Tennessee Guardsman Challenges Supreme Court on 2nd Amendment

[freakazoid]

Was looking through some of the articles at keepandbeararms.com and found an interesting one.
http://www.thenewamerican.com/index.php/usnews/constitution/2807-rich-hamblen-challenges-the-supreme-court-to-uphold-the-second-amendment

Tennessee Guardsman Challenges Supreme Court on 2nd Amendment
Written by Joe Wolverton, II   
Monday, 25 January 2010 09:00

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

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

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

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

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

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

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

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

The second prong of Hamblen’s defense is found in a more recent and controversial case in the genealogy of gun control decisions. In the case of District of Columbia v. Heller, Justice Scalia — writing for the majority — held that "like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Furthermore, the Court explained that the Heller decision “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

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

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

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

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

And in the comments at the bottom Mr. Hamblin posted some addictional info,

   For a fuller explanation...
...Please go to this site, where I have posted documents related to my case:
http://www.esnips.com/web/HamblenvsUnitedStates

Points of clarification and correction
There are several errors of fact in this article. The true enormity of the situation does not adequately come through. I was in the State Guard, not the National Guard. That is a critical distinction. The national Guard is after all part of the US Army. I wasn't arrested, in fact I wasn't even indicted for 18 months after my "interrogation". I was even allowed to make an appointment to surrender and be arraigned. I appealed immediately upon my conviction, not after I served my sentence. I have already been to the Supreme Court once, in fact my petition for writ of certiorari was there at the very same time as Heller. I am appealing now on a writ of habeas corpus in which my trial judge said I had made a "substantial showing" that my constitutional rights had been denied. And finally, I do not allege that the Court misinterpreted the Second Amendment and Miller: I am saying the Court deliberately distorted the record of the Second Amendment and Miller to support their ruling in Heller. That's the whole point behind the conspiracy charge.

[vaskidmark]

He'll get as far as the folks claiming the income tax is unconstitutional.

Visitation is on Wednesdays and after 11 AM Saturdays.  The guards prefer files to be baked into chocolate cakes.

stay safe.

skidmark

[freakazoid]

If I am reading it correctly it would appear that he already served his time in prison.

[MechAg94]

How did he only get 13 months?  I thought that was a 10 year sentence?

[AZRedhawk44]

I feel for him, I 100% agree with him, and I dream of a day when he can win this case.

But that being said, I wish he'd stop and confer with Alan Gura's team, and see when is the right time.

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

Yup.

The NRA is interested in little victory-snacks of legislation that create an increasingly complicated nest of laws.  Each additional law added, be it pro- or anti-gun, is one more support line to justify the existence of the NRA in their mailings and continued operation as they monitor 2A related happenings.

Judicial precedent that repeals laws, also repeals power for the NRA.

Gura has done more for the 2A in the last 5 years than the NRA has done in 25.

[makattak]

I feel for him, I 100% agree with him, and I dream of a day when he can win this case.

But that being said, I wish he'd stop and confer with Alan Gura's team, and see when is the right time.

Yup.

The NRA is interested in little victory-snacks of legislation that create an increasingly complicated nest of laws.  Each additional law added, be it pro- or anti-gun, is one more support line to justify the existence of the NRA in their mailings and continued operation as they monitor 2A related happenings.

Judicial precedent that repeals laws, also repeals power for the NRA.

Gura has done more for the 2A in the last 5 years than the NRA has done in 25.

  

[41magsnub]

IANAL, but one dangerous thing I saw in there is he is claiming that the national guard is a militia (which it is, in fact it is what the anti's want to have be the only militia and invalidate the 2nd amendment).  I'm concerned that if he won the wording could be done to affirm that and potentially screw over the folks not in a "militia".

Should I be tin foil hatting this comment?

[AJ Dual]

I feel for him, I 100% agree with him, and I dream of a day when he can win this case.

But that being said, I wish he'd stop and confer with Alan Gura's team, and see when is the right time.

Yup.

The NRA is interested in little victory-snacks of legislation that create an increasingly complicated nest of laws.  Each additional law added, be it pro- or anti-gun, is one more support line to justify the existence of the NRA in their mailings and continued operation as they monitor 2A related happenings.

Judicial precedent that repeals laws, also repeals power for the NRA.

Gura has done more for the 2A in the last 5 years than the NRA has done in 25.

Gura gambled it all on a 4th quarter 2 minute warning Hail Mary pass. In hindsight it's great, because he/we/NRA won.

However, that does not invalidate the NRA's concerns over losing. And keep in mind that as a 5/4 decision, there are already noises by the other side that that makes it not as strong a decision. No conspiracy on the part of the NRA to keep mailing us fund-raising letters needed.

Even with a Heller slam-dunk, there is more than enough gun/RKBA issues to keep the NRA busy for decades to come.

IANAL, but one dangerous thing I saw in there is he is claiming that the national guard is a militia (which it is, in fact it is what the anti's want to have be the only militia and invalidate the 2nd amendment).  I'm concerned that if he won the wording could be done to affirm that and potentially screw over the folks not in a "militia".

Should I be tin foil hatting this comment?

That's the very first thing that made me uneasy about his case as well.

He's arguing to reverse the original meaning of Militia by focusing on an organized Militia, which would tend to dilute the unorganized Militia (the citizenry at large). IMO if the lower standard, the unorganized militia is vested with full 2nd amendment protections, then by default any organized one is as well.

[MechAg94]

Gura may be a good guy, but I think that when lawmakers worry about the gun lobby affecting their reelection, it is the NRA they are thinking of. 

[HankB]

IANAL, but one dangerous thing I saw in there is he is claiming that the national guard is a militia (which it is, in fact it is what the anti's want to have be the only militia and invalidate the 2nd amendment).  I'm concerned that if he won the wording could be done to affirm that and potentially screw over the folks not in a "militia".

IANAL either, but as I recall, In 1990 or so Fed.gov decided to send the Minnesota National Guard down to Central America for road-building or something. Minnesota's then-governor Rudy Perpich opposed this, and argued that the MN NG was the STATE MILITIA, and not subject to orders from Fed.gov.

SCOTUS said that since Fed.gov funded the MN NG, it was in fact NOT the militia, and the MN NG ended up in Guatemala or somewhere nearby.

Now, note Hambelin's correction at the bottom of the OP:

I was in the State Guard, not the National Guard. That is a critical distinction. The national Guard is after all part of the US Army.

So I would not expect any SCOTUS decision (assuming they don't just blow the guy off) to involve the National Guard.

How the TN State Guard is chartered or organized, I just don't know . . .

[Balog]

I was with the guy untikl he brought his NG status up and related it to the "militia" part of the 2nd. What terrible precedent if that had been passed. I'm glad this guy lost.

[Gewehr98]

Something tells me that the "TN State Guard" is just something composed of guys running around in the woods wearing camo when bowling season's over, ostensibly a local chapter of E Clampus Vitus. 

[seeker_two]

Gura has done more for the 2A in the last 5 years than the NRA has done in 25.

+100

Right now, the NRA is on the cusp of becoming like the NAACP...more concerned with self-preservation/perpetuation than RIGHTS preservation....

SAF is the group fighting the good fight....

[Scout26]

Gura gambled it all on a 4th quarter 2 minute warning Hail Mary pass. In hindsight it's great, because he/we/NRA won.

This...

When Gura and Levy started with Heller et al.  Sandra Day O'Conner was still sitting on the bench.  The NRA counted noses and they didn't believe that they had the votes to win.  (Figure that Thomas, Scalia, Rehnquist for sure to be pro-2A, but O'Conner and Kennedy were maybes at best).  It would be like drawing to an inside straight.

Gura and Levy got very lucky that O'Conner retired (and Rehnquist passed away) allowing GWB to appoint Roberts and Alito, both very strong 2A supporters, before the case came before the court.

It was truly drawing to an inside straight and completing that 4th quarter Hail Mary pass that got us a postive Heller decision, it was a 5-4 vote and it could have very easily gone the other way.

[freakazoid]

Something tells me that the "TN State Guard" is just something composed of guys running around in the woods wearing camo when bowling season's over, ostensibly a local chapter of E Clampus Vitus.   

I don't think so. He talked about the possibility of him and his troops being sent to Iraq and Afghanistan. Also it said, "Hamblen claims that there are only 21 such weapons in the arsenal meant to equip over 3,000 National Guard troops", which sounds like he's saying that there are 3,000 people in it.

[41magsnub]

I don't think so. He talked about the possibility of him and his troops being sent to Iraq and Afghanistan. Also it said, "Hamblen claims that there are only 21 such weapons in the arsenal meant to equip over 3,000 National Guard troops", which sounds like he's saying that there are 3,000 people in it.

That does not really pass the sniff test.  I seriously doubt there are only 21 weapons for 3000 National Guard troops.  There may not be ammo and consumables to go around, but I bet there are at least M16s and M9's with appropriate squad and crew served weapons in the inventory for each soldier.

[dogmush]

STATE GUARD folks.

NOT the National Guard.

Think volunteer, unpaid folks that work for the state government.  Not in the military, not even a little.  They have no authority or mission outside of TN.

Tennessee State Guard

[Hawkmoon]

IANAL, but one dangerous thing I saw in there is he is claiming that the national guard is a militia (which it is, in fact it is what the anti's want to have be the only militia and invalidate the 2nd amendment).  I'm concerned that if he won the wording could be done to affirm that and potentially screw over the folks not in a "militia".

Should I be tin foil hatting this comment?

No, he's not. Read his clarification following the article. He says he was in the "State Guard," not the National Guard. State Guards (and not all states have them) are a tier or two below the National Guard. In general, they serve as a supplement to the NG, and I suppose at least in some states they might fulfill some or even all of the roles of the NG if that state's NG happens to be "over thar" when needed here.

[freakazoid]

I seriously doubt there are only 21 weapons for 3000 National Guard troops.

I think he might of meant that there were currently only 21 NFA items.

[Gewehr98]

Nope.  Definitely not part of the Department of Defense.  Snappy dressers, otherwise.