Constitutional Law
Appeals Court Rejects Militia Organizer’s Second Amendment Claim
Posted Aug 14, 2008 4:50 AM CST
By Debra Cassens Weiss
A federal appeals court has ruled a man who organized his own militia did not have a Second Amendment right to possess a machine gun.
Hollis Wayne Fincher had argued that his Washington County Militia was a well-regulated militia that was protected by the amendment. A federal judge rejected his claim and the 8th U.S. Circuit Court of Appeals affirmed in an Aug. 13 opinion (PDF).
The 8th Circuit said in a footnote that Fincher loses under both his militia argument and under an argument he didn’t make: that he has an individual right to own a machine gun under the Supreme Court’s recent decision in District of Columbia v. Heller. The June 26 Heller decision said the Second Amendment protects an individual right to own a handgun for self-defense in the home, but said the right “is not unlimited.”
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.
The 8th Circuit opinion also said Fincher’s militia was not affiliated with the state and not subject to protection as a well-regulated militia.
Hat tip to How Appealing.
- How B of A’s GC Got Fired: Leave Now, and Leave Your BlackBerry Behind
- Schools Ranked by 'Super Lawyers' Produced
- Law Firm Price Wars Break Out as Some Try ‘Loss Leader’ Bids for Work
- Five Questions for Law Firms Abandoning Lockstep Compensation
- Judge Jails 2 Attorneys for Contempt in 4 Days
- Reed Smith Will Ask Nonequity Partners to Pony Up Possibly 15% of Pay
- Court Deputy Ordered to Apologize or Face Jail After Taking Lawyer's Paperwork
- Skadden Jumps on the Bonus Bandwagon
- ABA Executive Director Resigns
- Nasty Attitude to Co-Worker, Naughty Word in E-Mail Cost 2 Their Jobs
Should Supreme Court Justices Be Able to Review News Accounts Before Publication?
Comments
Bruce V
Aug 14, 2008 7:37 AM CST
Machine guns dangerous? Of the two hundred thousand plus machine guns legally held by the public, less than five have been used to commit criminal acts since 1934. I think the argument could be made that they are safer than all other categories of firearms. The common use issue is, of course, a circular argument, had the government not, in 1934, infringed on their possession by the public they would most likely be in wider use today.
Flag this comment
zp
Aug 14, 2008 11:54 AM CST
“Machine guns are not in common use by law-abiding citizens” because they were effectively banned 70 years ago and then economically banned 20 years ago. So, since we “law-abiding citizens” can’t afford them, they magically were transformed into a “category of dangerous weapon” that we’re not allowed to have even if we could afford them.
Flag this comment
Mark Feit
Aug 14, 2008 8:41 PM CST
The United States Government has one, and only one agenda, the eradication of human liberty. It is the only government in history created by the Devil himself.
Flag this comment
Andy the Lawyer
Aug 15, 2008 9:49 AM CST
Machine guns are for wimps that can’t shoot straight.
Flag this comment
j edwards
Aug 15, 2008 11:50 AM CST
I knew a guy who could shoot straight with a machinegun. He shot a perfect score in a machinegun competition in the Air Force a number of years back. My personal love is for the smaller submachineguns, like the Uzi, which is a total delight to shoot, and is deadly accurate, perhaps why the Israelis own them. Machineguns do waste ammo, though, because the inexperienced user tends to hold the trigger down too long. my objection to the ruling is that the reason for the 2nd amendment was not for protection in the home from criminals, but rather protection in liberty from the government. if the government has machineguns and tanks, how are we ever going to be able to defend our liberty from an oppressive government. In 1775, the civilian farmers were as well armed as the British Army, we should be as well armed today in comparison, we are not.
Flag this comment
SayNotoObama
Aug 15, 2008 12:13 PM CST
I’m glad j edwards has the courage to speak truth even though it is no longer politicially correct speech. Of course, by 1775 warfare standards, the Minute Men that fought the British at Lexington and Concord were also “terrorists” - hinding behind stone walls and trees rather than standing in orderly ranks as was conventionally done at the time. This country has drifted far from the principles it was founded on, the ABA is at the forefront of destroying what is left of it.
Flag this comment
Andy the Lawyer
Aug 15, 2008 12:37 PM CST
SayNo ought to try turning it around. By his apparant logic, it’‘s not that the MInutemen were the immoral equivalent of Al Qaeda in Iraq, but that Al Qaeda in Iraq is the moral equivalent of the MInutemen. Right?
Flag this comment
George Sly
Aug 15, 2008 6:57 PM CST
Bruce V. makes a valid point, but the limited ownership of machine guns today is subject to very strict regulation. Heller did not overturn Miller which upheld the government’s right to restrict the ownership of such weapons as machine guns. Also prior to the National Firearms Act which restricted the ownership of machine guns, such weapons were commonly used by people with names such as Clyde Barrow, “Baby Face” Nelson, “Machine Gun” Kelly, Ma Barker and her sons and John Dillenger. The carnage caused by machine guns in the 1920’s and early 30’s was the reason for the restriction.
As for comments number 6 and 7, I thought that issue was laid to rest at Appamatox Courthouse 143 years ago. If I don’t like who gets elected or I disagree with the government I do not have the right under Article III Section 3 to take up arms against it. Timothy McVeigh took your position. We all know where that leads.
Flag this comment
Susan Price
Aug 16, 2008 1:16 AM CST
It’s apparent that the Heller case did not put an end to meaningful gun control in the USA.
Here’s a link to the short article and a two-minute video: http://jurisvodcast.com/2008/08/16/the-2nd-amendment-in-the-8th-circuit/
Flag this comment
Idaho Lawyer
Aug 18, 2008 8:49 AM CST
Ms. Price, of course Heller did not put an end to “meaningful gun control” Heller was a very narrow ruling that simply opened the floodgates to gun rights litigation. What Heller really needed to do, but didn’t was to provide a bright line re: gun rights, instead SCOTUS punted and now every single jurisdiction in the country is going to have a patchwork of what a community/state can do to restriction gun ownership and what they can not. Heller was not the war, it is simply a turning point in the litigation battle.
Flag this comment
Add a Comment
We welcome your comments, but please adhere to our comment policy.
Commenting has expired on this post.