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

Posted: January 6, 2007
1:00 a.m. Eastern

By Bob Unruh
© 2007

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 – 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.

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 Coxe, 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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