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}
2nd Amendment: A well-regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear 18th-century Arms, shall not be infringed.
That is what it says, right? Or at least what emanates from its penumbrae?
</s>
The prosecutor will simply ask if the First Amendment guarantees a right to cry fire in a crowded theater to illustrate that while our BOR is sacred, it does not guarantee unfettered rights. Reasonable laws are enacted to ensure the rights of all of a society's citizens, and that means that while the 2d Amendment guarantees the right to have arms, laws can be enacted to ensure that that right does not endanger or infringe of the rights of others.
Legal issues are decided by the judge, not by the jury. 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. But our system, as currently set up, does not permit juries to hear arguments on the constitutionality of laws.
Yes. They can carried and operated by a single invidual. It might be argued that crew-served weapons are not "arms" but an automatic rifle or assualt rifle are definitely "arms."
When I was in S. Africa visiting I was shocked that a license was needed for a tv. I hope this guy wins as a simple phrase like "shall not be infringed" is pretty clear.
Jefferson might ask where's your 100 megaton ICBM. /s>
Sorry. The comparison doesn't work.
There is no prior restraint - they can't gag you to prevent you from yelling fire.
And the charge will not be for exercising your First Amendment rights but for the harm and hazard caused by shouting fire, creating a public disturbance, etc.
Then FedGov can censor anything you type on a keyboard or into a microphone!
Indeed, he might! My finacial situation precludes my purchase of one though........
There are writings of the founders that indicate 'arms' covers artillery.
I stand corrected. They did not just mean 'fire' arms though. It covered other carried arms like swords and such.
"Arms meant firearms that could be carried by a person."
Nope, if you were granted a letter of marque and reprisal you could get whatever armament it took to get the job done, including big bore cannon that it took four mules to haul to your ship, and any kind of load for them from ballistic to explosive and including cannister charges and chain shot.
You could in fact have al that stuff without the letter of marque.
Nor (under CFR) is there any longer a right to free speech or free association.
We're governed by wankers and idiots and despot wannabees.
There is no "Class III license".
There is no way for a citizen to get a new (i.e.: post-'86) MG.
There is no way for a citizen to register an old (i.e.: pre-'86) MG that is not already registered.
There is a tax + paperwork for transferring MGs that are already registered. Since the number of registered MGs is severely limited, and law 922(o) forbids new ones, the few that are available (used and >20 years old) are horribly expensive (as in >10x "normal" price). For all practical purposes save collecting/investment (a used M16 runs >$12,000; gov't pays about $700 for a new one), MGs are illegal.
Know what you're talking about before suggesting someone else STFU.
Oh, and that nifty high-tech stuff you're using to read this sentence? didn't exist in the 1700s, so you have no "right" to use it - cough up your $4000 FCC license fee.
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