This could be a good thing or a bad thing

[ALLAN]

The Morning News
Local News for Northwest Arkansas
Judge OKs Fincher Arguments

By Ron Wood
The Morning News
FAYETTEVILLE -- A man charged with possessing illegal machine guns will be able to argue at trial federal gun laws are unconstitutional, a judge ruled Tuesday. But, the judge is not going to allow the trial to digress into a freewheeling, uncontrolled debate of the Second Amendment in front of the jury.

Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in federal court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.

Jury selection is set to begin this morning with opening statements to follow later in the day.

The decision by U.S. District Judge Jimm Larry Hendren will allow Fincher to present evidence to support the defense view his possession of the guns should not be a crime because they were for use by the militia. Fincher doesn't deny he had the guns.

The government had asked Hendren to bar Fincher and his attorney, Oscar Stilley, from arguing issues of law to the jury as they present their defense.

The government argued it is the court's role, not the jury's, to decide matters of law and Fincher's arguments should not be made in the presence of the jury. Prosecutors argued the jury should only hear and decide the facts of the case, not what law should apply.

Stilley wants wide leeway in order to develop a full record in case of an appeal.

The U.S. Supreme Court has not addressed a Second Amendment issue since 1943, Stilley said. That ruling said the government could place limits on the possession of military weapons by individuals or groups but cannot prohibit the possession or use of any weapon that has any reasonable relationship to the "preservation or efficiency of a well-regulated militia."

Hendren found for the government on two other issues.

The judge ruled prosecutors won't have to prove Fincher had criminal intent to obtain a conviction, only that he possessed the guns illegally.

And Fincher won't be able to argue whether the Commerce Clause to the U.S. Constitution as it relates to the guns applies to this case. The Commerce Clause gives the federal government power to regulate commerce with foreign countries and among the states. Hendren said the government doesn't have to prove the guns were involved in interstate commerce in order for Congress to be able to regulate them.

Fincher was arrested Nov. 8 by federal agents. He remains in federal custody in lieu of $250,000 bond.

According to police, two of the .308-caliber machine guns, homemade versions of the Browning model 1919, allegedly had Fincher's name inscribed on them and a reference to the constitutional right of citizens to bear arms. The other firearms were a 9 mm STEN design submachine gun and a sawed-off shotgun.

It's been illegal for civilians to own machine guns without special 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.




www.nwaonline.net/articles/2007/01/09/news/011007fzfincher.prt

[David]

It'll be tough. You already have rules on the books about machine guns. While he can argue it was for a "militia" purpose, you still have to acquire your guns legally.

The prosecutors only have to prove he had the guns illegally, which shouldn't be hard.

I'd say take the plea bargain.

[Casper]

I wonder if they will attempt to argue the constitutionality of the tax law? That is what it is. He manufactured it and didn't pay the tax.

[David]

I wonder if they will attempt to argue the constitutionality of the tax law? That is what it is. He manufactured it and didn't pay the tax.
Dont think it can happen. The tax comes with registered guns during the transfer process (when one registered item goes from one private citizens hands to another). These guns were never on the books. Hence no tax stamp was ever issued to be avoided.

Personally I think their best argument would be challenging the laws on adding machine guns to the books and all the GCAs etc that keep newer manufactured guns off the books and out of regular joe scmos hands etc. But then they aren't allowed to argue the whole 2nd Amendment thing and how the laws are unconstitutional.

[Johnsredgt50]

Nothing good will happen.....

[ALLAN]

Thursday, January 11, 2007
Fincher Judge Flip-Flops on 2nd Amendment
The Judge came in this morning and virtually reversed his ruling from yesterday. In addition to that, I distinctly heard him say (and the court record proves it) that the Second Amendment was an individual right in that he spoke about the Bill of Rights and stated that they were individual rights that were protected by the first 10 Amendments.

This morning he totally reversed himself and stated that the 2nd Amendment conferred a collective right. Oscar argued with that and referenced the 2004 USDOJ paper and we also have an official copy of the 1982 Senate Subcommittee report that states that it is an individual right. However, the judge only accepts recent circuit court rulings and no other authority is sufficient for evidence or proof. Oscar argued that point strenuously and the Judge didn't seem to care.

Right now, I sit at the defense table as I am assisting Oscar. It is also a good opportunity to visit with Wayne when the Judge demands that counsel meet him in chambers.

You need to post that we actually live in the Land Down Under, and our courts reflect it.

Warmest Regards,

Paul W. Davis

[Casper]

Dont think it can happen. The tax comes with registered guns during the transfer process (when one registered item goes from one private citizens hands to another). These guns were never on the books. Hence no tax stamp was ever issued to be avoided.

Personally I think their best argument would be challenging the laws on adding machine guns to the books and all the GCAs etc that keep newer manufactured guns off the books and out of regular joe scmos hands etc. But then they aren't allowed to argue the whole 2nd Amendment thing and how the laws are unconstitutional.

I thought manufacture required a tax also? For any firearm.

[ALLAN]

Machine gun case headed to the jury
This article was published on Thursday, January 11, 2007 10:15 PM CST in News
By Ron Wood
The Morning News
Email this story Print this story Comment on this story 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.

Legal Lingo

Precedent

Legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Decisions of higher courts are mandatorily precedent on lower courts. Decisions of the U.S. Supreme Court are generally binding on all other courts in the United States.

[Casper]

Each new weapon is subject to a manufacturing tax

That's what I thought.