Militia Leader Put Government On Notice Years Ago

Fincher arrested in November on charges of illegal weapons charges

The Morning News, Arkansas/January 6, 2007
By Ron Wood

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.