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}
God you are dense. It would be 'incorporated' the same way the others have been. That is, formally stated that the amendments referred to in the constitution are specifically applicable to the states as well.
I still love the way you people twist plain english into knots.
We're expected to believe that every single time the Constitution uses the phrase "the people" it means the individual people in the states, but in just that one instance of the second amendment, it means something completely different. Coincidentally, everywhere else in the Constitution, where it speaks to provisions concerning the individual states, it uses the term "powers", but in that one place, it uses "right" instead. We're also asked to believe that the first ten amendments were organized in such a slovenly manner that they'd jumble everything together, mentioning rights related to individuals, then jumping to a state power, then continuing with individual rights again until it gets to the 9th and 10th, which also uses "rights" where it concerns individuals, and "powers" where it concerns states.
You expect us to believe that the men who wrote the Constitution and the first ten amendments had as poor an understanding of the english language as your average American does today. You expect all this while you try to remove our "Liberty Teech" and the "True Palladium of Liberty". And you expect us to take you seriously, and not recognize you for the petty wanna be tyrant enablers you are.
Sorry. We ain't playing that game.
Yes it is, but was interesting. There is a lot of repetition due to use of US Constitution and Arkansas Constitution to show unconstitutionality.
But you see, you have no more of a claim to the 2d Amendment than I do. Must really pi$$ ya off, huh?
A couple of times they get into preaching a sermon too.
I would disagree. The power to organize is the power to define. Regardless, that has nothing to do with 2nd A. rights, which belong directly to the People, not to the militia.
In the case you're referring to, Tinker v. Des Moines, the Supreme Court ruled that school officials can prohibit student speech when they can reasonably forecast that the expression will create a substantial disruption or invade the rights of others. They ruled the arm bands did not.
But in Harper v. Poway Unified School District, the Ninth Circuit ruled that school officials could prohibit student Tyler Chase Harper from wearing shirts bearing messages such as “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL.” Harper is permitted to wear that shirt on the street, however.
In 1988, the U.S. Supreme Court ruled in Hazelwood School District v. Kuhlmeier that public school officials can censor school-sponsored student expression as long as they have a valid educational reason for doing so.
You bet... Try posting something that directly threatens the life of President Bush, and see if you get a call from guys in suits wearing sunglasses and ear-pieces....
No, the first amendment of the Constitution of the US does NOT guarantee your right to post here on Free Republic. JimRob or the mods can ban you, and you aren't protected. You can still post what ever you want, just not here.
But all other types of expression are still protected, especially if it insults or mocks Christianity
There went your credibility!
Really? Try buying advertising on a TV or radio station a few days before an election... McCain/Feingold has effectively roped in political speech in a number of ways. And it's all "perfectly constitutional." Know why? Because 5 people in robes said so... They just decided to ignore a certain pesky sentence in the first amendment to the constitution that begins with the words, "Congress shall make no law..." But while the SCOTUS decided that certain types of political expression are NOT protected under the Constitution, they've also ruled that other types of expression ARE protected under the constitution, like exotic dancing, flag burning, and certain works of art.
Mark
Then give me an example of one state that has a militia as described in the Militia Act of 1792.
"Mr. Fincher is a member of an Arkansas militia"
With officers appointed by the state, as specified in the U.S. Constitution, Article I, Section 8?
I don't see where we disagree at all.
ugh didn't look that way when I put it all in
First of all, stop with the personal attacks, second of all, READ the Federalist Papers and the Constitution.
You obviously have NO clue what you are talking about in regards to Title II weapons so please STFU yourself.
As a long time machinegun owner I have to laugh at your base misrepresentation of the subject. Machine guns belong to a class of weapons regulated unconstitutionally by the 1934 NFA. They are the only aspect of our Bill of Rights that are taxed for exercising.
It's no different than requiring a $200 tax on any computer because it's a fully automatic version of an item that expands your ability to exercise free speech.
Do yourself a favor and all of us one too... go back to DU and stay there.
Mike
That's the one and only.
Which questions were those?
You are quite the asshole aren't you?
That's your answer? The various states and Congress (and I assume the courts are also complicit) are wrong and they're violating the constitution.
Well, sure, why didn't I think of that!
It is the supreme law of the land. That doesn't mean that everything in it applies to the states, for crying out loud. Why would each state have or need its own constitution?
Actually, since you don't seem to have read anything other than modern legal fiction in regards to RKBA, I'd say you haven't a clue at all.
Try reading St. George Tucker, some Elliot's Debates of the First Congress, and possibly the Federalist/Anti-Federalist papers again and get back to me once you are a bit less ignorant.
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