Shall Not Be Questioned

David Codrea has been tracking the unfortunate circumstance of Wayne Fincher, who was arrested for illegally manufacturing and possessing a machine gun, with the purposes of raising the constitutional question of whether there’s an individual right to keep and bear automatic weapons. Let me just say that I have a lot of respect for Mr. Fincher for caring enough about our rights to risk federal prosecution in order to try to win them back, but I have to question the wisdom using this method, because the courts, quite honestly are stacked against us, and going to court is a risky, risky proposition, even if you’re the perfect case with the perfect defendant. As much as I hope Mr. Fincher ends up winning his case, I suspect there’s going to be federal prison time in his future.

Unlike Mr. Fincher, judges these days are not brave people. They tend to be very reluctant to throw our laws that have been enacted by Congress. There’s a presumption of constitutionality the courts make, that any law Congress passes, and the president signs, must be constitutional, and therefore the burden is on the citizen to prove otherwise. But before you can even have standing to raise this issue, you have to be prosecuted. This is the path that Mr. Fincher has taken.

Mr. Fincher was prosecuted in Arkansas, which is in the 8th Federal Circuit, where the collective rights model is the controlling law. The judge in that case will not, and in Fischer’s case, has decided, not to allow him to raise 2nd amendment arguments during his trial. This is standard procedure in trials when the district justice is controlled by precedent from the higher circuit court. Fischer will be able to raise the issue on appeal, but the deck will be stacked against him. He’d have to convince the court to overturn one of their previous rulings. In all likelihood, the court will refuse to hear the appeal if it’s based on the second amendment. But what if they do?

The other big problem with using this case to get the courts to recognize the second amendment, is how big of a leap you’re asking the courts to take. The Supreme Court has never plainly stated the Second Amendment protects an individual right to bear arms. They have implied it in dicta, but there is no example of any federal law being invalided under second amendment grounds. We don’t really want the first case being taken before The Court to involve a machine gun in possession of someone the prosecution will have an easy time painting as a whacked out, subversive militia type (I’m not saying this is right or accurate, just that’s what the prosecution will do). We really don’t want this to happen in a circuit court that’s already hostile to the second amendment. A case like this would even be a leap in the 5th circuit, which so far is the only federal circuit that recognizes the second amendment as protecting an individual right. And remember that the 5th’s circuit’s ruling didn’t help out Dr. Emerson any, the Lautenberg restrictions on his right to bear arms were upheld as constitutional. Courts generally will not take major leaps of faith, and getting at least one of the circuit courts to even say that the second amendment protected an individual right was a major step in the right direction. But the next challenge has to be a baby step up from that. DC’s near total prohibition on firearms is probably a decent step, but even that might be asking for too much, and it’ll be easy for the courts to dodge the issue based on standing unless someone steps up and agrees to be prosecuted. Mr. Fincher has boldly settled the standing issue in his case, but I think it’s the wrong case in the wrong circuit for getting the second amendment recognized by the courts.

I don’t want to be misunderstood, I think the second amendment protects Mr. Fincher’s right to possess a machine gun, and I would refuse to convict if I were on the jury, but we have to be very careful about using the courts, because we can damage our cause in a serious way if we’re not prudent. I really do hope Wayne Fincher doesn’t end up in a federal prison, but I suspect he will. We do need to people like him that are willing to put so much on the line, but we have to be careful, and we have to understand how the courts work and how judges think, and take that into account when working toward our goals.

UPDATE: Wayne Fincher was found guilty of the charges against him after a very brief deliberation by the jury. I should also say that pissing off the presiding judge also is not a very good strategy to use in court. Check out this post over at Smallest Minority, which has a lot more really good information and commentary on the case. Looks like we’ll be adding Smallest Minority to the blogroll.