S.W.A.T. December 2007 - McKeesport Police Department

ENEMY AT THE GATE
tirely intrastate manufacture and possession
of machine guns, for non-commercial
militia purposes only, was also
not reachable by federal law.
DRUG WARRIORS: UNWITTING
ALLIES OF FEDERAL GUN LAWS
But then came Gonzales v. Raich
(2005), involving a cancer patient growing
marijuana in her own backyard, for
her own consumption as medical marijuana,
not for sale. Suddenly, the drug
warriors on the right, including Justice
Scalia, were positively in love with
Wickard’s expansive, socialistic reading
of the commerce clause. The leftists on
the Court were happy to agree, and, over
the dissents of Thomas, O’Connor, and
Rehnquist, the steps toward sanity of
Lopez and Morrison were erased. Once
again Congress can effectively legislate
on any activity, including home manufacture
of firearms.
After Raich, Bush Administration
lawyers wasted no time in appealing the
Stewart decision to the Supreme Court,
which vacated Stewart and remanded
back to the Ninth Circuit “for further
consideration” in light of Raich, to the
glee of the anti-gunners.
Thus, the Raich decision has had a
direct impact on our gun rights, reversing
the Ninth Circuit’s decision, which
had been in favor of Stewart (the manufacturer
of the Maadi-Griffin .50-caliber
rifle kits) and stripping Fincher of a potentially
iron-clad constitutional law defense.
ALL THAT REMAINS IS A
SECOND AMENDMENT
DEFENSE
Now that so-called conservatives had
joined hands with the big government
leftists, Fincher had to fall back on the
Second Amendment. In U.S. v. Miller
(1939), the Supreme Court held that, because
no evidence was presented in the
trial that a short-barreled shotgun was
a weapon useful to a militia, the Court
would decline to rule that its possession
was protected by the Second Amendment.
Fincher very reasonably inferred
that if a weapon was useful to a militia,
it was protected, and that the Miller
Court had constructed a constitutional
test, turning on a fact question, which
would be presented to the fact finder in
any future trial. Setting aside the broader
power of the jury to judge the law as
well as the facts, Fincher should at least
have been able to present evidence to
the jury, as fact finder, regarding the fact
In U.S. v. Miller (1939), the
Supreme Court held that,
because no evidence was
presented in the trial that a
short-barreled shotgun was
a weapon useful to a militia,
the Court would decline to
rule that its possession was
protected by the Second
Amendment.
question of the militia utility of a Browning
Model 1919 machine gun and a short
barreled pump shotgun.
Additionally, the federal statute itself
contains an exception, at 18 U.S.C.§ 922
(o)(2)(A), for those who possess machine
36 S.W.A.T. » DECEMBER 2007 SWATMAG.COM