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}
Umm, yeah. How that has any bearing on this only you would know.
Umm, yeah. How that has any bearing on this only you would know.
Umm, yeah. How that has any bearing on this only you would know.
I don't see anything stating such.
Like you said, the court made many references to a militia. No need to do that if they were talking about an individual right.
Yes they would need to if the prosecution tried to say that it was not an individual right but one that belongs to the militia (which the prosecution did) and that the sawed off shotgun was not a common militia arm (which they did also). The court had to make the references to show the history of militias and who they were comprised of.
"The right of the PEOPLE to keep and bear arms, shall not be infringed"
I think you missed that part in your drug induced hallucinations.
Are you asserting that the U.S. Constitution is not the Supreme Law of The Land?
I read somewhere that later it was found that a sawed off shotgun was indeed used in trench warfare and was therefore also a militia weapon.
This little tidbit of information has been consistently ignored though.
In the absence of any form of government, human rights still exist, but are unprotected. The "right" to own a machine gun emanates from the natural right of self defense. The right to self defense is the real right, as in those rights endowed by our Creator, of life, liberty and the pursuit of happiness.
Given that I am a proponent of the 2d Amendment, as I have repeatedly said on this thread. The extent to which various types of weapons should be permitted depends on their ability to create a destabilization of the social fabric. Does that include machine guns. I don't know the answer to that. I do know however, that the 2d Amendment does not guarantee that we have the absolute right to any weapon desired.
US v Cruikshank is one. But I was referring to the lower federal courts -- the decisions of which the U.S. Supreme Court would examine before making some future decision about the second amendment.
Cases like Presser v. Illinois and Miller v. Texas. Then there's Hickman v. Block ("the Second Amendment is a right held by the states"), United States v. Nelson ("Later cases have analyzed the Second Amendment purely in terms of protecting state militias, rather than individual rights."), Quilici v. Morton Grove ("the debate surrounding the adoption of the Second and Fourteenth Amendments...has no relevance to the resolution of the controversy before us"), United States v. Warin ("it is clear that the Second Amendment guarantees a collective rather than an individual right"), Eckert v. Philadelphia and United States v. Johnson (the Second Amendment only confers a collective right of keeping and bearing arms"), and United States v. Tot ("not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations").
Then there's a whole slew of cases from the ninth circuit, Silveira v. Lockyer, Fresno Rifle & Pistol Club v. Van de Kamp, San Diego County Gun Rights Committee v. Reno, and United States v. Mack.
For starters.
Refer to my post #390.
"I'm sure you're also aware that the issue of "incorporating" the 2nd has been avoided like the plague by the supreme Court"
Avoided? How would you incorporate it -- A state may not interfere with itself in forming a militia?
A USSC decision several years ago assured that students have the same First Amendment protection as adults, when a school attempted to stop students from wearing arm bands in protest of the Vietnam War.
The Second amendment doesn't gaurantee any of my Rights. My rights come from God as a free and independent soul under his Jurisdiction.
The BoR merely enumerates those rights.
Otherwise they might say something along these lines.
"A well regulated militia, being necessary to the security of a free state, the right to keep and bear arms is heretofore granted to the People."
It doesn't say that, it says
"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."
The Right existed prior to the Bill of Rights, all the BoR did was to enumerate them and restrict government from trying to eradicate God granted rights.
Of course, dummy, the government is not going to support anything that threatens it.
The supreme Court is and has been wrong many times.
Just look at the Kelo decision. Totally wrong. Advocating government tyranny.
No guns, no property rights. That is tyranny.
That is what governments do and is why the 2d says " THE RIGHT OF THE PEOPLE", and also; "SHALL NOT BE INFRINGED".
US v Emerson - the court found the 2nd Amendment to be an individual right
I notice you have not answered any of my questions.
Too much for you?
Can't deal with obvious truth?
Will read. Have you read "Silver Bullet" document that is on the website of the militia Fincher belongs to?
Originally, as written by the Founding Fathers, the Bill of Rights only applied to the federal government. By that I mean the only the federal government was forbidden from infringing on those rights. The states were free to infringe (and many did) as long as it wasn't against their own state constitution.
After the 14th amendment was ratified, activist courts used it to "incorporate" some (not all) of the BOR and make them applicable to the states, also. But, the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment are not yet incorporated.
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