The Lone Weasel wrote:
> U.S. 8th Circuit Court of Appeals, August 13, 2008
>
> US v. Fincher, No. 07-2514, 07-2888
>
> A conviction for possession of a machine gun and possession of
> an unregistered sawed-off shotgun is affirmed in part and
> remanded where: 1) the district court's determination that the
> "Washington County Militia" was not affiliated with the state
> militia, and therefore not subject to the protections of the
> Second Amendment under applicable precedent, was well
> supported by the record; 2) the issue of defendant's
> eligibility for court appointed counsel required a remand to
> the district court for further inquiry.
>
> http://caselaw.lp.findlaw.com/data2/circs/8th/072514p.pdf
>
> __________
>
>
> DC v Heller was cited in support of Fincher's conviction:
>
> [begin excerpt]
>
> In holding that the Second Amendment guarantees "the
> individual right to possess and carry weapons in case of
> confrontation," Id. at 2797,2 the Court also stated that the
> right to possess firearms is not beyond the reach of all
> government regulation. Id. at 2799, 2816 ("Like most rights,
> the right secured by the Second Amendment is not unlimited.
> From Blackstone through the 19th-century cases, commentators
> and courts routinely explained that the right was not a right
> to keep and carry any weapon whatsoever in any manner
> whatsoever and for whatever purpose.").
>
> In discussing the limitations the government can place on an
> individual's right to possess firearms, the Court noted that
> Miller does not protect "weapons not typically possessed by
> law-abiding citizens for lawful purposes, such as
> short-barreled shotguns." Heller, 128 S. Ct. at 2815-16. The
> Court also articulated a nonexclusive list of what it viewed
> to be acceptable government regulation of firearms:
>
> [T]he majority of the 19th-century courts to consider the
> question held that prohibitions on carrying concealed weapons
> were lawful under the Second Amendment or state analogues.
> Although we do not undertake an exhaustive historical
> analysis today of the full scope of the Second Amendment,
> nothing in our opinion should be taken to cast doubt on
> longstanding prohibitions on the possession of firearms by
> felons and the mentally ill, or laws forbidding the carrying
> of firearms in sensitive places such as schools and
> government buildings, or laws imposing conditions and
> qualifications on the commercial sale of arms. We also
> recognize another important limitation on the right to keep
> and carry arms. Miller said, as we have explained, that the
> sorts of weapons protected were those "in common use at the
> time." We think that limitation is fairly supported by the
> historical tradition of prohibiting the carrying of
> "dangerous and unusual weapons."
>
> Id. at 2816-17 (internal citations and footnote omitted).
>
> Accordingly, under Heller, Fincher's possession of the guns
> is not protected by the Second Amendment. Machine guns are
> not in common use by law-abiding citizens for lawful purposes
> and therefore fall within the category of dangerous and
> unusual weapons that the government can prohibit for
> individual use. Furthermore, Fincher has not directly
> attacked the federal registration requirements on firearms,
> and we doubt that any such attack would succeed in light of
> Heller.
>
> [end excerpt]
>
> Also:
>
> "FN2: We note that the Supreme Court did not address the
> question whether the Second Amendment is incorporated through
> the Fourteenth Amendment and thus applicable to the states."
>
> So why didn't Fincher's supposed individual right under the
> Second Amendment protect his possession and/or use of a
> machine gun?
>
> Read the case and find out.