Judge says 2nd amend is a "collective" right

[KBCraig]

http://nwaonline.com/articles/2007/06/25/news/062607fzfincher.txt

The Morning News
Local News for Northwest Arkansas

Militia leader seeks release pending appeal
By Ron Wood
THE MORNING NEWS

FAYETTEVILLE -- A Washington County man convicted of having illegal machine guns wants out of jail while his conviction and sentencing are on appeal.

Hollis Wayne Fincher, commander of the Militia of Washington County, was arrested after federal agents raided his home in the Black Oak community south of Fayetteville. The agents found a number of machine guns there and at the nearby militia headquarters.

Fincher, 61, was convicted in U.S. District Court in January on a count of possessing a machine gun and possessing an unregistered firearm. He has remained in the Sebastian County Jail since his arrest.

U.S. District Judge Jimm Hendren sentenced Fincher on Friday, opting to impose the minimum recommended sentence according to federal sentencing guidelines, which set his imprisonment at between 78 and 97 months. Hendren also put Fincher on two years' probation once he leaves prison and required him to pay the government $1,000.

Fincher's attorney, Shannon Blatt, filed motions Monday asking that Fincher be allowed to post bail and remain free pending the conclusion of his appeal or at least to allow him out until he is scheduled to report to a federal prison. The motions contend Fincher's not a flight risk or a danger to the public and that the appeals, if successful, would substantially lower Fincher's prison time or reverse his conviction entirely.

Specifically, Fincher thinks he was improperly given more prison time based on the number of guns seized by police that were "attributable" to him. The government said there were 45 while Fincher contends the number should have been much lower. Fincher also challenges whether the guns were "illegally possessed" or not.

A second issue planned on appeal is whether Fincher should have been given more prison time for being an organizer or leader of a criminal activity that involved more than five people. Fincher claims that was never proven at trial.

Fincher also intends to raise Second Amendment issues his attorney said could go to the heart of his conviction and require its reversal.

The government is not opposed to letting Fincher out of jail until he is ordered to report to federal prison but opposes his staying out while the case is on appeal.

Assistant U.S. Attorney Wendy Johnson's motion, also filed Monday, said the government doesn't think there are any substantial questions of law or fact that would result in reversal or an order for a new trial on appeal.

Fincher had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9mm STEN design submachine guns and the shotgun.

Fincher never denied he had the guns.

The defense tried to make a case of the Constitution versus gun laws; the government kept the case more simple, arguing Fincher had the machine guns and they weren't registered as required by federal law.

Fincher didn't testify before the jury. The judge ruled after hearing testimony with the jury out of the room that Fincher's proposed testimony was inadmissible because it was aimed at challenging the legality of federal gun laws, not whether Fincher had illegal, unregistered firearms in his possession.

[error]

Maybe they'll appeal and finally start striking down some of these unconstitutional laws. Getting rid of the NFA would be a good start.

[KBCraig]

Because this is the same court (U.S. District Court for the Western District of Arkansas) where U.S. v. Miller originated, it will be interesting to see if the defense will be able to raise that case and bring it to a conclusion. The case was never finalized, because SCOTUS returned it to the trial court, by which time one defendant was dead, and the other's whereabouts were unknown; no trial was ever held.

If SCOTUS hears this, they won't be able to say they have no evidence that the weapons in question have military value, since they're M1919 Browning machineguns and Sten submachineguns.

Kevin

[error]

True. But someone has to actually show up and present the historical evidence, or the Court will cover its eyes and pretend it knows nothing.

[penguins4me]

[...]
Fincher's court-appointed attorney, Shannon Blatt, asked Hendren to consider Fincher's poor health and that of his wife and sentence Fincher to house arrest or probation. Hendren said given the severity of Fincher's crimes he could not allow such a lenient sentence.
[...]

Wow, this Fincher guy, eating babies and brutalizing old, defenceless grandmothers! Six years in the federal pound-me-in-the-arse pen it is!

Oh, wait. Fincher built a machine, on his own property, for his own personal use, within one state.

I'm having a hard time here seeing how the interstate commerce clause, the only tenous link to any alleged legitimate authority the feds have here, applies.

Not to mention the lack of a victim. Aside from Fincher, himself, I mean.

[LiveFree]

One of the first things I learned in American Government class was that they definitely reach with the commerce and general welfare clauses.

Also, a SCOTUS decision here could spell the death of the republic as we know it if it went the wrong way.  Some anti-gunner lawyer could just argue that since the weapons are obsolete for current military use, the verdict should stand.  I'm not well informed enough about SCOTUS, but just the thought of a decision like that makes me cringe.  The feds could easily read that as saying anything without current military use is banned, and just leave all the military stuff banned until someone challenges it.

But alas, I'm rambling.