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Tennessee Guardsman Challenges Supreme Court on 2nd Amendment
thenewamerican.com ^ | 26 January, 2010 | Joe Wolverton, II

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 ...


TOPICS: Constitution/Conservatism; Extended News; News/Current Events; US: Tennessee
KEYWORDS: banglist; constitution; donttreadonme; hamblen; richardahamblen; richardhamblen; secondamendment; shallnotbeinfringed; tn
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Mr. Hamblen would have been right in his argument right up to the Rooseveldt packed court in 1932. Unfortunately, I beleive he does not have the legal team to make the necessary robust challenge, and the court is not quite "ripe" yet.
1 posted on 01/26/2010 4:15:53 AM PST by marktwain
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To: marktwain

From the article:

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.

So, his position is there are no qualifiers on the Second Amendment and then attempts to defend his actions with the use of a qualifier? Sounds shaky to me. But, I’ll defer to the fine legal minds here on FR.

Personally, I hope he wins and wins BIG.

It’s still time to take back the country.


2 posted on 01/26/2010 4:21:50 AM PST by PubliusMM (RKBA; a matter of fact, not opinion. 01-20-2013: Change we can look forward to.)
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To: marktwain

“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.”
?
What kind of NG unit is he talking about? I spent a year in an NG unit and we all had M16s as well as our crew served weapons(4.2” mortars) and .50 caliber M2 machine guns for our tracks.


3 posted on 01/26/2010 4:24:58 AM PST by Scotsman will be Free (11C - Indirect fire, infantry - High angle hell - We will bring you, FIRE)
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To: PubliusMM
I agree... Saturday I stood at the American Shooting Range in Katy, Texas....The range was packed, maybe several hundred well disciplined shooters.

The thought occured to me that any one of these people could turn and begin shooting people at random...but that doesn't happen. Why? Because everyone is armed....and responsible firearms owners do not abuse the RKBA of any type....flintlock, cap&ball, single shot, semi auto or fully auto.

4 posted on 01/26/2010 4:35:52 AM PST by cbkaty (I may not always post...but I am always here......)
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To: PubliusMM
"So, his position is there are no qualifiers on the Second Amendment and then attempts to defend his actions with the use of a qualifier?"

If I may interpret for him, I believe what Mr. Hamblen is saying is that there is a qualifier on the 4th amendment: (that people are secure in their homes from unreasonable searches and seizures except when the government gets a warrant). If they wanted a qualifier on the 2nd amendment, the founders would have put one, but they did not so the right to keep and bear arms is unlimited. It's not to keep and bear arms unless they are machine guns.

They can't use the argument that there were no machine guns during the founders days, because in fact there were. Joseph Belton had invented a rifle that could fire up to 20 rounds in 5 minutes. The Continental Congress was going to buy some of these guns, but the price proved too high. The founders were familiar with the infancy of the machine gun.
5 posted on 01/26/2010 5:03:36 AM PST by Old Teufel Hunden
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To: PubliusMM

whoops, mispoke. The Belton gun was able to fire up to 20 rounds in five seconds, not five minutes...


6 posted on 01/26/2010 5:07:47 AM PST by Old Teufel Hunden
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To: Scotsman will be Free

I’m glad to hear that your unit was fully armed as it should be. How long ago was that?

I’m asking because it occurred to me that we NOW have a government that sympathizes with terrorists and sees our armed citizenry and especially our returned military as possible/likely terrorists. The head of DHS certainly thinks so.

Many of us expect (hopefully) that our military will not fire on American citizens or help in the confiscation of our weapons etc. under a possible/likely choreographed “crisis” (never let one go to waste and if you need one, make one) resulting in martial law.

What if they find a way to disarm not just us civilian citizens but also all the military who are loyal to our country and not Caesar.


7 posted on 01/26/2010 5:11:00 AM PST by Sal
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To: marktwain
"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."

I was sympathetic until I read this.

8 posted on 01/26/2010 5:12:59 AM PST by verity (Obama Lies)
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To: Scotsman will be Free

Yeah, that’s the question I had. In my guard unit we had two SAWs per squad, three squads per platoon and then the crew served weapons squad with two M-60s.

This was in every rifle platoon, with the HQ platoon which had the 60mm mortars, the had M60s attached as well. We also a hybrid scout/AT platoon with SAWs organic to them as well.

This guy is arguing that his brigade only had 21 automatic weapons? What the hell was he in, the 4th Spoon Platoon? There should have been at least one .50 or M60 or M240 on each vehicle in his units.

I don’t get his rational about him needing the weapons because his Guard unit did not have enough automatic weapons....


9 posted on 01/26/2010 5:35:57 AM PST by Molon Labbie
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To: verity

Anything that strengthens individual rights over the collectivist government is good. The government MUST fear the people.


10 posted on 01/26/2010 5:43:10 AM PST by Flavious_Maximus
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To: marktwain
“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.”

I must have missed that particular line in the constitution. Is that a penumbric emanation, too?

11 posted on 01/26/2010 5:49:22 AM PST by EricT. (Can we start hanging them yet?)
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To: Old Teufel Hunden

Not to mention cannon. At the outset of the Revolution, many cannon were privately owned. Privateers had private canon throughout the Revolution and the War of 1212. While one can still own a Revolutionary war type canon, the second amendment does not say the guns had to be of a 200 year old type.


12 posted on 01/26/2010 5:51:37 AM PST by Lion Den Dan
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To: marktwain

This reminds me of one of my favorite Walter E. Williams quotes. “You have no obligation to obey unconstitutional laws. Just be prepared for the consequences of you get caught.”


13 posted on 01/26/2010 5:52:05 AM PST by Hardastarboard (Note to self: Never post in a thread about religion again.)
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To: Flavious_Maximus
Anything that strengthens individual rights over the collectivist government is good. The government MUST fear the people.

You, Sir, are 100% CORRECT! I have been saying this for years and have posted it here on FR too.

The problem is that a vast majority of our population have been so indoctrinated by the Government schools and media to think the opposite, and now people like you and me, who fully support the teachings of our founding fathers, are now looked upon as terrorists and anti-Americans.

It makes me sad to see the collectivist mindset of the majority of the citizens.

14 posted on 01/26/2010 5:56:47 AM PST by OldMissileer (Atlas, Titan, Minuteman, PK. Winners of the Cold War)
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To: Lion Den Dan

Good addendum. If the founders wanted to limit the 2nd amendment, they would have said the right of the people to keep and bear arms shall not be infringed unless they are cannons shooting projectiles larger then the 6 pound variety. It sounds funny to us, but that is exactly what our founders did with the 4th amendment. They limited it.


15 posted on 01/26/2010 5:59:49 AM PST by Old Teufel Hunden
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To: marktwain
Mr. Hamblen would have been right in his argument right up to the Rooseveldt packed court in 1932

??? Herbert Hoover was President in 1932. Franklin Delano Roosevelt took office in March, 1933. He didn't appoint a Justice until 1937. He didn't make his fifth appointment until 1940.

16 posted on 01/26/2010 6:10:15 AM PST by Pilsner
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To: EricT.
Commerce clause catch-all. Remember, the NFA is a TAX provision. Using it to prohibit possession of an item is also a violation of the SCOTUS 1922 Drexel Furniture decision wherein the SCOTUS ruled that taxes cannot be used to "punish" company or individual. An excise would have been fine, but when used as a regulatory prohibition it violates the Constitution.

The BATFE is one of the most pernicious and destructive bodies operating in our government today. They have ZERO Constitutional authority to exist as they do today.

17 posted on 01/26/2010 6:16:31 AM PST by Dead Corpse (III, Oathkeeper)
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To: marktwain

I suspect that his arguments are not as solid as he thinks. If three of the major gun advocacy organizations in the US won’t back him, I suspect that his case is a loser, and they know it.

Practically speaking, the SCOTUS is finding acceptable ground here.

And while even the possession of machine guns should not be forbidden, it is not unreasonable, in the opinion of the vast majority of Americans, the States, and law enforcement personnel, that restrictive licensing is not intolerable. The easy availability and criminal use of Tommy guns during Prohibition, and the resultant bloodbath, pretty well decided that.

But in balance, right now the momentum is with the gun rights movement. So creativity is required of each of us to think of new and better ways for gun liberties to be introduced into common use. We can’t just “hold the line” of gun rights, we need to expand on them.


18 posted on 01/26/2010 6:25:30 AM PST by yefragetuwrabrumuy
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To: yefragetuwrabrumuy
The easy availability and criminal use of Tommy guns during Prohibition, and the resultant bloodbath, pretty well decided that.

Specious argument. Are you saying current Class III owners are causing today's gang crimes? Most of which are equally horrific as anything Pretty Boy Floyd may have perpetrated?

Prohibition caused an entire industry to go underground. Just as it does today. Don't blame the tools, blame the perps.

19 posted on 01/26/2010 6:31:27 AM PST by Dead Corpse (III, Oathkeeper)
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To: PubliusMM
So, his position is there are no qualifiers on the Second Amendment and then attempts to defend his actions with the use of a qualifier?

Not really following your meaning here. Elaborate?

20 posted on 01/26/2010 6:42:44 AM PST by Still Thinking (Quis custodiet ipsos custodes?)
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To: Dead Corpse
The BATFE is one of the most pernicious and destructive bodies operating in our government today. They have ZERO Constitutional authority to exist as they do today.

Thanks, temperance ladies. A government agency with time on its hands and nothing to do is a terrible thing.

21 posted on 01/26/2010 6:44:39 AM PST by Still Thinking (Quis custodiet ipsos custodes?)
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To: Still Thinking
Kinda makes you wonder what they were smoking when they transferred these knot-heads after Prohibition ended.

Whatever it was, I'm sure it was similar to what made Munch turn into a bat and fly around the room.

22 posted on 01/26/2010 6:51:21 AM PST by Dead Corpse (III, Oathkeeper)
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To: Old Teufel Hunden
I agree. The second amendment has no limits. If there is a limit to the type of firearm that a citizen can own, then the same government can limit how many firearms a citizen can own. It could also limit the number of rounds of ammunition that one can posses.

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.

23 posted on 01/26/2010 7:05:32 AM PST by Saltmeat
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To: Saltmeat
"He may be the perfect storm to take this case all the way."

My fear is that the Supremes would narrowly define this part of the second amendment. In other words, yes the citizen can own a fully auto rifle but it is reasonable for the government to put restrictions on this ownership such as licensing (which they already do). They would then uphold what happened to him. In the Heller case, in the opinion Scalia wrote he did mention that it was legal for the Government to put reasonable restrictions on the second amendment. They might find this a reasonable restriction as defined under Heller.

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?
24 posted on 01/26/2010 7:11:56 AM PST by Old Teufel Hunden
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To: Sal
Please recall that in New Orleans following Hurricane Katrina, the police department confiscated every firearm that they could find from private citizens. Governor Bobby Jindal (R) had the LA legislature pass a law immediately following his election to prevent this from ever happening again in LA.

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.

25 posted on 01/26/2010 7:26:18 AM PST by Saltmeat
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To: Old Teufel Hunden

and there was “canon”, which PRIVATE shippers used to protect their ships against pirates


26 posted on 01/26/2010 7:39:40 AM PST by captbarney
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To: verity
"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." I was sympathetic until I read this.

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.

27 posted on 01/26/2010 7:43:45 AM PST by calex59
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To: verity
I was sympathetic until I read this.

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.

28 posted on 01/26/2010 7:49:43 AM PST by zeugma (Proofread a page a day: http://www.pgdp.net/)
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To: PubliusMM

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.


29 posted on 01/26/2010 7:52:13 AM PST by Cboldt
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To: calex59
Plus there is no collective right but an individual right to bear arms.

Nicely articulated.

30 posted on 01/26/2010 8:07:10 AM PST by verity (Obama Lies)
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To: Pilsner

Maybe marktwain is really Joe Biden and saw Roosevelt on TV.


31 posted on 01/26/2010 8:35:46 AM PST by massgopguy (I owe everything to George Bailey)
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To: massgopguy

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.


32 posted on 01/26/2010 8:47:12 AM PST by Manly Warrior
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To: yefragetuwrabrumuy
The easy availability and criminal use of Tommy guns during Prohibition, and the resultant bloodbath, pretty well decided that.

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.

33 posted on 01/26/2010 9:27:49 AM PST by Ancesthntr (Tyrant: "Spartans, lay down your weapons." Free man: "Persian, come and get them!")
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To: Old Teufel Hunden; Saltmeat

“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).


34 posted on 01/26/2010 9:48:46 AM PST by Ancesthntr (Tyrant: "Spartans, lay down your weapons." Free man: "Persian, come and get them!")
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To: Ancesthntr

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.


35 posted on 01/26/2010 10:00:11 AM PST by Old Teufel Hunden
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To: Ancesthntr
-- That all being said, the case in the title article will result in a loss. --

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.

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.

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.

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.


36 posted on 01/26/2010 10:28:00 AM PST by Cboldt
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To: Ancesthntr

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.


37 posted on 01/26/2010 10:32:30 AM PST by Dead Corpse (III, Oathkeeper)
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To: Sal

“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.


38 posted on 01/26/2010 11:01:30 AM PST by Scotsman will be Free (11C - Indirect fire, infantry - High angle hell - We will bring you, FIRE)
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To: Molon Labbie

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.


39 posted on 01/26/2010 11:05:00 AM PST by Scotsman will be Free (11C - Indirect fire, infantry - High angle hell - We will bring you, FIRE)
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To: PubliusMM; All

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.


40 posted on 01/26/2010 11:09:50 AM PST by Nebr FAL owner (.308 reach out & thump someone .50 cal.Browning Machine gun reach out & crush someone)
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To: Flavious_Maximus

In 2009 the American people purchased over 14 million firearms that is more guns than the 21 leading armies of the world combined. This fellow got it into his head that he didn’t have to work in the military system with regard to the manufacture/custody/modification of ordnance for the military . The military & the federal govt.ie the civil authorities take a dim view & rightly so of this .


41 posted on 01/26/2010 11:14:47 AM PST by Nebr FAL owner (.308 reach out & thump someone .50 cal.Browning Machine gun reach out & crush someone)
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To: EricT.

Do you honestly believe that all the automatic weapons in the possesion of the armed forces of the United States aren’t registered in one fashion or another? I was in the army & the army has all sorts of paper workwith regard to weapons custody & disposition. all the services do as gun cost money & as such the army would like if they just didn’t sprout feet one night & decide to walk out of the arms room. 8*)


42 posted on 01/26/2010 11:19:32 AM PST by Nebr FAL owner (.308 reach out & thump someone .50 cal.Browning Machine gun reach out & crush someone)
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To: Ancesthntr
Ancesthntr said: "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)."

Your argument would be more convincing if not for the fact that the NRA and other influential groups were opposed to the Heller case and only joined the effort late in the game.

The NFA of 1934 was passed three-quarters of a century ago. It's far past time to set this issue straight.

43 posted on 01/26/2010 12:15:57 PM PST by William Tell
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To: Cboldt
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."

What "unlawful" purpose was he using them for? If the 6th Court ruled that Heller doesn't apply because he was doing illegal things with these firearms, what were they? Or is this "intent" again via mere possession? Hasn't that been ruled out before? "I have a penis, therefore I must be plotting a rape." That logic fails every time.

At least, it should.

44 posted on 01/26/2010 12:39:14 PM PST by Dead Corpse (III, Oathkeeper)
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To: Dead Corpse; Ancesthntr

I don’t necessarily agree with it, but this is the argument that carries the day, as far as the feds are concerned. That is, I don’t think the SCOTUS will ever decide to let MGs out of the box for unlicensed civilian use.

On a more practical note, today’s problem goes beyond the classical arguments to something downright deadly. We are looking at a slow rolling civil war South of the border. They aren’t getting their weapons from our side, but they are getting them. And what our citizens are armed with, even as far as licensed MGs, doesn’t come close to that kind of weaponry if fighting rolls over onto our side.

That is, North of the border, we might soon be faced off with Mexican killers smuggling belt fed MGs and RPGs up here to party with us like Poncho Villa partied in Columbus, NM. These SOBs have killed over 18,000 Mexicans in the last four years, including over a thousand police and military. And they are indiscriminate in who they kill.

A great secret of Phoenix is that west of the city there is a desert dumping ground for murdered Mexicans. I had counted reports of over 35 killed before they just stopped reporting it. Didn’t want to make it look bad for tourism, and all. And that was before the war was going in earnest.

Often these days, the smugglers are accompanied by either Mexican military, or uniformed “Zetas”, ex-Mexican military, on US Humvees with M-60 MGs mounted on them. They will kill anyone who gets in their way. Border Patrol takes off when they see them.

Hell, we don’t just need unlicensed MGs. We need freaking CAS from Apache helicopters. Maybe some Strykers.

Now this being said, it is pretty ridiculous to require strict MG licensing. But Washington is still going to do it, because they are far, far away from the border.


45 posted on 01/26/2010 1:36:06 PM PST by yefragetuwrabrumuy
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To: yefragetuwrabrumuy
That is, I don’t think the SCOTUS will ever decide to let MGs out of the box for unlicensed civilian use.

You may be correct. The SCOTUS wouldn't be correct should they rule otherwise, but political reality quite often attempts to trump actual reality. The Fedgov has the legit power to tax. I have no argument with that. It is using that power to destroy a Constitutionally protected Right that boils my blood. If they think one nut with a little bitty .223 full auto is a danger, how do they think the Founders felt about armed merchant ships coming in with ranks of 4lbs cannons and 2" Parrot rifles lining their rails?

As for the Zeta's and MS-13. If they want to start a war, the bubba's in Texas alone could send them packing in just one weekend. Add in the rest of the "redneck" South and no mere Central/South American armed force would stand a chance.

46 posted on 01/26/2010 1:55:07 PM PST by Dead Corpse (III, Oathkeeper)
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To: Nebr FAL owner

You talking to me?

I know all property of the U.S. government is on a list somewhere. I’ve even maintained a couple of those lists.


47 posted on 01/26/2010 1:58:58 PM PST by EricT. (Can we start hanging them yet?)
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To: Dead Corpse

To the first point: There is a large and growing sense that the national government needs to “butt out”, in a big sort of way, and the second amendment is just part of the much larger issue happening right now with the individual States.

In other words, it’s not just the second amendment that needs rescuing, it is the entire constitution, and our federal system of government. The whole system is out of whack. It doesn’t need a revolution, however. It needs a restoration.

The POTUS, the SCOTUS, the US congress, the political parties, and even the bureaucracy have lost control of the US national government. It’s running on autopilot, and losing altitude. Only the States can grab the controls and get us back to altitude.

Fortunately, the light has dawned among the States, and they are starting to act. Hopefully they will get up momentum before there is a catastrophic economic disaster and they have to act.

Right now, the best thing individual citizens can do is encourage their State legislature to start forming delegations to meet with delegations from other States, to discuss what needs to be done, and how to go about doing it.

Public forums right now are discussing things that would have amazed constitutional scholars just a few years ago. Constitutional problems going back to the days of the founding fathers, and 200+ years since, are being substantively discussed by the people. How extraordinary.


48 posted on 01/26/2010 3:23:31 PM PST by yefragetuwrabrumuy
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To: William Tell
Your argument would be more convincing if not for the fact that the NRA and other influential groups were opposed to the Heller case and only joined the effort late in the game.

The NFA of 1934 was passed three-quarters of a century ago. It's far past time to set this issue straight.

Fact of the matter is that the attorney who won Heller got no help from the NRA. He did, however, win back rights for us. A few. Until the next case (like the Chicago gun case going on right now, to be heard in the USSC in about 6 or 7 weeks).

I belonged to the NRA for 18 years, but got sick & tired of them asking for money constantly, while not really doing much (and then only when there was an outcry from members) for gun rights.

We will NOT ever go back to the pre-NFA law in one decision. We need to be realistic about that, even as the idea of being denied rights that out grandfathers and their forebearers had grates on our sense of what is right and fair. We have to get those rights back one at a time - not go into court saying, "I have the right to walk into Wallyworld and buy a Quad-.50 for cash and with no background check, now rule in my favor or you're a Commie/Fascist/NWO stooge." I don't like the current state of our gun rights any more than you do, but if it is a choice between waiting a while for some very bright attorneys to work their magic in a slow-moving court system on the one hand, or going for broke on one case on the other (and it appears that such is EXACTLY our choice - we can't win a repeal of the NFA now or for a while), I'll take the slow and (more) sure option.

And the NRA (or any other group or person claiming to be pro-gun) can go to Hell if it doesn't support the eventual full restoration of our pre-'34 rights.

49 posted on 01/26/2010 4:02:33 PM PST by Ancesthntr (Tyrant: "Spartans, lay down your weapons." Free man: "Persian, come and get them!")
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To: William Tell

The NRA was NOT against Heller. The NRA was against Parker until the cofimation of Alito and Roberts. We would have lost Parker at the time by a possible vote of 6-3.

Thank you, President George W. Bush.


50 posted on 01/26/2010 6:34:23 PM PST by Shooter 2.5 (NRA /Patron - TSRA- IDPA)
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