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 doubt that; if it had, the Act would have used the phrase.
Exactly. As part of a state militia.
Like you said, the court made many references to a militia. No need to do that if they were talking about an individual right.
The "unorganized" militia is clearly defined by Congress, right down to a list of exemptions. The 2nd Amendment ensures that those not formally part of the Army etc. (which the National Guard is) can also be armed & trained by themselves or sub-federal jurisdictions.
"Well-regulated" was not, at time of writing, limited to "government controlled". It included being equipped and competent, which a militia member can be without gov't help.
The 2nd Amendment exists precisely for situations like we have now, where the Army etc. is well-endowed, and the rest of us militia members (despite being "unorganized", we are nonetheless declared so by Congress and presumed so by the Founding Fathers) are completely neglected insofar as equipping and training - ergo it's up to us to equip & train.
The enumerated right does not go away simply because the gov't does nothing to actively support it.
Without the individual right, there is no collective right.
Without individuals, there is no collective.
No it's not. States call up the National Guard all the time. Works pretty well, doesn't it? And they have all kinds of guns, don't they?
Then why enumerate RKBA as a right in the BoR? Why bother, if the "right" evaporates when neglected by any/all levels of government?
I've followed your reasoning for a long time (months/years), and am curious why you are so hell-bent on crushing the notion of RKBA as an individual right - especially as "militia" is practically nonexistent as a local/state/federal entity.
The BoR lists individual rights of the people (yes, the 2nd actually says "the people", not "the states") which the feds cannot intrude on. The 2nd makes plain that to _have_ a "well-regulated militia" (as differentiated from a standing army) the people must be able to arm themselves.
You put a LOT of effort into limiting RKBA into oblivion.
I'd like to understand why.
Happy to.
EVERY SINGLE FEDERAL COURT IN EVERY SINGLE GUN CASE BEFORE IT (save one) HAS RULED THAT A) THE SECOND AMENDMENT ONLY APPLIES TO THE FEDERAL GOVERNMENT AND B) IT PROTECTS THE RIGHT OF THE STATES TO FORM ARMED MILITIAS.
YOUR INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS IS PROTECTED ONLY BY YOUR STATE CONSTITUTION.
In return, please answer one question for me. If the second amendment to the U.S. Constitution protects an individual right to keep and bear arms, how can some states allow concealed carry and others do not? I would think that would be against due process or equal protection or something like that.
I would imagine you've also seen all his postings on other subjects as well. His attempts to destroy the RTKBA is entirely consistant with someone who believes that all methods of violence and coercion should be in the hands of the state. There are only about 4 other people on this board that are so consistantly and loudly pro police-state.
Do you mean the Cruikshank decision, or some other?
What? If not a well regulated militia, just what in the hell was Congress referring to in the Militia Act of 1792?
Yes it is. I've never argued that it wasn't.
"The 2nd Amendment ensures that those not formally part of the Army etc. (which the National Guard is) can also be armed & trained by themselves or sub-federal jurisdictions."
No. The second amendment CLEARLY states a "well regulated Militia". Article I, Section 8 in the U.S. Constitution refers to the Militia with officers appointed by the state.
A state may have an unorganized militia. They may have a private militia. They may even have a state-sponsored militia outside of the National Guard.
But unless it's well regulated with state-appointed officers, it does not get second amendment protection.
How about some specific references for that? You know, like the actual opinion(s) in question. I'm sure you're also aware that the issue of "incorporating" the 2nd has been avoided like the plague by the supreme Court because it clearly makes all your little gun control schemes null and void.
Are you saying that the 2d is the only amendment that applies to government powers and that the people can never infringe on the "right" of the government to arm itself.
That's pretty bizare.
Why did they put it in there at all?
Were they saying that we are going to have a tyranny and the people who just threw off a tyranny have no right to resist the new one?
Are you saying that the people named in the amendment are the people in the government only?
You make absolutely no sense at all.
My earlier post shows that the phrase "well regulated" did not, at the time, refer to an organization operating under lots of regulations.
If the Act was meant to show that "well regulated" meant following lots of government imposed rules, don't you think that the Act would have used the phrase itself?
"In order to provide a well regulated militia for the purposed of.." or something like it might have been included, if the phrase at that time meant "operating under close government control" or something similar. But even the word "regulated" does not appear in the document, nor was the phrase used when debating the Act.
Further evidence that "well regulated" meant something closer to "running like a clock" or "having accuracy" as the Oxford English Dictionary suggests (but what would they know about the historical use of words and phrases?)
Boss wants another dollar. Will try to catch back up this evening.
The National Guard? Part of the standing Army? Are you high? SErisouly, have you been drinking or something? The Citizen militia most certainly are not the National Guard.
I'm not. The right to keep and bear arms IS a natural right. I am hell-bent on crushing the notion that the second amendment protects that individual right. It doesn't. It never did.
The federal courts have consistently said that the second amendment protects only against federal infringement. The have said that it protects the right of the state to form an armed citizens's militia.
Your individual RKBA is protected by your state and only by your state. If we are to protect our individual RKBA, don't you think it's important to know who's protecting that right?
One question
In absence of any form of government.
Do you have a Right to own a Machine Gun?
If it's a pre-existing Natural Right, then how the hell can a mere State infringe on it any more than the FedGov? And why do you approve of the Federal BATFE prohibitions via tax law/commerce clause "penumbras" and "emanations"?
Just admit you don't like Individual RKBA and that you want everyone disarmed. At least then, your idiotic multi-years long quest to get us to swallow your bullsh*t would make logical sense.
If you don't like Individual Rights, why the hell are you here at all?
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