8th Circuit Court of Appeals Upholds Hollis Wayne Fincher Conviction

[Bartholomew Roberts]

From the ABA:

Appeals Court Rejects Militia Organizer’s Second Amendment Claim
Posted Aug 14, 2008, 05:50 am CDT

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.

So we now have precedent in the 8th Circuit that a machinegun is the type of "dangerous and unusual" weapon not protected by the Second Amendment. Not good news for NFA or 922(o) challenges - and the really ironic part is that the person who set it up really thought he was helping the Second Amendment by this case.

 

[Technosavant]

It hinges on machine guns not being in common use by law abiding citizens, but IIRC, Scalia himself admitted that such was the result of the government interference in the market. If full auto guns were available at similar prices to current semiautos (with the NFA tax and paperwork, of course), then I'm positive you'd see many more FA guns in public ownership in use. I know I'd pick one up, I just won't spend the worth of a small car for one.

Not as solid as we might like, but maybe not a death knell.

 

[Kino74]

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.

Thats the real problem right there. "Common use" needs to be defined as weapons of the day if not then the only weapons being circulated today is all that we can have access to.

 

[Mr_Rogers]

Not really a complete downer.

The argument can now be made that the machine gun is "unusual" exactly because there are restrictions on possession so the court followed a circular argument. It justs needs someone with money and a good attorney to follow through.

 

[maestro pistolero]

Common use by whom? If the militia has a military purpose, then machine guns (select fire) are in common use. Every single infantry soldier gets an M16. Just because the RKBA is not exclusively for the purpose of a Militia, that does not mean that it is completely divorced from that purpose.

This should be appealed. I don't like the precedent at all. Too bad this didn't come up as a more thoughtful strategic effort. But I think Fincher is correct here. And he threw himself on a grenade to make the point.

Anybody stepping in to help? I'll contribute to his defense, unless he's got skeletons we should know about.

 

[HuntAndFish]

The court is answering questions that weren't asked? Smells like fish.

 

[Jeff White]

Forget the militia

Common use by whom? If the militia has a military purpose, then machine guns (select fire) are in common use. Every single infantry soldier gets an M16. Just because the RKBA is not exclusively for the purpose of a Militia, that does not mean that it is completely divorced from that purpose.

Article 1 Section 8 of the Constitution says this:

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Unless there is a law somewhere in the US Code that says members of the militia are armed with machine guns, your argument is a nonstarter. The absolute worse thing we can do for RKBA is try to tie ownership of any type of firearm to membership in the militia. Congress could simply pass a law that says the militia of the United States consists of all able bodied persons between the ages of 17 and 75. The militia of the United States shall be armed with brooms, rakes and shovels so that they may assist in the defense of the nation.

That law would be perfectly constitutional as the constitution explicitly gives congress the power to provide for the organizing, arming and discipline of the militia. All kinds of bad things could happen if we relied on the militia wording. If congress did indeed permit members of the militia to own firearms they could require them to be stored in government controlled armories.

Jeff

 

[GigaBuist]

I'll contribute to his defense, unless he's got skeletons we should know about.

That's one of the "nice" things about Fincher. He has no criminal record as far as I know. He's just an old dude that made his own machine guns from parts kits, IIRC, and made it very clear that they were for militia use.

I'm not happy with what's happened to him, but I'm not terribly surprised either.

 

[ilbob]

I have never bought the idea that any militia has a legitimate existence unless it is controlled by a state. The constitution is pretty clear about this point.

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The wording is very clear that the states have control of the militia except when called into federal service.

 

[Crunker1337]

The only reason machineguns aren't in common use by law-abiding citizens is because they're almost impossible for the average law-abiding citizen to get! I mean, really, how many of us have the funds to invest thousands and thousands of dollars into a single firearm... that's over 20 years old?
I don't like this at all.

 

[Jeff White]

The wording is very clear that the states have control of the militia except when called into federal service.

The wording is also very clear in that the states only have authority in the appointment of officers and the training of the militia "according to the discipline prescribed by Congress"

Article 1 Section 10 forbids the states to keep troops without the permission of Congress:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

I think it's quite clear that from the date the constitution was ratified that the federal government has had complete control of military power in this country.

Jeff

 

[ilbob]

I think it's quite clear that from the date the constitution was ratified that the federal government has had complete control of military power in this country.

I think its a good argument, although I also think the 2A would present a good counterargument that states have some inherent grant of power to have a militia, otherwise the first clause would not be meaningful.

I am not real sure just what a state would do if the power to have a militia was restricted by the feds so much as to make it meaningless.

I do not believe the congress has the power under the Constitution to "arm" the militia soley with brooms, since brooms are not arms, and the constitution clearly says the militia is to be armed.

I am also not entirely sure that the prohibition on keeping troops applies to the militia, since keeping troops would seem to apply to a longer term arrangement than typical militia training and service involved. Article I, section 8 clearly implies that the army (or a standing body of troops) is seperate from the militia.

 

[Jeff White]

I think its a good argument, although I also think the 2A would present a good counterargument that states have some inherent grant of power to have a militia, otherwise the first clause would not be meaningful.

There is no doubt that the constitution says there should be a militia. It also says that Congress is supposed to organize, arm and discipline the militia. The power to organize is the power to define what it is.

I am not real sure just what a state would do if the power to have a militia was restricted by the feds so much as to make it meaningless.

It's meaningless now. The National Guard is essentially a federal force that is available to the governor of a state. Many states have some type of state defense force but they are completely funded by the state, many of them are unarmed auxiliaries to the National Guard units. No governor would dare call out the unorganized militia in his/her state because of the potential liability involved with using untrained, ill disciplined volunteers to do anything more meaningful then clean up after a natural disaster, and even at that the environmental laws and OSHA rules would greatly restrict that. Anyone who believes that the unorganized militia would ever be called up in a role that would provide for these untrained militia members to be armed is not in touch with reality.

I do not believe the congress has the power under the Constitution to "arm" the militia soley with brooms, since brooms are not arms, and the constitution clearly says the militia is to be armed.

Again the power to organize is what gives them this power. All they have to do is pass a law defining the militia as an auxiliary to the regular army and national guard and give it duties such as preparing fighting positions and cleaning up after battles. Many countries employ auxiliary units in just this role and they are only equipped with things like brooms and shovels. The constitution doesn't say what the militia is to be armed with.

I am also not entirely sure that the prohibition on keeping troops applies to the militia, since keeping troops would seem to apply to a longer term arrangement than typical militia training and service involved. Article I, section 8 clearly implies that the army (or a standing body of troops) is separate from the militia.

Troops are troops. It doesn't matter if they are regular or militia. What would you say the time limit was that a state could keep their militia activated for before they became troops? Once they are mustered, they are troops. Article 1 Section 10 says they may only keep troops in time of war or if they are attacked. I think this would preclude calling up the militia in peacetime.

I think that we need to forget about the militia wording in the second amendment as it applies to individual RKBA. A militia as defined in the constitution and in the subsequent laws since ratification is a military force subject to the will of Congress. If congress says the militia doesn't get machine guns, then they don't get machine guns. Fincher with his stupid act of thumbing his nose at the feds and his ill advised pro se defense has probably put any challenges to the NFA and 922 (o) into the too hard box for a long time.

Jeff

 

[wideym]

Mr. Fincher did indeed thumb his nose at the Feds, the Arkansas Gov., Arkansas AG, Justice Dept, and anyone else he could think of, with his "Silver Bullet" letters.

Simply marking an illegal machine gun "Milita use only" doesn't make it any less illegal. Also sending registered letters to State and Federal goverments telling them that you disagree with the law and that you are going to break it anyway isn't the smartest thing to do. Heck he even had video of himself shooting a 1919 belt fed MG.

He knew he would be arrested and go to trial, maybe he didn't realize that trials are about the law, not what is right. Any defence fund money would be better donated to a more deserving organization or person.

 

[86thecat]

How does the court define "in common use"? The number of MG's per million citizens before the registration closed would be an eye opener. Does anyone have access to the total number the ATF has on the books? Or is that info protected due to their loss of the files? Full auto would definitely be in common use at Knob Creek or any of the other big MG shoots. Are there more legal MG's out there than say electric cars or piper cubs?

 

[Ivy Mike]

now now now children, the courts know best. I'm sure they considered that the unorganized militia is made up of nearly every man of 17-45 years of age who is or intends to be a US citizen. You know, the part of US Title Code 10,311

I guess the judge just missed that part.

too bad the people can't follow in Jackson's footsteps and state that the court has made their ruling, now let them enforce it. Oh well, guess I should continue to follow blatant SCOTUS stupidity and bow to my government masters.
Huzzah!

 

[Bartholomew Roberts]

Well, if the ABA reporting is correct:

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.

I am curious what the 8th Circuit meant by that. First of all, Fincher repeatedly tried to bring up the Second Amendment at the District Court level (which was the wrong place to bring that issue up), so it would amaze me if he didn't bring it up at the Court of Appeals (which is the correct place). Did Fincher represent himself pro-se at the Appeals level?

Second, if the 8th Circuit just means that Fincher didn't reference Heller in his appeal - that makes more sense since Fincher's case started before Heller's and most of the briefs and arguments would have been filed prior to that I think.

Either way, it is unusual for a Circuit Court of Appeals to step out of the box and address arguments the Appellant did not even make. I'd say that as far as the 8th Circuit goes, machineguns are now a dangerous and unusual weapon not protected by the Second Amendment - which means both NFA and 922(o) stand in the 8th Circuit.

On the plus side, if you get some good judges on the Eighth, you have a strong case that the comment is dicta (since it wasn't necessary to make if the point wasn't argued) and can be overturned by a later 3-judge panel (and any decision can be overturned by an en-banc panel of the whole 8th Circuit).

However, it does go to show what kind of law you end up getting when you pursue a case the way Hollis Fincher did. Here, he had done this before the D.C. Circuit or the Supreme Court had even declared a Heller win and yet his earlier rash actions end up putting a roadblock in the way of that case (at least in the Eighth Circuit). Wonder how many other Circuits will simply cite the 8th Circuit decision here without further commentary when the issue comes up before them?

 

[gc70]

Wonder how many other Circuits will simply cite the 8th Circuit decision here without further commentary when the issue comes up before them?

Several Circuits will probably have cases in which the issue was not argued but the decision will include an anticipatory statement about machine guns based on Heller - sort of like the judicial equivalent of IBTL.

 

[ConstitutionCowboy]

“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,”

Doesn't anyone else not see how fallacious that statement is? It borders on silly. With the difficulties and cost associated with obtaining a machine gun, is it any wonder they aren't in common use?

The lack of common sense of some on the court is mind-boggling.

Woody

 

[General Geoff]

Judicial circular logic. Either the judge is ignorant or he just doesn't like machine guns. Maybe both.

 

[TallPine]

"Machine guns are illegal which makes them uncommon which makes them illegal"

 

[Kentak]

These militia jerk-offs do way more harm than good. They are a bad joke at best.

K

 

[ConstitutionCowboy]

These militia jerk-offs do way more harm than good. They are a bad joke at best.

Not really. They make the vast majority of the rest of us look normal. Can't say that about the anti-gun-rights crowd!

Woody

 

[ConstitutionCowboy]

Bart

It makes perfect sense. They didn't step "out of the box", they merely stuck to their agenda. If what these activist judges need isn't in the law, Constitution, or case, they'll put it there. They won't "announce" it like they do when they sometimes quote foreign law, they just seem to add it in as if they were ad-libbing a part in a play.

Shakespeare would be furious!

Woody

 

[yokel]

Everyone ought to accentuate the positive and have faith in Heller.

After all, no right is unlimited and this life is all about compromise and give-and-take.

All kidding aside, all those who truly believe that their government will ever abide the proliferation of private machine gun ownership in this day and age are living in the Land of Oz.

Any upgrade package that substantially improves the firepower and lethality of the people is just not in the cards.