shotgun was illegal based on the lies of the prosecutor, and that we have a right to any weapon that is used by the military.
It's one of the best home self defense weapons I know of. Aim doesn't have to be that good and itworks in the dark. Only a preset claymore aimed down the hallway might be better. Still, the sawoff is the best backup for that.
Dont think the US Military has ever used a sawed off shotgun not even in WW1. The JSCS weapon in current use isn't short either at 470MM barrel length. Winchester Model 1897 pump shotgun was used in WW1 but it wasn't shortbarreled. It was even fitted with a bayonet mount.
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