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}
Businesses which sell products in excess of certain valuations are required to serve as tax collectors for the state (at least in states with sales taxes), and are thus licensed in that capacity.
The Post Office requires that people seeking to mail materials at its discounted Second Class rate fill out certain paperwork to demonstrate compliance with the requirements for receiving that rate.
Someone who wished to print books or other materials and distribute them without receiving any sort of payment and without receiving Second Class postage rates would not be required to have any sort of license.
I too believe that the constitutionality of a law is certainly fair game before a jury. If the law is not constitutional, the jury should not be bound by only the law itself. I do not believe in jury nullification, though unless they believe the law to be unconstitutional. Otherwise it is a formula for chaos.
No. The very fact that you applied for the license means you admit that there is no right to claim. Any suit must apply to the due process of the denial of priviledge. Denial of right in the case of criminal law, requires arrest and the appropriate court venue. Civil suit does not apply to acts of legislatures covering crimes.
"I'm in no position to change anything."
You're challenging the plain English contained in the 2nd Amend to the Bill of Rights.
So your position is that only swords and black powder guns including cannon are legal under the second admendment?
And hand cranked printing presses but not radio,television,or email?
The problem with your argument is that while it may be illegal to shout fire in a crowded theater or other place in a way that causes harm the government cannot prevent you from owning the means of shouting, i.e. your vocal chords. To make the analogy correct we would not be able to own vocal chords because we might shout fire in a crowded area causing harm.
We have the right to own any manner of automatic weapons as long as we don't use them illegaly. The constitution protects that right from infringement by any government in this country. Same with our vocal chords.
As an example, the citizen can own a nuclear weapon, but they must store it in a approved nuclear weapon storage facility, under full time military guard, and the weapon itself must be subject to various fail-safes etc to assure it's safe storage and to prevent it's accidental discharge. All the costs associated with this storage will be the responsibility of the owner of the weapon, including the military guard and lease of the storage space etc.
You own it...just like your car it's yours ... no one disputes that... but there are HIGHLY restricted rules for actually firing one. It involves billions in insurance, an approved underground testing facility in an appropriately remote location... blah blah blah... In this way, it's legal under the law for an individual to keep and bear it, but it's still safe for the general public.
That was an interesting post. You made some good points there, especially the last.
We can debate semantics, but the fact remains, governments do have the power to curtail certain rights for the overall protection of society.
Only if they use due process to write & enforce laws that conform to our constitutions principles.
And government does not have to wait until a crime is committed. It can and does take many actions to prevent harm to society before that harm can take place. Are all these restrictions reasonable and prudent? Of course not.
You admit to unreasonable restrictions, yet you claim: "-- I'm certainly not espousing taking guns away from citizens --". Go figure.
But at least in our federal republic, we, the citizenry, have the ability to challenge laws in several venues.
Increasingly fewer venues, due in large part to citizens who claim: "-- government does not have to wait until a crime is committed. It can and does take many actions to prevent harm to society before that harm can take place. --"
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."
With all due respect, that's a most overused and little understood statement. It may be the most repeated cliche on FR ever.
You show your disrespect for liberty by calling it a 'cliche'.
It is used to challenge every law ever enacted, including about everything in the Patriot Act. With no disrespect to Mr. Franklin, he was not living in the world we live in today.
"Cliche" anyone? Amusing conclusion, Macv.
Government must not only secure the rights of its citizens, but must ensure a safe and secure society. When it cannot do both, it will in time fall.
Indeed, it will fall, by infringing on our rights to life, liberty, or property, without due process of law:
Justice Harlan said it best:
"-- The full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . --"
We agree completely on that.
Do you dispute my statement that nearly all people who would pose an unacceptable danger to society if allowed to acquire a firearm would pose an unacceptable danger to society even if forbidden from acquiring one?
Not at all, but the acquisition of a firearm certainly exacerbates that danger.
I would suggest that while there probably are a few convicted felons for whom a prohibition on firearm ownership would significantly reduce the danger they pose to society, such people are dwarfed in number by those who either would not pose a danger with or without being allowed firearms and by those who would pose a danger with or without firearms.
I think any felon convicted of a violent crime will always pose a danger to society and should therefore always be prohibited from owning a firearm.
Then of course, for your reasoning to be consistent, you must accept this poison: - The unorganized militia is not, and is inferior to, the "people" of the First Amendment.
or the right of the PEOPLE peaceably to assemble....
"A well regulated militia, being necessary to the security of a free state, the right of the PEOPLE to keep and bear arms, shall not be infringed."
You said that better than I did, Thanks!
In one recent post I gave my opinion to a question as to specifics. I believe there is a legitimate balance to be made between an individual's right to own arms, and a government's duty to protect its citizenry. Nor did anything in the quotes you reflected say any different. Law abiding citizens have the right and should be permitted to own firearms. Need is not at issue, but security and safety is. No citizen has an unfettered right to own any type of weapon he can afford to purchase, if that weapon has the capability of destabilizing or destroying the security of our society.
The business license itself does not infringe on any first Amend right. If the entity wishing to exercise it's right wishes to do so, it can finance it's speech without engaging in the commercial sale of it's speech.
Re: EM allocation.
"In other words, the founding fathers did not see the future with all of its changes."
No, not IOWs. EM allocation is a public resource. It is not covered by any amendment. It is "property" and covered in hte concept of eminent domain.
"They did not know what a machine gun was or how it could be used."
They sure did and the knew the concept of canon, canister and bombs well. Ever listen to the Star Spangled Banner? It was composed back then.
"governments must make judgments based on the good to society as a whole"
Govm'ts must stick to protecting rights. The "public good" and the "good of society" are empty, arbitrary concepts used by con men as scrumptious little treats to attract and snare bliss ninnies.
"I will guarantee you that if that newspaper printed pictures or words that were patently offensive to the senses, that business license would be revoked."
"patently offensive to the senses is an arbitrary and empty concept. If it's a matter covered by the first amendment, then the license can not be touched at all. Otherwise, it's a proper legislative matter.
"Newspapers of today would simply not be permitted to print some of the stuff the papers of the 1800s frequently did."
They had their arguments back then too. However, they didn't have the 14th Amend, which applied the BORs to all jurisdictions under the US. That was penned to provide extension of the BORs to those lower jurisdictions, because some were violating the rights of their citizens. It is also irrelevant that Plessy vs Ferguson ignored that attempted remedy and blessed a continuation of that widespread rights violation.
" don't see broadcast media restrictions anywhere in the First Amendment."
There are no 1st Amend restrictions on broadcast media, outside of the unconstitutional McCain Feingold. EM allocation restricts no one's rights. No one has a right to broadcast with EM. It's a privilege obtainable though bidding.
If you believe our 2d Amendment rights include owning and operating a F-18 fully armed, then you are right. If the 2d Amendment means that law abiding citizens have a right to arms which on their own do not threaten the stability of our society, then those rights are in no danger. Law abiding citizens have no reason to fear their government. We are still the greatest nation on earth and still a nation with the greatest Constitution ever written. But along with freedom comes responsibility. Governments have a two-fold responsibility: First to protect the rights of its citizens, and second to provide a safe and secure society. Not one right enumerated in our Constitution is completely unfettered. That includes both the First and Second Amendments.
The key to understanding our point of view lies in identifying "What do we wish to be restricted/punished?" The instruments {endless possibilities} used to commit evil? Or the evil man / evil act itself?
In other words, governments should never act to prevent any crime, accident or other nefarious incident. It should only act afterwards. Sorry, can't subscribe to that.
NOT a crevo thread ping - I promise!
I did so state, however the "if so" conclusion doesn't follow and the rest of the logic is bad too.
Why does the logic fail. What part of the 2d Amendment permits other types of restrictions, but forbids licensing?
When you can grasp and understand the concept of emancipation, then your judgment in the matter might carry weight. Until then, it is just as empty as your proposition that they have any right whatsoever to carry a gun to school as they see fit.
Oh I don't believe a 6 year old has the right to arms. I merely pointed out that reasonable restrictions exist on the 2d Amendment, and age is one of them. Others argue that the 2d Amendment reflects an unfettered right. You are apparently confused. I am arguing that a government has the legitimate power to reasonably and prudently regulate the ownership and use of weapons. I think it would be insane to permit a child to carry a gun to school.
The matter pertained to murderers being forbidden from possessing firearms. THey are included in those laws under the classification of felon.
Okay, I agree that no violent felon should ever be permitted to carry a weapon.
When you can demonstrate that the pilots are terrorists, belong to terrorist orgs, express terrorist sympathies AND the carriers themselves provide no control over a clear threat, then you'd have a point. Until and unless you can show that, there is no justification for imposing a legal restriction.
As I said, since I want no more 9/11s, thank God our government disagrees.
The 2nd Amend clearly prohibits such legal restriction. "The right of the people to keep and bear arms shall not be infringed"! There's no conditional clause given. That's the law!
Which takes me back to the 6 year old! You can't have your cake and eat it too...grasshopper. If there can be absolutely no restrictions, then the 6 year old is a person and is the people. Does the 2d Amendment mention the age of emancipation? And exactly what age is that? Does it mention murderers? Aren't they people too? In fact, the 2d Amendment is no more holy than the First, which contains thousands of restrictions in the form of federal, state, and local laws.
No licensing requirements are Constitutional, as I pointed out. Nor are any schemes that infringe on the people's right to keep and bear arms, especially one's that restrict access to any type of priviledged class, including govm't. The @nd Amend to the Bill of Rights doesn't say the govm't can keep and bear arms, nor does it contain any exception clauses to justify any infringement whatsoever!
I presume that would include nuclear arms? If not, that would of course be an infringement...sorta like the 6 year old!
You are now openly saying that ownership of any weapon capable "-- of destabilizing or destroying the security of our society --" can be "fettered".
Are machine guns capable "-- of destabilizing or destroying the security of our society --"?
The free state referenced in the 2nd amendment means a society free of tyrannical government. That reason still exists. Government becomes more tyrannical as it smothers citizens with unjust regulations. The 2nd amendment is the only thing that prevents the government from running totally roughshod over the people.
You need only look at what happened under Hitler, Stalin, Mao and Pol Pot to comprehend what happens when the citizens are disarmed and the government is free to do as it pleases.
If you do not think that individuals should be allowed to own nuclear weapons, propose a constitutional amendment to that effect.
While some of the things that Congress does that are not constitutional are clearly necessary to the public good, the proper approach to such constitutional deficiencies is to officially amend the constitution to allow such things, rather than allow it to be amended de facto by judges.
I would guess that bringing the Constitution up to date would probably require something around 20-30 additional amendments. That may seem like a lot, but it really isn't. After all, it's been amended 27 times already; doubling its length to bring it up to date would not be unreasonable.
Yes, a government's first duty is to protect the rights of its citizens. It also has the duty to ensure the security of its people, and when those two are in conflict, which they frequently are, reasonable balances are made. No right is completely unfettered. Those rights must also ensure that they can be accommodated within a social structure. If not, then the government will fall.
The Republic was founded by a minority that provided for that. They also gave us the 2nd Amend as the law of the land. You want to violate that? MOLON LABE!
Perhaps you should go back to Greece? If you are a law abiding citizen, I doubt anyone wants your guns. But I guarantee that the bunker mentality is not one that is going to keep the 2d Amendment alive and well.
LOL! There's no difference. People are the same.
I wonder if Madison and company would have reconsidered the 2d Amendment if they thought individuals believed they should own nuclear weapons?
Govm't can't secure any rights whatsoever when it takes them away. They can't really take them away from anyone though. Their exercise can only be surrendered in fear, under the threat of death and imprisonment.
Nice words, but we live in a society that can only exist with reasonable restrictions placed on its citizenry. Some here believe they have an unfettered right to any arms they can afford. If anyone wants to see what that can bring, simply read the daily papers on the "progress" in Iraq. If segments of the population are better armed than the government, then of course, the government is in danger, and by default, putting the society at peril. The government will then fall either by force of arms, or by the society, since it (government) can no longer assure the security of the people.
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