Constitutional Law

US v. Fincher: no 2A right to own an NFA in a private militia

The 8th Circuit has so ruled. (pdf). The ruling essentially says that a well organized militia must be a State organized militia (and the State law recognized non-Guardsmen only as the "unorganized militia") hence his possession of the NFA firearms was not related to service in a well organized militia.

I can't see how this analysis can be squared with Heller, where Heller was not a member even of DC's unorganized militia (he was over the age limit) and DC didn't want him to have the firearm in question.

The court does turn to Heller -- without noting that its preliminary point is contra to Heller's holding -- and holds that machine guns are not in common use.

The ruling also sustains a trial court order that forbade his counsel to argue the 2A issue to the jury. This would be in accord with case law over the last century or so, but not in accord with the practice at the time of the framing. For my money, it just makes trials more boring. Patrick Henry would be serving a million years for contempt these days. (A side issue: many courts require counsel to stand at the podium, 30 ft or so from the jury, while arguing. This again makes things rather impersonal and thus boring. I think it's a matter of control -- don't want attorneys to have too much influence -- and a feeling that if everything is mediocre and contained, things will be fairer, since an attorney who cannot speak worth a dang will not be disadvantaged. Goodbye Patrick Henry, and goodbye interesting trials).

Full post as published by Of Arms and the Law on August 16, 2008 (boomark / email).