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View Full Version : No right to bear unlicensed machine guns, federal court says


Chatterbox
12-31-2009, 10:03 AM
A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state.

On Wednesday, a federal appeals court in Cincinnati threw the case out of court.

“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,” said the three-judge panel of the Sixth US Circuit Court of Appeals.

Richard Hamblen was arrested in 2004 by federal firearms agents and charged with possession of nine unregistered machine guns.
Second Amendment argued

At trial and in his appeal, Mr. Hamblen argued that he and his soldiers had a Second Amendment right as members of the state militia to possess military-grade weapons. He said Tennessee’s state guard arsenal included only 21 M-16 rifles for 3,500 volunteer soldiers.

Concerned that his unit, the 201st Military Police Battalion, might get called into active duty, Hamblen obtained gun conversion kits to make semi-automatic rifles into fully automatic rifles. At least one machine gun was used in a training exercise.

Confronted by federal agents, Hamblen told the truth. He showed the unregistered machine guns to the authorities and informed them that he was merely exercising his Second Amendment right to keep and bear arms.

“I wasn’t really consciously setting out to challenge the law and authority, but I figured I’d be on good constitutional footing,” he said in an interview. “It seemed like a good idea at the time – would I do it again? No.”

Hamblen, who runs a mirror and glass business in Memphis, was convicted and served 13 months in prison. He says he’s spent roughly $50,000 on legal fees.

Hamblen had asked the Sixth Circuit judges to endorse his view that all gun control laws are unconstitutional. “If a person can afford to buy it, they can have it,” he says.
Supreme Court has said gun rights may be limited

It is a position that runs counter to the majority view in the US Supreme Court’s 2008 gun rights ruling in District of Columbia v. Heller. In that case, the court struck down a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual right to keep and bear arms. But the high court went on to suggest that individual gun rights are not unlimited and could be subject to reasonable regulations.

Both the Eighth Circuit in St. Louis and the Ninth Circuit in San Francisco have held that individuals do not enjoy a Second Amendment right to possess unregistered machine guns.

Hamblen is not impressed by these rulings. “If the founders had intended for there to be reasonable restrictions on the Second Amendment they would have put that in the language [of the amendment],” he said. “They were certainly capable of writing ‘unreasonable’ into the Fourth Amendment when it talks about unreasonable searches and seizures.”

Hamblen says he’s not surprised that he lost at the appeals court. But he says he is surprised that he’s received no help from gun-rights advocates. “They are treating me like I’m a skunk at the picnic,” he said.

As for his case, he plans to fight on. He says his lawyer is preparing a final appeal, a petition to the US Supreme Court. “Why stop now? I’ve already done the hard part. I’ve already done my time,” Hamblen says. “All they can do is say no.”

All I can say is that sometimes if everybody treats you like a skunk, it's because you are a skunk.

CitaDeL
12-31-2009, 10:33 AM
All I can say is that sometimes if everybody treats you like a skunk, it's because you are a skunk.

“In the beginning of a change, the Patriot is a scarce man, Brave, Hated, and Scorned. When his cause succeeds however,the timid join him, For then it costs nothing to be a Patriot.” Mark Twain

So Richard Hamblen is a skunk for upholding the right to keep and bear arms? Or for being foolish enough to believe the Constitution actually has some meaning?

I have come to believe that if you do not support the right to keep an bear arms in whole, there are few reasons for you to support it in part.

If you can take away military rifles from the militia, what inconvenience is it then to take semi-automatic rifles or handguns from the People? Where does the reasonable restriction end? The founding fathers made no distinction as it was pressumed that any weapon that could be kept and carried was INCLUDED. Since the 2nd has no EXCLUSIONARY language to what can be kept and carried- how is it reasonable to prohibit certain arms?

Hamblen is no Skunk, else we are all skunks.

bwiese
12-31-2009, 10:35 AM
Severe tactical mistake.
Bad lawyering.
Lawyer out of contact with gunrights experts.

We need to flesh out RKBA before worrying about NFA MGs.

We don't need to screw up SCJ Anthony Kennedy.

383green
12-31-2009, 10:39 AM
He's no skunk, but he may well be a loose cannon.

Chatterbox
12-31-2009, 10:54 AM
So Richard Hamblen is a skunk for upholding the right to keep and bear arms? Or for being foolish enough to believe the Constitution actually has some meaning?

I have come to believe that if you do not support the right to keep an bear arms in whole, there are few reasons for you to support it in part.

If you can take away military rifles from the militia, what inconvenience is it then to take semi-automatic rifles or handguns from the People? Where does the reasonable restriction end? The founding fathers made no distinction as it was pressumed that any weapon that could be kept and carried was INCLUDED. Since the 2nd has no EXCLUSIONARY language to what can be kept and carried- how is it reasonable to prohibit certain arms?

Hamblen is no Skunk, else we are all skunks.


There are ways of upholding RKBA I do not agree with - for example, if somebody were to strip naked and run down the Main Street screaming "2nd Amendment Rules!". I believe that Hamblen is doing a judicial equivalent of that.

nicki
12-31-2009, 11:03 AM
I believe the vast majority of us in principle would like to have real modern day miltia arms(select fire).

That being said if Heller was a MACHINEGUN CASE, we would have lost!

During the oral testimony DC fixated on machineguns and the swing vote was Justice Kennedy.

Public opinion is strongly against private ownership of machineguns and like it or not, the court of Public Opinion does influence the court of Law.

The court of public opinion right now is not so hot on our EBR's either, so we have alot of work to do.

The foundation of the second amendment must be strengthened, once that is done on many levels, then maybe we can approach the full auto issue.

IMHO, a federal bill offering a Amnesty registration or opening up the registry will probably be the most likely means of getting back new full autos.

This is something that could be done, but would require creative actions.

Some examples.

Arguments could be made that many deceased War Veteran's have War Trophies and now many widow's may be accidental felons?

Due to the high cost of legal full autos, we have created a Black Market for illegal full autos. Opening up the registration would kill probably 80 percent of the market.

These Black market dealers are in fact a threat to national security since they don't care who they sell arms too.

I would be curious to how many illegal full autos the BATF estimates are in the United States. That actually may be enough to get people to move.

The going rate for a AK47 in many parts of the world is around 100USD.

Perhaps we could engage in some US funded buyback of these guns on a discreet level.

A US citizen with clean record could donate 1000USD and that money would be used to buy as many AK47s in Africa.

The US Citizen would get to keep one AK47 or other military rifle fully functional for their donation. Program would have to be run probably by the CIA or other spook outfit.

Figure that 3 guns could be bought, US citizen keeps one, US government does what it wants with other 2. Should destroy, ha, ha. Perhaps stipuate that they have to give destroyed gun parts to donor.(Spare parts).

It could be a symbolic bill of the US helping reduce the worldwide supply of small arms.:43:

If it was kept under the radar, I figure 1 million AK47s and other rifles such as FNs could slip in.

The US government could actually claim they are reducing small arms thus helping the UN with it's goal of reducing small arms worldwide.:p

Nicki

timdps
12-31-2009, 12:15 PM
So he is a bit premature...
Hypothetically, could this case be used as a fast track to the Supreme Court for NFA weapons?
I have little doubt that the RBKA stuff for NFA weapons will only get sorted at the SCOTUS level and this case might be a quick way to get there.

If he could get quality help for the SCOTUS cert request....

Tim

tonelar
12-31-2009, 12:43 PM
IMHO: a machine gun case getting to SCOTUS prior to MacDonald / Chicago would be little to no help at best.

bigcalidave
12-31-2009, 12:52 PM
IMHO: a machine gun case getting to SCOTUS prior to MacDonald / Chicago would be little to no help at best.

And it can't. The schedule has been set.

timdps
12-31-2009, 12:55 PM
IMHO: a machine gun case getting to SCOTUS prior to MacDonald / Chicago would be little to no help at best.

Don't think the case could get to SCOTUS/be decided before McDonald. Seems unlikely that it could be heard by SCOTUS before January 2011 (apply for cert October 2010).

Tim

CAL.BAR
12-31-2009, 1:02 PM
Severe tactical mistake.
Bad lawyering.
Lawyer out of contact with gunrights experts.

We need to flesh out RKBA before worrying about NFA MGs.

We don't need to screw up SCJ Anthony Kennedy.

This is EXACTLY why I keep saying the incorporation WILL NOT help with our more "exotic" wishes (e.b. MG, AW's, SBR's and CCW) b/c the 2A DOES NOT extend unfettered rights to bear all kinds of arms. Per Heller, all we get for sure are pistols commonly used for home defense. It is unlikely that courts will expand that further. (especially in KA)

bruss01
12-31-2009, 1:23 PM
The difference between crossing the street successfully and ending up a smear on the pavement is TIMING. This guy just hasn't got it. He could have and should have waited, with all the pro-2A cases going through the courts. Too impatient to wait to cross the street with the light and with an eye for safety in both directions, he darted out into traffic and found himself under a city bus.

I'm very sorry for his predicament but he did it to himself through his impatience.

Merle
12-31-2009, 1:32 PM
This is EXACTLY why I keep saying the incorporation WILL NOT help with our more "exotic" wishes (e.b. MG, AW's, SBR's and CCW) b/c the 2A DOES NOT extend unfettered rights to bear all kinds of arms. Per Heller, all we get for sure are pistols commonly used for home defense. It is unlikely that courts will expand that further. (especially in KA)

I disagree.

If limits were intendeded (e.g. cannon's, frigates, machine guns) then the intent could and should have been written into the Constitution.

"Arms" is vague, but pretty much means any type of weapon. Interpreting and limiting the type of weapon begins the slide down a slippery slope to where the government can have anything and an individual nothing.

The bill of rights is simply about an individuals right. If an individual can create, purchase or use a weapon, it's within their right.

The law could legislate the proper use of such a weapon (e.g. shooting your neighbor is illegal), but possession itself should not be regulated.

hoffmang
12-31-2009, 2:04 PM
All Richard Hamblen has and will do is:
1. Lose his gun rights.
2. Spend some time in jail for no good reason.
3. Foreclose an NFA attack in the future (when it's time) in the 6th Circuit.
4. Make all of us fighting to actually protect the 2A look like fools.

How's that for supporting the right to keep and bear arms? Luckily SCOTUS will probably save us from him by not taking the appeal.

My earlier thread on this decision here: http://www.calguns.net/calgunforum/showthread.php?t=254476

-Gene

Hunt
12-31-2009, 2:15 PM
There are ways of upholding RKBA I do not agree with - for example, if somebody were to strip naked and run down the Main Street screaming "2nd Amendment Rules!". I believe that Hamblen is doing a judicial equivalent of that.

All Richard Hamblen has and will do is:
1. Lose his gun rights.
2. Spend some time in jail for no good reason.
3. Foreclose an NFA attack in the future (when it's time) in the 6th Circuit.
4. Make all of us fighting to actually protect the 2A look like fools.

How's that for supporting the right to keep and bear arms?
sounds like tryanny to me

the State needs procedures and processes to maintain a monopoly on the use of force and the dispension of tryanny. This process is called the judicial system and the actors are the judges, cops and lawyers. If it wasn't for a few
Liberty minded people in this system we would be in a complete police State right now, as the predominant view of this privelidged oligarchy has little respect for the individual rights language in our Constitution. The judicial system has been perverted to dispense political correctness, tryanny and the immoral use of force upon the citizenry.

dustoff31
12-31-2009, 2:39 PM
All I can say is that sometimes if everybody treats you like a skunk, it's because you are a skunk.

Yep. Sounds pretty skunky to me. As another poster offered, a loose cannon to say the least.

From the court decision:

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.

bruss01
12-31-2009, 3:58 PM
Moreover, none of the nine machine guns was ever registered to Hamblen in the National Firearms Registration and Transfer Record.



I do not think he did anything morally culpable, but it is against the law and he should not be surprised to be caught and prosecuted, because that's the law.

hoffmang
12-31-2009, 4:04 PM
Instead of criminally violating the law, he could have been denied for permits to manufacture new MGs and then sued on that basis. It is still too early for that attack, but at least that is a far more enlightened path.

Say what you will of liberty, but if George Washington had blindly lead the Continental Army on a suicide mission we'd all have turned our handguns in to her majesty about 15 years ago.

Bad tactics are bad tactics and people who think they are right - well, I hope you learn a lesson that only costs you and not the rest of us.

-Gene

artherd
12-31-2009, 4:14 PM
he went straight for anal. rookie mistake.

bigstick61
12-31-2009, 6:01 PM
Instead of criminally violating the law, he could have been denied for permits to manufacture new MGs and then sued on that basis. It is still too early for that attack, but at least that is a far more enlightened path.

Say what you will of liberty, but if George Washington had blindly lead the Continental Army on a suicide mission we'd all have turned our handguns in to her majesty about 15 years ago.

Bad tactics are bad tactics and people who think they are right - well, I hope you learn a lesson that only costs you and not the rest of us.

-Gene

I think if Washington and his contemporaries were alive in the 20th/21st centuries, they would have given up on the courts a long time ago. They engaged in armed rebellion over far less than we are trying to deal with peacefully.

hawk81
12-31-2009, 6:18 PM
I agree with you 100%.


So Richard Hamblen is a skunk for upholding the right to keep and bear arms? Or for being foolish enough to believe the Constitution actually has some meaning?

I have come to believe that if you do not support the right to keep an bear arms in whole, there are few reasons for you to support it in part.

If you can take away military rifles from the militia, what inconvenience is it then to take semi-automatic rifles or handguns from the People? Where does the reasonable restriction end? The founding fathers made no distinction as it was pressumed that any weapon that could be kept and carried was INCLUDED. Since the 2nd has no EXCLUSIONARY language to what can be kept and carried- how is it reasonable to prohibit certain arms?

Hamblen is no Skunk, else we are all skunks.

hawk81
12-31-2009, 6:22 PM
What I don't get is why we, as human beings go to judges who are other human beings, to get permission to exercise our god given rights. I don't get it and I probably never will.

snobord99
12-31-2009, 6:35 PM
They engaged in armed rebellion over far less than we are trying to deal with peacefully.

I think you need to take a class in U.S. History. If you already have, then you need to take it again. And pay attention this time.

dustoff31
12-31-2009, 6:55 PM
I think if Washington and his contemporaries were alive in the 20th/21st centuries, they would have given up on the courts a long time ago. They engaged in armed rebellion over far less than we are trying to deal with peacefully.

Maybe not in this arena. Washington really didn't think much of the militia.


To place any dependence upon militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender scenes of domestic life - unaccustomed to the din of arms - totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves when opposed to troops regularly trained, disciplined, and appointed, superior in knowledge, and superior in arms, makes them timid and read to fly from their own shadows.

Letter to the president of Congress, Heights of Harlem (24 September 1776)


To expect ... the same service from raw and undisciplined recruits, as from veteran soldiers, is to expect what never did and perhaps never will happen. Men, who are familiarized to danger, meet it without shrinking; whereas troops unused to service often apprehend danger where no danger is.

Letter to the President of Congress (9 February 1776)

bigstick61
12-31-2009, 7:44 PM
I think you need to take a class in U.S. History. If you already have, then you need to take it again. And pay attention this time.

Are you sure about that? What we have today in terms of government goes way beyond anything King George III would have ever even dreamed of doing. Thyey rebelled over far less than we have to deal with. That is a fact. And guns are hardly the limit of what we have to deal with.

turbosbox
12-31-2009, 7:56 PM
he went straight for ****. rookie mistake.

Funny, wonder if we have started our new years celebration a few hours early :cheers2:

Difficult not to say "instead he became the team's catcher for 13mo" :kest:

taloft
12-31-2009, 9:09 PM
he went straight for anal. rookie mistake.There is no truth like a harsh truth. Timing is everything.:eek::p

snobord99
12-31-2009, 10:46 PM
Are you sure about that? What we have today in terms of government goes way beyond anything King George III would have ever even dreamed of doing. Thyey rebelled over far less than we have to deal with. That is a fact. And guns are hardly the limit of what we have to deal with.

Really? When's the last time you weren't even given the opportunity to vote? What about the last time you were jailed for something you said? You know, you're right. Life under George was SOOOOOOO much better. I wish we could bring those days back again. :rolleyes:

tuolumnejim
01-01-2010, 12:03 AM
Well I whole-heartedly agree with his view here.

Hamblen had asked the Sixth Circuit judges to endorse his view that all gun control laws are unconstitutional.

Gryff
01-01-2010, 12:28 AM
Maybe not in this arena. Washington really didn't think much of the militia.

And Washington lost nearly 99% of the battles he led without the French.

BigDogatPlay
01-01-2010, 9:01 AM
Another case, kind of like Silveira, where a questionable premise coupled with perhaps not the greatest lawyering puts a tall hurdle in front of us.

Bummer.