Monday, January 01, 2007

You can't argue the law in court

(Via The War on Guns)

While I haven't been blogging about it, I have been following the saga of Wayne Fincher, who is charged with 4 violations of the beloved National Firearms Act *spit*. Fincher may be the best case we've seen in years to get the NFA back to the Supreme Court and get the damn unconstitutional POS invalidated.

However, the prosecuting US Attorney, one Wendy Johnson, has filed a motion to prevent the defense from arguing "matters of law" as a defense.

If you can't argue a law in court, then how would one ever go about getting an unconstitutional law repealed? Then again, maybe that's the whole point of the exercise.

One of the primary findings of US vs. Miller (the case which Johnson is referring to as a "matter of law") was that a sawed-off shotgun (defined by the NFA as having a barrel under 18" in length, along with some other characteristics) had no "reasonable relation to the preservation or efficiency of a well regulated militia". OK, I can pretty much grant you that one. I've never seen any indication that such weapons were used by the military.

However, Miller did not possess any automatic weapons. This is significant, because as the Supreme Court wrote:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

In the language of the court's ruling it's clear that the phrase "of the kind in common use" referred to a group of weapons that would, by nature, change over time. It was not frozen as of 1787, when the Constitution was adopted--if it had been, the only items protected would have been muskets, pikes and muzzle-loading cannon. When the court was evaluation the whether or not a sawed-off shotgun was of a kind in common use at the time, they found it wasn't.

But they never addressed the validity of the automatic weapons portion of the law because Miller wasn't accused of having an automatic weapon.

This part of the law has never been tested in court, because the US government has been, in my opinion, very, very careful to see that it wasn't. Because, if the reasoning of the Miller finding is followed, the ban on private ownership of automatic weapons will be outta there so fast that it will leave a vapor trail.

Now Fincher could well be found guilty of violating the NFA for the possession of a sawed-off shotgun. But I think there is an important Constitutional question, on the matter of the validity of the automatic firearms provisions of the NFA, that needs to be addressed. We've been waiting nearly 70 years for it to be addressed. Give the man his day in court.

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