Judge says 2nd amend is a "collective" right

[41mag]

I found this while reading Keep And Bear Arms website.

link

FAYETTEVILLE - A jury of five men and seven women, along with two alternates, was chosen on Wednesday as the trial of Wayne Fincher got underway in federal court.  Many of the militia leaders supporters were in attendance and stood up when he entered the courtroom.

Fincher, the lieutenant commander of the Washington County Militia, could face up to 20 years in prison for having unregistered homemade machine guns and an unregistered sawed off shotgun on his property.

In opening statements, the prosecution said they only have to prove that the defendent knew one of the three machine guns and the shotgun were owned illegally.

Defense attorney Oscar Stilley said he expects to show Fincher is not guilty of any of the charges.  During his opening statements, prosecutors objected twice when Stilley mentioned the Second Amendment.  An earlier motion by the government asking that any Second Amendment arguments before the jury be prohibited was granted.

Sidebar discussions between counsel and the judge took up much of day one of the Fincher trial, leaving only enough time to call one witness.  Prosecutors called an ATF special agent to the stand to discuss the firearms found in Fincher's home and property.

Gee, can not allow the Constitution to be allowed in the court.  That just wouldn't be right.

[41mag]

Another link

[lordmetroid]

He can't allow it to be in court because it is the wrong playing field! There are different games of law like there are different sports. The government is under the jurisdiction of the constitution. Not the accused.

[Otosan]

The following is a stupid statement/question, but going to ask any ways:

Could the defendents lawyer just ask the Judge, the prosecuters and the atf agents where do they derive the to charge Fincher? 

[d_goddard]

The US constitution doesn't hold a candle to the NH Constitution. Our state does not have to worry about the whole "collective-right/militias-only" issue with respect to bearing arms.
http://www.nh.gov/constitution/billofrights.html

[Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

[KBCraig]

Well, there's a surprise. 

It's a shame the U.S. District Court for Western Arkansas has changed so dramatically. When Jack Miller and Frank Layton were charged for possession of a sawn-off shotgun in 1938/'39, Judge Heartsill Ragon ruled that the National Firearms Act was not a revenue measure, but was designed to unconstitutionally restrict the ownership of firearms. He dismissed the charges.

The prosecution appealed immediately to the Supreme Court. In their ruling returning the case to the lower court, SCOTUS practically begged for someone to provide evidence that the sawn-off shotgun had military value; if it did, then it would have been protected, and NFA'34 overturned.

Unfortunately, by the time they issued their ruling, Miller was dead and Layton accepted a plea. The case was never concluded.

It's hilarious that the anti-gun folks claim Miller supports their case. If they bothered to read it logically, they'd see that SCOTUS ruled that the right to own and bear military arms is absolute for all able-bodied adults.

Kevin

[KBCraig]

There are some great comments at the nwaonline article.

[d_goddard]

There are some great comments at the nwaonline article.

It would be cool if anyone posting there taunted them with the NH Constitution's Article 2-a, and a link to NHFree/FSP 

[aries]

Good news for gun collectors

[Tyler Stearns]

He can't allow it to be in court because it is the wrong playing field! There are different games of law like there are different sports. The government is under the jurisdiction of the constitution. Not the accused.

They want to bring in the constitutional argument because they believe that it is illegal for the government to be prosecuting him in the first place.  So it is the right venue to be using this argument.

It's hilarious that the anti-gun folks claim Miller supports their case. If they bothered to read it logically, they'd see that SCOTUS ruled that the right to own and bear military arms is absolute for all able-bodied adults.

Kevin

My understanding is that, like you said, Miller gives the right to keep and bear military arms.  In its most anti-gun interpretation that would mean that we only have the right to have full auto machine guns, assault rifles, and pistols.  This case clearly falls into those parameters.

[KBCraig]

Well, big shocker: the judge disallowed all mention of the 2nd Amendment, leaving the defense with no witnesses and unable to present any evidence.

Even after hearing only the prosecution's side, it still took five hours to return a guilty verdict. Looks like the old trick worked: give a divided jury the case on Friday afternoon, and threaten to keep them locked in until the verdict is reached.

http://nwaonline.net/articles/2007/01/13/news/011307fzfincher.txt

Fincher found guilty of having illegal weapons
Militia leader faces prison time for machine guns
This article was published on Friday, January 12, 2007 10:07 PM CST in News
By Ron Wood
The Morning News

FAYETTEVILLE -- Round one went to the government Friday.

A federal court jury found Hollis Wayne Fincher guilty of having illegal, unregistered weapons, including machine guns and a sawed-off shotgun.

Fincher, 60, had two .308-caliber machine guns, homemade versions of the Browning model 1919. The other firearms were 9 mm STEN design submachine guns and the shotgun.

Fincher's attorney, Oscar Stilley, vowed to appeal the verdict all the way to the U.S. Supreme Court.

"Basically, the Second Amendment got defined away so that if the government can tell us what's affected by the Second Amendment, if anything, I'd like to know what it is," Stilley said. "If this case holds up, the federal government has gone from a government of limited powers to a government that's absolutely unlimited by the Constitution, by the grant of power (by the states to the federal government) or anything else except politics."

Fincher looked at friends and family in the gallery before the verdict was read and said, "They won't defeat me." He later mouthed, "It's OK," as he left the courtroom with U.S. marshals.

Family members cried and comforted each other as Fincher was led away.

Fincher faces up to 20 years in federal prison, but Stilley said he hopes to be able to hold it down to 30 months, which he said was the plea bargain offered by prosecutors before trial. Sentencing will come in about 60 days, when a presentencing report is finished.

While the defense tried to make a federal case of the Constitution versus gun laws, the government kept the case as simple as possible for jurors -- Fincher had the machine guns and they weren't registered as required.

Prosecutors felt the law was clear in the case.

"We felt we were on very solid ground, however, the defendant had very strong beliefs," said Wendy Johnson, a deputy U.S. attorney. "They're good people and they believe very strongly, it's just different and contrary to what the law is."

It took the jury almost five hours to reach a verdict, even though the defense presented no witnesses or evidence to counter the government's case.

Fincher never denied he had the guns.

"I think the jury did a great job," Johnson said. "They took their duty and their job seriously and of course we were pleased with the verdict and the outcome."

Fincher and other Militia of Washington County members were featured in a March 2006 front-page report in The Morning News, firing the weapons. That report, according to federal law enforcement officials, was what prompted them to begin investigating Fincher and the group.

Fincher's backers said they fully expect to see more indictments issued, based on the investigation and bolstered by Fincher's conviction.

Johnson would say only that the investigation is continuing.

The trial was hard-fought and somewhat disjointed because U.S. District Judge Jimm Larry Hendren had to make so many rulings about what law and evidence the jury was allowed to hear.

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

A major issue was whether the Militia of Washington County is a recognized state militia, exempt from federal gun laws under the Second Amendment. Hendren ruled it is not.

The judge ruled that Fincher's proposed testimony was inadmissible because it was aimed at challenging the legality of federal gun laws, not if Fincher had illegal, unregistered firearms in his possession.

Fincher maintained his possession of the guns should not be criminalized because it was "reasonably related to a well-regulated militia," based on the Second Amendment. He also testified he doesn't think there should be any restrictions on gun ownership, including what kind of guns an individual can have.

After the trial, Stilley said Fincher had obviously set out to challenge the government on gun laws because of his Second Amendment beliefs.

Since 1934, it's been illegal for civilians to own machine guns without permission from the U.S. Treasury Department.

Federal law permits the public to own machine guns manufactured and registered before 1986 under certain conditions. Guns made or imported after that date can be bought by law enforcement agencies, but not the public.

Each new weapon is subject to a manufacturing tax and must be registered with the National Firearms Registry.

To become a registered owner, a complete FBI background investigation is required.

When selling a machine gun, dealers must fill out federal registration forms. The purchase of a machine gun requires a $200 federal tax stamp every time it is transferred from one legally registered owner to another.

Legal Lingo

Second Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

[41mag]

http://nwaonline.net/articles/2007/01/13/news/011307fzfincher.txt

It took the jury almost five hours to reach a verdict, even though the defense presented no witnesses or evidence to counter the government's case.

Don't they mean they were prohibited from presenting a defense?

[KBCraig]

http://nwaonline.net/articles/2007/01/13/news/011307fzfincher.txt

It took the jury almost five hours to reach a verdict, even though the defense presented no witnesses or evidence to counter the government's case.

Don't they mean they were prohibited from presenting a defense?

Yes, it does.

Their defense was the 2nd Amendment. The judge had earlier ruled that they would be allowed to present their constitutional objection to the law. Then, on the first day of testimony, he sustained prosecution objections to any mention of the Constitution, and after prolonged sidebar, declared that the jury could only hear the facts, not the law.

It's no different from the Browns' trial: "I am the judge of the law, and you the jury are the judges of the facts. You will weigh the facts, and I will tell you what the law is."

Federal judges tell the same lie every day in U.S. Courts.

[penguins4me]

I keep wishing that something will change, that the jury(ies) will recognize a sham when they see it, and then act accordingly. Wayne Fincher's appeals are still in the works, I hear, or are awaiting the sentencing phase before proceeding, and it seems there will be no new "progress" made until mid-June.

I'd always had an idea rolling around in the back of my mind that I could be the perfect test case for these obviously unConstitutional laws and get much of the mockery thrown out on its arse... until I see case (US vs Fincher) after case (US vs Hale) after case (US vs Miller) after case (the other half-dozen I can't recall) of the same damn thing: black-robed tyrants declaring that the gov't (any given branch) can do whatever it damn well pleases and nuts to you, We the People.

I'm certain that some folks have already compiled a neat list of all similar cases where an otherwise peaceable person has been thrown in prison for merely possessing something which he/she has a God-given, inherent right to possess and use, if need be, simply because the blackrobes said they couldn't (e.g. declared 'interstate commerce' to mean 'anything we damn well want'). Anyone care to link to it?

[KBCraig]

Update: Fincher sentenced to 78 months.

http://nwaonline.com/articles/2007/06/23/news/062307fzfincher.txt

The Morning News
Local News for Northwest Arkansas

Judge Sentences Militia Leader
By Christopher Spencer
THE MORNING NEWS

FAYETTEVILLE -- A leader of a Washington County militia group was sentenced to six years in federal prison Friday for possessing a machine gun.

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.

Judge Jimm Hendren made the ruling on Fincher's sentencing, 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 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.

Hendren did tell Blatt and federal prosecutor Wendy Johnson to research by Monday whether he could allow Fincher to go free until he must report for federal prison. Fincher will remain in the Sebastian County Jail until that determination is made, Hendren said.

Fincher's defense during his trial in January was ideological. He claimed the government violated the U.S. Constitution by imposing limitations on a citizen's right to own guns. Fincher did not deny that he possessed the weapons he did.

Hendren commented Friday on Fincher's defense, stating he had the right to assert that the laws regarding firearms are not proper, but that did not change the fact Fincher must be held responsible for violating those laws.

Hendren said Fincher would have faced a more lenient sentence had he entered into a plea agreement with the federal government.

Much of the testimony Friday dealt with the reliability of the government's informant who attended militia meetings and reported back to agents of the U.S. Bureau of Alcohol, Tobacco and Firearms. Blatt raised numerous objections when federal agent Wade Vittitow spoke about what he learned from the confidential informant. Hendren overruled the objections because he said the rules for introducing third-party testimony are less strict in a sentencing hearing than in a normal trial.

Blatt also questioned the federal agent about whether the confidential informant was drunk or drinking when he made reports to the government about activities at the militia headquarters. The federal agent said he did think the informant drank, but didn't see any evidence to believe he was too impaired to reliably report the group's activities.

The remainder of the day's testimony came from Fincher's friends and family who spoke well of the man. Fincher's friend Jay Cole said Fincher was a gentle man who has never been violent. Cole said he did not expect much leniency from the judge.

"I gave up on justice a long time ago in this case," Cole said.