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Tennessee Guardsman challenges Supreme Court's opinion on Heller

Discussion in 'The Okie Corral' started by Smashy, Jan 26, 2010.

  1. Smashy

    Smashy

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    Written by Joe Wolverton, II

    Richard A. Hamblen has lost his family and his fortune because he believes in the Second Amendment. In April of 2004, Mr. Hamblen, a former commander in the Tennessee National Guard, was arrested by agents of the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, and Firearms (BATF). Hamblen, who told the author that he’s never had so much as a traffic violation, was taken from his place of business and charged with the unlawful possession of nine unregistered machine guns.

    Hamblen was found guilty by a trial court and sentenced to 13 months in federal prison. He served his time at the Federal Correctional Institution in Beckley, West Virginia. Upon his release, Hamblen and his attorney, Jeffrey Fensley, appealed his conviction to the Sixth Circuit Court of Appeals in Cincinnati, Ohio. On December 30, 2009, that court affirmed the lower court’s ruling and held that, “Whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use.”

    Hamblen disagrees with the Sixth Circuit’s interpretation of the Second Amendment’s guarantee of the right to keep and bear arms. “There are no qualifiers on the Second Amendment,” Hamblen told the author. “There are qualifiers on the Fourth Amendment, so if the Founders had intended to restrict the right to keep and bear arms they knew how to do it,” he continued.

    At trial and at the circuit court appeal, Mr. Hamblen averred that he and the soldiers under his command qualified as a militia and thus were authorized to own military grade automatic weapons. According to figures given to the author, Hamblen claims that there are only 21 such weapons in the arsenal meant to equip over 3,000 National Guard troops. Worried that such a woeful stock would hamstring the efforts of his unit were they deployed to Iraq or Afghanistan, Hamblen ordered kits that would convert the semi-automatic weapons into fully automatic ones. According to the government, this was a violation of federal law.

    During an interview with the author, Mr. Hamblen demonstrated a cogent and convincing knowledge of the intricacies and inconsistencies of federal firearms laws and Supreme Court decisions interpreting these laws. It is upon two of these high court decisions that Hamblen’s arguments rest.

    First is the case of United States v. Miller in 1939. In this case interpreting the National Firearms Act of 1934, the Supreme Court held that there is a right to keep and bear arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia.”

    As for the crucial definition of “militia,” the Court additionally held that “the signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

    Hamblen and his attorney believe that the Miller case applies to his case in that the weapon he was convicted of illegally possessing was a “militarily useful weapon” and one being used by a member of a “well regulated militia,” in this case, the Tennessee National Guard.

    The second prong of Hamblen’s defense is found in a more recent and controversial case in the genealogy of gun control decisions. In the case of District of Columbia v. Heller, Justice Scalia — writing for the majority — held that "like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Furthermore, the Court explained that the Heller decision “should not 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."

    Believing that Justice Scalia misinterpreted the Second Amendment and earlier Supreme Court rulings, Rich Hamblen has appealed the ruling of the Sixth Circuit court of Appeals to the Supreme Court. Despite his defense of the Constitution and its protection of the right to keep and bear arms, Hamblen reports that he has received no support from conservative or gun rights groups such as the National Rifle Association. “My lawyer contacted the NRA and they refused to help,” lamented Hamblen. He expressed belief that the NRA would be “put out of business” if the Court ever correctly interpreted the Second Amendment and ruled that the right to bear arms was purposefully left unqualified by the Founding Fathers.

    “If you have to ask permission to exercise a right, then it isn’t a right,” Hamblen said. He has filed his appeal to the Supreme Court in order to re-establish the intent of the Founders to hold such a right inviolable and not to attach the restrictions of “reasonableness” to the exercise thereof.

    Hamblen holds little hope that the Supreme Court will approve his writ of certiorari and hear his appeal. Regardless, he intends to exhaust every legal remedy in what he sees as the defense of the Constitution. “If no one ever challenges the unconstitutionality of federal laws, then nothing will ever happen,” Hamblen explained.

    Hamblen, the owner of a small business in Nashville, Tennessee, has spent over $50,000 in legal fees and was dishonorably discharged from the Tennessee National Guard. He fervently stands behind his decision to assert his Second Amendment rights to the highest authority in the land. “Does the Constitution have any meaning if those charged with interpreting and applying it are conspiring to suppress the rights guaranteed by it?” Hamblen asks. He boldly and fearlessly answers in the negative. Rich Hamblen has given all in his defense of this right and whether or not the Supreme Court agrees to hear his case, he will have done all in his power to raise his voice and stand steadfastly in support of the sacred and ostensibly inviolable rights protected by our Constitution.


    http://www.thenewamerican.com/index...-supreme-court-to-uphold-the-second-amendment
     
  2. nursetim

    nursetim

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    THis is one felon that should be allowed to own firearms. I think he needs our support. I have heard more than a few on this board assert the same idea of "if you need permission to exercise a right, then it isn't a right." He has the sand to be a test case and fight the fight that we should all be fighting. He paid dearly for his freedom and he still fights for ours. I think the least we can do is help however we can.
     

  3. Ersatz

    Ersatz

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    Passion is no substitute for sense.
     
  4. paperairplane

    paperairplane

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    He is right - the NRA has no interest in our being granted full 2A rights. They are very much in the business of negotiating the terms of the surrender, not winning the war.
     
  5. Jon91N/A

    Jon91N/A

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    You could start by not calling him a felon, a term that is typically applied to truly bad criminals. This man was nothing more than a political prisoner.
     
  6. Jon91N/A

    Jon91N/A

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    Nice to know how much you care about your rights...
     
  7. Ersatz

    Ersatz

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    Unfounded rhetoric is no substitute for an honest observation.
     
  8. The Machinist

    The Machinist Please! Please! No more!

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    It would be nice to see the National Firearms Act of 1934 rightfully overturned. One can dream...
     
  9. WarCry

    WarCry

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    I have an honest, no-snark question based on the defense he's put forward....

    How many of the nine converted full-auto weapons has he taken to let his Guard unit use, even for training?

    I thing there are better "angles of attack" that could have been used, but the one quoted above.....I don't think that's going to fly....
     
  10. Ersatz

    Ersatz

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    It's a poor avenue, I agree. If he really wanted to procure automatic weapons for his unit, he could use the proper channels. If he was intent on using himself as a test case, he would have been wise to procure one NFA device so as to ensure a limit on his incarceration.

    The arguments he's raised in the article are poor, I suppose it's possible his petition for cert was more thought out. That aside, his actions prior to arrest evidence poor judgement.
     
  11. JuneyBooney

    JuneyBooney

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    I agree with him and true argument can also be made that even felons can own weapons to defend themselves. But they don't really want to interpret the constitution in the appropriate manner. The NRA has its own agenda and they like our money.:wow: While I agree with him I think he really should have not pushed the issue and should have not converted the weapons without permission. The system is pretty hard to defeat. They will lie, cheat and steal.
     
  12. plainsman

    plainsman

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    That is offensive.
    Here NRA members join voluntarily, pay dues, and do the best that they basically can, and here you bad mouth the organization.
    The real problem is the supposedly 80 million gun owners who are doing next to nothing. Some even don't know who their Pro Gun candidates are.

    In every State, probably more people attend college football games then belong to all the pro -gun groups in their state. As long as we get that pathetic level of support- losses will continue.

    Consider the fact of "our Compromisers" at S&W. Management found out and had to pay for their own employees NRA memberships, because they were to lazy to support the Second Amendment, even while living on the sales of firearms.

    We have a problem, but it isn't caused by gunowners who are doing their part.
     
  13. nursetim

    nursetim

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    Jon91N/A, A fact is a fact, he is a felon. I kind of thought that is what we stood for here, anti-pc. Anyway, there is more to the story and I am waiting on permission to post the "rest of the story". Stay tuned.
     
  14. rock_jock

    rock_jock

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    I'm so tired of hearing this conspiracy crap. The NRA is made up of a nat'l board of directors that include many fine citizens, including several war heroes and folks that have spent considerably more money and time fighting for our 2A rights than any arm-chair commando on this forum. You think those dozens of people get together and decide, "hey, I know we all support the 2A and have poured our lives into this cause, but let's go ahead and secretly subvert these efforts just so we can get paid the grand sum of zero dollars."

    What a bunch of garbage. :upeyes:
     
  15. Airborne Infantryman

    Airborne Infantryman Nuclear Trunk Monkey

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    You know, I honestly cannot say exactly "where" I stand on this, but I can tell you a saying that rings true, even when some don't believe it to be true........"I fought the law, and the law won"........

    FWIW, I think the people spouting the Anti-NRA crap sound like illogical extremists....think cabin the in woods holed up with a Carl Gustav.......:whistling:
     
    Last edited: Jan 27, 2010
  16. goldenlight

    goldenlight

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    I would think that he should have been expecting trouble the minute he 'ordered parts to make semiautomatic weapons fully automatic'.

    As much as I would like to shoot a Glock 18 (probably only once) even I'm smart enough not to 'order the parts' to convert a Glock to full auto/select fire.

    That's just asking for a visit from the ATF, and the FBI, and various other people I don't want pissed off at me. :faint:
     
  17. nursetim

    nursetim

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    Here is a post from a member from another board.

    The whole thing didn't sound right so I pulled up the Court's decision on the case.

    http://www.ca6.uscourts.gov/op....pdf/09a0439p-06.pdf posted in entirety below.

    The following is according to the court decision. The guy wasn't in the National Guard, he was a member of the TN State Guard, which is an auxiliary organized by the state of TN. The State Guard may be activated to support the NG. If they are activated the TN governor is authorized to equip the State Guard with weapons. The State Guard was directed NOT to carry weapons as part of their duties. He was NOT ordered or authorized to procure or manufacture the automatic weapons. He did NOT advise his command that he intended to procure or assemble them. He did obtain an FFL AFTER he manufactured the weapon, but not for NFA weapons. He did NOT register the machineguns.

    He was convicted. He appealed the decision and the judgement of the lower court was affirmed. He motioned to vacate his sentence and the court denied his motion. The defendant received all the due process to which he is entitled. In my opinion he made a conscious effort to engage in illegal activity and as a convicted felon should not be allowed to possess firearms.

    RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 09a0439p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    RICHARD HAMBLEN,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    X----
    >,---
    N
    No. 09-5025
    Appeal from the United States District Court
    for the Middle District of Tennessee at Nashville.
    Nos. 05-00226-001; 08-01034—Todd J. Campbell, Chief District Judge.
    Argued: December 4, 2009
    Decided and Filed: December 30, 2009
    Before: SILER, GILMAN, and ROGERS, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Jeffery S. Frensley, RAY & FRENSLEY, Nashville, Tennessee, for Appellant.
    Blanche Bong Cook, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
    for Appellee. ON BRIEF: Jeffery S. Frensley, RAY & FRENSLEY, Nashville, Tennessee,
    for Appellant. Matthew J. Everitt, ASSISTANT UNITED STATES ATTORNEY,
    Nashville, Tennessee, for Appellee.
    _________________
    OPINION
    _________________
    SILER, Circuit Judge. Petitioner Richard Hamblen appeals the district court’s denial
    of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of
    machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms,
    in violation of 26 U.S.C. § 5861(d), are unconstitutional. Because the Second Amendment
    does not confer an unrestricted individual right to keep and bear machine guns, we affirm
    the district court’s judgment and deny Hamblen’s petition for relief.
    1
    No. 09-5025 Hamblen v. United States Page 2
    1This background statement is substantially taken from our unpublished opinion in United States
    v. Hamblen, 239 F. App’x 130 (6th Cir. 2007).
    BACKGROUND
    Hamblen enlisted in the Tennessee State Guard in 1999.1 The all-volunteer State
    Guard is one of four organizations within the Tennessee Department of the Military and
    is authorized by Tennessee statute. The State Guard’s mission is to augment the
    Tennessee National Guard, and it typically performs ceremonial duties.
    The State Guard is authorized to become an armed force if it is activated by the
    governor of Tennessee. Although it has been called into service, the State Guard has not
    recently been activated. If activated, the governor of Tennessee is authorized to obtain
    weapons needed to equip the State Guard. Tenn. Code Ann. § 58-1-405.
    As volunteers in an honored, traditional form of service in Tennessee, all State
    Guard members are responsible for purchasing their own uniforms and other equipment,
    but they are not issued weapons. The State Guard is, however, provided with twenty-one
    M16 rifles and ammunition for use during a three-day annual training session conducted
    by a State Guard commander. State Guard policy prohibits members from either keeping
    State Guard weapons in their possession or carrying their own individual weapons in the
    course of their duty.
    Hamblen believed that the State Guard might be activated and used as an armed
    force after September 11, 2001. Because the State Guard had only a few weapons and
    over a thousand members, Hamblen concluded that the State Guard did not have the
    resources to perform its duties as an armed force and began looking for a means to better
    equip the State Guard. He was aware that State Guard members were specifically
    instructed after September 11, 2001 not to carry weapons in connection with their duties.
    Nevertheless, he purchased parts kits with his own funds and used his metalworking
    expertise to build nine machine guns. On at least one occasion, Hamblen had members
    of his unit train with his 1919 A4 machine gun. At the time, he knew that this training
    exercise violated State Guard policy.
    No. 09-5025 Hamblen v. United States Page 3
    Hamblen never discussed his machine gun possession with his superiors at the
    State Guard, and no law enforcement officials or State Guard superiors knew of
    Hamblen’s machine guns. Hamblen admitted that no one at the State Guard ever ordered
    or even authorized him to obtain any weapons for the State Guard. He also admitted that
    he knew that his possession of the machine guns violated the statutes under which he
    was convicted. He believed, however, that he was authorized to possess the machine
    guns because the U.S. Constitution provides an exception to gun control laws and gives
    people the right to possess militarily useful weapons for an armed force like the State
    Guard.
    In 2004, Hamblen took steps to make his possession of the machine guns legal
    by obtaining a federal firearms license, which permitted him to sell pistols, revolvers,
    shotguns and rifles. However, he had not paid a special occupation tax that would have
    enabled him to deal in National Firearms Act weapons, such as machine guns.
    Moreover, none of the nine machine guns was ever registered to Hamblen in the
    National Firearms Registration and Transfer Record.
    The Bureau of Alcohol, Tobacco, Firearms and Explosives began an
    investigation of Hamblen in 2004 after receiving information that he illegally possessed
    machine guns. When federal agents asked Hamblen whether he possessed automatic
    weapons, he admitted that he possessed some and directed the agents to a safe at the
    back of his building that contained the machine guns.
    In 2005, Hamblen was charged in a two-count indictment for unlawfully
    possessing machine guns, in violation of 18 U.S.C. § 922(o), and possessing unregistered
    firearms, in violation of 26 U.S.C. § 5861(d). After trial, he was convicted on both
    counts of the indictment. The district court denied Hamblen’s motion for judgment of
    acquittal, which was based on the allegedly unconstitutional infringement of Hamblen’s
    Second Amendment rights that he claimed would result from his conviction under
    18 U.S.C. § 922(o). In 2006, Hamblen was sentenced to a term of imprisonment of
    fifteen months for each count, to run concurrently, followed by a two-year period of
    supervised release.
    No. 09-5025 Hamblen v. United States Page 4
    Hamblen appealed his convictions and two concurrent sentences. United States
    v. Hamblen, 239 F. App’x 130 (6th Cir.), cert. denied, 522 U.S. 922 (2007). Holding
    that the statutory prohibition against possessing machine guns did not violate the Second
    Amendment right to bear arms as applied to Hamblen, that the statutory prohibition
    against possessing machine guns was not unconstitutionally vague as applied, and that
    the statutory prohibition against possessing unregistered firearms was not
    unconstitutional as applied, this court affirmed the judgment of the district court. Id. at
    134-37. In 2008, Hamblen filed a 28 U.S.C. § 2255 motion to vacate his sentence. The
    district court denied the motion and issued a certificate of appealability on Hamblen’s
    Second Amendment claim.
    STANDARD OF REVIEW
    In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo
    standard of review to the legal issues and uphold the factual findings of the district court
    unless they are clearly erroneous. Benitez v. United States, 521 F.3d 625, 630 (6th Cir.
    2008). To warrant relief under 28 U.S.C. § 2255, a petitioner must demonstrate the
    existence of “an error of constitutional magnitude which had a substantial and injurious
    effect or influence on the guilty plea or the jury’s verdict.” Griffin v. United States, 330
    F.3d 733, 736 (6th Cir. 2003).
    DISCUSSION
    The Second Amendment provides: “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.” In interpreting the scope of the Second Amendment, we are guided by
    District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We note, as a preliminary
    matter, that Hamblen’s possession of nine unregistered machine guns was not only
    outside the scope of his duties as a member of the State Guard, but also directly violated
    State Guard policy. Therefore, this case does not present a novel issue of law regarding
    the Second Amendment’s prefatory clause.
    No. 09-5025 Hamblen v. United States Page 5
    Hamblen’s challenge to his conviction for unlawful possession of unregistered
    machine guns has been directly foreclosed by the Supreme Court, which specifically
    instructed in Heller that “the Second Amendment does not protect those weapons not
    typically possessed by law-abiding citizens for lawful purposes.” Id. at 2815-16.
    Moreover, the Heller Court expressly rejected Hamblen’s reading of United States v.
    Miller, 307 U.S. 174 (1939), when it opined that it would be a “startling” interpretation
    of precedent to suggest that restrictions on machine guns, set forth in the National
    Firearms Act, might be unconstitutional. See Heller, 128 S. Ct. at 2815. Thus,
    whatever the individual right to keep and bear arms might entail, it does not authorize
    an unlicensed individual to possess unregistered machine guns for personal use.
    AFFIRMED.

    Kind of sheds new light on the subject. After reading the original article I was whipped into a frenzy. After this post I got a clearer picture.

    I think the author is really above average to be able to spin the facts in a way to evoke such an emotional response on my part.

    THat said, I still think there are some very valid points in the article.

    Again the above big piece is not my work. Just the opinion immediately above is mine.
     
  18. JohnBT

    JohnBT NRA Benefactor

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    "Here NRA members join voluntarily, pay dues, and do the best that they basically can, and here you bad mouth the organization."

    That's the truth. I love the sweeping anti-NRA generalizations that some people throw about like they have some factual basis. Sad, isn't it.

    The " Tennessee Guardsman " didn't do a very good job of planning his purchase and legal campaign and now it's the NRA's fault he went to jail for violating the law. Like heck it is.

    John
     
  19. tc556guy

    tc556guy

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    Show me a "National Guard unit" with only semi auto weapons and I'll show you a bunch of posers.

    edit:
    I see he was in the State Guard, a unit that doesn't deploy and isn't armed for that reason, being totally controlled by the Governor for stateside support missions. He was wrong and gun owners would be wrong to support this train wreck.
     
    Last edited: Jan 27, 2010
  20. MstrPara

    MstrPara Go Loud.....

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    NurseTim summed it up.........good research.

    Regardless of one's opinion, this guy is wrong, wrong, wrong.

    State Militia does not equal National Guard.