Posted on 01/12/2007 2:09:53 PM PST by Wasichu
Fincher Guilty In Machine Gun Case Friday, January 12, 2007 3:37 PM CST
It took a jury just under five hours to find Hollis Wayne Fincher guilty of owning illegal machine guns and a sawed-off shotgun.
Closing arguments in federal court in Fayetteville wrapped at mid-morning and the case went to the federal jury about 10:30 a.m. The jury returned its verdict about 3:20 p.m.
And I clearly demonstrated that that is not true.
But it doesn't matter because the '18" benchmark' was and is irrelevant to the debate I was having with another FReeper. It's a red herring you tossed in to misdirect the meaning of my post.
Thank you. It was certainly used that way here. You weren't necessarily redundant though. There is a master of obfuscation here who is an elitist but not a politician. (AFAIK. Let's hope not.)
I'll grant you that the ninth circuit held that the right to keep and bear arms was "collective", and that the fourth and sixth circuit courts of appeal have given opinions consistent with the collective right model(though the sixth circuit's Warin decision was self-contradictory, indicating that only individuals' possession of certain firearms was unprotected from federal legislation by the second amendment and relying on the first circuit's Cases decision that described the right as belonging to individuals), but can you provide citations to back up your statement that "every single federal court except the 5th Circuit" follows the Soviet-style collective right model.
Here are SCOTUS cases that refer to the right to keep and bear arms in terms consistent with an individual (not collective, right:
# Dred Scott v. Sandford (1857) [6] - The court ruled Scott did not enjoy the protection of the Bill of Rights because of his racial background. However, in its ruling, it implies all free men do have the right to bear arms by indicating what would happen if he was indeed afforded full protection:
"It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."
United States v. Cruikshank
U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations. The high court said:
“ The right [claimed in this case] is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. ”
The court made similar findings with respect to the first amendment, though since that time the Supreme Court has said that the 14th Amendment applies the bill of rights to the states.
This high court statement is the first of two cases (the other being Presser) in which the Supreme Court ruled that because "[t]he Second Amendment...has no other effect than to restrict the powers of the national government...", the states and municipalities may regulate arms. This is because courts didn't recognise the doctrine of incorporation at this point in the nineteenth century.
# Duncan v. Louisiana (1968) [9] - A Supreme Court case which incorporated the Sixth Amendment right to a jury trial at the state level as required by the Fourteenth Amendment. In the court's written opinion, the court used a statement by Senator Howard, who introduced the Fourteenth Amendment, to help validate their ruling that the Bill of Rights as a result of the Fourteenth Amendment forces states, and not just the federal government, to protect the same individual rights enumerated in the Bill of Rights:
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution ...the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining [391 U.S. 145, 167] to each and all the people; the right to keep and to bear arms..."
U.S. v. Verdugo-Urquidez (1990) In discussing the meaning of "the people" in the Fourth Amendment, the Supreme Court commented: " '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "
Unless you contend that other rights protected by the bill of rights are also collective rather than individual, this passage can only be read as referring to an individual right to keep and bear arms.
Yes, I've read Silveira. That's why I'll give you the 9th circuit in the "collective" column. I've also read Kozinski's brilliant dissent that destroyed the majority opinion in detail. This dissent also gave us the funniest judicial metaphor of all time- the majority's attempt to smother the second amendment by sheer weight had the grace of the sumo wrestler trying to kill a rattlesnake by sitting on it. Kozinski's understanding what our revolutionary founding fathers meant when they penned the second amendment is perhaps so clear because of the perspective he has having lived under an authoritarian regime that he has seen toppled.
Their state can provide that protection, even without a well regulated militia.
"I may be called up as part of the militia."
Under your scenario, you said the state didn't have a militia. So you mean you may be drafted by the federal government to fight a foreign enemy. Fine. You'll be provided arms by the federal government, just like they did with the draftees during the Viet Nam war. Plenty of guns to go around. Plenty of ammunition.
"amounts to national suicide by codified willful ineptitude."
No. Even with constitutional protections at all levels, there's nothing that says people must be armed. What if the people choose not to? Same result.
"You would have us as a populace disarmed by leaders who hold their "subjects" in contempt."
Not I. If the citizens of a state wish to protect their individual RKBA, they are certainly free to do so. They may protect any arms they wish, and may protect the right of their citizens to retain their arms at home. It's totally up to the state.
Furthermore, if the state wishes to then form an organized, well regulated militia with officers appointed by the state, the federal government may not stop them from doing so or interfere with their efforts in any way.
This is the current system. My turn to ask a question: What's your problem with it?
You wish. Now you're squirming to avoid the issue.
In your "debate with another FReeper" you said, "The use of short barreled shotguns by the military has a long and distinguished history." I simply responded that those "short-barrelled shotguns" used by the military were greater than 18" -- actually they were 20". Very relevant to your debate.
The NFA taxed "sawed-off" shotguns less than 18" because they were used by criminals, concealed under their clothing.
Two different types of weapons that you're putting in one category, and you're uncomfortable that I pointed that out. Too bad.
I've explained it repeatedly: the various levels of gov't have neglected the militia into oblivion - yet members thereof may still be called up on short notice with little equipment to give them and little time to train them. The Founding Fathers, recognizing the need for a "well-regulated militia" and it being "necessary to the security of a free state", recognized that the best way to achieve that was for "the people" to "keep and bear arms" without "infringement" - so that when called up, they could do so already armed and familiar therewith; this principle was promptly codified in the Militia Act of 1792, where everyone was told what they were expected to show up with (at their own cost), and after equipping themselves were to inform the state they were so armed. The axiom is that arming comes first, THEN organization.
A moment ago I was notified that I can pick up my M4LE - the closest thing to an army grunt's select-fire M4 I can legally get. It took nearly a year to obtain for two reasons:
1. There weren't enough. Colt et al are feverishly manufacturing M16 variants, barely able to keep up with demand - thanks to the relatively small situation in Iraq. Colt had little time to produce the small run of M4LEs I could dip into. Should there be a national security crisis big enough to warrant calling _me_ up, I have little faith that good equipment would be provided - and of course there would be little time to train, especially relative to self-training I can do myself before then.
2. Paperwork. It took about a month just to get permission to receive this thing ... unlike what the Founding Fathers enacted in the Militia Act, where registration came after equipping.
My problem with your view is that it is naieve: should the militia be called up - and I mean the whole thereof, not just the NG cream-of-the-crop - it will be sudden, frought with inadequate equipment & training. I'm not talking Vietnam, a medium-sized political operation on the other side of the planet. I'm talking scenarios like the declaration of independence of Azltan (those patriots living there wake up to find active revolutionaries taking whole states), or LA Riots writ large (police pulled out and NG waited days to go in), or Hurricane Andrew or Katrina type disasters (total destruction of gov't protection, order & defense up to locals), etc. - events where a disarmed and incompetent populace would crumble, where "the people" ARE "the militia", and security can only be provided by an already-armed already-trained (i.e.: "well-regulated" in circa 1800 parlence) populace; if the gov't neglects its power to "well-regulate" the militia, then it's up to "the people" to do so - exactly as the Founding Fathers intended in the 2nd Amendment.
My problem with your view is the axiomatic presumption that there will be quality equipment to hand out, and time to train well, and that the gov't will be appropriately inclined to provide both in a timely manner. Reality check: National Guard aside - which really is the standing army - the gov't has, at federal and state levels, actively & wilfully neglected its power to prepare the militia; the 2nd Amendment plainly protects the right of the people to keep and bear arms, being necessary to the security of a free state, without infringement - despite gov't desire to render them impotent.
Upshot:
You trust the gov't to adequately prep the militia.
I don't; neither did the Founding Fathers.
Funny, police and military are exempted from such prohibition. I wonder why?
Ask and ye shall receive.
A couple of points. First, let's be adults here and discuss (if you wish) the cases themselves. If you wish to criticize the source, you'll do so in a vacuum because I'm done -- it's the result of a Google search.
Second, I disagree with the U.S. Supreme Court cases cited. The court in US v Miller made many references to a militia and implied that the weapon was protected if it was suitable for a militia. But they never did rule that the second amendment protected a collective right. Or an individual right, for that matter.
The court in Lewis v US makes some passing reference to the second amendment in a footnote, hardly a ringing endorsement of a collective right.
"The Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia'."
There may even be some other lower federal court decisions that are questionable, but the list was provided per your request. If you wish to challenge it, be my guest. I'm more than happy to discuss the cases.
In Dred Scott v. Sandford (1857), Justice Taney outlined the consequences of a person of the negro race being declared a "Citizen of a state" -- that they would receive the same protection of rights that every other citizen of that state received, including the right "to keep and carry arms wherever they went".
Yes, an individual right, but a right protected by the state, not the second amendment.
I'm surprised you brought up United States v. Cruikshank to support your individual rights contention. In it, the court said NOT to look to the second amendment for protection against a state law. That people should look for their "protection against any violation by their fellow-citizens of the rights it recognizes" at the state level. An individual RKBA is protected by the state.
In Duncan v. Louisiana (1968), the court may indeed have "incorporated" the sixth amendment. But what that has to do with the individual rights model of the second amendment is beyond me.
First of all, as of this date, the second amendment is not "incorporated. Second, even if it WAS incorporated I don't know what that would mean, even if incorporation was possible.
If, as a number of courts have said, the second amendment protects a state militia from federal infringement (a collective right), then how do you incorporate that -- a state may not infringe on a state militia? See what I mean?
Now, certainly, if the second amendment protected an individual right, then incorporating it would mean that the state must protect an individual right also. But only the 5th Circuit in Emerson has said that the second amendment protects an individual right. You think the U.S. Supreme Court will agree with them and ignore all the other cases I cited?
I'm not willing, at this time, to take that "all or nothing" chance, thank you.
"U.S. v. Verdugo-Urquidez (1990) was not an RKBA case. That was a "citizens" vs "the people" language argument concerning the fourth amendment. You can't apply the definition of the term "the people" in that case to the second amendment.
Well, you could if the second amendment said, "The right of the people to keep and bear arms shall not be infringed". Then I would wholeheartedly agree with you that it protects an individual right. No question. Game over.
Of course, that's not what the second amendment says, is it?
Yes, and for good reason. The militia envisioned by the Founding Fathers didn't work. They were a disaster in the War of 1812 -- they showed up unarmed, untrained and unprepared.
The police and miitary have access to far more prohibited weapons than just short barrelled shotguns.
I finally, after years of following your posts, understand your view. I can confidently say with certainty: you are wrong, as such a view - implemented in law and upheld by courts - amounts to national suicide by codified willful ineptitude. You would have us as a populace disarmed by leaders who hold their "subjects" in contempt ... only to, in times of great crisis, call them out for defense only to find them empty-handed and incompetent. We are a country "of and by the people", and only a populace free to equip and train independent of government-organized militia can truly be "well regulated" as the Founding Fathers meant the term.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Notice how your opponent pulls one bit of your comment out to refute, and by ignoring the rest in effect 'directs the discussion' in order to present his anti-constitutional agitprop.
"You would have us as a populace disarmed by leaders who hold their "subjects" in contempt."
Not I. If the citizens of a state wish to protect their individual RKBA, they are certainly free to do so. They may protect any arms they wish, and may protect the right of their citizens to retain their arms at home. It's totally up to the state.
Just above we again see the 'majority rule' view. '-- We, as a society, decide which rights we will protect --- We choose not to protect your right to arms.
If and when a majority of the people decide that we should, then we will.
Given that we're a self-governing nation, there's nothing to stop the majority from deciding this. --'
Furthermore, if the state wishes to then form an organized, well regulated militia with officers appointed by the state, the federal government may not stop them from doing so or interfere with their efforts in any way. This is the current system.
So there we have it. The majority in a State can infringe on the individuals inalienable right to own & carry arms. - BS. - The man is completely ignoring the basic principles of our Republican form of government.
Yup. He trusts that if need arises, the gov't will have time & resources to equip & train those called up ... and if there isn't, well gee whiz that's what those in power decided, and it would have been a useless rabble anyway.
Three times last year a large group tried to shut down Atlanta. Had they truly succeeded, the result would have been ugly & dangerous - and probably would have required calling in the NG per an "insurrection". Between shutdown and adequate NG involvement (IIRC, majority is overseas), the security of this free state would have rested squarely on the "unorganized militia" acting immediately with what they have, know and planned; may not be ideal (thanks to gov't negligence & suppression), but work with what ya got - and best to maximize before need arise.
I don't buy Constitutional interpretations that subject "we the people" - me in particular - to vulnerability per the whims of the powerful. The Founding Fathers had just fought a long war to overthrow such views implemented; to think they promply enacted a system restoring such views is plain bunk.
Amen.
You must be a complete idiot. I showed that the Marine Corps ordered over 20,000 shotguns with 14" barrels. But the argument never was about 1934 NFA regulations. So your contribution, as always, is completely and irrefutably irrelevant.
First, what I've received is a list of cases that mention the second amendment's preamble- not support for your baseless assertion that "every court except the 5th Circuit" follows the Soviet-style collective right model. The preamble gives context and rationale for the right enumerated. It does not irrationally and unexplainably transform the meaning of "the people" into something different than what "the people" means everywhere else in the constitution. It certainly does not change the meaning of "the people" to "state government".
Second, let me explain the difference between collective rights and individual rights. In a country that respects your individual right to free speech, the government will not punish you for posting your political views on Free Republic. In a country that recognizes a collective right to free speech, the government will toss you into a concentration camp for speaking out of turn and exercise "the people's" (government's) collective right to broadcast the government's views.
All of the rights enumerated in the bill of rights, including the second amendment, are individual rights. This is obvious when you consider that collective rights did not exist at the time the bill of rights was ratified. The concept of collective rights is a Marxist construct, and the bill of rights predates Marxism. The individual rights enumerated in the bill of rights are restrictions on government action. The second amendment's preamble describes the purpose of the right that it enumerates. That's why the Supreme Court concerned itself with the military suitability of the sawed off shotgun rather than whether Miller had a permission slip from the governor.
The point of including the Reconstruction era cases was to show examples of Supreme Court cases where the right to keep and bear arms is regarded as an individual right. The fact that the right was not incorporated does not make it a collective right. The rest of the enumerated rights from the bill of rights were not incorporated at that time either, yet they are always individual rights, both before and after incorporation.
"The people" from Verdugo-Urquidez is the same "the people" from the second amendment. That's the reason the court referred to the second amendment in that case, as an example of usage of the words "the people". It is referred to in the context individual rights, not collective rights.
The collective rights model is not jurisprudence. It is revisionist history and wishful thinking by a handful of Marxist federal judges who twist history and logic until "the people" = "the government" in order to suit their elitist agenda of disarming "the people".
Even supposing that the founding fathers had a time machine and learned what a collective right was, if they intended to draft a collective right to keep and bear arms since their language in the constitution was always precise and consistent they would word it differently. Perhaps something like this:
"A well regulated militia being necessary to the security of a free state, the power of the state governments to arm their militias shall not be infringed. "
Of course, that's not what the second amendment says, is it?
When it comes to the lower federal courts interpretation of the second amendment, that's pretty close. More like, "A well regulated militia being necessary to the security of a free state, the power of the state governments to form their militias as they see fit and the right of the people to individually bear arms as part of that militia shall not be infringed".
You're hung up on the word "collectively". According to the courts, it means that "the people" referred to in the second amendment, though they may keep and bear arms individually, do so as part of a well regulated state militia. If you don't like word "collectively" then use your own. Whatever word you pick, that is what is protected by the second amendment, again, according to the courts' interpretation.
It's really up to the state -- if your state wishes to protect your right to have these militia weapons at home with you at all times, ANY weapon, then it's up to the state. If they wish to store these militia weapons in an armory, then so be it. If the states wishes to protect your right to keep and bear arms irregardless of a militia, that's up to the people of that state.
The Founding Fathers created a federated republic. They identified themselves by their state. They looked to their own state to protect their individual rights, and the thought of every state operating under exactly the same set of rules was contrary to the nation they were attempting to form.
The Bill of Rights, as written, only applied to the federal government. Each state had their own state constitution.
"a list of cases that mention the second amendment's preamble"
Yep. That's where the reference to a "well regulated militia" is located. Not strange at all for the courts to bring it up if they're leaning to the collective rights model.
But you, on the other hand, are ignoring it completely. You're acting as though its not there. With or without that preamble, you're saying the second amendment means exactly the same thing. Correct?
Then why is it there? No other enumerated right in the Bill of Rights has a preamble. They could. I can bang out preambles for every single one of those rights in a flash -- and so could you.
The Founding Fathers chose to write the amendments the way they did for a reason. For you to flat-out ignore those words because they're inconvenient to your personal interpretation of the second amendment is simply wrong.
You showed that the Marine Corps ordered over 20,000 shotguns with 18.5" barrels. Where do you get 14" barrels?
"But the argument never was about 1934 NFA regulations."
The argument was about what the second amendment protects from infringement. And it doesn't protect shotguns with barrels less than 18" from infringement.
"A well regulated militia being necessary to the security of a free state, the power of the state governments to arm their militias shall not be infringed. "
Of course, that's not what the second amendment says, is it?
Old Dirty Bastiat
Well said Bastiat..
- But as you've seen, your collectivist 'master of agitprop' opponent completely ignores your comments, -- in order to claim it is ~you~ who are hung up on the word "collectively", - then just a few comments later makes another case that 'the courts are leaning to the collective rights model'. Bizarre behavior.
The claim that 'with or without that preamble, the second amendment means exactly the same thing' is equally bizarre.
The Founders chose to write the amendments the way they did for a reason.
"-- A well regulated militia being necessary to the security of a free state," --- is there to to make clear that [un] free States cannot infringe on the right of the people to own & carry arms.
For anyone to flat-out ignore those words because they're inconvenient to a personal interpretation of the second amendment is simply wrong.
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