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Trial will debate 2nd Amendment rights
WorldNetDaily.com ^ | January 6, 2007 | Bob Unruh

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}


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: banglist; constitution; fincher
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To: stm

A retired Constitutional scholar babbling STFU? My my! What about semi-automatic guns? There were none of those either.

Either we are equal or we are not. Good people ought to be armed where they will, with wits (lets 'stm' off) and guns and the truth. NRA KMA and stm2


101 posted on 01/10/2007 2:19:21 PM PST by dhuffman@awod.com (The conspiracy of ignorance masquerades as common sense.)
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To: MACVSOG68
Re: Note that the 2nd acknowledge that it's a right, not a priviledge, so alllicencing schemes are repugnant to the Constitution and bogus.

"Few would agree with that."

What is, is, regardless what anyone in particular thinks.

"Would it be unconstitutional to prohibit a 6 year old from taking a gun to school?"

A 6 y/o is not recognized as being an emancipated adult capable of acting on his own. Also the school is private property.

"How about a murderer?"

A convicted murderer is a criminal. Why isn't he in jail, or dead?

"What about carrying guns on an airplane?"

An airplane is private property and the captain is in charge.

Why are all the questions ridiculous?

102 posted on 01/10/2007 2:19:58 PM PST by spunkets
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To: ctdonath2
_Use_ may be regulated, but mostly amounts to "don't do anything stupid/dangerous" in most areas.

One of those inconsistencies that goes along with a republican form of government. Law vary. Heck, just look at Massachusetts!

103 posted on 01/10/2007 2:21:23 PM PST by MACVSOG68
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To: Joe Brower

Interesting case!


104 posted on 01/10/2007 2:21:42 PM PST by blackie (Be Well~Be Armed~Be Safe~Molon Labe!)
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To: looscnnn
"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."

It appears plainly that the govm't, in particular the Administration, has something to hide.

105 posted on 01/10/2007 2:22:36 PM PST by spunkets
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To: Dead Corpse
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.

Should be a short trial then, huh?

106 posted on 01/10/2007 2:22:38 PM PST by MACVSOG68
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To: MACVSOG68

I hope that's what you taught your ARVN students and not what you believe. Which part of 'shall not be infringed' confuses you?

Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA KMA


107 posted on 01/10/2007 2:23:33 PM PST by dhuffman@awod.com (The conspiracy of ignorance masquerades as common sense.)
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To: MACVSOG68
Should a 6 year old be allowed to own and use a firearm? How about a felon?

I am of the school of thought which says that if someone is too dangerous to be trusted with a firearm, they should not have been released in the first place.

108 posted on 01/10/2007 2:24:23 PM PST by jmc813 (Go Jets!)
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To: MACVSOG68
" Law vary."

Law arbitrary, contradictory and repugnant to the Constitution.

109 posted on 01/10/2007 2:25:11 PM PST by spunkets
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To: looscnnn
"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."

There are those that would argue that those laws are unconstitutional.

Yes, a few would argue that to a very unsympathetic judiciary.

110 posted on 01/10/2007 2:25:15 PM PST by MACVSOG68
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To: looscnnn
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.

That would be because the feds are TERRIFIED that this will get to the Supreme Court.

111 posted on 01/10/2007 2:25:38 PM PST by Centurion2000 (Judges' orders cannot stop determined criminals. Firearms and the WILL to use them can.)
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To: MACVSOG68
MACVSOG68 said: "Would it be unconstitutional to prohibit a 6 year old from taking a gun to school? How about a murderer? What about carrying guns on an airplane? Should we permit Muslims to carry firearms on a United flight?

Would that be a government school, or a private school at which the owners of the school decides who can have guns?

Would that be a government owned plane or one owned by private citizens who decide what arms shall be allowed?

If United hired a Muslim pilot are you against such a person being armed in the cockpit simply because they are Muslim? Is that the government's decision to make?

And as for the murderer, how is it that such a person can WALK at all? Isn't that a government problem with murderers that has nothing whatever to do with arms?

112 posted on 01/10/2007 2:29:22 PM PST by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: looscnnn
By the way, there are many states that give all rights back to felons, except 2nd amendment, when released from jail/prison. Why should the 2nd be treated any different? Because guns can be dangerous? Sorry, but they are not barred from archery equipment; baseball bats; golf clubs; etc.

So if I understand you correctly, a convicted murderer should be allowed to carry a firearm after release? Given that logic, I would suggest it would be alright to permit a convicted child molester to again teach school upon his release.

113 posted on 01/10/2007 2:29:29 PM PST by MACVSOG68
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To: stm
Hey retard, when the Second Amendment was written, there were no such thing as machine guns.

What part of "shall not be infringed" can your little mind not wrap itself around?

Back then a flintlock rifle with ring bayonet was state of the art military technology.

114 posted on 01/10/2007 2:30:35 PM PST by Centurion2000 (Judges' orders cannot stop determined criminals. Firearms and the WILL to use them can.)
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To: Dead Corpse
I'm not sure I comprehend your stand, or maybe only this present argument ... on the second ammendment ...

(snip)

The faint-hearted, who fear, whose reaction is flight,
Have no comprehension of those who will fight.
To hide their own trepidation they attempt to demean
The rough men, who defend them, as barbaric, obscene.
Yet these rough men stand ready, hard weapons to hand,
To put placaters behind them, draw a line in the sand,
To preserve for the peaceniks what they won't defend,
So their own unearned freedom won't perish, won't end.

115 posted on 01/10/2007 2:33:38 PM PST by knarf (Islamists kill each other ... News wall-to-wall, 24/7 .. don't touch that dial.)
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To: looscnnn

"the right of the people to keep and bear arms, shall not be infringed."
This says we have the right and they can't take it away. It does not say the right of the government; it clearly states people.
Police do not prevent crime they document that a crime has happened after the fact and then go after the perpetrator to bring him to justice. Police will never prevent you from becoming a victim. That is your responsibility. You carry our this responsibility by being armed and making a criminal think twice about making you a victim. It is your responsibility to protect yourself and your family, not the government's.


116 posted on 01/10/2007 2:33:40 PM PST by BuffaloJack
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To: MACVSOG68
The prosecutor will simply ask if the First Amendment guarantees a right to cry fire in a crowded theater to illustrate that while our BOR is sacred, it does not guarantee unfettered rights.

And the defense can argue right back that there is no Bureau of Copiers, Printing Presses and Word Processes

Bad logical argument on the part of the prosecution.

117 posted on 01/10/2007 2:33:45 PM PST by Centurion2000 (Judges' orders cannot stop determined criminals. Firearms and the WILL to use them can.)
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To: tcostell
There is also an issue of the government being charged with securing public safety, but it seems to me that it's difficult to argue that someone who has broken no other laws is a threat to public safety for simply owning potentially dangerous object.

It's like arguing that I'm an imminent drunk driver because I own both alcohol and a car.

That's a fair point, and one that the defense may make. I would respond that the government's charge to secure the public safety requires making certain value judgments as to what commodities pose the greatest threat to society, in this case the machine gun, versus a bottle of wine. There are many laws already on the books prohibiting opened liquor in cars, even if the driver is not consuming them.

118 posted on 01/10/2007 2:34:18 PM PST by MACVSOG68
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To: El Laton Caliente
And notice it was not called the Arms Board. Further the US in 1812 established in the War Department it's own.

The current definition is: ord·nance /ˈɔrdnÉ™ns/ –noun
1. cannon or artillery.
2. military weapons with their equipment, ammunition, etc.
3. the branch of an army that procures, stores, and issues, weapons, munitions, and combat vehicles and maintains arsenals for their development and testing.


As opposed to arms: –noun
1. Usually, arms. weapons, esp. firearms.
2. arms, Heraldry. the escutcheon, with its divisions, charges, and tinctures, and the other components forming an achievement that symbolizes and is reserved for a person, family, or corporate body; armorial bearings; coat of arms.


----
The basic lexicon being that ordnance covers cannons (and can include firearms), while arms only includes firearms and is a subset of ordnance.
119 posted on 01/10/2007 2:35:20 PM PST by taxcontrol
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To: taxcontrol
Ordinance is the term that was used when referring to weapons, such as cannons that required more than one person to operate. As such, a howitzer would be ordinance, not arms.

Not true, otherwise the federal government would have specifically mentioned it. Amendment 9 covers that. Also bear in mind that they put language for privateers into the Constituion and those certainly carried ordnance as privately armed warships.

120 posted on 01/10/2007 2:36:21 PM PST by Centurion2000 (Judges' orders cannot stop determined criminals. Firearms and the WILL to use them can.)
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