Federal appeals court rejects militia organizer's Second Amendment claim

[ericire12]

http://www.abajournal.com/news/appeals_court_rejects_militia_organizers_second_amendment_claim/

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 under the Supreme Court’s recent decision in District of Columbia v. Heller that he has an individual right to own a machine gun. 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.

[tombogan03884]

Should have argued from the Miller case that MG's ARE commonly used by Military and therefore have a demonstated usefulness to a "Well regulated Militia"

[tt11758]

http://www.abajournal.com/news/appeals_court_rejects_militia_organizers_second_amendment_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.



Suppose the "not in common use by law-abiding citizens" section will be used in the future to uphold bans on other types of weapons?  I mean, if handguns were banned (as an example) wouldn't they then be "not in common use by law-abiding citizens"?

Kinda scary, in my opinion.

[Solus]

Maybe we should send them a few Knob Creek videos...

[ericire12]

Maybe we should send them a few Knob Creek videos...

 

[Sponsor]

[tombogan03884]

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.


That is not a true statement ! According to FBI statistics (No I have no idea where I read them as it was a couple years ago but the fact stuck in my mind) Since the NFA went into effect not one single LEGALLY owned machine gun has been used in a crime. There fore Law abiding citizens are the ONLY users of Legal machine guns.

[jnevis]

Personally, and I may be flogged for saying it, but this knucklehead is the reason we have such a bad perception in this country.  Sure I'm all for responsible firearms ownership but to try and use the Second Amendment as a loophole to do what you want is crazy.  "I started a militia so I can get what ever firearm I want.  We have rules so we're 'well regulated'."  Then they get together and decide that they want to stop paying taxes because they're a "soveriegn nation" and it keeps going downhill. 


How did he get the "machine gun" anyway? (since we don't know if it ACTUALLY was fully automatic or an AR-15 that the news latched on to it as a machine gun)

[Rob10ring]

Aren't all guns supposed to be dangerous, at least at one end? And if given the chance, wouldn't the majority of us all make great, lawful, common use of machine guns.

That being said, for most defensive uses, I'd be happy with semi-auto firearms, but I believe that we should at least have a choice.

“May all your adversaries be always on full auto!” - Jeff Cooper

[twyacht]

The slippery slope, A revolver with 6 shots, vs. a 15 rd. semi auto.  Some want to ban the high cap pistol.

The machine gun vs. a civilian semi-auto AR variant with a trained shooter, some want to ban those "black rifles too"

The point is Jerry Miculek doesn't need a semi auto. And a trained shooter with a civilian AR variant, doesn't need full auto.

IMHO, it's the gov. "regulating" a "well regulated militia".

I can think of a Rem 1100 too.

[tombogan03884]

I can barely afford to feed my Semi Auto's, so I'm not really interested in Full auto.
JNevis raises one interesting point, If the guy REALLY had a machine gun, where did he get it ? If he went through a legitimate Dealer, did all the paperwork, paid taxes etc. then the court is wrong and will be overturned. If he bought it from some gang banger with a bunch of MG's in his trunk then he is guilty of illegally acquiring a machine gun and the militia argument has no bearing at all. A drivers license grants you the privilege of driving on the street, but not in a STOLEN car.