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}
Straight up. Bump for later
If we take the position that our rights exist whether or not they are guaranteed, then the same right existed under King George. If the right guaranteed by the Constitution in the 2d Amendment is not one of the natural rights guaranteed by our Creator, then in truth, it is not really a right, but a freedom or privilege. I won't argue that point one way or another, but to answer your question, recognizing a right exists does not take away any right from those not choosing to exercise that right.
Fast forward to today, and there are all types who say that the 2nd ONLY means for a militia, and that we don't have a modern day militia.
Yes, this is the interpretation of those who would sunset the 2d Amendment, but it does not wash. The reason given as an explanation for why the right existed, did not in any way include supplementary language limiting the right either because of time or changes in our society.
This same argument is used here on FR when 14th Amendment rights are discussed. It's irrelevant what the purpose was for the Country to ratify the 14th Amendment. The language in it is quite clear, just as it is with the 2d Amendment.
Or that reasonable laws can be enacted to protect the rights of others. But enact this law, then that law, and then another law. All these laws to protect someones rights, but ultimately these enacted laws can totally remove someone else's rights.
It's understood that in any society individual rights exist and must be protected. It is also understood that for society to function, those rights can and should be curbed to the extent they may have a deleterious effect on society as a whole. Do governments go to far? You bet. Then, our recourse is with the courts, the electoral process and the constitutional processes that exist.
What is considered a right in the majority of the nation, is outlawed in Chicago. Basically the 2nd amendment is null and void in Chicago.
Conceal and carry laws, which we here in South Carolina have also come with licensing requirements. I believe that laws prohibiting any firearm is a violation of the 2d Amendment. But there in Chicago, the citizens must take actions such as I mentioned above.
There. I fixed your comment to make it conform to today's reality.
Letters of Marquee set forth in the Constitution directly assume ownership of warships mounting numerous cannon by privet parties; your argument is contradicted by the founding documents.
We DO have a modern day militia. Congress has unilaterally and legally defined the militia as everyone in the National Guard, PLUS every able-bodied male aged 17-45.
Thus being a member thereof, I want my M4. ...funny, I suddenly hear the tune change...
Yeah, I think they are trying to pull another Miller by withholding medications, etc. from him. I bet they are hoping he will die of "natural causes" so that they will get away with another one.
Yes, that will be the defense response. But the prosecution will have already made the case that reasonable curbs may be placed on individual rights even to prevent a future harm. Giving a 6 year old a firearm doesn't necessarily mean he will harm himself or others, but reasonable laws can prevent a 6 year old from ownership and use. Just as the 14th Amendment guarantees equal protection of the laws, it does not require that felons have the same privileges as others. Yet a felon might not do any harm if permitted the freedom.
It will come down to whether ownership of a machine gun can reasonably be considered an unfettered right, or whether the state has the power to regulate its ownership and use, as it does in other rights issues.
When the Constitution was written, there was no TV or Internet either. Do you support government censorship of them?
Unlike Stewart, Fincher's past is squeaky clean so there is nothing to divert the case from Constitutionality.
Hardly a contradiction. See http://en.wikipedia.org/wiki/Board_of_Ordnance for more information about the common perception of the term during the time of our founders.
"Should a 6 year old be allowed to own and use a firearm? How about a felon? As long as the licensing doesn't prohibit reasonable ownership and use, it doesn't violate the 2d Amendment, and it will likely be held so."
There are those that would argue that those laws are unconstitutional.
Yeah, laws against murder and assault with a deadly weapon.
STM STFU RFN BTW ESAD.
By the way, there are many states that give all rights back to felons, except 2nd amendment, when released from jail/prison. Why should the 2nd be treated any different? Because guns can be dangerous? Sorry, but they are not barred from archery equipment; baseball bats; golf clubs; etc.
No, the law would state that no actions can be taken including the use of language to endanger others. That would cover your crowded theater scenario. And yes, licenses are required for all sorts of activities exercised under the guise of the 1st Amendment, including licenses to print and sell books, licenses for journalists, licenses for broadcasting. All libel and slander laws are designed to curb the use of speech, whether written or verbal.
It's like arguing that I'm an imminent drunk driver because I own both alcohol and a car.
Few would agree with that. Would it be unconstitutional to prohibit a 6 year old from taking a gun to school? How about a murderer? What about carrying guns on an airplane? Should we permit Muslims to carry firearms on a United flight?
From the link you supplied:
"the [Ordnance] Board was also responsible for Naval munitions, including cannon, shot, muskets, and gunpowder."
It even calls "ordnance" everything from muskets to cannon...
Why stop with that? How about an M-60, or a grenade launcher, or a 175mm SP? And surely you are not limiting such use to only those who served are you?
Your prior restraint argument is going nowhere.
That's irrelevant to me. As you well know JW, I don't post here on FR to make friends, but to make points. I have made the points I suspect the prosecution would make in this case. The judge could well agree with you, though I doubt it.
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