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}
I think you'll find that that whether the "people" of the first amendment is superior or inferior to the unorganized militia will be considered a moot point by the gun grabbers. Their objective is to establish that federal authority to prohibit the posession of firearms as an exercise in "regulating commerce among the several states" is superior to the individual's right to keep and bear arms.
"Hey retard, when the Second Amendment was written, there were no such thing as machine guns"
This troll should take his own advice
I disagree. No violent felon should ever be allowed to carry a weapon. Society is not going to send every felon to prison for life. Gang members who are underage will leave jail at the age of 21 no matter what the crime is. They should never be permitted to carry a firearm.
What do you think would happen? Before answering, I'd strongly advise you do some research on the myth of "explosive decompression" on aircraft.
Do you really have so litle faith in your average citizen?
I doubt many here would agree with that. Rights either exist or they don't. If they exist, they do so without regard for time or borders. The 14th Amendment included certain other rights in it to ensure states did not infringe on them, mainly to emancipated slaves. If the 2d Amendment applies only to the federal government, then in fact, it does not state a right, but a freedom.
But this is a federal case. There is no apparent Constitutional authority for this law, and the Miller case is precedence against it. It's a good case if this fellow can afford to appeal.
Be interesting anyway.
"Shall not be infringed" has become "May be infringed upon". {for the common good, peasant!}
"It should only act afterwards. Sorry, can't subscribe to that."
OUR government, without a doubt, is doing it's best to MAKE criminals out of the law-abiding. Are you really naive enough to doubt this? If so, I have some personal sec. 922 questions to enter as evidence.
You condone releasing violent felons back into society. That is the root of the problem. It's a revolving door. We spend the money to apprehend, prosecute and incarcerate, then let them out to have another go at society. Most of them do just that...and we repeat the cycle of apprehend, prosecute, incarcerate. In the process, innocent people die because we don't have the fortitude to keep the violent felons out of civil society.
Since we don't have to fortitude to keep felons off the street, it is even more important not to disarm law abiding citizens who need to protect themselves from the government's failure to keep violent felons separated from the law abiding. The revolving door stinks.
The problem is, for new class-3 weapons, the feds won't accept payment for the tax stamp. The only groups that can get new class 3's are police departments and the military. Fat chance either of those would ever challenge the law, as they are exempt from same. It might be possible to do what you suggest with a purchase of a pre-1986 weapon, but I'm unsure of the utility this would be. I'd probably have to look into the legal theories around it.
I can see your point about having the citizen being the initiator because then it would be up to the citizen to drop the case. Problem is, what would happen in that case, is that if you had a group with funding sufficient to challenge the thing all the way to the supreme Court, the government would always have the option of not appealing any lower court ruling so as not to make a nation-wide precedent, which is essentially what happend in both the RIA and Dalton cases. To the best of my knowledge, neither has been overturned since they were made, and I've actually found later courts citing both cases in averring that the instant case wasn't similar for certain reasons.
Fine. It will poke a few small holes in the airplane. The big valve that constantly leaks pressure outside to balance the compressor will have to close down a bit. The noise from the gunshots will be more disturbing than any pressure change caused by bullets actually piercing the aircraft fuselage. Worst case...the oxygen masks drop and the pilot makes a quick descent to 10,000 ft where oxygen isn't required.
Using frangible ammunition complete eliminates any possibility of breaking windows or piercing the aircraft skin. That is standard issue with the air marshals.
I actually payed attention in my aviation survival class. That's the real world...not the poppycock you've seen in Hollywood movies.
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.
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 issue is whether a government can keep a working machine gun out of the hands of its citizens. I believe the court will rule that it can.
The issue has become, -- are machine guns capable "-- of destabilizing or destroying the security of our society --"?
You want to divert that question by comparing nukes to guns:
Perhaps one day someone will want a nuclear bomb and argue that the 2d Amendment guarantees his right to it.
Pitiful digression. -- Why can't you admit that you believe machine guns are capable "-- of destabilizing or destroying the security of our society --"?
Could it be that admitting such a belief is akin to membership in the Brady bunch?
The only way to own a new one is to be a class 3 dealer, unless there is something I don't know about.
I do happen to know people who own silencers and even one person that owns a legal automatic rifle.
Our rights will evaporate with the finest legalspeak you ever heard. I think it used to be called "propaganda".
The correct approach regarding "reasonable regulation" is to put into law the concept that everyone can do whatever they want to - up until they infringe upon someone else's right to do the same. Thus, you can swing your fist anywhere you'd like at any time you'd like, but you better not do it when someone else (who has a right not to be hit by, or credibly threatened with being hit by, your fist) is close to you (unless it is a case of self-defense). This justifies regulating the radio or TV bandwidth - because you cannot have 2 people or companies (or 5 or 100) using the same frequencies.
I am unaware of licensing done with regard to print media. So far as I'm aware, there can be 1 paper or 50 in a given market, and the government has no say in the matter, nor any control over what each says (until you get to issues of libel, which is an assault upon someone's reputation).
Regarding guns, I don't see how the mere possession by one person of a firearm OF ANY TYPE, or of 2 or 10 or 50 of them, in and of itself deprives any other person or group of any of its rights, and as a result I don't think that it should be regulated. If you want to make sure that the insane or those addicted to mind-altering drugs don't obtain them legally, there's an easy way to do that which doesn't involve governmental restrictions on ownership by normal, law-abiding people: pass a law that explicitly provides that the person or business which sells a firearm to someone who could reasonably be found to have been mentally deficient in these ways (by examination of publicly-available records) is stricly liable for any harm inflicted by such individuals. Believe me, the firearms industry would police itself, and private individuals would seek some type of certification that a buyer was mentally competent - and their personal liability insurance companies would make certain that they did, or they wouldn't cover the liability.
Read the 2nd Amendment - the phrase "the right of the people to keep and bear arms shall not be infringed" is not in ANY way qualified. It seems to necessarily imply that if someone is law-abiding enough and sane enough to be walking the streets, then they're qualified to own a firearm. Prior restraint, as your "reasonable regulation" necessarily requires, transforms a right into a deniable privilege - and I don't accept that. Unbearable harsh regulation and outright bans ALWAYS start out as "reasonable regulation" - and your approach calls for the construction of a greased, teflon-coated slope onto which we would all be pushed.
They'll be waving handfuls of court decisions with one hand, and a dictionary with the other.
It used to be the Treasury department that one had to beg permission from. Now it's Justice, making obvious the lie that the NFA was just a "tax act".
But that was settled long ago when the Treasury would no longer accept the tax payment after the 1986 ban. The change took away the fig leaf of "power to tax", and left the naked violation of the second amendment obvious for all, except federal appellate judges apparently, to see.
Licensing denies it's a right entirely. Forbiding the use of arms for various purposes and in various places does not.
" I merely pointed out that reasonable restrictions exist on the 2d Amendment, and age is one of them."
Age is not one of them. The unemancipated has no right to sovereignty of will at all. That rests with their parents, or guardians. The 2nd Amend doesn't apply to the unemancipated, those judged a danger to themselves, or others, or to that have had their rights infringed as a consequence of being convicted of certain crimes.
"I am arguing that a government has the legitimate power to reasonably and prudently regulate the ownership and use of weapons.
They can not regulate ownership, other than as given above. They can regulate use, except to deny effective self defense.
"I think it would be insane to permit a child to carry a gun to school."
Most of the people I know took a gun to school as a "child". Seems they always had one in their vehicle, and some took the buss with them. Now that's been banned and kids the same age can get in deep trouble for having a butter knife. Still, they're unemancipated, but it's a deep stain on the nation that folks like that are deamonized, and had their freedom and dignity taken.
"since I want no more 9/11s, thank God our government disagrees."
The govm't repeatedly superglue it's fat behind to the ground when congress dricted that pilots could be armed. Of course they're just captains and regular citizens. They might go bizerk and shoot the passengers before they fly their planes into something.
"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?"
LOL! I always eat all my cake in no more than 2 sittings. Animals are people too! What is it that you can't grasp about the concept of emancipation?
"exactly what age is that?"
Whatever the legislature declares.
"Does it mention murderers? Aren't they people too?"
Don't you understand the concept of the loss of rights upon convicttion of a crime and the imposition of punishment stipulated by legislative action?
"In fact, the 2d Amendment is no more holy than the First"
The 2nd Amend is blessed amongst all the Amends, because it puts meat into their protection, the protection of freedom. All the Amends are violated, that doesn't mean they're forgotten, or ignored by the people.
"the First, which contains thousands of restrictions in the form of federal, state, and local laws."
Most of those percieved restrictions are not. The bulk of the restrictions that do exist take the form of restrictions of speech, because it takes money to even buy paper to print on, or on comms between folks working for the same political goal. They are nevertheless, violations of the 1st Amend.
"I presume that would include nuclear arms? If not, that would of course be an infringement..."
The commerce in all nuclear devices is regulated, regardless, of whether, or not they are, or can be a part of arms and the regulation is based substantially on other concerns unrelated to armaments. The commerce in all arms is also regulated and in many cases there's infringement of the 2nd Amend. You'll notice though, that most folks don't bitch much about it, especially with the more expensive, devastating and crew served weapons.
The reason for that is the prosecutorial discretion of the people. Even though the govm't violates the Supreme Law of the US, it's not worth fighting about. Personal arms are. The line's been drawn in the sand. If you enjoy the company of the bliss ninnies and the forces of socialism, you're welcome to join them and continue to speak on their behalf.
Well there was no such thing as cable television either, nor high speed presses. So it's OK for Congress to make laws restricting what opinions can be expressed in papers printed on those presses, or broadcast over cable TV?
Oh I forgot, Congress seems to think so.
BTW, 'tard, the license, or that is the tax stamp is only $200. Problem is they won't accept it if the arm was manufactured after '86. Thus they've limited the supply, and driven prices through the roof.
There's no reason an M-16 should cost much more than a few dollars more than a semi-auto AR-15, except the blatantly unconstitutional law.
Even the Supreme Court, in the only direct test of that law, the National Firearms Act, indicated that keeping and bearing military and militia weapons was protected by the second amendment. It ruled however that the district court erred in recognizing that possession of a *short double barreled shotgun* was any part of the ordinary military equipment (it had been a few decades before, before the invention of the pump shotgun), or that ownership of one could contribute to the common defense, which of course it could. Very handy in a MOUT situation, especially for vehicle born troops.
Good question. Using his "logic", we could eventually find ourselves in the same state as Britain, where they are now so far down that particular slope, that they are actually discussing the banning of large kitchen knives. This progression cannot be denied as we've seen it happen in GB before our very eyes over the last 20 years.
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