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United States vs. Fincher

Over at the gun blogs, another militia type intentionally got arrested for making machine guns specifically to challenge the law:

This is a very important episode in the war on guns and in the fight for our freedoms. Wayne Fincher is a Lieutenant Commander in the Militia of Washington County, a legally organized militia under the laws of Arkansas. They have manufactured several machine guns from demilled weapons and have petitioned the state of Arkansas for protections guarenteed by both state and federal constitutions.

[…]

This arrest of Lt. Commander Wayne Fincher could be the beginning of the overturning of United States vs. Miller . This group has done everything above board and within the constitution. They have informed the State of Arkansas of all their actions and expected this arrest.

Could be a case to watch. I wonder why it’s always the militia sorts that do this sort of thing. The man who was arrested has a spotless record too. Could be interesting.

9 Responses to “United States vs. Fincher”

  1. Sebastian Says:

    I wonder why itís always the militia sorts that do this sort of thing.

    Because they don’t realize how hostile the courts are to the second amendment generally.

    Are they planning to use the militia angle in this case? Arguing because they are part of a state militia that they can possess machine guns under second amendment protection? If they win, how does that help the rest of us? To me that just gets the bogus collective rights theory more case law to back it up.

  2. Captain Holly Says:

    As one commenter over at Kim du Toit’s place once said, “More far-right shadow dancing”.

    This will go nowhere, and the person in question will get sent to prison. The courts are simply not going to overturn Miller anytime soon. Pretending that a low-level Federal judge will suddenly recognize legal concepts that have been ignored for decades is wishful thinking at best, sheer stupidity at worst.

    Example? Poor Dr. Emerson is still a convicted felon, even though he “won” his case.

    For those who are wondering what “shadow dancing” is, it’s the practice that became popular among the Sioux indians in the late 1880’s. The shadow dance and the special shirts the dancers wore were supposed to protect them from the white man’s bullets, but as they found out at Wounded Knee, it didn’t work very well.

    Simply asserting a Second Amendment right to keep and bear arms isn’t going to protect you from the BATFE, either.

  3. Captain Holly Says:

    Belated correction: That should read “Ghost Dance”.

  4. nk Says:

    He’s a brave man and foolish. Why didn’t he apply for federal and state licenses to give himself standing and then challenge the demands of the applications in a declaratory action? Cf. that nutcase in Detroit which found that reporters had standing to challenge NSA surveillance because their possibly terrorist sources overseas were afraid to talk to them on the telephone.

  5. beerslurpy Says:

    He’s a dumbass who hasnt even taken a cursory glance at the law. Miller said nothing about who is protected by the 2nd.

    Miller is arguably a pro-individual rights case so overturning it wouldnt necessarily be good. Getting an exemption for “the militia” would be playing into the hands of the various anti-gun circuit courts- miller imposed no such requirement but they interpreted one into it. The militia requirement isnt really a requirement because NO ONE has ever gotten off on it- as far as I can determine, it literally cannot be satisfied no matter what. You either fall under one of the government user exceptions of 922(o) or you arent protected.

    The way to attack 922(o) is through a civil case, not a felony criminal case where your personal liberty is on the line.

  6. Caitlin Fincher Says:

    “Heís a dumbass who hasnt even taken a cursory glance at the law”
    Maybe you should take a chance to glance at some things. Like how good of a person Mr. Wayne Fincher is, knowing him my whole life I can tell you a few things. He may have had 16 guns but did he ever kill anyone? Dont think SO!! You see murderers with the same bond as Mr. Fincher and he possessed some guns and is a criminal? There trying to force him out of his land that is shared with my grandfather. Bullshit if you ask me considering how long the land has been in our family. This Kind man is 60 years old and has never hurt a sole and this is how he is repaid???

  7. Caitlin Fincher Says:

    Read the “Silver Bullet” beerslurpy And you think about some things!!!!!

  8. beerslurpy Says:

    Challenging a law on constitutional grounds has been done before. There is no mystery as to how it is successfully accomplished. There is no excuse for making an attempt without learning about federal test cases, generally becoming familiar with rules and cases in federal civil procedure and reading up on cases in one’s circuit regarding federalism and federal firearms laws.

    If he had bothered to do this:
    -he wouldnt be attempting legal arguments about federalism and the 2nd amendment that have been unsuccessfully tried before
    -he wouldnt be making a federal test case by breaking the law and getting himself arrested, he would be filing a civil suit
    -he wouldnt be arguing against the standard model of the 2nd amednment
    -he wouldnt be trying to overturn a holding in Miller that ISNT actually a holding of Miller. It’s like breaking the law to to convince someone that the sky isnt purple- they’ll just concede that the sky isnt purple and throw you in jail.

    Despite his good intentions, the courts are going to dismiss his legal arguments. Because he will be in court on criminal charges, the result of his failure will be incarceration. There is a reason the ACLU and NRA file civil suits. Even if he had done this correctly and won, his current line of legal reasoning wouldnt help the individual rights model of the 2nd amendment, it would HURT it.

  9. beerslurpy Says:

    Also, dont you understand that in court, he the USAG will only have to prove elements relating to his having broken 922(o) and he will not be allowed to present his irrelevant arguments before the jury? Juries often determine facts in contravention of the law, but they do not decide issues of law and they cannot decide issues of fact that the judge doesnt let them see evidence on. Please understand the limitations of jury nullification. A judge will not even let them hear any of the crap he is talking about now because it isnt legally relevant, no matter how convincing it might theoretically be.

    They will convict him based on the fact that he is (by his own admission) guilty and his flawed legal arguments will then be brought before an unsympathetic federal judge. It will appear to them to be another example of a convicted felon making one last attempt to avoid prison.

Remember, I do this to entertain me, not you.

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