One man's lonely fight to bear arms

8/10/2003

Francis Warin had a nagging habit.

Nearly 30 years ago, he toted a submachine gun into Toledo's federal courthouse and made a simple demand: Arrest me.

He got his wish.

Two months ago, the Ottawa County man mailed a homemade gun and silencer to an assistant U.S. attorney. To ensure there was no confusion, he sent the package by certified mail, complete with his return address.

Warin again got his wish: He was arrested once more.

Now the 72-year-old gun-rights advocate is fighting to get out of the Lucas County Jail - staging a hunger strike to try to force authorities' hands.

The French immigrant insists his actions make sense. They're part of his on-again, off-again quest to challenge what he perceives as restrictions on the right to bear arms as covered by the Second Amendment to the U.S. Constitution.

His accent still thick after 42 years in America, the balding professional weapons designer believes the courts have stripped the Second Amendment of its meaning, and he's willing to be the legal guinea pig to fix it.

“Civil cases don't go anyplace,” Warrin told The Blade in an interview in jail. “So what are you left with?”

Never mind that Warin's tried before and failed. Never mind that nearly all courts, for six decades, have limited the power of the Second Amendment. Never mind that even some pro-gun advocates question Warin's tactics. Never mind he could now spend more than two years in a federal lockup.

Friends insist Warin isn't mentally ill or dangerous. They say he's just passionate - and persistent.

Back in the 1970s, he had to practically beg to be indicted.

And the latest indictment took four years of taunting: threatening to bring a bomb to the FBI, boasting of illegal silencers he had made, and even taking out a newspaper ad to question why he hadn't been indicted.

Getting out of jail, however, could be even harder.

Promising to follow the law if released before trial, Warin even enlisted the help of a family friend - the wife of Lucas County Domestic Relations Judge Norman Zemmelman - to vouch for his character in court.

“I'm as scared of weapons as anyone,” said Connie Zemmelman, a local attorney. “But there is absolutely no question in my mind that he would never hurt anyone.”

Prosecutors successfully argued before a local magistrate that Warin - the man who for years struggled to get arrested - is now too dangerous to let free.

“You just don't know what a person like this is capable of doing,” said Tom Weldon, an assistant U.S. attorney Toledo. “If he's this desperate to gain attention, what's next?”

At a London, Ont., gun show in 1970, a gun collector offered to sell two men a rare German machine gun. They agreed on a price, and decided to meet in Detroit to make the sale.

But as the two men crossed the U.S. border, federal Alcohol, Tobacco and Firearms agents surrounded their car and arrested them. The “collector” turned out to be an undercover agent.

Warin was in that car as well. It was his two friends who were detained. He said he escaped arrest only because he happened to be out in the parking lot of the gun show when the undercover agent approached his friends.

While his friends weren't prosecuted, Warin said he became enraged at what he considered the trampling of his friends' Second Amendment rights.

So Warin began his quest.

By day, he worked designing weapons at the Port Clinton defense contractor ARES. By night, he researched case law and the debate surrounding the meaning of the amendment's 27 words: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

To gun-control advocates, the amendment guarantees citizens the right to guns only if they're part of an organized state militia, like a National Guard.

But to gun-rights advocates, the amendment means anyone has the right to a gun - whether they're in a militia or not.

It's a debate that has more at stake than intellectual fodder.

Because the gun-control “militia” interpretation has prevailed in the courts for more than half a century, it has been easier for lawmakers to expand the main battlefront over gun-control - with laws that range from weapons bans to firearm registration.

But a growing number of scholars and federal courts are adopting the pro-gun interpretation of the second amendment. If adopted universally, it could reshape the battlefront - with the courts likely overturning many gun-control laws, both sides have said.

That intellectual movement has happened, however, in spite of Warin.

In 1972, the mechanical engineer filed a class-action lawsuit in U.S. District Court in Toledo asking the federal court to revisit the interpretation of the Second Amendment. The court refused.

In 1974, the father of two young boys decided to engage in “civil disobedience” to call attention to his cause. He built his own “cheap” submachine gun and refused to pay the $200 registration tax.

After no one would arrest him, an inpatient Warin hauled the homemade machine gun to the ATF's courthouse office. He expected ATF agents to handcuff him immediately.

“They said, `OK. Go home. We'll call you,'” Warin recalled.

Finally, two months later, he complained about his plight in a story in The Blade, and Warin was soon indicted. He was fingerprinted, photographed, and sent home to await trial.

His case would be a legal backfire.

Aided by his then-attorney, Norman Zemmelman, Warin tried to prove his Second Amendment rights overshadowed the tax law. But he lost at both the district and appellate court.

Prosecutors and gun-control advocates across the county, like Dennis Henigan, cite that appellate opinion as some of the strongest judicial language ever written to limit the reach of the Second Amendment.

“Mr. Warin succeeded in making [case] law that is directly contrary to his point of view,” said Mr. Henigan, legal director of the Brady Center to Prevent Gun Violence in Washington.

After the Supreme Court refused to hear Warin's appeal, he ended up with a felony conviction on his record. But U.S. District Court Judge Don Young took pity on him.

“Imprisonment for Mr. Warin, however good it might make him feel, would be ruinous to his family,” Judge Young said at the time.

The judge even waived the normal probation restriction on possessing weapons so Warin could keep his job. Warin considered it victory enough, but decades later he would decide to test the issue again in a way that would consume his golden years.

A Lucas County corrections officer slowly wheels Warin into a visitors' room at the county jail. Partially slumped over in his wheelchair, Warin offers a weak smile and later admits he feels a “little bit woozy.”

He's been refusing food for nearly all of his time in jail. He's down to about 113 pounds, from 160 pounds in May before he went to jail. Exhibiting the clinical detachment of a man of science, he's nonchalant about the prospect of being convicted and dying behind bars: “People die every day.”

Warin almost died once before, he offers, when gangrene sent him into a coma at age 11. Besides nearly crippling him, the disease sent him on the path to America.

The only son of a French business executive and homemaker, Warin spent most of his childhood in the French colony of Morocco, dreaming of designing weapons. But in France, only military officers were allowed to design weapons, and Warin couldn't be in the military because of his disabled legs.

He became a welder in France and emigrated to America in 1961. By 1970, he landed a job at the upstart company ARES, nestled in the back of the Erie Industrial Park just west of Port Clinton.

Former co-worker Herb Roder, now president of ARES, recalled Warin as a “very talented” gun designer. And the 1974 court case made it clear to co-workers that Warin had strong convictions. His career didn't suffer from it.

By 1999, he had retired and was living on about $1,000 a month in Social Security payments. He tried to buy a gun - a time when background checks had been phased into law. He said he dutifully disclosed he was a felon, but thought Judge Young's waiver would let him buy a gun. It didn't, and the quest resumed.

When federal authorities wouldn't give him an audience to discuss the matter, he told a Sandusky FBI agent that he could “bring a bomb to your place.” Warin insisted the bomb would be inoperable, but agents still raided Warin's tri-story home in Oak Harbor that he shares with a wife and a grown, disabled son. Agents confiscated 22 weapons, but didn't arrest Warin.

In neat, handwritten motions he signed with only his last name, Warin fought the seizure in civil court as a violation of his Second Amendment rights. But the judges sided with prosecutors, who said Judge Young's special waiver three decades ago applied only during Warin's three-year probation period. Afterward, he was a regular felon with no right to guns.

Deciding again to get arrested, Warin learned of a Kansas man convicted a decade ago for making a homemade silencer. So he made the same kind of silencers and dropped them off to Oak Harbor police officers in 2001.

Nothing happened.

Six months later, a frustrated Warin ran a legal notice in a Port Clinton newspaper describing what he had done. He complained that “indictment should have been the consequence.”

Nothing happened.

Warin grew impatient again.

“To tell you the truth, I was at the end of my rope,” he recalled. “I was pushing the envelope, and still it was like fighting a pillow. I finally decided to go through the envelope.”

The package arrived in the U.S. Attorney's office in Toledo about 12:30 p.m. on a Monday. An employee signed for it, but immediately became suspicious of what could be inside.

A security officer X-rayed it, and it was eventually opened. Inside was a small, homemade gun capable of firing 22-caliber bullets. Attached was a cardboard silencer. A one-page letter was enclosed asking for “prosecution and return of property.” It was signed “sincerely, Warin.”

Prosecutors would follow at least one of his wishes.

Two days later, on May 21, agents arrested Warin on weapons charges and confiscated more than 46,000 rounds of ammunition, six hand grenades, six firearms, four handguns, and diagrams of firearms and silencers, according to court records.

And prosecutors went one step further than their predecessors three decades ago: They put him in jail and fought to keep him there.

“He's increasingly desperate to gain attention, and his behavior is desperate over the years,” Mr. Weldon said. “In these times, with the heightened security alerts, why should we assume he's not a danger? We have to assume he is.”

Friends disagree.

“Francis is a good person. He's a compassionate person,” Mr. Roder said. “He is not a crackpot. He has very strong convictions - whether you agree with him or not.”

Warin's family declined to be interviewed for this story. Warin said his wife, who works in an Oak Harbor nursing home, hasn't been surprised by his actions: “She has been with me for 42 years.”

He dreams of a full-fledged hearing on his case before the U.S. Supreme Court. The pro-gun interpretation has been adopted by a growing number of scholars and even Attorney General John Aschroft - making it more likely the high court could eventually step in.

But Warin's prosecution likely won't be that test case.

Ms. Zemmelman gives it a “zero” chance. So does noted gun-rights advocate Stephen Halbrook, a Virginia attorney who has fought in many high-profile gun cases.

He scoffs at Warin's tactics.

“I don't know of any responsible Second Amendment advocates who would suggest that anybody get arrested,” he said.

Before being wheeled back to his cell, Warin said he has no regrets. His explanation comes with a simple shrug.

“I had to do what I had to do,” he said.