Month: January 2007

Over at WarOnGuns, David Codrea posts in response to my post few a few days ago.  I agree with several of David’s points.  Namely:

As for Mr. Sawders’ letter, again, I agree it would not be advisable to send such a missive if the goal was to persuade Judge Hendren to “do the right thing.” What I reject is that anyone is capable of writing such a letter.

The judge has proven he is a creature who considers stare decisis the supreme law of the land. He will be guided on the sentencing by what the prosecution wants and what the guidelines and precedent say.

I essentially agree here.  I do think there are a lot of folks out there who feel, rightly, like they are backed against the wall on the gun issue.  I also agree that there is often no right case, and sometimes you have to go to court with a less than ideal case because it’s the right thing to do.  What I do want to discourage is people getting themselves arrested with the intent of pushing a case through the courts.  There might come a place and time for that, and when it comes, we’ll need folks like Mr. Fincher.  I will post later on what the ideal first case might look like as a theoretical exercise, but David is right to point out you don’t always get to do things ideally.  He’s also correct to point out:

is the court will rule it an individual right, but so narrowly, and with such deference to “compelling state interest” and “reasonable restrictions” as to make very little difference in terms of hampering new legislation to outlaw “assault weapons” again, “close the gun show loophole,” retain and share NICS data, etc., and of course, in terms of enforcing “existing gun laws.”

This is definitely something to be afraid of, and a big fear of mine as well.  I’m not going to say much else about the topic of Mr. Sawders’ letter, because I don’t really want to stir up trouble within the community, and I am sympathetic to many of his arguments.  We’re all on the same side, and while I think it’s good to air out differences in strategy and tactics for time to time, we need to keep our energy focused on the real opposition.  Especially with the media seemingly bring gun control back to the surface in a big way.

I don’t enjoy criticizing members of our own community, especially when I think their hearts are in the right place. But I have to make exceptions when I think they are doing something that’s really damaging to the community as a whole. I’ve stated my opinions on the Wayne Fincher case before, but I noticed this appear WarOnGuns earlier that makes me want to bring it up again:

What was your price? What was offered you in that meeting with representatives of the prosecution that seems to have caused a complete reversal of what you had stated only the day before? Was it reward? Was it threat if you did not cooperate?

To sum it up in one question, “What price treason?”

Folks,we’re really not going to accomplish anything by antagonizing the federal judiciary. In fact, it’s going to seriously hurt us. These are the same federal judges we’ll be relying on to, someday, rule in our favor and throw out a gun law because of the second amendment.

The judge in the Fincher case was bound by the precedent of 8th Circuit Court of Appeals, which holds that the Second Amendment is a collective right. I don’t think he was bribed or coerced into treason. I think he was made aware of controlling precedent in his circuit, which he was perhaps not initially, and also made aware that as a district judge in that circuit, he was bound by that precedent.

I may not agree with our court system’s near worship of stare decisis, especially in a case, such at this, where the precedent is clearly wrong, but it’s how the system works. If you want to work within the system, you have to deal with and understand these issues. We must be exceedingly careful when dealing with the courts, and judges.

We’re getting into territory where if we play our cards wrong, the judiciary will read the right to bear arms right out of the constitution. Maybe some of the anti-government types out there would love to have something like that to prove that our government is hopelessly corrupt, and beyond hope, but I think most of us would really like to fix this issue the proper way.

In order to fix it, you have to have the right case, the right defendant, and the right council. I’m sorry, but this case isn’t it. I don’t say this because I don’t care that Wayne is in prison, or because I think the precedent is correct. I say this because having the Supreme Court throw out the NFA is the only way we’re ever going to, once again, have the right to own machine guns. Going after the NFA straight out of the gate, with a defendant who is a militia member, in the 8th circuit, which is one of the most hostile ones, is a great way to make sure we get more precedent on the books when we eventually do go after the NFA in the Supreme Court. You can bet they will scrutinize every lower court ruling when coming to THAT decision. So please. Let’s not give the anti-gunners more ammo in court.

If you must write the federal judge that presided over the Fincher case, be polite, and stick to intelligent, well reasoned, and non-accusatory arguments that are grounded in the law. You will never win someone over to your cause by accusing them of having been bribed to commit treason. I would have hoped that was obvious to all of us.