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}
Unless, of course, you are the British commander at Trenton on 25 December 1776, British Lieutenant-Governor Henry Hamilton at Fort Sackville facing George Rogers Clark's farmers and tavern-brawlers at Vincennes on the morning of 25 February 1779, or are Lieutenant Colonel Banastre Tarleton at Cowpens on 17 January 1781.
Oh, or the commander of 3rd Battalion, 75th Rangers during Operation Gothic Serpent on 03 and 04 October in Mogadishu, Somalia...
Curious. Would you describe the Founding Fathers as "idiots" too? After all, they thumbed their nose at the King.
Although overseas this is what we are fighting in Iraq and Afganistan. That is why the WOT will never be fully finished.
Such an argument completely ignores the defendants 5th & 6th amendment rights, --- in order to prevent jury nullification.
"-- At the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact.
In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well as the fact in controversy."
(Georgia vs. Brailsford, 1794:4)
No, you are not.
Nothing beyond a muzzle loading weapon was available. No mass casualty producing weapons (apart from artillery) existed in 1776.
Hale and Congreve barrage rockets, numerous biological agents used in antiquity, as well as smallpox-infected blankets delivered to American aboriginies, explosive demolition charges [Siege of Plzeò, May 1618] and several historical versions of poison gas, including sulphurous *Greek Fire* and the 4th century B.C. Chinese use of a mixture of burning alcohol, mushrooms, mustard and opium.
I recall a reference to pitchblende, known to occur at Joachimsthal in Bohemia since 1727, being used for waterhole denial, possibly by Hussite leader Jan Žižka, [c. 1360-1424] also the originator of cannon-armed wagons as a forerunner of tanks- which brings us into the realm of early nuclear weaponry, or at least *dirty bombs*.
You surrender your rights to easily. Did you actually read the article? The point he is trying to make is valid and has to do with States Rights AND Federal jurisdiction. If he wins Fed power will be diminished (eventual) in many areas. In my book that is a good thing. Guns are the mechanism to beat back Federal rights expansion.
Yet another newbie poster with a stunning riposte...
What's with "readily"? The stuff had been known for hundreds (thousands?) of years, and the Founding Fathers et al were quite aware of them. If wanted, such stuff could be made/obtained. That other comparable things were preferred does not eliminate the right thereto.
The United States Court of Appeals for the Fifth Circuit stated in 2001 that:
"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."
bookmark
But then from a review of your recent posts, and not just to me, I would suggest you were the one who experienced a flame-out...
. read later
Well, he was wrong, so what's your point?
If a state has a militia that meets the requirements of a well regulated militia, of course they're covered by the second amendment. I've never argued otherwise.
A militia consists of armed citizens. This is true. But we cannot say that armed citizens constitute a militia -- they could simply be a mob.
"Also in 1990 the Court in another case affirmed the definition of “the people” expressed in the Bill of Rights as meaning individual persons, not a group."
Fine. So an individual has the right to keep and bear arms ... as part of a militia. No problem.
So the gov't can make the 2nd Amendment go away by simply disbanding/neglecting into oblivion that which you consider a "well-regulated militia"? Most states don't recognize/authorize/organize anything constituting a viable militia, and less the National Guard (which amounts to a branch of the standing Army) the US militia is "unorganized" in very name - does that mean, for most practical purposes, the 2nd Amendment has evaporated?
A "right of the people to keep and bear arms" doesn't mean much if it exists at the government's whim to actually "regulate" (in your terms) them as a militia.
You posted earlier that the National Guard was the State Militia. I was just pointing out otherwise.
I wish I was on that jury.
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