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}
Thankfully, I have you to interpret the law for me. We need to let the USSC know that it erred in finding that minors have the same First Amendment protections as adults. And no, they were not emancipated. So once again, where does the 2d Amendment mention only emancipated, intelligent, not prone to violence adults have the right to own and bear arms?
It's been interesting, but I do have to run. I'm not going to go over the same arguments time and time again. You know my position. Although everyone here has decried my reading of the 2d Amendment, it's funny to see that I can't identify even 2 of you who agree amongst yourselves.
Some of you agree that certain persons cannot avail themselves of the 2d Amendment; Some of you say that it has no limitations as to children, criminals or others not fit to carry. Some of you agree that a nuclear weapon is not one contemplated by the 2d Amendment, but a machine gun which did not even exist at that time did; Others here believe that all weapons of any type can be owned. Some of you here believe that the "militia" argument is still valid and that local militias should be permitted; Others understand that the reason for the Amendment actually no longer exists, but that the right still exists. Some recognize the lunacy of bringing a gun on a commercial flight; Most here do not.
Anyway, you guys should all get together and work out a single theory. After all, it's not surprising that if you folks can't agree on the scope of the 2d Amendment, why shouldn't others have questions about it?
Most States that allow concealed carry consider it a privilege. The only one that does not is VT. There it is simply recognized and treated as the right it is. The fact that various States and Congress have ignored the fact that CC is an individual right covered by the 2nd Amend, does not alter, or eliminate the Amned, or it's meaning.
Due process refers to following the rules of order in producing, and prosecuting law. It does not refer to, or mean the law itself is Constitutional. Equal protection refers to the application of law. It means any particular law must apply to everyone, with no exceptions. So for instance a law against murder must apply to everyone. By virtue of the 14th, the 2nd Amend must apply to all jurisdictions with legislative and rule making power.
The SCOTUS has already said that the right in the 2nd Amend is an individual right and it is the people's right. Just because some due process was followed, does not mean any law is Constitutional. That was determined in Marbury vs Madison. Due process also does not determine equal protection. That was manifest in Plessey vs Ferguson and that wasn't to begin being corrected until Brown vs Board of Ed and following cases. The fact that equal protection is not obtained and an Unconstitutional law is allowed to stand, does not establish, or render any validity to claims of equal protection, or Constitutionality, only rational examination can determine that.
A good example of rational examination and how the reality of Constitutionality is not determined simply by Court decree, can be seen in Roe vs Wade. The SCOTUS used the right to privacy found in the 4th Amend to overturn a State law. The 4th Amends prohibition only refered to unreasonable searches and sezures, not that the right to privacy was absolute and prevented any particular law from being established. By the Court's logic, laws against murder done in privacy are unconstitutional. Now the right to privacy is simply applied in an arbitrary fashion to protect some activities, regardless of whether they're even done in private.
"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"
Then why has Congress violated the 2nd Amend?
"IT PROTECTS THE RIGHT OF THE STATES TO FORM ARMED MILITIAS."
The Constitution doesn't say the right of the States to keep and bear arms shall not be infringed. It says the right of the people shall not be infringed. Those are the same people referred to in all the other Amends. Once before men were expluded from being considered as a person and member of "people", the people who are individuals the Bill of Rights was intended to protect.
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included..." (Dred Scott v. Sandford, 60 U.S. 393 [1856])
Once again, are you saying that the constitution was never meant to be the supreme law of the land even though it says so?
The word "guarantee" does not mean to give. It simply means to protect, and yes, the purpose of the BOR was to identify and provide guarantees for the protection of those rights.
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.
I agree, but I doubt God determined that machine guns were God given rights. I think perhaps He thought a tad larger and that He would have said "A person has a right to self-defense".
And BTW, I have never said that the BOR gave any rights to anyone. Either they are natural or God given rights or they are simply freedoms.
But for some here, seeing the freedoms in Iraq today must bring great hope, because everyone who belongs to any of the several hundred militias and other groups have every weapon money can buy. Seems to work well for them. I'm sure that's what our Creator had in mind...
I see you haven't bothered to attempt to grasp the concept of emancipation yet. Here's a clue: The age of reason is not some historical period.
"I do have to run. ... You know my position. "
Later...
Nope. Not yet... Anything good? Or does it lean towards the whole "Montana Freemen"/"Republic of Texas" type thing?
No. You aren't. You are much closer to the AHSA-type "reasonable restriction" Brady Bunch front group crowd.
Actually there is.
Article I, Sec 8: "The Congress shall have Power...To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"
It would seem that if they have the power to organize, arm and discipline the Militia, they have the power to define what it is.
Correct. It meant well trained, well armed, and well organized. That's obvious when reading the Militia Act of 1792.
Er.. no.
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. -St. George Tucker 1803.
The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.
It may be thought all paper barriers against the power of the community are too weak to be worthy of attention…yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined. Proposing Bill of Rights to House, June 8, 1789
[T]he advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. James Madison Federalist No. 46
I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, "No state shall pass any bill of attainder, ex post facto law, &c." were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controuled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controuled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against. James Madison Proposing Bill of Rights to House, June 8, 1789
"The constitutions of most of our States assert that all power is inherent in the people; that they may exercise it by themselves in all cases to which they think themselves competent (as in electing their functionaries executive and legislative, and deciding by a jury of themselves in all judiciary cases in which any fact is involved), or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." --Thomas Jefferson to John Cartwright, 1824. ME 16:45
"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them." --Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356
"[The first step is] to concur in a declaration of rights, at least, so that the nation may be acknowledged to have some fundamental rights not alterable by their ordinary legislature, and that this may form a ground work for future improvements." --Thomas Jefferson to John Jay, 1788. ME 7:18, Papers 13:190
Do you REALLY need to say them same easily refuted BS on every thread Bobby?
Ok dumbass. How are militiamen supposed to "provide himself" with anything if they don't have an "unalienable" RKBA that is the "Supreme law of the Land" the "laws of any State to the contrary not withstanding"?
I don't know if it leans "Montana Freemen"/"Republic of Texas", not sure of that stance. Here is the link http://www.arkansasmilitia.com/thesilverbullet.doc
Who is protecting that right from infringement? It ain't the federal government.
And who says a state can infringe on that right? Not if it violates the state constitution.
They forgot to add "deprivation of civil Rights under color of Law". Saved a copy. Going to be a LONG read.
How can a State infringe on an unalienable Right, regardless of what is in the State Constitution? It wouldn't be legitimate and most certainly would be an abuse of State powers as a member of the Union.
Oh yeah... they do earn themselves a "Captain Hyperbole" merit badge for some of the language too. They are correct in their reasoning on what little I've scanned so far, but they don't need to use the word "treason" in every paragraph...
No, I got that part. You're the one who missed a part -- the whole militia reference. Why do you think the Founding Fathers put that in there -- because it looked cool?
I don't read that as placing constraints on what a militia is. I read that as Congress can call them into service of the US (provide for organizing), arm them, discipline the militia and have rule (govern) over only those that are in the service of the US government. That does not define them nor does it provide for defining what a militia is.
If that's the case, you're doing a lousy job of getting the point across. I've followed hundreds of your posts on the subject, and nobody is concluding that's what you mean.
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