Tuesday, September 9, 2008
A machine gun and a sawed-off shotgun borne pursuant to membership in an informal militia unaffiliated with the state militia is not activity protected by the Second Amendment, the U.S. Court of Appeals for the Eighth Circuit held Aug. 13 (United States v. Fincher, 8th Cir., Nos. 07-2514 and 07-2888, 8/13/08).
The court also ruled that possession of these weapons is not covered by the individual right to bear arms recognized in District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008).
The defendant was convicted of violating federal statutes that prohibit possession of unregistered sawed-off shotguns and machine guns. He maintained, however, that his possession of the weapons was reasonably related to his membership in the Washington County Militia and consequently protected by the Second Amendment.
The defendant helped found the militia in 1994 and attempted several times to obtain the approval of the local law enforcement organizations and the state government. He maintained that the militia was established to assist local sheriff or governmental officials, or to take action on members' own to preserve life, liberty, and the pursuit of happiness. The militia members possessed machine guns, and the defendant testified that his possession of his weapons was needed to ensure the militia could operate militarily at optimal effectiveness during a state of emergency.
The Eighth Circuit was among the courts that had interpreted United States v. Miller, 307 U.S. 174 (1939), as limiting the scope of the Second Amendment to possession of a firearm reasonably related to service in a well-regulated militia. United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) (" 'Technical' membership in a state militia (e.g., membership in an 'unorganized' state militia) or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test").
In Heller, the U.S. Supreme Court said the lower courts' crabbed interpretation of Miller failed to recognize that the Second Amendment codified a pre-existing individual right, recognized under English common law, to keep and carry arms in self-defense. The amendment's prefatory reference to a "well regulated Militia" does not restrict the right to militia-related uses. Accordingly, the court struck down a municipal handgun ban that effectively prohibited an "entire class of 'arms' that is overwhelmingly chosen by American society" for the lawful purpose of self-defense in the home.
Read rest of article here. [Brooks Holland]