Constitutional Law

Appeals Court Rejects Militia Organizer’s Second Amendment Claim

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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.

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