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}
They have business licences concerning the commerce they're engaged in, not the particulars of what they're engaged in.
"And who determined that channels are "public" and subject to a restriction of the right to free speech?"
The channels refer to the use of EM radiation of particular frequency. Congress determined that EM radiation of particular frequency was a national/public resource to be allocated by a licensing scheme. Neither the resource, nor it's use is covered by the 1st Amend., except that it shall not be allocated in a fashion repugnant of the 1st, nor regulated that way.
"Newspapers require commercial licenses and permits involving the sale of papers."
A business licence. That allows them to engage in commerce. The licence may not restrict in a fashion repugnant of the 1st Amned.
"Laws exist which prevent the ownership of both print and broadcast media and which would seem to curb First Amendment rights."
No fiirst Amend rights can be violated there, because the matter is entirely a question of commerce and the allocation of EM rad use privaledges.
The 14th Amendment requires that due process and equal protection of the laws apply to everyone. If the 2d Amendment cannot be reasonably applied for the protection of society as a whole, then neither should the 14th which prohibits discrimination.
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?
If I understand you correctly, you are suggesting that all felons once released should have the right to carry arms? Since most, including me, would immediately question that as contrary to a secure society, it would make no sense. And any government that would permit felons (at least violent felons) to carry arms would be failing in its duty to protect society.
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?
She's not as much of a threat as a felon convicted of a violent crime. But I'm not sure where the equality issue plays in here.
Are cops and military personel more equal than us?
Police and military would certainly be better trained and more trustworthy than say, your average bank robber. But if you are trying to make a case for the average citizen being permitted to carry machine guns, you haven't yet done so. Even the police and military must secure their weapons to ensure they are not taken or otherwise used in a nefarious manner.
Almost everyone who would pose an unacceptable danger to society if not prevented from acquiring a firearm, would poses unacceptable danger to society even if forbidden such acquisition.
Liberals like to push for dangerous people to be released, and then use the havoc they cause as justification for disarming the law-abiding.
No problem for the 6 year old...with proper parental supervision. As for the felon, it depends on the felony. Martha Stewart is a convicted felon. I wouldn't have any problem with allowing her to own a firearm. Charles Manson is a convicted felon too. I wouldn't let him near a firearm. The loss of 2nd Amendment rights as a consequence of being a "convicted felon" is far too broad. Politicians always look for the easy way out. Zero tolerance policies that suspend or expel a kid for taking aspirin at school fall under the same inane style of thought.
Well, I'm not a Libertarian, so I can safely say that millions of laws exist in the Country in all of its various jurisdictions that involve judgment. Some are good for society; some are not. Those that are not should be challenged. And yes, governments should have the power to distinguish between a machine gun and a bottle of wine.
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?
Are you sure you mean to make that argument? Of course I don't want a Muslim government. If I did, I would move to Iran or Saudi Arabia. We live in a republic, and most recognize that in any society laws must be enacted for the protection of society as a whole. Are they all good? No. But this whole debate is whether a government has the power to reasonably put curbs on the rights of its citizens. And of course, the answer is yes...as long as those curbs are reasonable and necessary for the safety and good order of the society.
You don't have a right to drive a car, thus the prohibition.
Huh?
You have proven that YOU are the retard. Should we also do away with allowing the defense from using the First, Fourth, Fifth, Sisth, and Eighth Amendments in the courtroom, too? It wure would speed things up in there, wouldn't it?
The Second Amendment (as well as all the other amendments in the Bill of Rights) was written as a limitation on the GOVERNMENT, not the individual.
In fact the Supreme Court has already ruled that firearms "suitable and customary to contribute to the common defense" are SPECIFICALLY PROTECTED by the Second Amendment. Look up Miller vs US 1939 and the government would NOT have won that case if they had even bothered to show up.
If the Supreme Court didn't have so many leftists, a better aproach I would think would be to do what Tompson/Center did to force their case to the Supreme Court: have a group purchase a legal M16, pay the tax, and then sue the federal government for a refund thereof. Not only would such action avoid the risks of prison time associated with illegal possession, but it would also put the citizen--rather than the government--in the position of initiator.
The government would have no basis for refunding $200 of taxes that were legitimately due, but if it refused the refund the plaintiff would then be in a position to appeal.
The only way out I can see for the government would be if some government employee gave the plaintiffs $200 of personal money, and then argued that he--rather than the plaintiffs--was entitled to continue the suit. I don't think that would fly legally, but it would be an interesting approach.
What's to argue with? The word "militia" means "the body of the people capable of bearing arms". The RTKABA is an individual right and the militia clause of the 2A is simply a clause used to justify that individual right. But there are no absolute rights. Your right to life is forfeited upon conviction of murdering another human being after due process has been done.
But the wording leaves us with some information and that information is that the people wanted the citizenry to be armed with the same arms as an active Army. I really don't see how anybody can argue that point with a straight face.
And for you MAC, it's fine to say that the 2A guarantees a RTKABA but you have to expound a bit. Is the RTKABA only indicated for squirrel hunting?
Miller vs US 1939. The SC rules that "arms that are suitable and customary to contribute to the common defense" are specifically protected by the 2A.
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.
'Legalistic' nonsense. -- 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.
[A judge said that a] "lawyer couldn't argue constitutional issues in front of the jury, which is a correct ruling under current law."
"Currant law" is the issue here. Arguing that 'the law is the law' is simply specious legalistic babble.
Jury nullification.
Let the defense use one Constitutional tool to secure another.
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.
And he would have infringed on your rights how? So what if DC were to own any of his mentioned inventory, how is it infringing on you?
I guess that is why I keep guns, my wife occasionally drives a Chevy cavalier, there are Ford f350 super duty owners out there; the freaks.
LOL, hardly MAC, see the post above. Sometimes I assume a bit too much like assuming everybody knows that "militia" was simply a term of art that means quite literally the body of the people.
It is, though by the time the extent of infringements became significant they were already pretty well-entrenched. The proper thing to do would have been to ratify a constitutional amendment specifically creating the FCC and deliniating its powers and duties.
In the early days, however, transmission equipment was sufficiently expensive that the people who could afford it would not have been particularly bothered by the licensing requirements. Consequently, nobody made particular objection to the licensing procedures.
While it is not the role of the courts to demand legislative action, I would think the most proper thing for the Court to do (assuming the right case came before it) would have been to rule that the FCC in its current form was unconstitutional, but stay its ruling for some period of time (say ten years) to allow the formation of a constitutional basis for the FCC.
Unfortunately, for various reasons, the Supreme Court isn't inclined to act in such fashion. They tend instead to regard long-standing constitutional violations that can't be easily reversed as faits accomplis.
Does anyone know of any other case where the government, having won at the Supreme Court the right to prosecute someone, decided instead to plea-bargain for probation and time served?
UPDATE: http://www.nwaonline.net/articles/2007/01/10/news/011107wzfincher.txt
Jury Chosen in Fincher Trial
This article was published on Wednesday, January 10, 2007 1:04 PM CST in News
By Ron Wood
FAYETTEVILLE — A jury has been seated for the trial of a Washington County man accused of illegally having three machine guns and a sawed-off shotgun.
Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in U.S. District Court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.
Opening statements are set for this afternoon.
The trial is expected to last two or three days.
Fincher was arrested Nov. 8 by federal agents. He remains in federal custody in lieu of $250,000 bond, and a number of other conditions also set by a magistrate judge.
According to police, two of the .308-caliber machine guns, homemade versions of the Browning model 1919, allegedly had Fincher's name inscribed on them and said “Amendment 2 invoked,” a reference to the Constitutional right of citizens to bear arms. They were also inscribed with “non-commercial.”
The topic was licencing, not all firearms laws. Wake up and pay attention!
I believe you stated that all licensing laws are unconstitutional because the right to bear arms is a right, not a privilege. If so, then all other restrictions are also unconstitutional...unless governments do have the power to reasonably ensure the protection of society by some regulation. If so, then your argument that all licenses are unconstitutional is merely academic.
"First, a 6 year old is a person. If not, then no constitutional issue exists with respect to a fetus. ... Ditto on the wakeup!
Yes, if you cannot effectively argue your point, try the wakeup issue.
It can't be imposed retroactively, which the '68 GCA and the Lautenberg amend did.
And that has what to do with what we are discussing?
"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.
Thank God most Americans and the government do not agree with that. I can just see all the Muslim pilots moving up in the airline industry who at least won't have to use boxcutters next time. But it will save all those extra costs associated with TSA.
The questions were answered more than adequately. You failed to display any knowledge, or understanding of the concept of emancipation.
Well, you'll excuse me if I don't look to you for guidance on the Constitution. You keep your emancipation; I'll keep my safe and secure society.
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 posed the 2d Amendment as if it were a right completely unfettered. The 6 year old example was merely to point out that of course the 2d Amendment can have restrictions which are reasonable and prudent. And no, weapons should not be allowed on public transportation systems; and no, felons should not be permitted to carry weapons; and yes, some licensing requirements that ensure only law abiding citizens have firearms are not only prudent, but constitutional.
Not at all. If for example, I was denied a license to carry a concealed weapon, I could sue in federal court, under both the 2d and 14th Amendments. Would I be successful. Depends, but many perceived rights infringement issues do not require arrest.
I'll challenge them wherever, and that's what I'm doing now.
Hopefully not with me. I'm in no position to change anything.
Perhaps, but it doesn't have to be a murderer, if that bothers you. Make it a bank robber, or a rapist who uses a gun. Sooner or later they will be out on the street, and looking for another gun. My point is that the 2d Amendment does not require society to grant them that right.
What reduction in crime do you attribute to the background checks that I am required to pay for prior to buying a firearm?
I would guess very little. It was designed to keep the undesirables from legally purchasing a weapon, not to simply heap additional paperwork on law abiding citizens. The issue still exists of keeping firearms out of the hands of criminals. Only one door has been closed to them. When law abiding citizens can no longer purchase a firearm, then I will be concerned.
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