Wednesday, January 10, 2007

Only the Illusion of a Constitutional Defense is Allowed

All Cozy like: Judge Hendren, with Congressman John Boozeman.
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In the machinegun "possession" case of Wayne Fincher Judge Hendren ruled yesterday that the defense would be able to use constitutional defenses to the jury. That part was good. Or was it? While he said they could use a "constitutional defense", he did not mean any constitutional defense. He did not mean the constitutional defense that the defense itself wanted to use. No, he would only allow the comparatively irrelevent constitutional defenses that he, the judge, decided to let the defense use.

I am not sure which is the larger travesty, preventing a defendent from using constitutional defenses in his jury trial, or creating the illusion that he enjoys the protections of that document by allowing him to only use those constitutional defenses that won't help him in the case.

Let me explain...(continued, click WEDNESDAY below and scroll down for article or if sent straight here just scroll down)


Blogger Mark Moore (Moderator) said...

Judge Hendren ruled that Fincher could use constitutional defenses, but he also ruled that the prosecution would NOT have to prove that "interstate commerce" had occurred.

As those who have been following this story on this blog know, the feds are using their power to regulate "interstate commerce" as an excuse to control the possession of automatic weapons, which is otherwise protected by the 2nd amendment.

Can someone please explain to me how they can send an otherwise law abiding man to prison for breaking a law that draws its authority from the "Interstate Commerce Clause" WITHOUT a need to show that interstate commerce occurred?

This is a farce. It is obvious to anyone with the courage to face the truth that they are stretching the "Interstate Commerce Clause" far beyond its original intent in an effort to end-run our 2nd amendment rights. It's indefensible. It's another raw display of judicial power.

Judge Hendren protests that he has to follow "established law". Number one, the Constitution IS law. Number two, even the court cases have some wiggle room on this one. The Ninth Circuit gets a lot of bad press, but on civil rights issue they make some good rulings. They ruled with the exact logic I used on a prior case of a man caught with a machine gun. The Supreme Court remanded the case back to them since the feds use the "Interstate Commerce Clause" to ban growing pot without proof of interstate commerce, but I think that is where it stands.

If the 9th circuit makes a good case that the feds exceeded their authority in that case too, or show how the gun case is different in that it involves an explicit constitutional right, they could well win the day. Should that happen, by the time the Fincher case is over Judge Hendren could well be ruling AGAINST precedent even while he claims that as his reason for denying Fincher his chosen constitutional defense.

Which brings me to my next point. The defenders of the status quo (quite lately, since their logic has been shot to bits) claim that "juries rule on matters of fact and judges rule on matters of law". Number one, we have already shown elsewhere that this is a corruption of the system of justice inheireted from our fathers. But also, it is a perfect example of how the power to rule on questions of law in advance makes the power to judge facts irrelevant.

Hendren has arbitrarily ruled that the prosecution does NOT have to prove interstate commerce occurred. This will block Fincher from using his key constitutional defense, and denies the jury from ever having a chance to rule on this key point. And this difference is likely a difference between "guilt" and innocence.

If the state has to prove "interstate commerce" was involved in order to find guilt, they will lose on a point of fact. But the judge has misused a point of law to co-opt the jury out of a chance to hear that fact.

All that is left for the defense is that as a member of his self-created "militia unit", he was allowed to possess machine guns under an exemption in the federal law for "policemen".

I hope that works. It would work better if the state would actually use the law that already exists to form such units. As it stands, I fear that all the prosecution will have to do is show that the state law on which Fincher's defense will rest does not apply because Government establishment of the units never occurred. Too bad Fincher has been precluded by an errant judge from doing the exact same thing for his side: That is the defense will show that the law on which the prosecution will rest does not apply because interstate commerce never occurred.

We have moved from a system of real justice in this country to a system where there is an elaborate pretense of a fair trial in order to keep the populace comfortable in their delusions. If they stay there, it will only be a matter of time before even these facades of justice are abandoned.

10:07 AM, January 10, 2007  
Anonymous Anonymous said...

Hendren is a coward and disgrace to his office.

11:41 AM, January 10, 2007  
Blogger Mark Moore (Moderator) said...

It gets sorryer, if that is a word. Now Hendren won't allow Fincher's argument that he is entitled to those guns because he is a member of a legal militia as authorized by the state of Arkansas.

Here is the url

Here is the money quote from Hendren from the article...

"No case law exists that allows a member of a “nongovernment” militia to possess illegal weapons, U. S. District Judge Jimm L. Hendren said.

Evidence on any private militia “would mislead the jury,” Hendren said. The judge also said he would have to approve all evidence about the militia before it could be introduced to the jury. "

Did you get that? NO CASE LAW! Never mind what the actual written law passed by legislators and in the Consttution of Arkansas! All that matters is what the judges say in "case law". How does the man thing case law gets made? Someone has to allow the defense to use actual law in court at some point. The whole thing is an absurd parody of justice.

And Hendren keeps up his insistence that he must see all evidence in advance, once again giving the lie to the idea that "judges decide questions of law, juries decide questions of fact". Not if the judge never lets them hear the facts! He treats the jurors as if they are children.

6:39 AM, January 11, 2007  
Blogger Mark Moore (Moderator) said...

Fincher's point is that he notified all the proper authorities that he started this militia under Arkansas law and they did nothing. He then assumed that he could have the guns under the "law enforcement" exemption like any other law enforcement personnel.

I don't think Fincher is in a "real" government militia, but he should have a chance to make that point in court. I mean, when he sent a letter to the authorities saying he was establishing it under Arkansas law, did any of them even send back a letter telling him he was mistaken about the law?

That is in addition to the iron-tight irrefutable fact that the state cannot prove interstate commerce in this case, even though their authority to do this rests on the "interstate commerce" clause of the constitution. The guns even had "not for commerce" insrcibed on them.

There are at least two reasonable arguments that Fincher can make as to why a convinction would be a gross miscarriage of justice.

Too bad he will be sent to prison because Hendren won't let him make any of the reasonable defenses that could prove him innocent.

6:45 AM, January 11, 2007  
Anonymous Anonymous said...

He'll be sent to prison because the state of Arkansas won't do anything to back our constitutional rights as "guaranteed" in our state constitution.

This is yet another case proving that state borders are meaningless, and state governments are puppets on license from Washington, D.C.

6:56 AM, January 11, 2007  

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