US v. Fincher

Discussion in 'In the News' started by viper32cm, Nov 17, 2006.

  1. viper32cm

    viper32cm New Member

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    http://www.nwaonline.net/articles/2006/ ... arrest.txt
    http://www.thegunblogs.com/node/303

    Anyone heard about this?

    Long story short an officially recognized state militia in Arkansas built a full auto sten gun from a parts kit (I imagine that's what fully restored means) and then petitioned the state for protection under the state and federal constitutions.

    Naturally, the BATFE, FBI, and etc descended on the militia man who built the gun Fincher and arrested him. Now they are suing for violation of 2nd Amendment rights.

    Opinions?

    I personally am a little mixed, this is obviously a great piece of "screw you" to the government which I'm always in favor of, butI do have a problem with some of the legal implications since these guys are part of a militia that is recognized by the state they fall within the collective rights view therefore I could see a judge allowing them to keep the gun in an opinion but also fully soldifying the collective rights view at the same time which IMO would be horrible because that would make 2A rights subject to whether or not a state officially recognized a militia. Naturally, most states or at least the really liberal ones would write out anytype of militia from their laws and foreclose anyones right to own a gun.

    Maybe I'm interpreting this wrong, I don't know.[/quote]
     
  2. Macktee

    Macktee New Member

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    I'm not sure what to think about this although I'd like to see the federal license for full auto weapons discarded. Before 1934 (I think) you could buy a Thompson at the local hardware store. The ban made no real sense; then or now.

    What is the most interesting part of the article is the "comments" section following it. Some valid points are raised but there are several really wacko postings. Interesting yet entertaining in a macabre way...

    Why do some many of us "gun nuts" come across simply as "nuts"?
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    It will never reach the Supreme Court and the case law in the Eighth Circuit is solidly against him. He is going to federal prison.

    U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992):

    Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia)or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.

    Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship.

    :(
     
  4. viper32cm

    viper32cm New Member

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    Gotta love how they pick and choose language from Miller. In fact that's a horrible mischarachterization of the holding of Miller the reasonable relationship didn't have squat to do with the person, it had to do with the gun.

    In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
     
  5. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Cops with Machineguns

    We gun-rights people think the militia means "the common people." Armed civilians, basically. The socialists think the term "militia" only means the National Guard, which we all recognize is firmly under federal control and only useable to promote a State's interest to the extent allowed by the feds.

    Suppose we reached a middle ground and agreed that city, county, and state-agency LEO's (cops, deputies, etc.) were part of the "militia."

    Cops want to have machineguns and short-barreled shotguns. Not all cops get issued them, but many do. SWAT teams have this kind of gear. Many ordinary road deputies in my part of rural Georgia have a 14" barrelled shotgun in their patrol cars.

    So is it unconstitutional for the NFA to be applied to cops?
    BATF's policy is that cops don't have to pay the $200 transfer tax, but they do have to register the weapons. Is that constitutional? Certainly it would not be constitutional for the STATE to pass a law saying federal military personnel had to register their guns in this state, but without any fee. Any State action that could have the slightest infringment on the exercise of federal power will not be tolerated. That's why the State can't even require that post office mail carriers have a driver's license to drive those postal vehicles on public roads in this state--- just having the Post Office's permission to do so is sufficient, in every state, for all purposes.

    If anyone is going to challenge the NFA as applied to members of an active state "militia," I think the "militia" in question ought to first be state law enforcement agencies, with the individuals requesting the weapons for use in their official duties. (And the weapon should not be a Sten gun or some freakish class 3 "Saturday Night Special." It should be a weapon commonly used in police work.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Cops with Machineguns

    Richard Henry Lee thought it meant the common people, too. Of the idea that it could have meant a "select militia," he said:

    [W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
    ---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Tench Coxe, "a Pennsylvanian" and American Political Economist, assistant to Alexander Hamilton, and an anti-Federalist, on the scope of arms to be owned and carried by the militia (every . . . terrible implement of the soldier) and who is the militia:

    "...the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible armymust be tremendous and irresistible. Who are these militia? Are they not ourselves. Is it feared, then, that we shall turn our arms each against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the state or federal constitution hath given away that important right.... The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust God it will ever remain, in the hands of the people. (February 20, 1788)

    This was in an article in which Coxe was arguing that a fear that Congress or his home state of Pennsylvannia would attempt to disarm the people was "ridiculous."


    When you have time, here is an article by Stephen Halbrook and Don Kates about Tench Coxe. It is long, but well worth reading.

    http://i2i.org/SuptDocs/Crime/hk-coxe.htm
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Read that last sentence again!

    The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust God it will ever remain, in the hands of the people.


    What a wacko, huh!

    Somebody writing an article like that for a paper today, if he could even get it published, would probably get a visit the next day by Homeland Security agents!

    :D