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}
It was that way until 1968, at least in some states. The Republic managed to survive from 1792 until then.
If the guy is really a threat, he's going to get a gun anyway. If he's not, well even convicted felons, maybe especially them, have enemies, and are just as susceptible to being mugged, burglarized and so forth as anyone else.
Now if the jury and/or judge make loss of the RKBA part of the individual's sentence, then that's deprivation of a right via due process, and is no different in principal from the loss of liberty via due process when the guy was sent to jail.
They don't outlaw cars that exceed the speed limit. Why outlaw guns?
Permits to assemble can only be used for deconfliction, they cannot be denied simply because the permit granter doesn't like the assemblage or he opinions to be expressed. Time, place and manner can be regulated, but not content. They can refuse a parade permit at rush hour, or because someone else already has a permit for that time and place. No permit is required if the assembling takes place on private property, although if the owner or lessor of the property doesn't give permission then trespassing charges can be brought.
The part I don't like is that the Gov't starts saying they have a right to limit your rights for the common good or good of others or some other commie/socialist buzz word. I think infringe is a pretty clear word.
They don't. Or that is the require the same licenses that any other business might require, but they do not require a license to print newspapers.
So you are telling me that Regnery or other book printers do not have to have licenses?
Yes we are telling you exactly that. They can be punished for printing books which harm someone via untruths, but I believe only in civil court, not criminal, and not even then if the person lied about it a public figure. (Don't necessarily agree with that, but there it is).
But if it were anyone but "the people" as individuals, the court would have ruled on that basis, as the Government brief argued they should. It would have been a very short decision. Instead the court looked at the nature of the arm in question, and then only ruled that the district should not have tossed the case by taking "judicial notice" that keeping and bearing such a weapon could contribute to the common defense. (Although the second amendment says nothing about the common defense and the Court cited a state court case decided on the basis of a state constitutional provision which did.
It doesn't, they are not part of the group "the people". Although strictly speaking the Second Amendment doesn't apply to the people either, it applies to the government.
Sure there are, but the Courts generally invoke the "Cases and controversies" rule with regards to the second amendment, and require a violation of the law in question. In your example, you haven't violated any law, but you still might have standing to sue under equal protection, but you'd have to be challenging the licensing law, not just your denial, to invoke the second amendment.
It's government that would be "granting" the right. Governments don't grant rights, neither does the Constitution, it protects them against government infringement. The rights are assumed to exist. Jefferson said "endowed by the creator", others refer to "natural rights".
The Second Amendment was to prevent the Government from getting too stable, that is tyrannical.
Here's a little quote from a liberal's liberal, and from your era too, or a bit before perhaps.
"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used, and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to keep and bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible."
Democratic Senator Hubert Humphrey, February 1960 issue of GUNS Magazine.
As you know he later won the 1968 Democrat nomination for President
I guess that would include "sniper" rifles, aka deer rifles or elk rifles. Or for that matter, cheap pistols. The use of one of those destabilized the heck out of the Austria-Hungarian Empire, and most of Europe for that matter.
Still does if one is talking about clocks or firearms.
And terrorist groups, if they can get a hold of them.
But they are useful, if only to keep the other "strong central government" from using theirs.
Your criteria for concern is that the law-abiding can still purchase a firearm? You would do well in the Kalifornia legislature. Is there any type of gun control that you don't like? I'm out $100 just in the last six months to buy background checks to prove I am not a criminal. I was forced to buy a $25 dollar "Handgun Safety Certificate" because the "good for life" Basic Firearms Safety Certificate that I previously paid $50 for is no longer any good.
I have to buy a trigger lock with every handgun purchase.
Every handgun purchased in Kalifornia must be certified "not unsafe" by the state, costing each manufacturer thousands of dollars for each model handgun they wish to get certified. These costs are simply added to the purchaser's price.
Every handgun and every ugly black rifle has to be registered with the state.
As for actually carrying a firearm for protection? Not a chance in many counties and barely possible in mine.
Even you would guess that these laws do "very little" to affect crime. But it's okay with you? Have no fear. Your turn to see your rights trampled won't be far behind. What is there that can possibly protect them that is stronger than "shall not be infringed"?
Back at you pal. If you had the brains to keep up with the argument, you wouldn't be saying such idiotic things.
It doesn't. He's just playing into the "reasonable limits" dogma liberals have used for years to restrict our Freedoms.
I'm not a Christian, but that deserves an "AMEN!!!"
I did say "might."
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