The Morning News: News : Militia Leader Put Government On Notice Years Ago

Militia Leader Put Government On Notice Years Ago

Fincher arrested in November on charges of illegal weapons charges

Last updated Saturday, January 6, 2007 9:14 PM CST in News

By Ron Wood
The Morning News

Related Photos

FAYETTEVILLE -- Hollis Wayne Fincher had been sparring with the federal government for several years before his arrest in November on charges he possessed illegal machine guns.

Fincher said in a March interview with The Morning News he believes Americans should proudly uphold the right to bear arms, stand up for land rights and not always accept the federal government as the supreme law of the land.

Fincher's arrest was the result of what federal agents said was an eight-month investigation.

Federal agents said they started investigating the militia after a report and photographs about the group appeared in The Morning News. The report noted the group had automatic weapons. Agents subsequently sent an undercover agent to join the group. According to the government, that agent learned the group had unregistered, homemade machine guns and Fincher, a retired machinist, had helped assemble them.

The Washington County Militia leader and strict constitutionalist first put the government on "notice" almost four years ago that the group had or intended to collect whatever weapons it needed, including automatic weapons, to protect the residents of the sovereign state of Arkansas from what they saw as illegal aggression by federal authorities, including the Bureau of Alcohol, Tobacco and Firearms.

Fincher has never made a secret of having the guns, but there's more to the case than that, his attorney, Oscar Stilley, said Friday.

"They've got to prove not only that he had these but he had them with the mental state to commit a crime, and they've also got to prove that they didn't entrap him," Stilley said.

The government could have taken the guns and, rather than charging him with a crime, forced Fincher to file a civil lawsuit to try and get them back, Stilley said.

"I think what's going on here is they're trying to put the fear of the Lord in everybody else," Stilley said.

Assistant U.S. Attorney Wendy Johnson could not be reached by telephone Friday, but prosecutors generally have not commented on pending cases.

In 2002, Fincher and Paul Smith, identified as the commander of the Washington County Militia at the time, sent documents, including a "Notice to the Governor of Arkansas," declaring they had the right, pursuant to Article 11 of the Arkansas Constitution, to arm themselves and form companies of infantry, calvary and artillery to protect the people of the state from federal aggression. The documents, which were also filed in a miscellaneous file at the Washington County Clerk's Office, said the militia wouldn't tolerate the violation of state jurisdiction by federal agents or allow federal agencies to tell them what weapons they could have.

They claimed a right to arm militia members with "any rifle, pistol or shotgun, by any name known, whether automatic or semiautomatic, of past, present or future design, regardless of size, caliber, barrel length or magazine capacity."

They also claimed a right to have light or heavy armored vehicles, self-powered mobile artillery, helicopters, airplanes, cannons, rockets, antitank weapons, mortars, recoilless rifles or any other such weaponry used for bombardment.

"These arms from antiquity to the present are without controversy, qualified militia arms," according to the document. "The militia does now lawfully possess representative arms of the types and kinds so declared."

The documents cited the "murder" of more than 100 men, women and children during a stand-off at Waco, Texas, between David Koresh and his followers and federal agents.

Copies were sent to the Washington County Sheriff's Office, Arkansas State Police, state attorney general and the state's Congressional delegation. Copies also went to U.S. Attorney General John Ashcroft, Secretary of the Treasury Paul O'Neill, the Bureau of Alcohol, Tobacco and Firearms and local newspapers.

The rub is that since 1934, it's been illegal for civilians to own machine guns without special permission from the U.S. Treasury Department.

Federal law permits the public to own machine guns manufactured and registered before 1986 under certain conditions. Guns made or imported after that date can be bought by law enforcement agencies but not the public.

Each new weapon is subject to a manufacturing tax and must be registered with the bureau's National Firearms Registry.

To become a registered owner, a complete FBI background investigation is required.

When selling a machine gun, dealers must fill out federal registration forms for the bureau. The purchase of a machine gun requires a $200 federal tax stamp every time it is transferred from one legally registered owner to another.

Fincher and others disagree with the law on Second Amendment grounds.

But, in a 2003 federal criminal case out of Arizona remarkably similar to Fincher's, the 9th U.S. Circuit Court of Appeals ruled the federal government could not regulate the mere possession of homemade machine guns using the Commerce Clause to the U.S. Constitution. The Commerce Clause gives the federal government power to regulate commerce with foreign countries and among the states.

The charges resulted from the Bureau of Alcohol, Tobacco and Firearms finding five machine guns, which Ronald Wilson Stewart Jr. had machined and assembled, during a search of his home. Stewart, who, unlike Fincher, was a convicted felon, was charged with, and convicted of, being a felon in possession of a firearm and five counts of unlawful possession of a machine gun. He was sentenced to five years in prison and appealed.

The 9th Circuit reversed as unconstitutional the machine gun convictions, saying Stewart put enough parts and labor into the project that there was no clear tie to interstate commerce.

"A homemade machine gun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes," according to the 9th Circuit ruling. "Whatever its intended use, without some evidence that it will be sold or transferred -- and there is none here -- its relationship to interstate commerce is greatly attenuated."

The court said the section of the commerce clause used to prosecute Stewart was not intended to regulate the commercial machine gun business but rather to keep machine guns out of the hands of criminals.

But the U.S. Supreme Court vacated the ruling on June 15, 2005, and sent the case back for further work, citing a case in which it had ruled the government can use the Commerce Clause to ban homegrown marijuana.

The high court's ruling implied the government can use the Commerce Clause to criminalize the possession of homemade machine guns whether or not they were ever involved in a commercial transaction.

Fincher was arrested Nov. 8 by federal agents. He remains in federal custody in lieu of $250,000 bond.

Two of the .308-caliber machine guns, homemade versions of the Browning model 1919, allegedly had Fincher's name inscribed on them and said "Amendment 2 invoked," a reference to the constitutional right of citizens to bear arms. The other was a 9 mm STEN design submachine gun.

At A Glance

Fincher Background

Hollis Wayne Fincher, 60, a lieutenant commander of the Militia of Washington County, is charged in U.S. District Court with possessing three homemade, unregistered machine guns and an unregistered sawed-off shotgun. His trial is set for Tuesday in federal court in Fayetteville.

Source: Staff Report

Razorback Central

July 9th, 2009

Welsh Suspended From Basketball Team

Long, McMakin Receive Contract Extension

July 7th, 2009

Broyles Remembers Coach He Replaced At Arkansas

News

July 9th, 2009

Police: Pizza Delivery Woman Robbed

Public Meetings

Beebe Appoints 11 To State Boards, Commissions

Decatur School District On 'Solid Footing'

Rogers Welcomes New Human Resource Director

Reader Comments (40 comment(s))

The following comments are provided by readers and are the sole responsibility of their authors. The Morning News does not review comments before their publication, nor do we guarantee their accuracy. By publishing a comment here you agree to abide by our comment policy. If you see a comment that violates our policy, please notify the web editor.

Springdale Citizen wrote on Jan 7, 2007 2:39 AM:

" Just another reason why people don't need access to guns. It is because of fruit cakes like this! "

To Spr. Citizen wrote on Jan 7, 2007 6:14 AM:

" I would have expected something more articulate from you...Maybe you're just waking up..It's okay. "

not exactly awake yet wrote on Jan 7, 2007 6:37 AM:

" you may think people should not have access to guns "like fruit cakes like this" but what are you going to do when the government steps into your home and decides what you can and can't do? they are already telling us that we can't smoke or eat what we want. they are beginning to regulate everything, down to our personal lives. do you want it to get worse? the constitution gives us the right to bear arms. i agree that there should be some sort of regulation, but before long, the government is going to be in every aspect of our lives, public and personal. "

We the People wrote on Jan 7, 2007 7:59 AM:

" The copies of the constitution that I have read must have omitted part of the second amendment.I didn't see the part that says "the right of the people to keep and bear arms shall not be infringed" except for automatic weapons and sawed off shotguns etc.etc.etc.I must research that and find why that was omitted and I guess I need to let some government official interpret the meaning of the constitution for us because "we the people" are much to stupid to understand it on our own. "

Hate bureaucrats wrote on Jan 7, 2007 8:26 AM:

" To Springdale Citizen Springdale citizen put your crack pipe down shut up, listen , and learn. "

Hate bureaucrats wrote on Jan 7, 2007 8:38 AM:

" Government is men and women providing services on a compulsory basis; pay or get shot. To be legitimate they would have to drop their guns and provide their services on a voluntary basis. However, the moment they do so, they cease to be a government. That�s quite the conundrum. "

To all the above wrote on Jan 7, 2007 9:00 AM:

" How many of you fruit cakes belong to the militia? How many have run for a public office? How many of you vote??? You have more power than you think it's just hard to make it happen. It's much easier to turn a story about a criminal into a rant about how this country is going to hell. You talk about freedom and as soon as this nut job kills somebody you cry out why did they have the guns. Can't pleaase everyone and can't ever please the stupid "

Faux Paul wrote on Jan 7, 2007 9:18 AM:

" Hmmm, I don't know about y'all, but MY constitution includes the words "a well regulated militia" at the start of the Second Amendment. It seem perfectly plausable that outlawing machine guns could be counted as falling under the "well regulated" part. "

Hate bureaucrats wrote on Jan 7, 2007 9:32 AM:

" militia operates under arkansas constitution not federal constitution. Standing is the same wherever you go, the important elements are (1) the violation of a right; and (2) injury. The only "authority" one should need is to look at the Declaration of Independence for the only reason for the establishment of an American government: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. � That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..." The state has no standing Wayne is right and the BATF IS NOTHING MORE THAN A GROUP OF VIOLENT CRIMINALS "

Wayne is Wrong wrote on Jan 7, 2007 10:15 AM:

" I hope he gets convicted. "

Jerry Hawkins wrote on Jan 7, 2007 10:37 AM:

" What a true patriot. He's a man after my own heart. Good luck taking on the giant. "

TRUTH wrote on Jan 7, 2007 10:44 AM:

" There is only 1 fruitcake here. I think he lives in Springdale. How many cops kill innocent people everyday? And you are worried about a "well regulated militia man", look up the meaning of well regulated maybe you will be able to understand your rights a little better. Good luck to you and your commie bunch. "

beefree wrote on Jan 7, 2007 12:58 PM:

" WHEN YOU LET PEOPLE DO WHATEVER THEY WANT, YOU GET WOODSTOCK. WHEN YOU LET GOVERNMENTS DO WHATEVER THEY WANT, YOU GET AUSCHWITZ. *** ASK NOT WHAT YOUR GOVERNMENT CAN DO FOR YOU. ASK WHAT YOUR GOVERNMENT CAN DO TO YOU. *** "SOLVE" and "PROBLEMS" ARE NOT IN THE CONSTITUTION. "

Roland wrote on Jan 7, 2007 6:19 PM:

" You right-wing guys all support Bush and how he's destroying our Bill of Rights, so shut up. You don't care about freedom, you care about guns. The government can listen to your phone calls, open your mail, require you to carry ID, and make fundamentalism a state religion, and you're all just warm and happy. But let them touch your guns, and all of a sudden you're "patriots." "

concerned daughters of a well originized militia leader wrote on Jan 7, 2007 8:26 PM:

" Our Dad (Hollis Wayne Fincher) says "I will not sell out my country."We say "And you can take that to the bank!" Daughter's of Wayne Fincher Free Wayne!!!!!!!!!!!!!!!!!!!!!!! "

To Roland wrote on Jan 8, 2007 4:29 AM:

" Sorry, Roland, you are incorrect. Not all supporters of gun rights are as "right wing" as you seem to believe. Feel free to look up "libertarian" or "classic liberal" at wikipedia.org to get a good idea what a significant number of gun owners believe. Many believe the US has no business in Iraq and that the Patriot Act is just as grossly unconstitutional as any gun control legislation.... "

Hurd in Owosso wrote on Jan 8, 2007 6:52 AM:

" TO quote BeeFree "WHEN YOU LET GOVERNMENTS DO WHATEVER THEY WANT, YOU GET AUSCHWITZ." I say when you let Government do what ever they want, you get Waco.............. "

JS from NE wrote on Jan 8, 2007 8:46 AM:

" To Faux Paul... The term "well regulated" is a term associated with properly functioning, NOT CONTROLLED. The time-frame in which the second amendment was written referred to things like clocks, and equipment as being well regulated, or calibrated to precision. The whole purpose of enumerating our INDIVIDUAL RIGHTS (note: emphasis added) was to clarify our INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS was indeed intact, and should anyone get confused, they could refer to the second amendment. Under the Bush Administration, the Dept. of Justice changed the interpretation of the second amendment frm being a collective right to being an individual right. One can credit the Clinton Administration, and their gun-grabbing agenda for screwing it up in the 1st place. Those of us sitting around, moaning and complaining need to be out there voting. We need to be asking the hard questions of those we are electing. Immagine what would happen if you actually wrote your senator every time you thought about it, or saw a calll to do so? How many people just sit there and read about it and think about it without acting? "

John wrote on Jan 8, 2007 9:53 AM:

" I have NO FEAR of this so called "Nut Job", however I do fear those agent that are harressing him and those like him!!!! "

Left Coast Reader wrote on Jan 8, 2007 2:35 PM:

" 'not exactly awake yet' wrote, "...i agree that there should be some sort of regulation..." Under our system, there is no such thing as a sensible gun law any more than there could be sensible censorship. 'To all the above' wrote, "...You talk about freedom and as soon as this nut job kills somebody you cry out..." Wow - I saw nothing in this news article about Fincher killing anyone. I guess you can only make your point via character assasination - yes? Faux Paul wrote, "It seem perfectly plausable that outlawing machine guns could be counted as falling under the "well regulated" part." Wrong, the government thieves do so (illegally) under the commerce clause. "Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people." -- Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788 "

Tennessee Rover wrote on Jan 8, 2007 7:18 PM:

" Three Rules For Survivsl: (In this order) 1. Duck... (Lowest possible profile, get off-of/away-from the "line of attack" projected by your opponent, get out of the way of the agressive action, otherwise you are not acting on your own... you will be reacting to your opponent. You will never win the conflict by dancing to the opponent's tune.) 2. Smile... (Not because it "makes them wonder what you are up to", but because it puts yourself in the proper "flexible" and non-emotional frame of mind.) 3. Keep on Dancin'... (Never present the opponent with a stationary target. The powers-that-be utilize a "fix in position and run a flanking manuver", both on the battlefield and in domestic matters. Remain in motion, always.) In order to fight corruption, you must understand its origin and nature... read the "Federalist Papers", in order to understand the mind-set and the objectives of the Founding Fathers. Remember... B.A.T.F. stands for "Bury All Thy Firearms". Learn the proper way to do so. There will eventually be a time when you will need to dig them up and use them in the cause of Freedom. Good Luck. P.S. I will follow this case with interest. I consider it a "canary in a mine-shaft". "

Harold Hagar wrote on Jan 9, 2007 12:55 AM:

" In response to: We the People You said: "The copies of the constitution that I have read must have omitted part of the second amendment.I didn't see the part that says "the right of the people to keep and bear arms shall not be infringed" I don't know what you have been reading, but the U.S. Constitution does say "the right of the people to keep and bear arms, shall not be infringed. Maybe they have left it out of the new copies. Get an older copy and read it. The Arkansas Constitution makes it even clearer. It states in Article 2, sec. 5. The citizens of this state shall have the right to keep and bear arms for their common defense. "

felon wrote on Jan 9, 2007 10:17 AM:

" the 4th amendment is so simple that it is impossible to understand. there are thousands of books writen about what it means and what we the people are intitled to concerning it. this government has taken the fourth and twisted it to the point that it means nothing. it is another right that we have lost. so how can one say that the 2nd amendment can mean any thing. we the people are a joke, and the joke is on us. look at the state constitution. the 1st words on it states ALL LAWS MUST BENEFIT THE STATE! i was told the constitution was in place to protect us from the state and fed governments. "

Maddogkiller wrote on Jan 9, 2007 2:55 PM:

" "Well regulated" as used in the Second Amendment, means a well trained militia. it does not means a militia burdened with excessive or unnecessary rules. Whether you agree with Mr Fincher or not, if you have any moral character, you must respect him for his open opposition. Much like that student in Tiennemen Square must be respected. "

Truth wrote on Jan 13, 2007 11:45 AM:

" If the federal gov. can pass codes that are unconstituional ,to register certain guns, and place high taxes on them, then they can pass codes to confiscate all weapons! I say from behind enemy lines "Thanks to all the politians, bureaucrates,etc. Now we are safer another fine defender of faith and countryman behind bars. Thanks for wanting to disarm us, now all the good people can rest at ease while watching Grey's Anatomy. Thank you for taxing us heavily, we cannot wait to see what you will regulate next. Now all the outlaws will have guns, but no worries our well regulated police state will come and rescue us from the criminals." Our Father in Heaven, please protect us from this escalating tyranncle out of control government, in JESUS'S HOLY NAME I PRAY. "

Just A Thought... wrote on Jan 13, 2007 2:59 PM:

" The state that I live in does not allow private owenership of automatic weapons, tax stamp or not, so what I have done is commited to memory how to make them, should the need arise. As of today, the govenment cannot tax/register/seize what I have in my brain. (The day may come, but not today.) Besides, if 'the government' ever comes'a knockin' they'll be bring all the automatic weapons I'll ever need. "

felon wrote on Jan 13, 2007 5:48 PM:

" another one bites the dust! found guilty. who will be next? this government needs put into it's place. before long we will be too afraid to go out side. the right of the people is a joke. our only right is submit to thier force and ideas. we the people? yea right! give americans a bowl of beans, tax break, and tell them what they want to heat, and you'll own thier souls. what happened to pride? when will enough be enough? no wonder most of the world disrespects us and/or hates us. "

CONCERNED AMERICAN,S wrote on Jan 14, 2007 12:04 PM:

" I will try this again ,we had a comment but SOME HOW it seems to have disapeared. WE thought the jury was supposed to hear both sides of the case so why is it the judge kept sending the jury out when the defence started there questioning? And why was the constatution not allowed i thought it was written FOR THE PEOPLE BY THE PEOPLE, maybe i was missinformed, maybe it only work,s when the gov. want,s it to , or when it help,s them out!!!!! "

RFM wrote on Jan 14, 2007 2:50 PM:

" In all countries in the world, any man who declares he is arming himself to "defend" himself against his government is simply looking for trouble. Any man who starts carrying a gun is very likely to start looking for a reason to use it. If you disagree with what your government is doing, run for public office, get yourself elected and start making all the changes you want. If the majority agrees with what you are doing you will get to keep your job. If, while you are doing that, some collection of screwballs tells you they are going to start arming themselves to defend themselves from you, you may have to think about what that means for the freedom and the general welfare of others. "

JRN wrote on Jan 14, 2007 10:56 PM:

" I for one am greatful to know there are people out there with tremendous courage, like Mr. Fincher. Our most sacred and basic God given rights which are secured by the Constitution for the united states of America are under heavy attack. We as Americans must unite and stand up for our freedoms and Liberties or we shall certainly become servant to those who are stealing them away from under our very noses. Go to this link: http://video.google.com/videoplay?docid=-4312730277175242198&q= whatch the free movie produced by famous director Arron Russo and find out who is really in control of America. Than choose to do some thing or fall in line with the weak minded socialists, bow down and worship your new world order god government. STOP BICKERING AMONG YOURSELVES, UNITE AND GET RID OF OUR DOMESTIC ENIMIES BEFORE IT IS TOO LATE!!! "

Warlord wrote on Jan 15, 2007 9:00 AM:

" All men have a basic right of self-defense. Our Constitution guaranteed that basic right with the Second Ammendment. Our nation is spinning out of control by the one party system we have. The Dems and Reps really have a single agenda and that is found in the globalization schemes that have recently come to light. The North American Union of Canada, the US and Mexico is part and parcel of the globalization scheme. Bush is a Fabian Socialist dedicated to a one-world socialist government where multi-national corporations rule and we, the people, serve. Be prepared to defend yourselves, and, if possible, join with others who also see the threat and parabellum (prepare for war) together. Those in the major cities (where the left rules unconditionally) have lost already. It is rural America that will survive. "

bubbles wrote on Jan 15, 2007 11:10 AM:

" If 10.000 agents brake down doors to confiscate firearms, then, 3 days after there should be 10.000 holes in the ground waiting to be filled. "MOLON LABE!" "

Robert Johnson wrote on Jan 15, 2007 8:40 PM:

" I would like to join this militia. Do they accept African American as members? "

Cincinnati wrote on Jan 16, 2007 8:34 AM:

" Laws exist to permit people to build and register automatic weapons. Do these laws work? "

AFF wrote on Jan 16, 2007 5:44 PM:

" If the Socialists minded keep voting their people in to office then real Americans will continue to loose their Liberties and Freedoms. When will we stand united and stop it. "

felon wrote on Jan 16, 2007 6:55 PM:

" the constitution is a thing of the past. patriot act removed it. this gov cares not about the people or thier rights. un arm us so we can't protect ourselves from them or other enemies of our country. wake up americans it's not about race it's about freedoms and rights. but money and power is all that matters. why does illegals have constitutional rights when american born have none? it's big money! for businesses and government. landlords rent 1bdrm to 6 familes for big money. etc. look how many businesses has started up, and none speak english. united states of mexico! "

felon wrote on Jan 16, 2007 7:07 PM:

" RFM get elected into office, try to change things and this government will find a way to get u out of office. u either play thier game within thier boundries or u are out. our votes are really only there for public opinion. they put in office who they want. popular votes r great if it's the votes this government wants, if not....look at the history and see that the popular vote don't really count. it's a game and the american people r the loosers but r too stupid to realize it. AR is immune to prossecution = above the law. "

Allan Hampton wrote on Jan 19, 2007 3:30 PM:

" Two sides in politics - People and government. No law enforces itself. The Constitution is the ruler of government (Officials). The Constitution makes no demands on private non-government People Government police and government courts enforce government legislation on the People. The maintenance of freedom obligates the People to enforce the Constitution (law of). The only constitutional "Force" available to the People to enforce the Constitution is the Ballot Box. The People elect or reelect all 435 members of the House of Congress (legislators/law makers) every two years. Government legislation infringing on the People's freedom must be repealed and only Congress can repeal federal legislation. Allan "

Warlord wrote on Jan 20, 2007 12:43 PM:

" As I stated, we have one party with two factions. The American people have no choices on te ballots and too many times we are forced to vote for the lesser of two evils. Why have the true conservatives in Congress "retired" and left the government? What do they know that they aren't telling us? If there is going to be a revolution, let it begin now. I am getting older and less effective every day. I will, however, lay down my life, if necessary, to protect the birth rights of my grandchildren. "

Wayne's Neighbor wrote on Jan 25, 2007 9:37 PM:

" I've been Wayne's neighbor out in Black Oak for 25 years. I havn't been around much the last 12 years because I'm in the military stationed abroad. Wayne Fincher is not a "nut job" he is a patriot and a very nice man. Even though I work for the federal government, I can see that this is clearly another example of a predatory government agency going after a law abiding citizen. When I took my oath of office to the Navy, I swore that I would "support and defend the constitution of the United States against all enemies, foreign AND DOMESTIC." Hearing about this poor man being locked up for exercising his 2nd amendment rights is beyond horrifying to me. For those of you that feel he should be convicted, you sure don't know the man like I do. He is a good man, and just believes in what our country was founded on. FREE THIS MAN NOW! God Bless America (until it becomes illegal to say that.) That is all. "

*Member ID:
*Password:
	Forgot Your Password?

Not already registered?