New Second Amendment Case in the Court

[RichardAHamblen]

New case for many of you, currently in litigation in the Sixth Circuit, awaiting answer on request for oral arguments. Richard A. Hamblen v. United States,3:08-1034. Read the latest documents here:



The case involves a direct challenge to the NFA of 1934. The following quote is from the trial judge in the District Court ruling granting the right to continue the appeal:

"The Court concludes that Petitioner [Hamblen] has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable***Accordingly, the Court will issue a certificate of appealability on Petitioner’s Second Amendment claim.”

Judge Todd Campbell
U.S. Court for the Middle District
Of Tennessee
Richard Hamblen vs. United States
No. 3:08-1034
December 5, 2008

Please read all the documents before you express your opinion. Thank you.

[RichardAHamblen]

To remind you of how to treat a law of dubious constitutionality:

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it ....
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
-- (American Jurisprudence, Second Edition, Volume 16, Section 177)

[photoguy67]

[RichardAHamblen]

I have done a short video for the Motorhome Diairies viewable here . It has been posted on Calguns and AR15.com, where it is generating quite some heat. Debate is healthy. Do any of you have an opinion? Apparently not, judging from the responses. This case isn't going away, it is now before the Sixth Circuit, again. Come on Tennesseans! Speak up! Are you really your father's sons (and daughters)?

[Grunt67]

[RichardAHamblen]

Richard A. Hamblen responds
I posted this on ar15.com,and Calguns.net, but you all might like to read it too.

First off, I want to thank everyone for their posts. Most were thoughtful. A few were thoughtless and obviously uninformed, but that is your problem not mine. I won't answer ad hominem attacks. Look, I have been to prison, I went through a nasty divorce, and I have been betrayed by people I trusted. You're not going to hurt my feelings. And jail was an interesting place. You ought to try it sometime. Might get that smart guy attitude out of you when you realize just how easy it is for anyone to end up there. There's too many people in jail because there are too many laws. Breeds contempt for all laws, the necessary ones as well as the bs ones. Now with that out of the way, let's get on to substantive issues.

The whole point of my argument is that the government is restricted from any infringement of the right to keep and bear arms by the Bill of Rights. The Bill of Rights does not create rights, it merely forces the government to recognize God given natural rights that we all have. "Shall not be infringed" is pretty absolute. It is not qualified by "unreasonable" as in the Fourth Amendment. And the right belongs to the people, not just the people who are in the militia. For the Militia to become"well regulated", the people have to be armed since the Militia was (and is) drawn from them. The Founders knew how to write consistently. To suggest otherwise is absurd. The Bill of Rights, adopted in 1791, supersedes the Commerce Clause and the Taxation Authority of the Constitution of 1787. Read the preamble to the Bill of Rights, especially the part about the articles being adopted to prevent "misconstruction and abuse of power". Bet you weren't taught this in your government school. I wasn't.

Unless you challenge an unconstitutional law it will stand uncontested. You who put your faith in the Courts to protect your God given rights are building your house on quicksand. The Supreme Court not only disregards the Constitution, it disregards its own precedents. When you get even close to meeting the standard set previously by the Court, suddenly the goalposts are moved. The moving target theory of jurisprudence.

Heller is dicta on anything other than the question put forth in the petition for writ of certiorari, the DC handgun ban. Justice Roberts says so in an exchange with the Solicitor General of the US, which I shall revisit shortly. When you get right down to it, Miller is dicta, too, even on short barreled shotguns. Miller does not say that short barreled shotguns are not protected, but says that in the absence of any evidence to the contrary, the Court cannot say that it is protected by the Second Amendment. It then goes on to a discourse saying that the Militia clearly consisted of every man between the ages of 16 and 60, physically capable of bearing arms, who, when summoned, were to appear bearing arms, provided by themselves, that were part of the ordinary equipment of the soldier, and of the type in common use at the time, and which could reasonably contribute to the common defense. The Court then remanded the case to the lower court for further action, which never happened, mainly because the chief defendant was no longer alive. In fact, the defendants were not even represented by counsel before the Court. No opposing arguments were presented in the Supreme Court.

Miller, by hook and by crook, has been used to justify every federal gun control statute ever since, and twisted to mean that it only protects a collective right, when the Militia is called to duty by the states, even though it clearly states that the Militia consists of every able bodied man, who had to show up armed when called, not armed after being called up. Read the DC Circuit ruling in Parker, which set the ball rolling. The DC Circuit contains a full discussion of the Second Amendment in the context of the enabling legislation Congress adopted, (the same Congress which ratified the Second Amendment, by the way) to carry out its Constitutionally mandated duty to organize the Militia. The laws prescribes how the States are to regulate their Militias, ie make them uniform so they can be integrated into the force structure (to use a modern term) of the other State militias to carry out the Constitutionally delineated role of the Militia: repel invasion, suppress insurrection, and enforce the laws.

Congress has the additional power to "arm" the Militia. For what this means, read Madison's Notes on the Constitutional Convention which, when discussing this clause, says that this is to mean only setting a standard such as caliber of weapon, and that the arms are to be provided first by the Militia themselves, secondly by the States, and then only as a last resort by the Federal Government. Congress has no power to disarm the Militia. Since the States did not feel this was clear enough, the Second Amendment was added to recognize that the right to keep and bear arms was a right of the people for those instances, feared at the time, but confirmed by subsequent history, when the government would fail in its Constitutionally mandated duty to see that the Militia is armed, and in fact would actively take measures to disarm it.

The then Solicitor General of the United States understood all this at the time of the Heller oral arguments. Read the following:

Excerpt, Oral Arguments, Heller v. District of Columbia, page 46,exchange between Solicitor General Clement and the Justices:

***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult –– I don't want to foreclose the possibility of the government, Federal Government making the argument some day –– but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.*** [emphasis added]



This an admission that not only are Militia suitable weapons not subject to infringement, but also that Heller is not about machine guns, and is thus dicta and of no binding authority. Justice Scalia may be startled by Miller, but perhaps only because he has failed to read it.

This is long post, I know. I don't mind being challenged, because there are a lot of nuances to this case. I do mind being met with dismissive and condescending remarks. If you are a member of the Class III community I can understand your hostility, for if the NFA of 1934 is recognized as the unconstitutional law that it is, the value of your collection is going to be diminished markedly. So, full disclosure, please. Same for government licensed FFL dealers. An FFL is a restraint on trade after all. You have a vested interest in the status quo. If you sincerely believe in the validity of the NFA of 1934 and all other gun laws which restrict the right to keep and bear arms, then demonstrate it based on the evidence of the Constitution. If you do not like the Second Amendment, then persuade 3/4 of the rest of us to change the Constitution. In the meantime, the Constitution is allegedly the Supreme Law of the Land and should be obeyed. An unConstitutional law should be treated as if it never existed and is bound to be honored by no one. For all of you who think there is a better way, pray tell me just exactly what you are doing to secure your God given rights?

[1gewehr]

Richard, I enjoyed meeting and our discussion last month. The problem I see is that many courts latch on to whatever arguments they can that will justify the decision they wish to render. As we discussed, when the judge is able to pick and choose which arguments he will permit YOU to use, then the Constitutionality challenge is probably going to be useless.
As a Machine Gun owner, I hope and pray that the '86 ban will be found invalid. Most of the other MG owners I know feel likewise. I never bought a machine gun for it's 'investment potential'. I bought it because I wanted to enjoy it. Undoubtedly there are FFLs and MG owners who do fear a wide-open MG market. I believe them to be a small minority at best.
I pray that you are successful. It will restore my faith that the legal system can sometimes render a judgment that is NOT in conflict with the Constitution.

[RichardAHamblen]