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}
The claim of ignorance is typical of someone desperately looking for a reasoned argument. You appear to fit that mold well. Look around at your posting buddies here on this thread. Not one has the same read of the scope, meaning or applicability of the 2d Amendment. I guess that makes you the only complete scholar on the subject. BTW, I am familiar with all of those references, and doubt seriously how much you yourself have read them. Had you, the first thing you would recognize was that few subjects in the Constitution were free from varying opinions as to the real meaning.
But I always appreciate someone who lets the world know that he is so intelligent, others may not have an opinion.
From what I have read over the years the militia is everyone "outside" of the uniformed government services to be "called up" when needed in defense of the country. Otherwise we are free and responsible for maintaining that freedom against any tyranny. The 2d guarantees that the government cannot infringe on our right to posses the means to keep that freedom.
The BOR is to keep the gov from getting too big.
They put it in to try to prevent liars from referring to a "Second amendment right to keep and bear arms for hunting and sporting purposes".
I can guarantee you that a bunch of people on the ground would not have died on a particular date in September 2001.
Militia of Washington County, Arkansas (the one Fincher belongs to). You can read for yourself at http://www.arkansasmilitia.com/militia.htm about their creation, etc.
So you are saying it applies to the states but not the people?
"That doesn't mean everything in it applies to the states".
You have worked yourself into a corner.
Then according to you it is not the SUPREME LAW OF THE LAND.
State constitutions cannot violate the U.S. Constitution.
Isn't that why there is a 10th amendment? The federal gov was not meant to run the states it is severely limited by the Constitution and BOR. Everything else is up to the states.
All of the state gun restrictions are UNCONSTITUTIONAL as they violate the supreme law of the land.
Now go ahead and twist that to your hearts content.
I for one am not buying your upside down logic.
No my answer was given above. You just cut out the part that shows exactly what they're doing. Your summary is nt my answer. It's the same as the situation in Plessey vs Ferguson and the folks whose rights are being denied are the people. They being denied in the same way Dred Scott's rights were denied. Arbitrarily, at the whim of some.
I included in my post the conclusion from the Tanney Court, that acknowledged what had already been widely known, that the people mentioned in the Bill of Rights are individuals, not States, or State entities. That the Amendments protect the people's rights, not any State right, except for the 10th where they are explicitly mentioned as such.
The motivaition for the 14th Amend was that various States were denying rights to certain of their citizens. There was no equal protection under the law and their freedom and rights were being expressly violated. By the majority of course, that consisted of those that supported and promoted the violations and those others that couldn't care less and did nothing about it. The attempted correction the 14th provided for was then neutered in Plessey vs Ferguson.
Congress ignores the 2nd Amned, except during campaign time, where most members handwaive and praise it with colorful campaign speeches and promises to get votes. They then either pass laws violating the Amendment, and at least ignore and let stand law repugnant to that Amendment. CC in DC is under their control. It is forbidden and so is the private ownership of handguns. That is a direct violation of the rights of the people according to the 2nd Amend.
The rest of the Sttes, except VT outlawed CC. Some then permitted it. That denies it is a right, is instead privilege and ignores the 2nd Amend, which forbids laws restricting the bearing of arms, and the 14th, which applies the 2nd to them.
"Well, sure, why didn't I think of that!"
Perhaps you need work on your powers of perception. You've been denying what the Tanney Court plainly stated about who the people are and denying the 14th, as was done in Plessey vs Ferguson.
See post 91 and 119
No you cannot guarantee that. The terrorists would simply have taken over the bridge while the assistant terrorists held off the two or three who carried. It would have succeeded just as well. They only had boxcutters and until Flight 93, no one made a move to stop them.
187 posted on 01/10/2007 5:16:46 PM PST by MACVSOG68
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Macv:
"-- 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. --"
Some proponent you are, seeing you believe a "court will rule that it can", --- "keep a working machine gun out of the hands of its citizens".
Can machine guns "--create a destabilization of the social fabric? --"
To me, that very question is a loaded example of the 'best of Brady' type rhetoric.
My prediction has no bearing on my beliefs. I believe that the left will attempt to pass legislation to negatively impact the President's conduct of the war in Iraq. Does that make me either a leftist or against the war?
Can machine guns "--create a destabilization of the social fabric? --" To me, that very question is a loaded example of the 'best of Brady' type rhetoric.
So the new rules are that no debate should take place; no questions should be asked; which could possibly have the effect of diminishing the effectiveness of the 2d Amendment argument?
Go back and read the thread again. You will find that there are many different views of the 2d Amendment, who it applies to, what weapons it applies to, what the real intent of the ratifiers was, and even whether or not it applies to all jurisdictions. And that's because many talk but few really think about it. There are valid questions pertaining to that specific right, that not only can I not get a straight answer here, but some don't even want asked. Reminds me a lot of the marriage amendment threads, or the Terri Schiavo threads.
I was asked a specific question of whether a machine gun is protected by the 2d Amendment. I gave as honest an answer as I could. The issue here is not me, but the possible outcome of a specific court case on the 2d Amendment.
"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."
Short answer on concealed carry:
All states but Vermont are infringing on the Second, IMO. I am a poor choice to answer that question. Not that I agree with all your determinations, But in general, I distrust this idea of seeking permission {and paying money} to the "state" for a right that is God given. I worry that we are legitimizing the idea that rights are from the state and not really "inalienable".The NRA powers that be on FR tell me to "trust us" for now, So I will.
I took a few moments to review some of your posts...You seem to have spent some time studying court decisions. {Good!} It seems you have spent some time wrangling with legal truths. {Also good!} I'll also assume the legal training you have is far superior to mine. {extremely minimal} We don't have to look very far back to see that it was once legal for one man to own another, That it was legal to use force to make "lesser men" eat, learn, and play separately from the rest. I'm told that Hitler used basically sound legal methods to preform his dirty work. Because our fellow man can be evil, we aren't always impressed with all official decrees.
Another parting thought.... The Bill of Rights......Those men that wrote it.... IF you were there...Way back when the country was new, and you had just endured the greatest struggle of your time. How would you record what you had learned? How would you proclaim the liberty you had won to your descendants?...Would you write it in such a way that it could only be interpreted by a few well educated elite?...Or would you write these ideas with clear meaning and obvious intent, to be understood by the common reader? {The way the Bill of Rights WAS written, IMO!}
Not at all. An Unalienable Right is exactly that. No equivocation is necessary, nor should be allowed. What do you fear from freedom? Why such a scared little rabbit that all those around you must be brought down to a lower level to make you feel somehow safer in your tiny little illusion?
Of course the Founders had varying opinions, but on some they all agreed. That free men should NEVER be restrained from bearing arms, using them in defense of themselves and their property, and as a last resort to do away with a government gone mad... on THAT, they all agreed.
If you had but a clue, you would not deny this. But you do... More's the fool you...
Even the pyramids started with one brick. Here's hoping.
Not only were slaves legal but machine guns were too.
Thompsons were $25.00 through the mail form Sears. No background checks, forms to fill out, tests to take, etc.
Anything was available before the NFA.
And Alaska.
How do you explain the fact that machine guns were easily available before the NFA? No backround checks, permits, taxes, etc. Mail order was legal too.
Did EVERYONE just miss the meaning of the 2d up until then?
Was Sears violating the 2d by selling Thompsons?
DC, Thanks for the link. It truely rocks. Halbrook is a true scholar on the subject, and the article you linked to completely lays to waste all the collectivist BS spewed by the opponents of this and every other 2nd Amendment thread on FR. I have a copy of "That Every Man Be Armed", but I'd never seen the above article.
Thanks again. That was a truely worthwhile read.
Anyone else who supports the RTKBA should definitely check it out.
Thanks for the correction.
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