Eck-tually...
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}
"My Right to own a machine gun/tank/F-18E in no way interferes with any of your Rights. Period. End of story."
That is why I keep guns. Too many freaks like you don't know where their rights end and mine begin. Thanks for identifying yourself.
When you encounter such laws, you should challenge them. That is what most Americans do. If I believed my constitutional rights were being infringed, I would take it to a federal court.
"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."
So you are for the government making judgements, huh? Make sure you let Hillary and Nancy know that. I don't like it. You get people that do things for the "common good" based on their clouded judgements. The ultra religious freaks are one of the groups that I don't making any judgements, you want extremist Muslims making judgements on what should be allowed?
"There are many laws already on the books prohibiting opened liquor in cars, even if the driver is not consuming them."
You don't have a right to drive a car, thus the prohibition.
Does it make a difference? Since government schools cannot infringe on First Amendment rights, I presume most here would permit the 6 year old to take the gun to school, under the guise of the 2d Amendment. A private school would not have to permit guns on its campus.
Would that be a government owned plane or one owned by private citizens who decide what arms shall be allowed?
Not aware of any government owned planes other than military and homeland security aircraft. What is the point?
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?
It would be a 14th Amendment issue, not a 2d Amendment issue. But I presume the government would not prevent a Muslim pilot from carrying, assuming others can.
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?
Not at all. There are thousands on the streets today who have served their sentences, however short or long they were. The issue is whether they should be permitted to carry firearms, not whether they should be on the street.
And the prosecution can simply point to the thousands of laws which infringe on the freedom of speech, such as requiring licenses for almost all aspects of print for sale, broadcast, and permits to assemble. There are also laws against libel, and hate language laws are cropping up all over. I could go on, but I would suggest the defense needs a tad better argument than that.
"Your argument is more academic than real, since no court in the land is going to agree that all firearm laws are unconstitutional."
The topic was licencing, not all firearms laws. Wake up and pay attention!
Re: an emancipated adult
"First, a 6 year old is a person. If not, then no constitutional issue exists with respect to a fetus. ...
Ditto on the wakeup!
"Because there are thousands of convicted murderers on the streets who have served their time. It was a real question."
Fine. Punishment for crimes can be instituted by the legislature. That includes Congress. It can't be imposed retroactively, which the '68 GCA and the Lautenberg amend did.
"I can assume from that answer that guns should be allowed on planes if the captain has no objections. "
No need to assume. That's what my statement means.
"In other words, the captain, not the government makes these decisions?"
That's correct. The captain only has the planes owner to answer to in this matter.
"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."
The questions were answered more than adequately. You failed to display any knowledge, or understanding of the concept of emancipation. You posed the first question as if a six y/o should really be allowed to keep and bear any arms as he saw fit. That's ridiculous! The other questions were a bit less so.
You have to be arrested and tossed in jail for the opportunity, like the guy in this story.
"When you encounter such laws, you should challenge them. That is what most Americans do."
I'll challenge them wherever, and that's what I'm doing now.
"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),"
I disagree with that, I see nothing in the wording of the Constitution or the BOR that states that Congress can place constraints on what a militia is. I think that the Founding Fathers would agree with me. Case in point:
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." -- Noah Webster, An Examination of the Leading Principles of the Federal Constitution [1787]
"No free men shall be debarred the use of arms." - Thomas Jefferson
The people, free men, etc. does not tell me that they would allow Congress to impose any restrictions on who the right applies to.
I have post before that there is no laws stating that you can not yell "fire" in a crowded theater and that you are able to without being charged with anything.
You have just made the case for the left which wants all guns banned. The only militias that existed, existed within each state, and the TO&E was pretty sparse. It did not include firearms, as each citizen had his own, and was expected to make it available for use if necessary. Today, each state militia (National Guard) has a complete TO&E to include weaponry. My point is that even though the original intent of the ratifiers no longer exists, the language of the 2d Amendment specifically reflects a right to bear arms. Laws which prohibit the ownership of arms are likely unconstitutional. Laws which regulate the ownership and use in order to maintain a safe and peaceful society are likely not unconstitutional.
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.
The argument is nonsense only if someone believes that any right is unfettered by rules designed to protect society as a whole. I have pointed out that many preemptive laws exist which regulate the free speech rights of individuals including licenses to print, licenses to broadcast, and requiring permits to assemble, none of which were mentioned in the First Amendment.
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.
Heck, then if it weren't for you and me, these might be dull threads :-)
The judge will undoubtedly agree with me if the state makes a an argument that runs afoul of prior restraint.
I wouldn't put a whole lot on that, but then I picked Ohio State by 2 touchdowns.
Perhaps, but most will see the almost obvious decision as merely ratifying a state's power to reasonably regulate something for the protection of society.
How would that infringe on your rights? What rights would be infringed?
The point is that every right protected by the Constitution permits reasonable regulation to ensure that society as a whole is protected. Don't like the fire argument? Then how about all the licensing requirements for the print and broadcast media. Isn't that an infringement? How about having to get a permit to peacefully assemble? Where are those requirements mentioned in the Constitution?
Just using his own words!
YOUR issue is whether murderers should be allowed to carry arms. YOU wish to solve the "problem" of armed murderers by attempting to disarm them. If you make a habit of identifying issues in this fashion, the effectiveness of your solutions will reflect it.
What reduction in crime do you attribute to the background checks that I am required to pay for prior to buying a firearm? Certainly you must feel that there is some benefit. Are half of all convicted felons successfully denied arms by the law? Seventy-five percent? Or is it "none"?
Correction: Laws which regulate use in order to protect rights would be Constitutional. That includes infringement of ownership rights as punishment for crimes committed.
"a safe and peaceful society"
Inscribed on a plaque in the stairwell of the pedestal of the Statue of Liberty is the following from Ben Franklin: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”
Just like the car itself. There are no laws about who can own one, but lots of laws ensuring it's safe usage. That seems reasonable to me.
So you are telling me that Regnery or other book printers do not have to have licenses? Doubt it. And as for yard sales, in many jurisdictions you need a permit.
licensing of channels of the "public" airways
Where does the First Amendment say that? And who determined that channels are "public" and subject to a restriction of the right to free speech?
never heard of that in America.
Newspapers require commercial licenses and permits involving the sale of papers. Laws exist which prevent the ownership of both print and broadcast media and which would seem to curb First Amendment rights.
Eck-tually...
The difficulty comes in when you disarm everyone but the criminals.
Two issues. First, give everyone on a jet at 35k feet a gun and have them open up on a hijacker and see what happens. Second, I'm certainly not espousing taking guns away from citizens. Not sure where you are coming from.
When the First Amendment was written there was no such thing as high speed presses, radio, TV, telephones. Do you think the First Amendment only applies to Gutenburg printing presses? If not, then by example the Second Amendment applies to any arms that the militia can "bear". Machine guns included. The 1934 NFA and succeeding gun control legislation is completely unconstitutional.
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