No right to bear unlicensed machine guns, federal court says

[Tim Nunan]

http://www.csmonitor.com/USA/Justice/20 ... court-says

Tennessee State Guard commander Richard Hamblen said it's his Second Amendment right as part of a militia to convert assault rifles into fully automatic weapons. The Sixth US Circuit Court of Appeals disagreed.

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.”

[macville]

While I agree with the guy and think he is right considering what the constitution says, I don't think he's going to win at the SC level--even if the SC thought he was right, they wouldn't change it because of the crap storm that would happen because of it. The only way we will get unregistered full auto guns is to take this country back by force and enforce the Constitution via the pointing of guns (sadly enough.) Of course, that's how this country got started, so I don't know why people are so opposed to it. But unless the gov collapses, that probably won't happen.

Matthew

[photoguy67]

[StandingTall]

I will say this. He had a great idea, but he should have waited to do any conversions pending the outcome of the trial. Don't do it and THEN try and make it work out. It is a good example, unfortunately, to ask for permission instead of forgiveness.

[johnharris]

A better course of action may have been to write the ATF with the facts of the assertion, such as intent to make a machine gun based on intent to fulfill preparedness function relative to 2nd Amendment and state constitution militia function, and then when ATF refuses in writing he could have proceeded with a declaratory judgment action.

[Dan Lee]

I agree with John completely.. As much as I disagree with class III restrictions, I would never violate the law in order to challenge it, unless as a matter of ongoing "Policy", the government began to assault law abiding citizens with fully automatic weapons. The reasons it is foolish to convert weapons in "preparation" for some kind of Gov. tyranny are three fold in my humble opinion. (1.) If the crap ever hit the fan to the point where all bets were off, it's not that difficult to do, & requires little preparation as I understand it. (2.) Accurate fire in most cases matters more than volume of fire. (3.) Once you've broken the law on this in a time of relative peace, it just makes you look like a doomsday cultist. Why give them something to pick on, with little or no return on your investment? Choose your battles wisely!

Lastly, If militias want to really prepare themselves, they need to be more concerned about "co-owning the night." That's where most of their investment should be..

[ProguninTN]

[1gewehr]

Judges almost always refuse to consider whether the law is Constitutional. In the Hamblen case, this was true as well. Since the Constitutionality of the law was his main argument, it's no wonder that he was convicted. There is plenty of precedent already that the 1986 ban is bad law. It creates a 'Catch-22' where in order to comply with the law, you need to pay a tax, but another law prevents ATF from accepting the tax. In both Farmer and Rock Island this situation caused acquittals in Federal courts. Normally, these types of cases are referred to the Supreme Court to resolve the legal conundrum. The Supreme Court has been adamant in it's refusal to hear ANY case that might actually overturn the '86 ban on machineguns.

BTW, NO 'pro-gun' organization provided Hamblen with any assistance. This would have been an excellent case to argue the actual meaning of the 2nd amendment as it deals with a legally-recognized militia trying to acquire more weapons of the exact same type that the State had already issued them!!

[MDTN]

The Second Amendment....Void Where Prohibited