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}
Nor were there high-speed presses, copying machines, typewriters, fax machines, cell phones, the Internet, telephone or telegraph lines, etc. That's hardly an argument for allowing the government to control or ban all speech made via these means. I suggest that YOU go prepare that steaming hot cup for yourself.
Oh, BTW, the principle problems with your proposal to have everyone who wants to go buy a machine gun get a Class III license are: 1) The government has also limited the supply of Class III guns available to civilians to about 200,000 (which is why they cost thousands of dollars), and 2) the right to keep and bear arms (especially modern ones) is the only one where the government makes you apply and pay for a license to do so (which really means that its a privilege). IOW, the Constitution is as violated by these laws and procedures as it would be if you had to pay for a deniable license to attend church every week, or every time you wished to buy a book or newspaper, or to write a letter or email to your crooked Congressman.
Again, you're the one who needs the steaming hot cup, mainly because you value our most basic right about as much as a steaming pile of pig manure.
No.
Why indeed? I am sure I can still field strip an M-60 in nothing flat. I am also sure that I would never use it to infringe on somebody else's rights but that is neither here nor there. The 2A seems to be pretty clear in that it was written so that the inactive militia, a group that is the body of the citizenry with certain such constraints as Congress sees fit to impose (such as age), would be have the same TO&E as an active militia. You disagree with that? If so, what exactly did the people mean when they ratified it?
And surely you are not limiting such use to only those who served are you?
Certainly not. See above.
That's irrelevant to me.
Then why did you make an argument that you had to know was nonsense? I don't get it, crying fire in a crowded theater is certainly an example of the fact that no right is absolute, but convicting somebody because they might cry fire in a crowded theater is antithetical to our system of government.
As you well know JW, I don't post here on FR to make friends, but to make points.
Yes. I'm aware of that. :-} No problem with it either since I have the same attitude and the evidence on that is in, I belong to no clique here at clique central.
I have made the points I suspect the prosecution would make in this case. The judge could well agree with you, though I doubt it.
The judge will undoubtedly agree with me if the state makes a an argument that runs afoul of prior restraint.
Should. More than likely, the government will just rule as they want and the Constitution will take one more swirl 'round the toilet bowl.
What a lousy argument you make! We all possess the potential ability to yell "FIRE!" in a crowded theater (when there isn't, in fact, a fire, and we know such to be the case). However, that doesn't give the government the power to surgically remove one's vocal cords or rip out one's tongue in order to stop us from endangering or infringing upon the rights of others.
Gun control is to the Second Amendment as the forced removal of your vocal cords or ripping out of your tongue is to the First Amendment.
Until 1968, they could. Don't be stupid. How does disarming everyone else make you safer from murders or child molesters?
L-Lib:
Legal issues are decided by the judge, not by the jury.
Read the 5th & 6th Amendments. -- Due process must be followed in trials before impartial juries informed of "-- the nature and cause of the accusation --".
The question of whether the law against possessing machine guns is constitutional is part of "the accusation".
The question of whether the law against possessing machine guns is constitutional is one the defense can raise before the judge; if they lose, they can raise it on appeal.
Backwards. -- If an informed jury decides the 'law' does not apply to the case at issue, the defendant is free.
But our system, as currently set up, does not permit juries to hear arguments on the constitutionality of laws.
Our 'system' is set up to ignore the 5th & 6th amendments and to prevent jury nullification; - that aspect of it is unconstitutional in itself.
Do you truly have to wait until July to retire? Can you get an early out? With your attitude towards rights, I think that's a damn good idea.
licenses to print and sell books
You can print and sell your own books on ebay or in a yard sale without a license.
licenses for broadcasting
licensing of channels of the "public" airways
licenses for journalists
never heard of that in America.
You might want to check out US v. Dalton and US v. Rock Island Armory.
The money quote for Dalton:
Apparently recognizing that to be upheld as a taxing measure a statute must generate some tax, the government argues that the Act still produces revenue because one who unlawfully makes a machinegun is assessed a tax, Government supp. letter at 4. This argument is not persuasive. The fact that some revenue may be generated by taxing the illegal making of a machinegun does not legitimize the registration requirements for possession and transfer at issue in the instant case. The government does not assert that it taxes the illegal possession or transfer of a machinegun. Indeed, here the government did not seek to recover a tax but to impose criminal sanctions based on the possession and transfer of the unregistered machinegun.
Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."
773 F. Supp. at 126 (footnote omitted).
The government is correct that a statute is repealed by implication only when that statute and a later statute are irreconcilable. See, e.g., Morton v. Mancari, 417 U.S. 533, 549-51 (1974). In our view, however, that is exactly the situation here. Sections 5861(d) and (e) punish the failure to register a machinegun at the same time that the government refuses to accept this required registration due to the ban imposed by section 922(o). As a result of section 922(o), compliance with section 5861 is impossible.
Accordingly, we vacate Dalton's conviction and reverse with instructions to dismiss the indictment. In so doing, we recognize that the illegal possession of a machinegun is a most serious matter. However, it is precisely because this conduct raises such grave concerns that the government must exercise its prosecuting responsibility with care. The decision to proceed under an inapplicable statute has resulted in a constitutionally infirm conviction.
And for RIA:
The enactment of 18 U.S.C. sec. 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces sec. 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, - U.S. - , III S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, sec. 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
DISMISSED.
Both of these cases need to be cited by the fellow in question. To my knowledge, Fedgov never appealed them, because they were scared to death of the implications of the court having tossed the 1934,1968, and 1986 victim disarmament acts.
If I were the lawyer, I'd have said it anyway, just to have it on record. If the judge put me in jail, I'd have gotten out and the case would've been tossed out on appeal. One way to challenge a criminal charge is to challenge the basis (i.e. the validity under the Constitution) of the law that the person was charged with violating. Whether you succeed or not is a different matter, but if you even raise the issue, then its GOT to be a mistrial. I don't know what happened in the case, but it is absurd that a judge could even think of saying such a thing.
Clarification: we will always have the right to free speech and free association, because they are God-given and inalienable. With CFR, our government is exceeding the Constitutional limits of its authority by abridging our rights.
Sure. No problem.
The difficulty comes in when you disarm everyone but the criminals.
What is, is, regardless what anyone in particular thinks.
Your argument is more academic than real, since no court in the land is going to agree that all firearm laws are unconstitutional.
"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.
First, a 6 year old is a person. If not, then no constitutional issue exists with respect to a fetus. The 2d Amendment does not refer to adults only. But your point seems to say that a reasonable interpretation can be made, which leads to reasonable laws. Second, state supported schools are not free to prohibit the exercise of free speech, so why 2d Amendment rights?
"How about a murderer?"
A convicted murderer is a criminal. Why isn't he in jail, or dead?
Because there are thousands of convicted murderers on the streets who have served their time. It was a real question.
"What about carrying guns on an airplane?"
An airplane is private property and the captain is in charge.
I can assume from that answer that guns should be allowed on planes if the captain has no objections. In other words, the captain, not the government makes these decisions?
Why are all the questions ridiculous?
The point was that reasonable curbs exist on the exercise of the 2d Amendment. They are only ridiculous to you because you could not adequately address them.
"I would suggest it would be alright to permit a convicted child molester to again teach school upon his release."
Tell me where in the Constitution is it written that teaching is a right?
"So if I understand you correctly, a convicted murderer should be allowed to carry a firearm after release?"
If you are going to restore rights to a felon, why not all them? Are the others more important, of higher stature than the 2nd? Also, you are stating a convicted murder (whom I may agree, if evidence was not witheld, should not own firearms) but what about those that are convicted of "white collar" crimes that make them felons? Is Martha Stewart as much a threat to society if she were to be able to own firearms again? Again, are they less equal than us? Are cops and military personel more equal than us?
Stayed away from the ARVN. They were garbage. Hung around with Nungs and Yards. As for infringed, I believe you once told me you had to apply for a license to carry concealed. Why would you do that if it was unconstitutional?
"...but if you can't even raise the issue...
See my post #130
Still they are and must be dealt with, with the protection of society in mind.
If I were the lawyer, I'd have said it anyway, just to have it on record. If the judge put me in jail, I'd have gotten out and the case would've been tossed out on appeal. One way to challenge a criminal charge is to challenge the basis (i.e. the validity under the Constitution) of the law that the person was charged with violating. Whether you succeed or not is a different matter, but if you even raise the issue, then its GOT to be a mistrial. I don't know what happened in the case, but it is absurd that a judge could even think of saying such a thing.
What the judge said was that Stanley's lawyer couldn't argue constitutional issues in front of the jury, which is a correct ruling under current law. He was permitted to (and did) argue the legal issues to the judge. Stanley's conviction was affirmed on appeal.
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