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}
Our National Guard.
A defendant in a small claims action may demand a jury trial in New York, but not in California.
Perhaps you can petition Ginsberg or Souter to seize that power as well.
The Bill of Rights, as written by the Founding Fathers, only applied to the federal government. In other words, those rights could not be infringed by the federal government.
The states were free to infinge (and many did), guided only by their state constitution. This is called federalism. Which I favor.
So to answer your question, yes, I believe your rights are protected by your state and should be protected by your state. You, as a citizen, have the most control over a local government.
I do not want five federal justices interpreting the free speech clause of the first amendment and applying that interpretation to all 50 states. Or any other amendment.
"Does the state decide who gets any rights at all, or just the right to keep and bear arms?"
Not "gets rights". When it comes to the the right to keep and bear arms, each state decides whether to protect that right and to what extent they will protect it. The second amendment (which has not been "incorporated") has nothing to do with your individual RKBA.
No. My wife would object. Just stop beggin' already. This is a drug free household, you'd have to leave your dope in Cali.
National Guard is now part of the Army. It is no longer the citizen militia. Sorry...
LOL. A small one would do.
Did we have a national guard in the 1700's?
We didn't.
The militia is not the national guard.
Nope, not an asshole, just tired of people making up BS about subjects they know nothing about and stirring up crap on the boards. With your comments though, I'd say that you might want to re-evaluate just who is what in this conversation.
Mike
I'm not certain that is really the case; it might be that the states and Federales just didn't bother regulating cannon, even though they weren't protected by the 2nd Amendment. Be interesting to see what laws DID govern armed ships in American harbors.
Unfortunately, the Commies figured out that lawyers were more dangerous than armies and used 'em against us.
What we really need is Lawyer Control...
Read the constitution. It provides for calling up the militia to defend against invading armies and navies. It provides for letters of marque and reprisal so that civilians can capture enemy warships. Then read the second amendment. Read the Federalist papers where it's pointed out that no standing army could hope to win against a militia that is similarly armed. Read statements of the founders from the time period when the constitution and the bill of rights were ratified. Their concern was whether the people would always be armed heavily enough to defeat any army on earth (including our own), not that the people might get too many scary weapons. Square that with disarming the people or even placing limits on what weapons they should have. An honest originalist reading of the constitution may lead to the conclusion that we may need an amendment to ban civilian nukes.
How 'bout civilian nukes, chem and bio? I'm willing to take a chance on HE, but NBC is a little long lasting in its effects...
No kidding, NBC is nasty. But, my post was academic; I don't think we really have to worry about the SCOTUS tossing out NBC regulations on 2nd amendment grounds any time soon. Even if they did rule that we needed a constitutional amendment to regulate WMD, I bet we would witness the fastest ratification of a constitutional amendment in history. It might even be ratified before SCOTUS can even grant cert. Besides, no matter what the courts do, Jack Bauer will lay a 24 hour smack-down on any would be terrorist.
And self-appointed fake militia "officers" would flee it, peeing themselves in terror.
The Militia Act of 1903 says it is. Read a book.
Oh shut the hell up you hopeless scumbag.
You're so sensitive. Don't be scared.
Scared? Of you? Not hardly...
Don't let nightmares of the National Guard chasing you ruin your rest.
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