Judge OKs Fincher Arguments

FAYETTEVILLE -- A man charged with possessing illegal machine guns will be able to argue at trial federal gun laws are unconstitutional, a judge ruled Tuesday. But, the judge is not going to allow the trial to digress into a freewheeling, uncontrolled debate of the Second Amendment in front of the jury.

Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in federal court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun.

Jury selection is set to begin this morning [January 9th] with opening statements to follow later in the day.

The decision by U.S. District Judge Jimm Larry Hendren will allow Fincher to present evidence to support the defense view his possession of the guns should not be a crime because they were for use by the militia. Fincher doesn't deny he had the guns.

The government had asked Hendren to bar Fincher and his attorney, Oscar Stilley, from arguing issues of law to the jury as they present their defense.

The government argued it is the court's role, not the jury's, to decide matters of law and Fincher's arguments should not be made in the presence of the jury. Prosecutors argued the jury should only hear and decide the facts of the case, not what law should apply.

Stilley wants wide leeway in order to develop a full record in case of an appeal.

The U.S. Supreme Court has not addressed a Second Amendment issue since 1943, Stilley said. That ruling said the government could place limits on the possession of military weapons by individuals or groups but cannot prohibit the possession or use of any weapon that has any reasonable relationship to the "preservation or efficiency of a well-regulated militia."

Hendren found for the government on two other issues.

The judge ruled prosecutors won't have to prove Fincher had criminal intent to obtain a conviction, only that he possessed the guns illegally.

And Fincher won't be able to argue whether the Commerce Clause to the U.S. Constitution as it relates to the guns applies to this case. The Commerce Clause gives the federal government power to regulate commerce with foreign countries and among the states. Hendren said the government doesn't have to prove the guns were involved in interstate commerce in order for Congress to be able to regulate them.

Continued at The Morning News