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View Full Version : US v. Fincher: no 2A right to own an NFA in a private militia


Pred@tor
08-17-2008, 4:11 PM
"The 8th Circuit has so ruled. (http://www.ca8.uscourts.gov/opndir/08/08/072514P.pdf) (pdf). The ruling essentially says that a well organized militia must be a State organized militia (and the State law recognized non-Guardsmen only as the "unorganized militia") hence his possession of the NFA firearms was not related to service in a well organized militia.

I can't see how this analysis can be squared with Heller, where Heller was not a member even of DC's unorganized militia (he was over the age limit) and DC didn't want him to have the firearm in question.

The court does turn to Heller -- without noting that its preliminary point is contra to Heller's holding -- and holds that machine guns are not in common use.

The ruling also sustains a trial court order that forbade his counsel to argue the 2A issue to the jury. This would be in accord with case law over the last century or so, but not in accord with the practice at the time of the framing. For my money, it just makes trials more boring. Patrick Henry would be serving a million years for contempt these days. (A side issue: many courts require counsel to stand at the podium, 30 ft or so from the jury, while arguing. This again makes things rather impersonal and thus boring. I think it's a matter of control -- don't want attorneys to have too much influence -- and a feeling that if everything is mediocre and contained, things will be fairer, since an attorney who cannot speak worth a dang will not be disadvantaged. Goodbye Patrick Henry, and goodbye interesting trials)."

http://armsandthelaw.com/archives/2008/08/us_v_fincher_no.php

Matt C
08-17-2008, 4:16 PM
I hope they plan to appeal....

Pred@tor
08-17-2008, 4:20 PM
Heller just seems so useless....

Shotgun Man
08-17-2008, 4:33 PM
I hope they plan to appeal....

I don't know-- the first post-Heller case to get SCOTUS review be a machine gun case? Sounds improvident.

hoffmang
08-17-2008, 4:51 PM
Heller is not useless - its just that creating an unlicensed machine gun is not good politics - which matters in the court two. This case with less bad facts in 5-7 years makes sense. Now, this is bad. Fincher started his own militia and personally manufactured FA firearms about a year before Parker/Heller won in the court of appeals.

-Gene

CCWFacts
08-17-2008, 6:30 PM
His trial was a joke. He wasn't allowed to testify and his lawyers were not allowed to present any defense. He wasn't allowed to make any reference to the 2A in his defense. When the Heller decision came out I thought about his case.

I personally hope that 922(o) can be struck down someday, somehow.

tygerpaw
08-17-2008, 6:59 PM
I dont think we will ever see un-regulated possesion of machine guns being allowed. This case just makes him look like he's nuts. Now if the machine gun bans were challenged (state bans and the 1986 new manufacture for civilians ban) in an intellegent way, maybe it could have some effect. I personally would be happy to pay the $200.00 tax and background check if I could buy a reasonably priced machine gun (not under the ban and comparable to semi-auto priced guns).

CCWFacts
08-17-2008, 7:13 PM
I dont think we will ever see un-regulated possesion of machine guns being allowed.

I agree. My hope is that the NFA will be found to be reasonable regulation, but 922(o) will be found to be unreasonable. I understand that owning MGs, 20mm rifles, etc, is a serious matter and I'm ok with having to fill in some forms and fingerprints etc.

This case just makes him look like he's nuts.

Way. He knew he was breaking a serious Federal law and went ahead and did it, hoping for a miracle of jury nullification perhaps.

I assume that Fincher might file an appeal now, and perhaps the prosecutor will not want to risk going all the way up in appeals and losing and then having MGs legal in his circuit.

Now if the machine gun bans were challenged (state bans and the 1986 new manufacture for civilians ban) in an intellegent way, maybe it could have some effect.

Yes, and it would be easy to do without risking criminal charges. Apply for the tax stamp, get denied, and sue based on that. No risk of criminal charges. To be clear, do NOT take any physical actions (such as drilling an extra hole) until the valid tax stamp comes back.

I personally would be happy to pay the $200.00 tax and background check if I could buy a reasonably priced machine gun (not under the ban and comparable to semi-auto priced guns).

I would be fine with it. I want my Skorpion!

http://www.midwestgunandrange.com/images/MachineGuns/scorpion.jpg

Btw, I assume, at this point, that every criminal defendant who is charged with 922(o) (etc) is going to start including a 2A defense, so this is going to rise up in the circuits sooner or later. I assume that prosecutors might start avoiding this issue for fear of losing on it. I bet the Brady Campaign types wish that DC had allowed Mr. Heller to register, and will be more cautious in future. Prosecutors always have a ton of other charges they can choose from, and they can also get sentencing laws changed so they can charge more without stepping into what might be (post-Heller) legally risky ground. If Mr. Fincher appeals, my non-lawyer guess is that they might want to plea bargain this somehow, so that he would agree to surrender the guns and not own MGs in future?

CCWFacts
08-17-2008, 9:28 PM
I just did some more searching and found that an appeals court has already rejected it, saying: (http://abajournal.com/news/appeals_court_rejects_militia_organizers_second_am endment_claim/)

The 8th Circuit cited language in Heller that the Second Amendment does not protect “dangerous and unusual weapons” and said a machine gun falls into that unprotected category. “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use,” the appeals court said.

Needless to say, I disagree with the court. MGs are in common use, and non-crew-served MGs are not exceptionally dangerous compared to their semi-auto equivalents.

Pred@tor
08-17-2008, 9:29 PM
Yeah I too would go through the hassle of that paper work just to own a select fire weapon legally. Poor timing on these guy's part and the fact they willingly broke the law didn't help... Were these the same Arkansas's Militia dudes that were raided by the ATF not too long ago?

Going from a different angle like ridding of the sporting purpose clause, the 922R parts game, and then the 86 FOPA MG ban would be ideal.

E Pluribus Unum
08-17-2008, 11:08 PM
I knew this would happen...

"machine guns are not in common use and are therefore not protected"

That is soooo BS... they are not in common use because for the last 25 years, manufacture of those weapons were outlawed. Had Reagan not passed that unconstitutional law, they would be in common usage.

Pred@tor
08-18-2008, 2:42 AM
Next they will use that same line to ban our AR15 and AKs with a new nasty AWB... You watch... but we'd say thats BS too...

hoffmang
08-18-2008, 5:38 PM
Next they will use that same line to ban our AR15 and AKs with a new nasty AWB... You watch... but we'd say thats BS too...

On that the sales data for the current year makes the argument very hard for the banning side.

-Gene

Ford8N
08-18-2008, 6:33 PM
On that the sales data for the current year makes the argument very hard for the banning side.

-Gene

AW's are going mainstream.:43:

http://www.remington.com/products/firearms/centerfire_rifles/Model_R-15_VTR.asp

packnrat
08-18-2008, 7:42 PM
i would be in the first day of the paper work to own a m16 rifle, and a number of others.

if they would allow it.

paper work $200.00 tax stamp and all.

mg not in common use..s...
it is because we can not have them, that is why they are not in common use.


:TFH:

.

PatriotnMore
08-18-2008, 7:55 PM
"The 8th Circuit has so ruled. (http://www.ca8.uscourts.gov/opndir/08/08/072514P.pdf) (pdf). The ruling essentially says that a well organized militia must be a State organized militia (and the State law recognized non-Guardsmen only as the "unorganized militia") hence his possession of the NFA firearms was not related to service in a well organized militia.

Ihttp://armsandthelaw.com/archives/2008/08/us_v_fincher_no.php

This ruling is so wrong, and so anti constitutional I want to puke. There were no State organized militias when the Constitution and BOR drafted. Here is a prime example of separating history from the text, to come up with a bastardized version of government.

How much longer will this continue? At what point will people demand our government operate within the Constitution, and adhere to it, in its spirit, and word?

yellowfin
08-18-2008, 8:17 PM
On that the sales data for the current year makes the argument very hard for the banning side.

-Gene
So what? They just ignore that too. Facts don't get in the way of them doing whatever they want. They can recite pages from the telephone book as justification and apparently we can't do much but argue about it after the fact, maybe take it to court and get it yanked years and tens of thousands of dollars later.

hoffmang
08-18-2008, 8:31 PM
So what? They just ignore that too. Facts don't get in the way of them doing whatever they want. They can recite pages from the telephone book as justification and apparently we can't do much but argue about it after the fact, maybe take it to court and get it yanked years and tens of thousands of dollars later.

I guess that's why we lost Heller... :rolleyes:

-Gene

Yankee Clipper
08-18-2008, 9:01 PM
I dont think we will ever see un-regulated possesion of machine guns being allowed. This case just makes him look like he's nuts. Now if the machine gun bans were challenged (state bans and the 1986 new manufacture for civilians ban) in an intellegent way, maybe it could have some effect. I personally would be happy to pay the $200.00 tax and background check if I could buy a reasonably priced machine gun (not under the ban and comparable to semi-auto priced guns).

The problem is the MG's you see advertised start at $5K and go north from there for the decent ones. The Scotch in me, genetic and otherwise, precludes justifying that kind of expenditure for a 'nice-to-have'. If the prohibitions were removed tomorrow, the increased demand would push those prices up exponentially – at least until the supply caught up.

yellowfin
08-18-2008, 9:07 PM
I guess that's why we lost Heller... :rolleyes:

-GeneIf you can call taking down a 100% ban to a 95% ban over 30 years later with no immediate application to the states, pathetically diluted wording, a multimillion dollar cost and 5 year turnaround time a win, sure. A pittance, though, compared to what is needed--if you're relying on that kind of a win to nourish yourself, that's eating your steak 1/10th of a gram at a time. Maybe you'd like to have the NFA struck by 3072 rather than 2009...on the off chance anyone not wearing a badge knows what a firearm looks like anymore.

ke6guj
08-18-2008, 9:13 PM
The problem is the MG's you see advertised start at $5K and go north from there for the decent ones. The Scotch in me, genetic and otherwise, precludes justifying that kind of expenditure for a 'nice-to-have'. If the prohibitions were removed tomorrow, the increased demand would push those prices up exponentially – at least until the supply caught up.
tygerpaw was talking about 922(o), the 1986 manufacturing ban, going away. If that happened, new manufacture would be legal and the price of "non collectable" MGs would fall to around the same price as its semi-auto brother. New M16s would be ~$1000, full-auto AKs at $500-1000,new tube gun stens would be less than $500.

If you are talking about a temporary blip before production could ramp up to meet demand, I think we'd be talking months to a year max for new stuff that was already made in semi and auto configs to come on line in quantity. Plus, you'd have tons of people Form 1'ing existing semi-autos.

hoffmang
08-18-2008, 9:20 PM
If you can call taking down a 100% ban to a 95% ban over 30 years later with no immediate application to the states, pathetically diluted wording, and a multimillion dollar cost and 5 year turnaround time a win, sure. A pittance, though, compared to what is needed--if you're relying on that kind of a win to nourish yourself, that's eating your steak 1/10th of a gram at a time.

Why do you get out of bed in the morning?

-Gene

Pred@tor
08-19-2008, 7:07 AM
The NFA is around so government agents can collect revenue and have a nice job. :D That is why it wont go away... The Gov is happy taxing it but its too bad the newer Machine guns are banned. :( ATF can approve new designs for civilian manufacture but I honestly doubt that would or will ever even happen.

Piper
08-19-2008, 8:55 AM
This is just hypothetical, but how fast do you think the politicians will throw MG's at us if it meant fighting a foreign invasion while they beat feet out of harms way? In other words, the cowardly bastards will run away and expect us to do the fighting to protect their sorry @$$e$.

PatriotnMore
08-19-2008, 9:05 AM
This is just hypothetical, but how fast do you think the politicians will throw MG's at us if it meant fighting a foreign invasion while they beat feet out of harms way? In other words, the cowardly bastards will run away and expect us to do the fighting to protect their sorry @$$e$.

They already do that. You can be trusted with a rifle while in the service or combat, but come home, and now your not qualified and can't own one. In fact, many vets have been targeted to be disqualified from owning a weapon at all, through psych evaluations after coming home, some for real reasons, many for reasons that are simply a concern do to how they answered questions in the evaluation, this has caused alot of anger among the Veteran community.

Piper
08-19-2008, 9:10 AM
They already do that. You can be trusted with a rifle while in the service or combat, but come home, and now your not qualified and can't own one. In fact, many vets have been targeted to be disqualified from owning a weapon at all, through psych evaluations after coming home, some for real reasons, many for reasons that are simply a concern do to how they answered questions in the evaluation, this has caused alot of anger among the Veteran community.

I didn't think about that, but you're absolutely right. BASTARDS !

aileron
08-19-2008, 12:17 PM
This is just hypothetical, but how fast do you think the politicians will throw MG's at us if it meant fighting a foreign invasion while they beat feet out of harms way? In other words, the cowardly bastards will run away and expect us to do the fighting to protect their sorry @$$e$.

The only thing that would do, is get a lot of foolish heroes killed. The whole problem with their concept of a militia is they think they can create it as needed. When the enemy is at the gates, they'll believe they can organize a bunch of people that have never shot a gun before to be of value on a battle field with time on the enemies side.

Nonsense. If your not growing up with the militia your not going to be effective. They have dismantled the thing and hope our memory of history has lapsed and don't know what it was or what its intentions were for.

They have voluntary fire departments, and trust the locals to fight fires, but 'woes is the government' to trust those same folks with the sword.

Pred@tor
08-19-2008, 5:14 PM
There was once a civil defense force during the Second World War... Those of us that serve and come back disarmed. Talk about a Slave army.... No more war trophies. :(

Pred@tor
08-19-2008, 5:15 PM
This is just hypothetical, but how fast do you think the politicians will throw MG's at us if it meant fighting a foreign invasion while they beat feet out of harms way? In other words, the cowardly bastards will run away and expect us to do the fighting to protect their sorry @$$e$.

I dunno if they even would but imagine after the war is done they'd probably force you to turn over your full autos and what not.