Judge refuses to allow militia leader’s testimony. Fincher Convicted
January 12th, 2007 by Syd
Machine gun case headed to the jury
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.
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Click here for background on this case
I guess that we shouldn’t be surprised that the judge in this case appears to have completely flip-flopped on the earlier indication that he would admit the Second Amendment defense in the Fincher case. Nevertheless, it is disappointing and does not bode well for Fincher. I had hoped that perhaps we had a judge who was actually willing to consider the law of the land in this case rather than relying on flawed precedents.
Hollis Wayne Fincher is not a violent criminal who is trying to hide behind the Constitution. To the contrary, he is a dedicated student of the Constitution who has forced this confrontation because he sincerely believes his is right. It is tragic that the only response the government can make to Fincher’s reasoned argument is the typical, heavy-handed bureaucratic lynching.
…and a few hours later,
Fincher Guilty In Machine Gun Case
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. Source
I can’t help but feel that justice hasn’t been served here. Yeah, Wayne broke the rules. He wasn’t going to win this one. In one way, I hope he appeals, but in another way, I’m apprehensive about what might happen as the case percolates up through higher courts. While we may snarl and shake our fists at the BATFE for busting him, their job is to enforce the law, not to selectively decided when and against whom the law should be enforced. If you appear in the media and advertise your unregistered machine guns, BATFE is forced to act. Count on it.
Judge Hendren ruled that the Militia of Washington County is not a valid state militia. As I read the old laws, I am forced to conclude that there is some basis for his opinion. In the old days, state militias were mustered by an order of the governor or by an act of the state legislature. Self-organized groups do not enjoy the same authorization.
From The Militia Act of 1792:
…within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General’s office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank…
…That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State…
Between 1903 and 1933, a series of federal laws were enacted that federalized the state militias and mandated the use of the term “National Guard.” These were the Dick Act of 1903, The National Defense Act of 1916 and The National Guard Mobilization Act of 1933. The net result of these federal laws was to make the state militias a branch of the federal Army. The fact that so many of the Guard are currently deployed to Iraq fighting alongside the regular Army bears this out.
People like Wayne Fincher are making the case that the federalized “militia” a.k.a. “The National Guard,” is no longer the citizen militia as envisioned by the founders. They have taken it upon themselves to rectify the situation.
From Alexander Hamilton, Federalist Papers, No. 69
??The President, and government, will only control the militia when a part of them is in the actual service of the federal government, else, they are independent and not under the command of the president or the government. The states would control the militia, only when called out into the service of the state, and then the governor would be commander in chief where enumerated in the respective state constitution.?
As I try to imagine back into what the founders may have intended in their various utterances about the militia, I can say for sure that they did not intend for the militia to be a reserve branch of the regular standing Army. They didn’t like standing armies at all; they viewed them as instruments of tyranny. But on the other other hand, I believe the founders intended the militia to be more than self-organized groups of guys with guns. In practice, many of the frontier militias were exactly that: whoever was around and could handle a gun became part of the militia when threats to the community emerged. Yet, I believe that founders expected the militias to operate under at least a nominal legislative authorization with accountability to their respective state governments.
That was then; this is now. Today our “organized militia” is completely co-opted by the federal government, and bears little resemblance to the volunteer citizen militia as envisioned by the founders. Also, we operate under layer upon layer of federal and state statutes which make a real volunteer citizen militia all but impossible. The state of Texas actually has a state militia, but they are prohibited from carrying guns. Virginia has a state militia and it operates under similar strictures. Guys like Wayne Fincher are raising the question of the nature of the militia, if we are being true to the founders’ vision as expressed in the Constitution, and if, in fact, a vacuum does exist in our civilian defense now that the old state militias have been gobbled up and assimilated by the federal government. I think they deserve better than to be tossed into a jail cell for their trouble. The Militia is important. Our constitutional right to keep and bear arms is grounded in the notion of the militia, both organized and unorganized. We ignore it at our peril.
Guys like Fincher are not the threat to this Republic; they make us stronger. The threats to this Republic are those who hate freedom, refuse to take responsibility for own their lives and and would trade our liberty for the illusion of temporary security.
Wayne broke the rules, and my bet is that he’ll do some time. Yet, he didn’t break the rules to commit a crime, but to make us think, and we owe him, at the very least, a debt of gratitude for his willingness to force this question.
“So thank your lucky stars you’ve got protection
Walk the line, and never mind the cost
And don’t wonder who them lawmen was protecting
When they nailed the Savior to the cross.
‘Cause the law is for protection of the people
Rules are rules and any fool can see
We don’t need no riddle speaking prophets
Scarin’ decent folks like you and me, no siree.”
– Kris Kristofferson
I seem to recall another who stood up aganist the federal goverment and took them to task. Larry Flint and the First Amendment.
Maybe the moral of that story is that the government likes pornography a lot better than they like Wayne’s machine guns.
The federal courts have for years forbade the introduction of the constitution into court in federal tax cases. The judge explains that he will tell the jury about the constitution, and that all they have to rule on are the facts.
I predicted that this case would be no different.
With federal jury voir dire processes, it is pretty much established that a prospective juror will not be allowed on the jury if he or she has more than two brain-cells to rub together. For example, if a prospective juror knew that he or she should rule on the facts AND the law, and ignore any unlawful jury instructions, that juror would have to lie to be on the jury.
I also wouldn’t be surprised if many - or most - of the jurorers in this case were federal or state employees, or obtained money via some mechanism from a government entity.
I applaud the efforts of people like Mr. Fincher, but I see little reason to use one’s self as cannon fodder.
The constitution is dead: Long live the King.
Now, one more of the one or two percent of the people who appear to be actually willing to actually fight for liberty will be locked up in a Federal prison somewhere with other political prisoners.
What a shame. Mr. Fincher probably actually thought he would get a fair shake in a kangaroo court.
“Now, one more of the one or two percent of the people who appear to be actually willing to actually fight for liberty will be locked up in a Federal prison somewhere with other political prisoners.
What a shame…”
What would you consider to be “actually fight for liberty”, then, if this isn’t it? Were you dreaming of some “SHTF” scenario when all the REAL patriots suddenly rise up and bear arms against the oppression of government?
This IS fighting for liberty. And losing.