By Doug Newman
January 17, 2007
Posted at Liberty
Post, Novakeo's Blog, Independent
Libertarian Enterprise, The
Rational Review, Beating the Powers That Be, The Price of Liberty, Libertarian Christians, Sierra Times,
Strike the Root, Free Press Digest, Freedom News Daily, World News, War on Guns and Old Right Pundits.
“All laws repugnant to the
Constitution are null and void of law.”
Chief Justice John Marshall, Marbury v. Madison (1803)
Does the Bill of Rights still serve as a guarantee of God-given rights against arbitrary abuses of government power? Or is it just a 215-year-old piece of paper that can be disregarded at the whim the authorities?
These are the central questions in the case of Mr. Hollis Wayne Fincher, 60, of Fayetteville, Arkansas. (1) If you are not familiar with this case, you need to be. What happened to Mr. Fincher could happen to you.
Mr. Fincher was arrested on November 8 of last year when his home was raided by agents from the FBI, BATFE and several local law enforcement agencies. He was charged with possession of a machine gun in violation of the Firearms Act of 1934. He had incurred the ire of the authorities for his activism on behalf of the Second Amendment and after protesting proposed local zoning ordinances. (2)
In late December, Assistant US Attorney Wendy Johnson filed a motion with the court requesting that the judge, Jimm Larry Hendren, not allow the defense to use any arguments based on the Constitution or on jury nullification. Heads the feds win; tails Fincher loses.
Fincher went to trial on January 8. After the prosecution rested, Hendren ruled that Mr. Fincher would be able to use the Second Amendment in his defense. Then, Hendren reversed himself, contending that the Second Amendment protected a collective, but not an individual, right.
Then the vise grip tightened on Fincher even more. He was forced to present his testimony before the judge only, and not the jury. Hendren had ruled that the defense could contest the government’s evidence, but not the law relevant to the case. After hearing Fincher’s testimony – with the jury out of the room, mind you – Hendren decided that Fincher’s focus was on the legality of federal gun laws rather than the legality of the firearms that Fincher had in his possession.
On January 12, the jury found Mr. Fincher guilty of possession of illegal machine guns and a sawed-off shotgun.
As I write this, I know not what the sentence will be or what appeals are planned.
While David Bowie and Pat Metheny are supremely talented in music, their politics are waaaaay to the left. However, when I read stories like that of Hollis Wayne Fincher, I cannot help recalling the following lyric from that wonderful theme song from The Falcon and the Snowman.
“A little piece of you, A little piece of me will die … This is not America.”
Every time the authorities so recklessly and wantonly disregard the Constitution and the Bill of Rights, a little bit of freedom – your freedom and mine -- dies. We are not living in the America I thought I was living in during the early years of my life.
The government and the media want us to think that we are engaged in and apocalyptic struggle against terrorists “who want to take away our freedom and undermine our very way of life.” It is not some Islamopsychopath in a cave in Afghanistan who is denying Mr. Fincher his freedom. It is our own wretched and pathetic excuse of a government in Washington and its flunkies in Little Rock, Springdale and Fayetteville. “The terrorists” have not even taken over Afghanistan, one of the poorest most backward countries on earth. Our own government, however, has been slicing and dicing our Constitution and Bill of Rights for decades.
The Bill of Rights guarantees rights that already existed prior to being put to paper in 1791. The Second Amendment states, in part, that “the right of the people to keep and bear Arms shall not be infringed.” Any restriction upon that right, no matter what the reason, is unconstitutional. Period.
At this point, people always ask me about the “need” for people to own machine guns and the like. How much firepower did the Branch Davidians “need” when they were so savagely attacked at Waco? How about Randy Weaver and the family of Elian Gonzales? What about all the people who have had their homes raided by DEA stormtroopers for the heinous offense of ingesting the only substance that provided real relief from their illnesses?
Firearms are like insurance: you never know exactly how much you are going to need until faced with a crisis. Indeed firearms are insurance. They insure “the security of a free State” against the actions of a rogue government.
The Sixth Amendment states, in part, that “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”
Trial by jury means just that: trial by jury and not the “judge’s instructions.” Trial by jury means that jurors have the right to judge not only the facts, but also the law pertaining to the case. If so much as one juror thinks that the defendant is being charged under a law that is unconstitutional, unjust or just plain stupid, that one juror can vote to acquit, and the defendant walks!
This is the way it was in the beginning of this Republic. Fully informed juries were hugely instrumental as a check on the Fugitive Slave Laws in the 1850s. If Juror Smith thought the Fugitive Slave Laws were stupid, immoral or whatever, his single vote could acquit Defendant Jones who stood charged with harboring runaway slaves.
Fast forward 150 years. The jurors in the Fincher case were only allowed to hear the prosecution’s arguments, and were not even allowed in the room when Mr. Fincher was testifying.
People always ask me if jury nullification gives jurors license to “make up the rules as they go along.” I respond that jury nullification is actually the ultimate check against bad laws made by a government that makes up the rules as it goes along.
America has two constitutions. One was ratified in Philadelphia in 1787. Its purpose is not to restrain the people, but to restrain the government. It is really a simple document. Its greatness is in this simplicity.
However, it is not a self-enforcing document. Unless “we the people” put its words into practice vigorously and vigilantly, it is of no value. It is reduced to just a piece of paper.
America’s other constitution lies in the hearts, minds and souls of its people. If we are ignorant, apathetic and willing to sacrifice freedom for security, our written Constitution has no clout. If we want to be free people, our personal constitutions must consist of, in the words of author Tom Wolfe, “the right stuff.”
We think we are a free people. Oh sure, we can vote and we can criticize our government. However, there are two things you need to know about life in America in 2007: this nation has the world’s highest incarceration rate and all ten policy planks of the Communist Manifesto are part of the law of the land.
The trial and conviction of Hollis Wayne Fincher would prompt national outrage in a nation wherein the citizens were truly vigilant in defense of liberty. However, we do not live in such a country. Whenever I raise issues such as this, or Waco, or Ruby Ridge, or Elian, or my friend Rick Stanley or any number of other abuses of government power in recent years, people look at me as if I am speaking Swahili.
I am going to say this in English and I am going to say this once: WE ARE NOT FREE!
When you can be arrested for exercising a God-given right (3), forbidden from using the Constitution in your defense, and denied a jury trial, you are not free. This is the stuff of which totalitarian states are made! No one named Osama, or Mohammed, or Raheem, or Omar or Abdul is imposing this on us. People named Jimm, Wendy and George are. Terrorists cannot take away our freedom. Our own government is actively doing so, frequently with our blessing!
I know, I know. This is not Nazi Germany, Soviet Russia, Red China or North Korea. However, America is on a bobsled ride toward a totalitarian future. And unless we end this denial, we will find ourselves slaves on the very land that was once the freest nation on earth.
I started down this libertarian constitutionalist road in late 1991 over the rights of the accused. Bush 41 had signed into law a bill pertaining to racial quotas. An employer charged with violating the provisions of this law would have to prove themselves innocent. Yes, guilty until proven innocent! I said to myself “that could be me some day”! I pray fervently that I am never denied the presumption of innocence or the opportunity for a fair trial.
However, in a land where a man like Hollis Wayne Fincher, who has peacefully exercised his God-given rights and harmed no one, can be denied any semblance whatsoever of a fair trial, I ask you this: how can you feel safe, secure or free?
Freely Speaking: Essays by Doug Newman