Posted on 01/26/2010 4:15:51 AM PST by marktwain
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.
(Excerpt) Read more at thenewamerican.com ...
Thanks, temperance ladies. A government agency with time on its hands and nothing to do is a terrible thing.
Whatever it was, I'm sure it was similar to what made Munch turn into a bat and fly around the room.
This case brings to front and center the ridiculous argument about “assault rifles.” The only difference between the assault rifle bought and sold on the open market today and any other semiautomatic weapon is appearance and perhaps magazine capacity. Yet gun control advocates beat this dead horse to no end.
Am I missing something in this post. Was Mr. Hamblen an officer in command of a National Guard unit in TN? If so, then his case appears to be even stronger because the militia question is totally moot. He not only is a citizen but is without question a member of a recognized militia.
He may be the perfect storm to take this case all the way.
The law in my opinion was not needed because of the second amendment. What was needed was a law that prescribed the penalty for the members of any government agency that confiscated legitimate weapons.
and there was “canon”, which PRIVATE shippers used to protect their ships against pirates
Yep, he fell back on the liberals intepretation of the 2nd as being a collective right that only applies to militia and trying to define the National Guard as Militia when it clearly is not. Plus there is no collective right but an individual right to bear arms.
Yeah. I pretty much agree with you there.
He should have simply argued that they were 'arms' and that's specifically what the 2nd protects.
I'd also mention the fact that unless we, as citizens can own superior weaponry, then Letters of Marque would make no sense from a Constitutional standpoint.
I’ve corresponded with Hamblen, and read his appellate brief. One of his arguments is that SCOTUS, in Heller, incorrectly restated the Miller decision. I doubt it’s a winning argument, but it is absolutely correct.
Nicely articulated.
Maybe marktwain is really Joe Biden and saw Roosevelt on TV.
Maybe some freepers cannot see the forest for the trees. I agree that accurate commentary is important, but is it not the point that really counts?
I think the point was that the SCOTUS was stacked by FDR against individual liberites and was bent towards collective (socialist) ideologies, no?
Marktwain has been a stalwart 2A personality on FR longer than most of us have been members.
So the fact of the easy availability and criminal use of pens by forgers, and the resultant theft of billions of dollars per year, should decide whether the law abiding can own pens? Or the criminal use of computers and the Internet by child pornographers should lead to the banning or registration of computers and Internet time/sites?
PUHLEEZE!!!! Guns, even full autos, don't cause crime any more than spoons make Rosie O'Donnell a fat, disgusting pig.
“I guess the next question would be is it reasonable that you have to pay up to 20,000 dollars to own a fully auto rifle (pay for it and then pay for the license) because the government does not allow gun companies to manufacture fully auto rifles for the civilian market. Could that restriction be struck down?”
The ‘86 ban on further registration of full autos for civilian ownership is, IMHO, completely unconstitutional. The NFA doesn’t - CAN’T - ban full autos...even the Roosevelt Administration realized that. However, it levies a tax. What the ‘86 ban does is to prevent BATFE from collecting that tax, which is the source of the Constitutional problem. I do have an objection to a right being taxed, even 0.0001%, but I could live with a $200 tax on a full auto (or a drop-in “happy switch” for an existing semi-auto) if we could buy them any time we wanted to do so. THAT will be litigated at some point - the other side simply cannot make a good argument that a particular M16 produced on Colt’s assembly line on 5/18/86 is OK to own, but that a functionally and cosmetically identical one produced on 5/20/86 is prohibited. Such an argument is absurd on its face, particularly in light of the fact that someone making that argument in an intelligent manner (i.e. with legal strategery) would NOT argue against the NFA, but would argue FOR registering more guns under a system that provided for a thorough background check (and one that has been so successful that only 1 case of a person so approved using the gun in question in a crime has been recorded in 76 years - and that guy was an off-duty cop). IOW, use their own law (and “logic”) against them. Once that is litigated, watch for a million or more full autos and/or happy switches to be sold within a year, and 5 million or more within 10 years - then “they” can NEVER take away our RKBA.
That all being said, the case in the title article will result in a loss. Making the argument that a NG unit is part of the militia is a loser, in view of “Perpich v. Department of Defense” http://supreme.justia.com/us/496/334/case.html That ruling stands for the proposition that the NG is NOT the constitutional militia since it is subject to federal (i.e. Presidential) orders.
Bad argument, and bad facts: this guy just had the guns - no attempt to register them, nor any allegation that such a denial was constitutionally improper.
I really, really wish that people would NOT do stuff like this - it hurts us all. Better to set the table the way a successful Constitutional lawyer who specializes in firearms law (like Gura), even if it takes more time because he’s getting our rights back the same way they were lost (one salami slice at a time).
I like that term, a drop in happy switch. One thing about the way the law stands now is that unless you have a lot of land to go shoot on, even if you have a legal fully auto rifle you can’t really shoot it around here. You’re not allowed to shoot fully auto on the state controlled ranges and all of the gun clubs I know of do not allow you to shoot it fully auto. If this law was struck down so that more people had fully auto rifles, I think gun clubs would allow you to shoot them that way.
He did lose in the 6th Circuit, in December. SCOTUS won't take the case.
Here is the complete rationale and argument in the 6th Circuit's opinion (link to http://www.ca6.uscourts.gov/opinions.pdf/09a0439p-06.pdf):
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.As far as I'm concerned, the US Federal judiciary's 2nd amendment jurisprudence is corrupt, and is based on lie on top of lie. Scalia completely butchered the Miller case in order to get the result he didn't need to reach in Heller (which has ZERO to do with the NFA or GCA of 1968), but wanted to reach anyway. "Miller was convicted" said Scalia. HA! Miller's indictment was quashed because the NFA was afoul of the 2nd amendment! Miller wasn't even TRIED, let alone convicted.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.
Here is most of the Miller/Heller argument that Hamblen presented. This is the argument rejected in the two paragrpahs above, by by the 6th Circuit. Note that Hamblen agrees that SCOTUS, in Heller, rejects Hamblen's reading of Miller. The 6th Circuit never addresses the substande of Hamblen's argument.
For Mr. Hamblen's purposes however the important part of the decision in Heller lies in four pages of the voluminous majority opinion. It is in that section of the opinion that the majority appears to address the issue raised in Mr. Hamblen's case pending before this Court [6th Circuit].As the Heller majority noted, the types of weapons permitted was not before the Court but they decided to address that issue nonetheless. 128 S. Ct. at 2815. Specifically, the Court referenced machine guns and arguably held that such arms would not be protected under the Second Amendment. Id. S. Ct. at 2817. This determination was based exclusively upon what Mr. Hamblen would respectfully submit is a misinterpretation of United States v. Miller.
The majority's consideration of Miller focused primarily upon two (2) issues. First, as not precluding the conclusions the majority reached about the meaning of the Second Amendment and second, to justify its limitations on the sorts of weapons protected. However, the majority's analysis of these issues blends together. On these issues, the majority interpreted Miller as follows: Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. 128 S. Ct. 2814.
As noted above, the primary distinction between the majority and minority opinions in Heller rests not upon whether the right conferred in the Second Amendment is an individual or collective right but rather whether ". . . the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia . . . ." 128 S. Ct. 2802. While the majority ultimately held that militia membership is not a requirement for the amendment to apply, its own analysis did not require such a bold statement. The majority certainly could have dispensed with the argument by announcing, consistent with its historical analysis that the ordinary definition of the militia was all able bodied men, a body already in existence and not dependent upon organization by Congress or any other governmental entity. 128 S. Ct. 2800. While Justice Scalia believes that Miller did not ". . . purport to be a thorough examination of the Second Amendment" Miller did consider this issue and clearly reached that same conclusion. United States v. Miller, 59 S. Ct. 818-820. Thus, as the majority noted, its interpretation of the Second Amendment that an individual does not need to be a member of an organized militia in order to enjoy the protection of the Second Amendment is consistent with the ruling in Miller. In that regard, the petitioner agrees with the Court's analysis of Miller but that is where the agreement ends.
The first point of disagreement clearly establishes Justice Scalia and the majority are not beyond reproach. In discussing Miller, Justice Scalia wrote: "the judgment in the case upheld against the Second Amendment challenge two men's federal convictions for transporting an unregistered short barreled shotgun in interstate commerce in violation of the National Firearms Act, 48 Stat. 1236. 128 S. Ct. 2814." (emphasis added) However, Miller was not before the Court on Petition of the Defendants and there was no conviction. Miller was before the Court on the government's appeal of the dismissal of the indictment against the individually named defendants. Miller, 59 S. Ct. 816.
The next error in Justice Scalia's opinion is in the very next sentence in which he states "it is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the Defendants were 'bear[ing] arms' not 'for . . . military purposes' but for 'non military use'". Id. (Emphasis in original). This error is compounded in the next sentence where Justice Scalia writes, "rather, it was that the type of weapon at issue was not eligible for Second Amendment protection . . . ." Id. Both of these statements suggest that the Miller court found that the Second Amendment did not apply to the Defendants when in fact it made no such finding. On that issue, the Court held that the record was incomplete and that it could not take judicial notice that the type of weapon in question was 'any part of the ordinary military equipment or that its use could contribute to the common defense.'" Miller, 59 S. Ct. at 818.
With respect to the militia requirement, Justice Scalia pointed out that had the Court in Miller believed that the Second Amendment protects only those serving in an organized militia it could have ruled that the Second Amendment did not apply because the two (2) defendants were not militiamen. Heller, 128 S. Ct. 2814. Similarly, had the Court intended to hold as Justice Scalia suggests it could have done so very clearly by saying that a short barreled shotgun is not a protected weapon. It did not. Instead, what the court in Miller stated was "in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Miller, 59 S. Ct. at 818. The Court then went on to state that it could not take judicial notice that the weapon was part of the ordinary military equipment or contributed to the common defense. The manner in which this passage is written clearly suggests that had there been evidence in the record that possession of the weapon had a reasonable relationship to the preservation or efficiency of a militia it would be protected by the Second Amendment. Thus, the majority opinion in Heller misstates the holding in Miller on this critical point.
It becomes clear that the Court in Heller rests its analysis of Miller on incorrect facts. First, that the Defendants in that case were convicted and secondly, that the Second Amendment did not protect their right to possess the type of firearm in question; a short barreled shotgun. However, the Court apparently recognized its conundrum in limiting certain types of weapons in light of Miller's phrase "part of ordinary military equipment." Therefore, the Court went on to address that issue.
The majority held that Miller's "ordinary military equipment" language had to be read with a portion of the Miller Court's examination of the nature of the militia 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." Heller, 128 S. Ct. 2815. (quoting Miller, 307 U. S. at 179). As such, this means that the protection extends only to small arms weapons typically possessed by law abiding citizens for lawful purposes. Thus, the Court established the major premise for concluding that weapons useful in military service could be banned. Specifically, with respect to machine guns, the Court concluded that because such military weapons were not of the sort possessed and "in common use at the time" they would not be protected in current times, stating " . . . the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." Heller, 128 S. Ct. 2817.
Holding that machine guns and other sophisticated military weapons are not protected under the Second Amendment because they were not of the type in common use at the time the Amendment was drafted is ironic given the court's earlier admonition that "some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th Century are protected by the Second Amendment. We do not interpret constitutional rights that way." Heller 128 S. Ct. 2791. However, that is in fact what the Court did in its ruling with regard to machine guns and other military weapons. While it recognizes that such weapons would clearly be necessary for a militia to be as effective as the militias in the 18th century it nonetheless holds that they are not protected.
In Heller, Justice Scalia was faced with the difficulty of on the one hand desperately wanting to recognize an individual right to bear arms under the Second Amendment while on the other hand desperately wanting to maintain existing federal gun laws. Mr. Hamblen respectfully submits that those positions are mutually exclusive in light of the Supreme Court's decision in United States v. Miller. It is clear that Miller recognized an individual right despite the manner in which lower courts have bastardized the decision as recognizing a collective one applying only to possession of guns while serving in the organized militia. As Justice Scalia wrote: "Had the Court believed that the Second Amendment protects only those serving in the militia it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." 128 S. Ct. 2814.
The true distinction and ultimate incongruity between Heller and Miller rests in the standard for determining what types of weapons are protected. Under Miller, only those weapons useful in warfare as "part of ordinary military equipment" or that "contribute to the common defense" are protected. Under Heller, only small arms weapons "in common use" at the time the second amendment was adopted are protected. 128 S. Ct. 2817. The majority suggestion that these views are consistent is intellectually dishonest and dependent only upon an interpretation of Miller that both ignores and misstates the relevant facts and conclusions of that decision.
The majority's limitations on the type of weapons protected is unpersuasive at many levels. First there is the point noted above that the court states at one point that such an argument would be frivolous. Second, there is the fact that it ignores the further criteria set forth in Miller for protection that the equipment's use "could contribute to the common defense." Despite this language being clearly stated in Miller, it is conspicuously absent from the majority's opinion in Heller. Applying that standard, it is hard to imagine that any weapon would not contribute to the common defense. Additionally, it ignores the historical and practical reality that the weapons held by militiamen were limited only by their available resources. As the D. C. Circuit noted in the underlying opinion early militia acts even had provisions for the upgrading of weapons as time progressed. Similarly, individuals who had the financial resources were both able and expected to supply more expensive ergo-sophisticated weapons such as cannons and the like.
The Court's further argument for declining to extend the protection to machine guns, that they are not "in common use . . . for lawful purposes" is equally unavailing. There are circumstances under which citizens can legally possess machine guns manufactured before 1986, if they have completed the rigorous and expensive licensing process that Mr. Hamblen had begun prior to his arrest. Similarly, possession of those weapons was not outlawed and thus lawful until the National Firearm Act of 1934, leading to the reasonable conclusion that if such weapons were not common at the time there would be no need to regulate them.
By far the most important misstatement regarding Miller is the conclusion that short-barreled shotguns are not covered by the Second Amendment. That is simply not what Miller says. On this issue, the Miller Court stated that "there was a '. . . absence of any evidence. . .' that a short barrel shotgun had a reasonable relationship to the preservation or efficiency of a militia." Miller 59 S. Ct. at 818. Second, the Court stated that it could not take judicial notice of whether the weapon was any part of the ordinary military equipment or its use could contribute to the common defense. Neither of these statements lead to the conclusion drawn by the majority that a sawed off shotgun is not protected. Had the court intended such a result it could have simply stated it. However, both of these statements suggest that were such evidence a part of the record the weapon would be protected. The Court then went about creating a process for such facts to be placed in the record by remanding the case ". . . for further proceedings." Id. at 820. Unfortunately, there were no further proceedings because the Defendants, who did not participate in the Supreme Court case never participated in any further proceedings.
...
Neither the district court nor any of the other courts that have addressed this issue post Heller offer any independent analysis. Instead, they rely solely upon the error filled interpretation of Miller advanced by the Supreme Court in its decision in Heller. While this approach in understandable, it does nothing to address the fundamental problems in the Heller Court's reasoning. The errors in the Heller decision are of the type which supports reconsideration of the ultimate findings. That is what Mr. Hamblen respectfully asks this court to do.
There can be no dispute that the Supreme Court simply misstated the procedural posture of Miller. It is likewise beyond dispute that the Supreme Court misstated the ultimate finding in Miller with respect to the legitimacy of the possession of a short barreled shotgun. Each of these errors necessarily raise significant concerns regarding the legitimacy of the scope of the protection of the Second Amendment vis a vis weapons which are clearly "part of ordinary military equipment," when possessed by members of a legitimate, statutorily created militia.
The weapons possessed by Mr. Hamblen for which he was charged are clearly a part of the ordinary military equipment and could contribute to the common defense as the proof at trial unequivocally established. To the extent that he has an individual right to keep and bear those weapons he should be granted the relief which he has requested.
I’d buy an abrasive waterjet cutting machine and start turning out Lightning Links for AR’s. That and a line of designer shoe laces for M1 type semi-autos.
“I’m glad to hear that your unit was fully armed as it should be. How long ago was that?”
1990. I was the oldest corporal in the brigade(LOL), and the only corporal with the “alive in ‘75” National Defense ribbon.
Yeah, even a frigging transportation outfit has rifles for the troops.
Sounds like a totally messed up unit, a typo by the reporter or the guy’s lyin’ through his teeth.
The guy is in trouble for the “UNAUTHORIZED” conversion & possesion of automatic weapons alledgedly for use by the national guard. The unauthorized part is his downfall ie improper documentation with regards to taxes being paid & no documentation with regards to chain of custody .
Nothing in the service with regards to weapons custody/maintenance/modification happens without lots of paperwork.
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