Defendant is accused of having 'militia' weaponry

[Dan from MI]

I wish I was in the courtroom. My wild arsed guess on the reason the judge ruled the defense not admittable is because of the notion that juries are supposed to decide questions of fact and judges matters of law. (At least in civil matters - I haven't taken crim procedure classes yet - hence the guess)

I'd certainly appeal this case.

 

[poor_richard]

Now that I think about it, this does sound a little like Lexington, only this time there was no "shot heard around the world".

 

[Outlaws]

The part about the article I noticed was when they said said the .gov made its case by saying that he was in illegal possession and guilty because he didn't register it like it is supposed to be. Well how was he supposed to register it when they closed registration to civilians? Sounds like the jury was dumb and the moron on trial should have had a lawyer.

 

[crunker]

Whoever made the statement that the 2nd Amendment does not apply to modern arms is off their rocker.

No one in 1789 could have imagined fax or the telegraph, let alone the telephone, radio, and internet. Yet communication over such devices is protected by the 1st Amendment.

 

[Ian]

Sadly and not surprisingly, Fincher was found guilty. Now they'll be preparing for appeal.

 

[cropcirclewalker]

Friends: Fincher No Danger

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

Militia Commander Exercising Constitutional Rights, Supporters Say
This article was published on Friday, January 12, 2007 10:07 PM CST in News
By Dan Craft
The Morning News

FAYETTEVILLE -- A depiction of a small revolver with a red circle and slash signifies it is illegal to carry guns inside the federal courthouse.

On Friday, five floors above the pictograph, jurors asked to see machine guns and a sawed-off shotgun.

Awaiting a verdict in the gun possession trial of Hollis Wayne Fincher, more than a dozen members of a local militia group seeking a cigarette break repeatedly passed the no-guns sign.

About 40 to 50 friends, supporters and members of the Militia of Washington County filled the courtroom at the John Paul Hammerschmidt Courthouse each day of the trial.

Supporters posted signs throughout the county protesting Fincher's detention for possessing fully automatic weapons.

"Free Wayne" bumper stickers were plastered on vehicles, including 11 parked near the courthouse Friday morning.
*

Fincher, a founding member of the militia group and outspoken gun rights advocate, has never denied owning the weapons. He insists they are allowed as equipment for a citizens' militia.

Supporters grumbled about the Second Amendment and some of the judge's rulings before the verdict, wondering what the jury would think of their lieutenant commander, who smiled at friends just before the verdict was announced.

"Wayne helped form this militia, in part, to prove his constitutional right to do so," said Don Bright, a longtime friend of Fincher's. "This is not a violent man by any means, but what we're seeing here is a jury that didn't get to hear his side of the story."

Paul Smith, commander of the militia, kept repeating, "It's just not right."

Many Second Amendment groups across the country took an interest in the case, said Jay Cole Jr., a Fincher family friend.

"This is an attack on our liberty, not just Wayne's," Cole said. "There's a lot at stake in this courtroom here, and he's standing up for all our rights."

Bright, the coordinator for Fincher's defense fund, promised an appeal.

"This has only just begun," Bright said. "Wayne believes in his Constitution, lives by it. They're calling a good, honorable man a criminal."

Bright said Fincher, a bearded giant at well over 6 feet tall and more than 300 pounds, joked before the trial that he would write a thank-you letter to the Sebastian County sheriff. Fincher has been held in that county's jail since his arrest Nov. 8.

"We talked about how the food wasn't very good, but he ought to thank the sheriff for helping him lose about 40 pounds," Bright said.

 

[LAK]

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

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

Where is the highest ranking person in the federal executive office? Where is the Arkansas legislature? The state governor?

I'll tell you where; right onboard the ship steaming to that fantasy island called "peace and prosperity in every land". Our Constitution is one of the major icebergs along the course, and it has been perfectly clear for a long time that they intend to steer right around it.

Let's be clear also that these people - who hold the authority and mandate to do so - have no intention of abandoning that ship, much less sinking it.

-------------------------------------

http://ussliberty.org
http://ssunitedstates.org

 

[cropcirclewalker]

Fincher found guilty of having illegal weapons

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

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

Related Photos

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."

Source: U.S. Constitution

The felony here committed by the judge is that during jury instructions he forgot to read off for them the second amendment, like as if maybe it was relevant.

 

[Bartholomew Roberts]

Well, I don't see Stilley getting 30 months since it would be rare for a U.S. Attorney to agree to the same reduced sentence they offered prior to trial. Given that Ms. Johnson just admitted that Fincher was a good man who had not harmed anyone and she chose to prosecute him anyway, I don't expect much to change.

Now comes the real trial - the one on the law where Fincher will get to argue both the Second Amendment and that his actions were reasonably related to a well-regulated militia. That probably won't happen for a couple of years though.

 

[cropcirclewalker]

"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."

She calls them (curious plurality for Fincher) "Good People" in an attempt to mitigate the villagers with pitchforks and torches response.

Her kids, if she has any, still have to attend schools with us subjects.

She merely made a restatement (in other words) of the Nuremburg Defense.

Somehow a public that is too stupid to realize what is the meaning of the second amendment must be led to believe that if she is only followink orderzz then it is OK.

 

[ilbob]

While the phrase "Jury of Peers" may not appear in the constitution it is in common law and was generally understood at the time the costitution was written.

This phrase actually refers to peers being noblemen, rather than commoners, as in peers of the realm.

 

[992]

The Founding Fathers never set a speed limit,either.Does this mean in my pursuit of happiness,I can drive as fast as I want?


992

 

[illspirit]

The thing I don't get is; how can Miller really be used as precedent for every case since? Sure, there's a decision by SCOTUS and all, but the decision was reached without hearing any evidence from the defense, since the defendant was dead. That may have been all well and good in that case, since the outcome couldn't really affect Mr. Miller in the afterlife. But isn't it a violation (or meta-violation) of due process for every NFA defendant since to use a decision reached with no evidence against them?

Imagine the NFA, say, restricted high-speed electronic typewriters, and the Miller decision was based on a lack of evidence that such typewriters were "legitimate press tools." If any court thereafter convicted a journalist of possessing a typewriter simply because SCOTUS decided they weren't "legitimate" with no evidence, there would be riots in the streets...

 

[saltydog]

The Founding Fathers never set a speed limit,either.Does this mean in my pursuit of happiness,I can drive as fast as I want?

Thats what makes the "Bill of Rights" so great! What the Bill of Rights was suppose to do is tell the Govt that it can't touch anything written in these articles. Everything else not listed is up for grabs. So actually yes we can have speed limits because its not spelled out in the Bill of Rights.

Unfortunately, it doesn't work that way anymore. Now its just paper under glass on display.

 

[glummer]

I wonder if

the defense should have also raised the 1st Amendment as a defense. Seems to me that Fincher's MG-building is very much like flag-burning. Protected expression (speech.)
It would at least give the judges more to chew on, and create problems for any left-leaners. Might even get the ACLU in there.

 

[Derby FALs]

Is it time?

 

[ForeverArmed]

I wonder if the defense should have also raised the 1st Amendment as a defense. Seems to me that Fincher's MG-building is very much like flag-burning. Protected expression (speech.)

Indeed, both the putative "left" and "right" tend to be anti-freedom, just in different ways.

"Right-wingers" who wish to outlaw flag-burning are opposed to the First Amendment. They feel that speech that offends them should be outlawed.

"Left-wingers" who wish to outlaw "hate speech" are also opposed to the First Amendment. They, too, feel that speech that offends them should be outlawed.

Both "wings" are full of people who believe that "safety" and "order" are more important than freedom.

The Constitution doesn't have many friends anymore.

 

[Gifted]

Thats what makes the "Bill of Rights" so great! What the Bill of Rights was suppose to do is tell the Govt that it can't touch anything written in these articles. Everything else not listed is up for grabs. So actually yes we can have speed limits because its not spelled out in the Bill of Rights.

Not quite. The whole of the constitution is a limitation on federal powers. The BOR lists some specific things that are protected, and then says not to get cocky(9th and 10th). IDEALLY, you could argue that the federal government can't set speed limits, but since any powers not specifically given to the feds are in the hands of the states and people, states and municipalities CAN set speed limits.

 

[saltydog]

Not quite. The whole of the constitution is a limitation on federal powers. The BOR lists some specific things that are protected, and then says not to get cocky(9th and 10th). Ideally, you could argue that the federal government can't set speed limits, but since any powers not specifically given to the feds are in the hands of the states and people, states and municipalities CAN set speed limits.

You forgot to make a comment about this line:

Unfortunately, it doesn't work that way anymore. Now its just paper under glass on display.

 

[k_dawg]

What I do not understand:

#1 why not bring up the legal federal definition of a "militia" which clearly states how all able bodied male citizens are members of the militia

#2 why the defendant did not "break protocal" and tell the jury to read the second amendment?

 

[ctdonath]

Fincher will have trouble bringing up the "militia" angle because Congress has decreed the militia consists of all able-bodied males aged 17-45. Fincher is 60.

Fincher will also have trouble knocking over the NFA law. IIRC, there is a solid ruling somewhere high up (SCOTUS? been a while since I read it) where NFA was upheld because it is a tax, not a prohibition. Judges will be hard-pressed to conclude that one short form and a $200 tax amounts to intolerable "infringement". (I just did a Form 4 + $200 for an SBR. Annoying, but not big enough deal to warrant a court case.) The unregistered short-barreled shotgun will sink him.

Fincher's only hope - and I deeply hope his lawyer understands this - is to get 922(o) overturned. That's the law that prohibits "new" (i.e.: post-'86) machineguns. That's the bulk of his problem, not NFA.

Fincher COULD get the machinegun conviction overturned on appeal if he invokes the RRA case, where Rock River Arms got a conviction of "unregistered machineguns" tossed because there was no way to register them (per 922(o)).

Unfortunately, most of his defense MUST hinge on 922(o) - and so far I've seen no indication he's aware of it.

 

[Zedicus]

Update:

http://www.nwaonline.net/articles/2007/01/12/news/011207fincherguilty.prt

Fincher Guilty In Machine Gun Case
By The Morning News

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.

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

The defense tried to make the case an issue of the Constitution versus federal gun laws. The government tried to make the case as simple as possible for jurors * Fincher had the machine guns and they weren’t registered as required by federal law.

A major issue was whether the Militia of Washington County is a valid state militia for second amendment purposes. Judge Jimm Larry Hendren ruled it’s not.

& this

http://www.nwaonline.net/articles/2007/01/12/news/011207fzfincher.prt

Judge refuses to allow militia leader's testimony
By Ron Wood
The Morning News

FAYETTEVILLE -- 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.

After hearing Fincher out, Hendren decided the testimony was aimed at challenging the legality of federal gun laws, not if Fincher had illegal, unregistered firearms in his possession.

Fincher maintains 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.

Fincher said the group would have been "derelict" not to use inexpensive, available and effective military weaponry to protect their homes and state.

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

"They were an ideal machine gun for a militia," Fincher said.

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

A major issue has been whether the Militia of Washington County is a valid state militia for second amendment purposes. Hendren ruled it's not.

A state militia is an arm of the government under the governor who appoints officers at his discretion, according to case law. Former Gov. Mike Huckabee provided prosecutors a letter saying there was no recognized relationship between the state and the Militia of Washington County.

Fincher argued the group notified the governor it was forming and acquiring weapons and when he didn't respond in 10 days, they had the state's approval.

Hendren said members appear to have the best interest of their state and country at heart, but the outfit is, at best, an unorganized and unregulated militia.

Thursday morning, a federal firearms expert testified guns seized by federal agents at Fincher's Washington County home are machine guns as defined by federal law and are not properly registered.

"It's a machine gun," Earl Griffith, a firearms expert with the federal Bureau of Alcohol, Tobacco and Firearms, told jurors as he examined one of the guns seized.

Fincher said he had assembled about 10 of the Brownings and 50 of the STENs for the militia.

The Browning 1919s were originally made for the U.S. military and later sold to Israel, where they were modified to fire a .308-caliber round, Griffith said. They were later decommissioned and sold to dealers, who can legally sell the guns in the United States as "parts kits," minus the right-side plates that allow them to function as a fully automatic machine gun.

Plans and templates for the side plate are readily available on the Internet and were seized from Fincher's house, Griffith said.

The STEN-type guns were likely decommissioned guns from Britian sold as parts kits that were assembled here, Griffith said.

The shotgun, a common Remington design that was modified, is too short to be legal unless properly registered, Griffith said.

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

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 bureau's National Firearms Registry.

Both sides will present closing arguments to the jury this morning.

Hendren said he is concerned about sending both guns and ammunition to the jury room. He said he'll advise jurors not to explore how the guns operate without a U.S. Marshal present.

:banghead:

 

[Blackfork]

What the trail was about:

The trial was about whether the Federal Government intends to stay within the limits of the Bill of Rights and the Constitution....or not.

I hope the judge and Feds are celebrating their victory this weekend.

 

[Dan from MI]

The thing I don't get is; how can Miller really be used as precedent for every case since? Sure, there's a decision by SCOTUS and all, but the decision was reached without hearing any evidence from the defense, since the defendant was dead. That may have been all well and good in that case, since the outcome couldn't really affect Mr. Miller in the afterlife. But isn't it a violation (or meta-violation) of due process for every NFA defendant since to use a decision reached with no evidence against them?

Unfortunatly SCOTUS precidents are binding on all federal lower courts until they are overturned. It's the way the court system works. The only way to beat a SCOTUS ruling is by getting SCOTUS to change it.

That said, I damn well hope this case is appealed.

 

[Gifted]

Unfortunately, it doesn't work that way anymore. Now its just paper under glass on display.

I editted to add some emphasis. Apparently only careful readers saw the key word.