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http://www.wnd.com/news/article.asp?ARTICLE_ID=53649

Trial will debate 2nd Amendment rights
Defendant is accused of having 'militia' weaponry

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 â€" 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 â€" but so does our Constitution, our Liberty and our right to own firearms. If Mr. Fincher loses this battle, we all lose," he said.

Fincher, a lieutenant commander with the Militia of Washington County, is accused of having three unregistered machine guns and an unregistered sawed-off shotgun.

Stilley said his client believes no one has a right to use weapons to hurt somebody else, just as "you can't use words to injure. You can't yell 'fire' in a crowded theater."

He said whether the gun is a .22 caliber used for "plinking," or a cape buffalo killer, you cannot put it in a position where it's pointed at someone and pull the trigger.

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.

Comments posted online with an area newspaper offered some support for Fincher's side of the case.

"When the government decides that your spare bedroom [can be regulated] as greatly affecting interstate commerce and makes you put a homeless person or work release prisoner in that spare room, then you'll understand why property not actually affecting interstate commerce should not be regulated on by the feds," said Lawful Machine Gun Owner.

DKSuddeth noted that the commerce clause, cited as support for gun regulations, should be studied. "Take a very close read on how the commerce clause is used by congress and the decisions that the courts have made. You do realize that using the commerce clause, congress can regulate ANYTHING that you may wish to grow on your own personal property?"

Another observer cited the statements attributed to Tenche Cose, a government official during the 1790s. "Who are the militia? Are they not ourselves? … Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American."

Another observer, this one a critic who called himself "Blah Blah Blah," added the other perspective. "You give us a clear picture of why the government wants to limit arguments in the case. You guys cannot quit talking. And you insist on quoting every dead white guy in history."

Fincher, in a letter from his jail cell that was published on a blog, said he was doing fine.

"I am doing OK here in jail. It's not where I want to be, but it's where I am and I try to make the best of it," he wrote to family and friends. He said the conditions were tolerable.

"We can attend in house church a couple times a week, sometimes more. I talk to other prisoners about their need for Jesus to save them. Some take heed and are willing to listen and some go to their cells and pray," he said.

Authorities said the arrest culminated an eight-month investigation that included having a undercover agent attend meetings of the militia. The investigation was collectively conducted by the ATF, FBI, Washington County Sheriff's Department, Fayetteville Police Department, Springdale Police Department, Arkansas State Police, Arkansas State Bomb Squad and the Madison County Sheriff's Department.

According to criminologist and researcher Gary Kleck, an estimated 2.5 million Americans use guns for defensive purposes each year, with one in six believing someone would have been dead if they had not resorted to their defensive use of firearms.
 

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Which Circuit is Arkansas and what is the Second Amendment case law there? The reason I ask is that this would be the result in the Ninth Circuit (not Arkansas), I should think, where the court has ruled that no individual has standing under the Second Amendment. They also recently ruled that the Commerce Clause allows Congress to regulate home made machine guns (they first ruled that the Commerce Clause did not authorize such regulation, but the Supreme Court remanded with an instruction to follow Raich, the "medical marijuana" case, so the Ninth Circuit reversed its earlier ruling).

I think Arkansas is in the Sixth Circuit.

Apparently, the prosecutor is very afraid Arkansas residents might favor the Second Amendment arguments . . .

Wouldn't need the motion in San Fransissy federal court . . .
 

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Malum Prohibitum said:
Which Circuit is Arkansas and what is the Second Amendment case law there?

. . .

I think Arkansas is in the Sixth Circuit.
Wrong. It is the Eighth Circuit, and Fincher is so screwed.

For example, in the Eighth Circuit (where this case will be heard), United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) states, "Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons." This same decision is repeated in about five other Eighth Circuit cases. SCOTUS denied cert in every one of those cases. Defendant Hale was also in a "militia," so it is pretty much on point for the Eighth Circuit.
 

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"And Fincher won't be able to argue whether the Commerce Clause to the U.S. Constitution as it relates to the guns applies to this case. The Commerce Clause gives the federal government power to regulate commerce with foreign countries and among the states. Hendren said the government doesn't have to prove the guns were involved in interstate commerce in order for Congress to be able to regulate them."

And:
"He remains in federal custody in lieu of $250,000 bond." That's a lot of money for a taxation and registration offense.

Gunstar1 said:
I would have to install a mod to allow merging of topics.
I do not understand whether this means that you have plans to do so or do not have plans to do so.
 

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Malum Prohibitum said:
Gunstar1 said:
I would have to install a mod to allow merging of topics.
I do not understand whether this means that you have plans to do so or do not have plans to do so.
Don't really plan on it unless merging becomes a greater need.
 

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"The government argued it is the court's role, not the jury's, to decide matters of law and Fincher's arguments should not be made in the presence of the jury. Prosecutors argued the jury should only hear and decide the facts of the case, not what law should apply."

Gotta call BS on that one.

Jury Nullification, anyone? :twisted:
 

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Foul said:
"The government argued it is the court's role, not the jury's, to decide matters of law and Fincher's arguments should not be made in the presence of the jury. Prosecutors argued the jury should only hear and decide the facts of the case, not what law should apply."

Gotta call BS on that one.

Jury Nullification, anyone? :twisted:
Actually that is true. A judge is supposed to instruct the jury as to the law and the jury are supposed to see if the facts of the case meet the criteria the judge sets that was deemed the law says.

If you believe the facts presented during the case meet what the judge deemed the law to say, and you still vote not guilty, then that is jury nullification. It doesn't matter if you are nullifying because of the punishment being too harsh or because you think the law is unconstitutional.
 

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“Those who make peaceful revolution impossible, make violent revolution inevitable.â€

I have no interest in the judge's interpretation of the law.

(An inevitable side effect of being an angry American.)
 

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http://www.nwaonline.net/articles/2007/ ... incher.txt

[MP, all emphasis by way of bolding is mine]

This article was published on Wednesday, January 10, 2007 11:49 PM CST in News
By Ron Wood
The Morning News

Related Photos

FAYETTEVILLE -- The trial of a Washington County man charged with having illegal machine guns is under way despite a series of fits and starts over what the defense can say in front of the jury.

Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in federal court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.

After a half-dozen sidebars and a couple of sessions in chambers, U.S. District Judge Jimm Larry Hendren sent the jury home early Wednesday so he could again meet with lawyers to discuss what can and can't be presented to the jury.

Before opening statements, Hendren ruled the defense can present evidence the machine guns and shotgun were necessary for a state militia. He also wants to hear any such evidence or arguments before they're presented to jurors to determine if such evidence is in line with established legal precedent so jurors will not be misled or confused about the law.

Hendren said the courts have found there's no private right under the Second Amendment to keep a machine gun; the Second Amendment gives a collective, not individual, right to keep and bear arms; and, the Second Amendment is aimed at protecting state-sponsored militias.

Membership in a loosely formed citizen militia is not protected, he said.

The defense has based its case largely on a Second Amendment argument that the government can place limits on the possession of military weapons by individuals or groups but cannot prohibit the possession or use of any weapon that has any reasonable relationship to the "preservation or efficiency of a well-regulated militia."

The sides have vastly different ideas of what constitutes a militia.

Fincher's attorney, Oscar Stilley, argued Fincher has relied on being able to use the Second Amendment as a defense since the charges were filed. Stilley said he should be able to make constitutional arguments directly to the jury.

Hendren said the defense will be allowed to make a sufficient record for appeal purposes but he won't allow arguments concerning various interpretations of the Second Amendment to be presented to jurors.

Twelve jurors and two alternates were seated by midday Wednesday and opening statements were made in the early afternoon.

During an opening statement interrupted several times for sidebar discussions about what he could and couldn't say, Stilley told jurors Fincher sent letters to state and federal officials in 2002 telling them he had the guns, that he thought they were legal because they were for use by the militia and asking them to inform him if they thought his position was wrong. Fincher didn't get a response and assumed he was not breaking the law, Stilley said.

"Mr. Fincher has never denied that he kept machine guns," Stilley said. "Nobody told him that he can't have those guns."

The government's first witness, Wade Vittitow, a special agent with the Bureau of Alcohol, Tobacco and Firearms, told jurors he started looking at Fincher in 2006, after a report about the militia group appeared in The Morning News.

A check of the National Firearms Registry showed Fincher had not registered any guns, Vittitow said.

A confidential informant was used to infiltrate the group and a subsequent search warrant netted up to 15 guns that should have been on the federal firearms registry, Vittitow said. Agents also found parts, templates for making parts for machine guns from scratch, belts of ammunition and a partly assembled submachine gun.

Fincher was arrested Nov. 8 by federal agents. He remains in federal custody in lieu of $250,000 bond.
 

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Malum Prohibitum said:
http://www.nwaonline.net/articles/2007/01/11/news/011107fzfincher.txt

Hendren said the courts have found there's no private right under the Second Amendment to keep a machine gun; the Second Amendment gives a collective, not individual, right to keep and bear arms; and, the Second Amendment is aimed at protecting state-sponsored militias.
Again I call BS.

There was no "state sponsored" militia when the Bill of Rights was written.
 

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The BoR is collective for #2, but 1 and 3-10 are individual.

Good, strong logic there.
 

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Too bad the trial won't be in Washington County, GA.

CONSTITUTION OF GEORGIA
(as amended through the November 1998 general election)

ARTICLE I.
BILL OF RIGHTS

SECTION I.
RIGHTS OF PERSONS

Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors.
(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts. [emphasis mine. Wiley]
 

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http://waronguns.blogspot.com/2007/01/j ... judge.html

The Judge came in this morning and virtually reversed his ruling from yesterday. In addition to that, I distinctly heard him say (and the court record proves it) that the Second Amendment was an individual right in that he spoke about the Bill of Rights and stated that they were individual rights that were protected by the first 10 Amendments.

This morning he totally reversed himself and stated that the 2nd Amendment conferred a collective right. Oscar argued with that and referenced the 2004 USDOJ paper and we also have an official copy of the 1982 Senate Subcommittee report that states that it is an individual right. However, the judge only accepts recent circuit court rulings and no other authority is sufficient for evidence or proof. Oscar argued that point strenuously and the Judge didn't seem to care.

Right now, I sit at the defense table as I am assisting Oscar. It is also a good opportunity to visit with Wayne when the Judge demands that counsel meet him in chambers.

You need to post that we actually live in the Land Down Under, and our courts reflect it.
Mr. Davis adds he "will post the judge's ruling on the motion in Limine as soon as I have it and am able," and, of course, I'll link to that here.
 

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The Prosecution Rests

That was quick! :shock:

While the government is trying to make the case as simple as possible for jurors, Fincher had the guns and they weren’t registered, the defense is still trying to make constitutional arguments whenever possible. That’s led to repeated delays in trying the case.

Fincher maintains that possession of the guns, which he does not deny, should not be criminalized because their possession was “reasonably related to a well regulated militia,†based on the Second Amendment to the U.S. Constitution.
 

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Now going to Jury.

That was even quicker!

Hollis Wayne Fincher's machine gun trial will go to the jury today with the defense having presented no evidence or witnesses to the jury.

The defense rested Thursday after U.S. District Judge Jimm Larry Hendren ruled Fincher's proposed testimony inadmissible.

Fincher testified for more than an hour with the jury out of the courtroom so Hendren could decide if his testimony was admissible.

Hendren has repeatedly ruled the defense can attack the government's evidence but not the law that applies to the case. He also ruled, based on U.S. Supreme Court precedents, laws passed by Congress to regulate firearms do not violate the Second Amendment.
 
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