Posted on 04/29/2005 5:23:31 PM PDT by P_A_I
Calaveras County Safe Again
By Jeff Knox (Manassas, VA, April 27)
The people of Calaveras County the remote central California mining region made famous by the gold rush of 1849 and the jumping frogs of Mark Twain can breath easier now that Richard Wilmshurst has been brought to justice. Wilmshurst was convicted last month of illegal possession of a machinegun and illegal possession of "Assault Weapons" in California. The judge sentenced Wilmshurst to three years probation and ordered that he dispose of his "arsenal". Wilmshurst, by the way, is a car dealer and land speculator with a law degree, a federal firearms import license, and a class 3 license. This could be the Second Amendment case we've been waiting for or it could be another case of a white-hat taking a fall because white-hats are easier targets than black-hats.
Wilmshurst's troubles began in January of 2003 when an ATF agent performing a routine inspection of his import inventory mentioned that a couple of the guns were not legal for Californians to own. Wilmshurst wasn't worried; the guns were within the umbrella of his import business and were intended for distribution outside the state of California for sale to law enforcement.
In February, officers from the California Department of Justice Firearms Enforcement Division, using information obtained from ATF, staged raids on Wilmshurst's home and Angel Camp car dealership. The raids were conducted in full "storm-trooper" fashion with black "ninja" suits, heavy body armor, and true assault weapons. This being "people friendly" California, the assault force included a medic to monitor 69-year old, stroke survivor, Wilmshurst's blood pressure as they dumped the contents of his safe and confiscated every gun he or his businesses owned.
Even though it is a violation of federal law for information obtained from records generated in compliance with import license regulations to be used directly or indirectly as evidence against the licensee, the judge refused to hear arguments that the warrants were illegal and that all evidence seized was inadmissible. Instead, he barred any mention of federal law in the courtroom and instructed the jury that if the prosecutor proved that Wilmshurst was in possession of the firearms in question (something that Wilmshurst never denied), that the jury must return a guilty verdict.
The guilty verdict was summarily returned and last week, Wilmshurst was sentenced to three years probation and, as a convicted felon, ordered to dispose of all of his firearms.
The judge in the case who happens to be the same judge that ruled against Wilmshurst in a property case currently on appeal expressed dismay that Wilmshurst is showing no remorse for his crimes Wilmshurst is planning to appeal the conviction and has filed suit against the Attorney General of California for violating federal law in conducting the raid and for violating Wilmshurst's civil rights under the Second Amendment.
The Firearms Coalition is bringing the Wilmshurst case to the attention of Second Amendment scholars and firearms civil rights organizations in hopes of generating "friend of the court" briefs and perhaps getting Mr. Wilmshurst the specialized legal assistance this case clearly deserves.
We will keep you posted as the case develops. In the meantime, let this be a reminder: Your white hat is no defense against aggressive police, prosecutors, and judges. There are many things that Richard Wilmshurst would rather be doing with his time, money and midnight oil. Cross your T's and dot your i's
Yours for the Second Amendment,
Jeff
Jeff Knox Director of Operations The Firearms Coalition
"-- We're just making this up as we go, --
"-- If the second amendment is incorporated, the USSC defines what the second amendment protects. --"
Indeed, if we continue to allow the USSC to work under the legalized fiction that the 2nd Amendment needs to be "incorporated" to be valid, we have permitted them to exercise a power they do not possess. A power they're simply "making up"..
Thanks bobby..
Think incorporated 1st amendment, shouting fire in a theater. The USSC says it's not allowed.
IIRC, the USSC said that the First Amendment did not protect a right to shout fire. Can you cite the text where they said you can't shout fire in a theater?
A state cannot say it is.
Cite the text which backs that up, please.
RP, don't get all huffy with me. If you want to say that the Embargo Act was appropriate use of federal power, there's a fine argument to be made there, and that's fine with me. But don't expect me to agree with you, or to look at the Embargo Act--or Jefferson's administration--as some shining example of how the federal government's powers were best explained by the Founders. After all, this is also the guy that bought Louisiana without the power to do so, and fought an undeclared war on Tripoli. The Embargo Act was a miserable failure and only Constitutional because there could not have been a better centralizer on the court to back it up--even the Hartford Convention Federalists acknowledged that the Jeffersonian "anti-Federalism" was stretching the Constitution to the point they wanted to amend it to further restrict the Constitutional prerogatives of the federal government.
And you misread my intimation about 1884--what I was saying was that the post Civil-War era was rife with centralization, that 1884 is not such a great pick insofar as grabbing a date to rely upon as to the Constitutionality of a state OR federal action. I'm not at all implying there's some time limit on Congress to invent powers. I'm stating clearly that regardless of Supreme Court decisions granting Congress power to do so, it has never had the powers you claim.
As to the 9th and 10th, well, heck, just because today's Supreme Court says the sky is green and the sea is purple doesn't make it so.
Prior to incorporation, each state decided.
That is true, but incomplete. With incorporation, each State still decides. Are you saying otherwise?
Jefferson and his Secretary of State at the time, James Madison, were both Founding Fathers. James Madison wrote the U.S. Constitution.
One would think he would have said to Jefferson at the time, "Hey, Tom. This wasn't what I intended when I wrote the Commerce Clause".
Of course.
Six years after Gitlow, the Court anchored this view, stating in Near v. Minnesota that "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action."
-- Near v. Minnesota, 283 U.S. 697, 707 (1931)
That makes my point even better.
1. USSC said that yelling "fire" is not protected by First Amendment.
2. Then USSC incorporates the First Amendment. Now that ruling applies to all the States.
3. And what is the result? It's still left up to the States to decide what to do about yelling "fire".
Justice Holmes: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
So you're saying that the state could allow a person to yell fire? I don't think so.
And likewise for CC. If incorporated, the USSC defines what is protected, not the states. That's the disadvantage of the incorporation of any amendment.
They're saying a state CC law, as written, violates the 5th amendment.
Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.
So what's your point?
If not incorporated, the USSC can define the Second Amendment however they wish. It has no effect on state law. Whatsoever.
Federal law, yes.
Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.
'Actually', in the above comment you admit that since ratification, the USSC has had the power, and duty, to decide cases "arising under this Constitution".
If not incorporated, the USSC can define the Second Amendment however they wish.
The fiction of 'incorporation' has no bearing on the USSC ability to decide 2nd Amendment cases, as you've just admitted with the 5th.
It has no effect on state law. Whatsoever.
USSC decisions effect State 'laws' that infringe upon our rights; - as you admitted just above, they've always have had that duty..
By saying it was not protected by the First Amendment, the USSC defined it as a State issue, of which the Court could take no cognizance. Period.
And likewise for CC. If incorporated, the USSC defines what is protected, not the states.
If CC is not protected by the Second, it's not protected whether incorporated or not.
If USSC says CC is protected by the Second and applies it to the States, then all citizens in the US would have a right to CC. That's what really chaps you.
They're saying a state CC law, as written, violates the 5th amendment.
That's what I said.
Since Marbury v. Madison, the USSC has had the power to define the "scope and meaning" of the 5th amendment. Actually, that's their duty.
Correct.
So what's your point
That if CC is not protected by the Second Amendment, the case hinges entirely on how they apply the 5th.
That if not incorporated, the USSC can define the Second Amendment however they wish. It has no effect on state law. Whatsoever. Federal law, yes.
Which means if they declare CC a right at the Federal level, States are still free to ban CC. If incorporated, then States banning CC would have those laws struck down. That's the real problem, eh?
The proclamation only freed slaves in the South, where Lincoln had no clearly defined jurisdiction at the time. Northern slaves were not universally freed until the war was over.
Lincoln also used numerous extra-Constitutional measures, most notably the suspension of Habeas Corpus, to accomplish his aims, which ultimately resulted in a de facto National Government, as opposed to a Federal Government.
That is why I asked if you were referring to the mutual demise of the institutions (the Constitution and Slavery).
Two years ago, we fought this case and won at the Supreme Court - but N.O.W. has not stopped trying to get around our HUGE victory ... so here we go again.
Our petition contends that the lower federal court of appeals defied the Supreme Court by reopening the case - another blatant example of the judicial activism running rampant in our courts today.
We are asking the Supreme Court to intervene - again - and close this case, that threatens the lives of millions of unborn babies and your constitutional right to free speech, once and for all.
Two years ago, we thought this was over. A solid victory for pro-life America.
The Supreme Court of the United States, in an 8-1 decision, ruled that the RICO statute - originally designed to combat organized crime and the illegal drug trade - could not be used to stop peaceful protests by pro-life advocates in front of abortion clinics.
They ruled that the judgment of a lower court should be reversed ... and a nationwide injunction vacated.
But the vicious and powerful abortion industry, including NOW and others (so focused on silencing Christians and saving their multi-million-dollar baby-killing industry), would not accept defeat.
And a panel of judges in a federal appeals court sided with them - against you ... against us ... and AGAINST THE SUPREME COURT OF THE UNITED STATES - by declaring that the original injunction should remain in effect.
So we are back at the Supreme Court. And we will not rest until this issue is settled once and for all.
I am personally overseeing this crucial case with our senior, most-experienced legal team in Washington, D.C. They are working hard researching and preparing the next major brief due in just a few weeks to the Supreme Court in this case.
Our attorneys and legal staff are devoted to this endeavor and are logging astonishing numbers of work-hours ... because the opposition is so well funded, and the cause is so vitally important.
And the bottom-line expense, as you can imagine, is great.
If we lose:
With your help, we will continue to fight this legal battle for you against the ruthless abortion industry ... and against judicial activism.
Please stand with us - for the lives of unborn babies and for your rights and freedoms.
I have removed their links for donations as that just isn't done on FR, but I strongly recommend we all get involved with the work these people are doing.
A post at http://www.nfaoa.org provides some necessary legal citations!
If his lawyer can't get this info, maybe we can send it to him?
Period? Making things up again?
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
-- Justice Holmes, Schenk v. United States (1919)
The USSC not only said that it was not protected by the First Amendment, they also said that the words were of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. In other words, it violates other rights.
Given that, what makes you think that the state could extend the right? It would be immediately challenged as a violation of the First Amendment.
"If CC is not protected by the Second, it's not protected whether incorporated or not."
It's not protected by the federal government, no. It may be protected by the state.
"If USSC says CC is protected by the Second and applies it to the States, then all citizens in the US would have a right to CC. That's what really chaps you."
What really chaps me are the people like you who would assume this.
True, but I thought we agreed for sake of argument that the right to CC was not a right at the federal level? Why are you trying to confuse things?
This was a state, not federal, prosecution, so the appeal will be to the California Court of Appeal, not to the 9th Circuit.
This was a state, not federal, prosecution, so the appeal will be to the California Court of Appeal, not to the 9th Circuit.
From the article:
" -- The guilty verdict was summarily returned and last week, Wilmshurst was sentenced to three years probation and, as a convicted felon, ordered to dispose of all of his firearms.
Wilmshurst is planning to appeal the conviction, [to the California Court of Appeal] and has [also] filed suit [with the Ninth Circuit Federal Court] against the Attorney General of California for violating federal law in conducting the raid and for violating Wilmshurst's civil rights under the Second Amendment. -- "
[My additions are bracketed]
Let us hope that the Ninth Circuit kicks this up to the USSC.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.