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}
No. that's your Depends. You know, you aren't supposed to wear those things for an entire week at once.
The voice of experience?
Yep. My Mom's an RN and I used to visit her when she worked the Psych ward. Met all kinds of folks just like you...
Glad you have someone to change 'em for you. Does she keep 'em in your garage apartment?
Run along now before the charge nurse notices you are using her workstation again and they have to put you in the "bad place" again.
Because you need a roommate to share expenses? More money for ditchweed.
How old are you?
What's your IQ?
If I told you you wouldn't believe me.
You act like you are in 5th or 6th grade.
But you're probably too embarassed to tell your age. I just thought I'd ask anyway.
I can guess.
Here's something to make you wet your pants: suggest that its time to 'punkslap' the 'hunyaks' in Appalachia. Send in the Guard, or even the Army. One kill shot from a 30-06, and suddenly, the weapon of the select militiaman (look up the definition of 'select militia', I'm not in the mood to waste my time) becomes a weapon for one of the 'hunyaks'.
Let me guess: you're one who who have answered that question on the Palms survey conducted back in the early '90s that would have answered 'yes' to the question about shooting on civilians that refused to disarm.
Major John Pitcairn: "Disperse you rebels; damn you, throw down your arms and disperse!"
Highly doubt it.
Don't be ashamed. You're as God made you.
The counterfeit "militia" and their self-appointed fake officers would pee themselves as they tried to flee the Guard, or even the Army.
Ashamed of what?
You said you could guess.
Have at it.
Kind of like the militia of ordinary citizens that fought the most powerful army in the world to gain our independence?????????
Warships cannot be carried and operated by a single individual, yet these were legal from 1776 until the last century's gun control laws. Also, note that Article 1, Section 8 authorizes Congress to grant letters of marque and reprisal to private individuals who can then legally capture enemy ships. If you plan on capturing enemy ships you better have more than a pea-shooter. The founders' definition of "arms" was quite expansive. Explosives, heavy cannon, and warships (the most devastating weapon systems then extant, capable of mass killing and reducing coastal cities to rubble) were commonly privately owned. Civilians had all the same cool toys that the military had.
An originalist view indicates that the constitution protects an individual right to privately own fully functional machine guns, grenades, artillery, rockets, missiles, warships, submarines, torpedoes, fighters jets, gunships, attack helicopters, and bombers. IOW, anything that might come in handy if the communists invade is protected. The Founding Fathers were kinda radical that way. Do you begin to see why their notions of individual rights made the crowned heads of Europe (and modern liberals who have read and understood their writings) crap their collective pants?
He should have done it in the fifth circuit. Maybe the Emerson case precedent would have helped.
Citing the results of the Gonzales v. Raich case (June 5, 2005), the Supreme Court decided not to hear the case but rather to vacate the ruling below and remand it to court of appeals "in light of" Raich. The Ninth Circuit was thereby directed to reconsider Stewart and be guided in that reconsideration by Raich. Raich holds that Congress can use the Commerce Clause to ban homegrown marijuana; the implication of the Court's vacation is that Congress also has the power to criminalize the possession of homemade machine guns even though they were never involved in a commercial transaction.
This case did not reach whether 922(o) is consistent with the second amendment, only whether the commerce clause was a valid basis for congress to regulate mere possession of a machine gun. Judicial review of 922(o) in light of the second amendment still hasn't happened.
Do you believe who gets to exercise free speech rights is a state decision? Should the state decide who gets to go to church or who gets to have a jury trial?
Does the state decide who gets any rights at all, or just the right to keep and bear arms? Is your view based on incorporation of the certain protections from the bill of rights or is it just your personal feeling?
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