Gentlemen reach for your wallets

[drdoom]

http://www.csmonitor.com/USA/Justice/2009/...eral-court-says

 

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.

 

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More guns equal more crime? Not in 2009, FBI crime report shows. 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.”

[moparcardave]

21 M16's for a whole state? Hey I loved my M16 even thought they are full auto their range is limited. I am sure a handfull of good ole Tenn boys could outdo a lot of countries militaries.

[c-rock]

:Crying. =-(: no guns for you

[GarandFan]

Hamblin bringing this case to the Supreme Court is a bunch of foolishness. The best we can hope for is that they don't grant cert.

 

The kinds of cases that will advance the 2A are good cases ... not driven by people like Hamblin ... he does not know how to productively challenge current law.

[Bowfisher]

If I had a machine gun then I would have to buy another gun safe! I guess there are worse things than having to buy another gun safe!! :Drunk emoticon:

 

Dave

[Thirdpower]

So he knowingly broke the law years before Heller (which still steered clear of MG's) but wasn't "really consciously setting out to challenge the law and authority"?

 

BS.

 

And if he thought he " figured he’'d be on good constitutional footing" then he's more dangerous to us than a dozen Joyce groups.

[w00dc4ip]

Hamblin bringing this case to the Supreme Court is a bunch of foolishness. The best we can hope for is that they don't grant cert.

 

The kinds of cases that will advance the 2A are good cases ... not driven by people like Hamblin ... he does not know how to productively challenge current law.

For those who think this guy is nothing more than trouble to "our cause" I'll ask a framed question, yes or no:

Forgetting all the political and legal strategy, is he correct in his simple belief? Does the 2A protect the right of an individual to possess an unregistered machine gun?

 

This is part of the reason I asked in an earlier post whether the NRA, ISRA, SAF, ect., etc., etc., are ready for life after the McDonald decision. If 2A is incorporated, there are going to be law suits filed from every direction and every angle against every perceived "infringement", including the requirement in many states to get a permit in order to carry concealed. I personally know of 2 gun owners in Illinois (not associated with NRA, ISRA, IllinoisCarry, or anyone else) who are considering challenging the "encased and unloaded" requirements in the IL transportation laws (assuming McDonald incorporates) in a round-about way to establish carry in Illinois. They aren't talking to the NRA or ISRA, they're going to do it on their own. Many of these types of suits will have no link to the organizations, and therefore the organizations will have no control over them. This case is a perfect example, filed by someone already convicted and having served time for the "crime" of possessing an unregistered MG. Maybe we believe that the 2A should protect MG ownership, but that it's not the issue to pursue right now. That's all fine and good, but this guy is pursuing it and if the organizations decide to pitch in, maybe they can make the case stronger, but if they don't, it isn't going to stop him from bringing a case that may set a bad legal precedent.

 

The fundamental belief most gun owners share is that the 2A means what is says, "shall not be infringed". We may differ with the organizations in our desired method to restore the 2A, but the organizations only get to say what is a good case or bad case if they're going to support all gun owners in all cases. They have no ability to stop gun owners they don't support from bringing what they may see as "bad" cases.

[Tvandermyde]

there is no way to stop people from bring bad or wrong headed litgation.

 

But if every self proclaimed 2A scholor and legal expert run at it we are sure to end up with stuff like the Cicero ruling that only hurts us.

 

We already know that we can't stop criminal lawyers from arguing the 2A defense. So far their track record has been pretty poor.

 

The last thing we need is gun guys who think they know better that everyone else and won't wait a minute longer.

 

Like it or not the Court is not going to say "shall not be infringed" means what many want it to mean. And historically speaking in 1787 "infringed" isn't what we think of today.

 

And if those think that they don't want any organizational support or imput fine. But when they argue a bad case with bad facts in a bad jurisdiction and give us another Price type case to deal with, I'll use my 4 favorite words.

 

a thought out strategy for a good legal foundation is better than a bunch of free agents.

[Federal Farmer]

there is no way to stop people from bring bad or wrong headed litgation.

 

But if every self proclaimed 2A scholor and legal expert run at it we are sure to end up with stuff like the Cicero ruling that only hurts us.

 

We already know that we can't stop criminal lawyers from arguing the 2A defense. So far their track record has been pretty poor.

 

The last thing we need is gun guys who think they know better that everyone else and won't wait a minute longer.

 

Like it or not the Court is not going to say "shall not be infringed" means what many want it to mean. And historically speaking in 1787 "infringed" isn't what we think of today.

 

And if those think that they don't want any organizational support or imput fine. But when they argue a bad case with bad facts in a bad jurisdiction and give us another Price type case to deal with, I'll use my 4 favorite words.

 

a thought out strategy for a good legal foundation is better than a bunch of free agents.

 

I agree with you, Todd, except your assertion about what 'infringed' meant in 1787. My research indicates it has the same meaning and usage today as it did in the 18th Century. The problem is that many don't like that that implicates. My answer to them lies in Article V.

 

At any rate, we don't need misguided attempts by over-zealous well-intentioned amateurs. As to criminal defense lawyers, they are bound to try everything on behalf of their client, so I don't impugn them...they are just doing their job.

[GarandFan]

I agree with you, Todd, except your assertion about what 'infringed' meant in 1787. My research indicates it has the same meaning and usage today as it did in the 18th Century. The problem is that many don't like that that implicates. My answer to them lies in Article V.

 

At any rate, we don't need misguided attempts by over-zealous well-intentioned amateurs. As to criminal defense lawyers, they are bound to try everything on behalf of their client, so I don't impugn them...they are just doing their job.

 

I agree with you, too, FF ... except the highlighted section above. There are a great many people who "just do their jobs" that must be impugned ...

 

After all (and to use an extreme example), Hitler's death-camp workers were just doing their jobs. I suppose you meant "as long as their jobs are just." But then again, many tactics defense attys use are not particularly just.

[Tvandermyde]

in the 1787 there were 4 definitions of "infringed" 3 do not comport with gun guys thinking.

[Federal Farmer]

I agree with you, Todd, except your assertion about what 'infringed' meant in 1787. My research indicates it has the same meaning and usage today as it did in the 18th Century. The problem is that many don't like that that implicates. My answer to them lies in Article V.

 

At any rate, we don't need misguided attempts by over-zealous well-intentioned amateurs. As to criminal defense lawyers, they are bound to try everything on behalf of their client, so I don't impugn them...they are just doing their job.

 

I agree with you, too, FF ... except the highlighted section above. There are a great many people who "just do their jobs" that must be impugned ...

 

After all (and to use an extreme example), Hitler's death-camp workers were just doing their jobs. I suppose you meant "as long as their jobs are just." But then again, many tactics defense attys use are not particularly just.

 

Our legal system is designed to be adversarial, and I prefer it to other systems around the world. I think an over zealous prosecutor is more heinous than an attorney that gets some scumbag off on a technicality.

[Federal Farmer]

in the 1787 there were 4 definitions of "infringed" 3 do not comport with gun guys thinking.

 

Cite!

[w00dc4ip]

there is no way to stop people from bring bad or wrong headed litgation.

But if every self proclaimed 2A scholor and legal expert run at it we are sure to end up with stuff like the Cicero ruling that only hurts us.

We already know that we can't stop criminal lawyers from arguing the 2A defense. So far their track record has been pretty poor.

The last thing we need is gun guys who think they know better that everyone else and won't wait a minute longer.

Like it or not the Court is not going to say "shall not be infringed" means what many want it to mean. And historically speaking in 1787 "infringed" isn't what we think of today.

And if those think that they don't want any organizational support or imput fine. But when they argue a bad case with bad facts in a bad jurisdiction and give us another Price type case to deal with, I'll use my 4 favorite words.

a thought out strategy for a good legal foundation is better than a bunch of free agents.

Disclosure, my knowledge of the case in question is limited to what I've read in this thread, so I may be missing something more important, but I'll stick primarily to hypothetical anyway.

 

My point was to say that unless ISRA, SAF, and NRA are already planning to bring the cases that need to be brought in the correct way, immediately following the McDonald decision, expect them to be brought by others who have no affiliation with the groups that fight this battle in the proper way. In the case of Mr. Hamblin, he was arrested and charged with the crime of possession of a MG. As far as he's concerned (and many others as well) owning a MG is a right protected by the 2A, no matter what the BATF regulations or local laws claim. He doesn't really have the ability to search out a good case, at the right time, in a favorable jurisdiction. He has to defend himself in the jurisdiction he's charged in, and right now. Why NRA isn't taking up his case is a mystery to me, at least that way they could make the best of a bad situation, unless the NRA is conceding that MG possession isn't protected by the 2A. I understand the reality that NRA is very political and they don't want to take up a loser case, but you can see how people like Mr. Hamblin would be right to vilify the NRA for abandoning him, particularly if he's an NRA member, when he's making a valid claim. If you believe the 2A means what it says, then it should protect MG possession and he's absolutely right to bring this case to defend his actions in every way available to him.

 

Let's take a parallel situation in Illinois, lets say someone in Illinois decided that they believe the 2A protects the right to carry a loaded firearm for self defense, no matter what the local laws say. They carry concealed so as not to draw attention despite Illinois' transportation restrictions. One day by some strange event a cop figures out they're carrying and they get arrested and charged with aggravated UUW for carrying (assuming the defendant committed no other crime). They get convicted and decide to appeal by challenging the FOID system and transportation laws on 2A grounds all the way up to the SCOTUS. Let's assume for argument sake this person is a member of NRA and ISRA and asks them to help with his defense and legal challenge, should these organizations turn their back on him because he violated an unconstitutional law? Are you saying that this person would be wrong to defend his actions this way, or fight his legal battle this way? Todd V, and Garand, I'm specifically looking for your input here.

 

We all understand what's at stake, and while it would be great if SCOTUS came out tomorrow and proclaimed "2A means what it says, word for word, all restrictions on firearm ownership are hereby rescinded, any new regulation must pass a constitutional review prior to enactment as of today" We know that isn't going to happen. That said, I don't necessarily fault people who break unconstitutional laws and I wholeheartedly support their efforts to defend themselves by fighting to get those laws overturned in every way possible. I think the "organizations" would be wise to, if nothing else, assist people like Mr. Hamblin with their cases rather than ignore it and hope it doesn't turn into a bad precedent.

[Tvandermyde]

My point was to say that unless ISRA, SAF, and NRA are already planning to bring the cases that need to be brought in the correct way, immediately following the McDonald decision, expect them to be brought by others who have no affiliation with the groups that fight this battle in the proper way.

 

We are. But there are finite resources that we have. And while killing off a law in Illinois maybe what we want, killing off the law in say NJ will bring a better ruling with a broader effect, and yet invalidate the Illinois law. But because it's not done in an Illinois court or jurisdiction, some may think nothing is being done.

 

In the case of Mr. Hamblin, he was arrested and charged with the crime of possession of a MG. As far as he's concerned (and many others as well) owning a MG is a right protected by the 2A, no matter what the BATF regulations or local laws claim. He doesn't really have the ability to search out a good case, at the right time, in a favorable jurisdiction. He has to defend himself in the jurisdiction he's charged in, and right now.

 

Regardless of what you think about full autos, Gura gave it away at Heller when Scalia all but begged him to answer the MG questions with a yes. The class three guys went bananas after that. An opportunity may have been lost there but I see some stuff in Heller that may reopen it. But the issues at hand is someone making an illegal machinegun. It's criminal. He can present what ever defense he wants, but it's not the case or fact pattern to argue to overturn the NFA. My guess is NRA s more likely support a case once there is ample foundation to build upon. Not a "militia" guy building MGs in his garage in violation of the law.

Why NRA isn't taking up his case is a mystery to me, at least that way they could make the best of a bad situation, unless the NRA is conceding that MG possession isn't protected by the 2A.

 

NRA didn't concede it Gura did.

 

I understand the reality that NRA is very political and they don't want to take up a loser case, but you can see how people like Mr. Hamblin would be right to vilify the NRA for abandoning him, particularly if he's an NRA member, when he's making a valid claim.

 

He engaged in criminal conduct. At his discreation. Not by happenstance or a gray area. He knew what he was doing.

 

If you believe the 2A means what it says, then it should protect MG possession and he's absolutely right to bring this case to defend his actions in every way available to him.

 

Let's take a parallel situation in Illinois, lets say someone in Illinois decided that they believe the 2A protects the right to carry a loaded firearm for self defense, no matter what the local laws say. They carry concealed so as not to draw attention despite Illinois' transportation restrictions. One day by some strange event a cop figures out they're carrying and they get arrested and charged with aggravated UUW for carrying (assuming the defendant committed no other crime). They get convicted and decide to appeal by challenging the FOID system and transportation laws on 2A grounds all the way up to the SCOTUS. Let's assume for argument sake this person is a member of NRA and ISRA and asks them to help with his defense and legal challenge, should these organizations turn their back on him because he violated an unconstitutional law? Are you saying that this person would be wrong to defend his actions this way, or fight his legal battle this way? Todd V, and Garand, I'm specifically looking for your input here.

 

Different case. We are much closer to gaining RTC or repeal of the FOID with a good ruling in McDonald then legalizing full autos. Note the Chicago brief and the amount of time they spend on RTC. We may get to the full auto question in time. But we need the good foundation to get there. We can also challenge the UUW law or FOID without having someone go to jail or face a felony charge. There may be criminal cases that try the Heller/McDonald defense once it comes out. But to systematically take out the ANTI-RTC part of UUW or the FOID card requires a solid argument not just its my right and the 2A says shall not be infringed. That will only loose.

 

But while some argue we should be spend all kinds of resources on this guy for making full autos, some are saying we should be pressing RTC challenge in Illinois. We only have so many resources to go around. And we are venue shopping for the right laws to take down. DC was a good case because their gun ban was so draconian. Chicagoland are the only other ones. So building up on Heller, incorporation was needed or nothing else works and is putting the cart before the horse.

 

 

We all understand what's at stake, and while it would be great if SCOTUS came out tomorrow and proclaimed "2A means what it says, word for word, all restrictions on firearm ownership are hereby rescinded, any new regulation must pass a constitutional review prior to enactment as of today" We know that isn't going to happen. That said, I don't necessarily fault people who break unconstitutional laws and I wholeheartedly support their efforts to defend themselves by fighting to get those laws overturned in every way possible. I think the "organizations" would be wise to, if nothing else, assist people like Mr. Hamblin with their cases rather than ignore it and hope it doesn't turn into a bad precedent.

 

Heller/McDonald will be the foundation to challenge other laws. We need them first. I understand guys get jammed up by accident or some stupid law like transporting in DC or NYC. But intentionally making full autos, then claiming a 2A defense in light of Miller and before Heller is insane.

[GarandFan]

Frankly, I wish we could all agree to wait on the full auto stuff. Anyone who's fired them knows the score ... big fricking deal ... but the public and the judges and the justices think they are scary as all get-out. I truly doubt that the full auto stuff will come along without the courts dealing with the militia purpose of the 2A and breathing life back into that still important aspect of the protected right. That, and getting more detail about just what, exactly, might be meant by "in common use."

 

But it's always people on the extremes that move issues ... and it's the gravity of the middle that keep issues moving very slowly.

 

 

And by the way ... Gura did say in orals that he suspected MGs might not be protected arms. I suspect he did that under some pretty damned thorough and conservative advisement. But, that said ... what he or anyone else says during oral argument matters very little. I have almost come to think that orals are merely a formality. Justices write their opinions ... not litigators ... and it's the opinions that matter.

[w00dc4ip]

Wow Todd, guess I touched a nerve there, didn't mean to offend. One thing I'd like to point out though is a single line from your post:

"He engaged in criminal conduct. At his discreation. Not by happenstance or a gray area. He knew what he was doing."

Yes he did, and he knew full well that what he was doing was in fact violating an unconstitutional law. Now he pays the price and faces the judicial system while trying to prove to everyone else that the law he broke is unconstitutional, much like the "straw man" I set up, caught carrying in Illinois, would pay the price and face the judicial system while trying to prove the law they broke is unconstitutional. I agree that the right way to fight this battle is as you describe, a systematic approach that builds upon itself in favorable jurisdictions with the widest implications. That said, the people facing persecution for violating unconstitutional laws don't have the ability to wait for that systematic approach to work it's way through.

 

I agree with Garand that I wish everyone would hold off on the full-auto stuff until there is good case law and precedent to push it through, obviously this guy doesn't agree with that as he doesn't have much choice to hold off, he has to defend himself now.

[Tvandermyde]

you didn't touch a nerve so much as stupid people do stupid things then expect everyone else to bail them out of it.

 

No one in their right mind would beleive that making machineguns was protected activity.

 

anyone who has more than two brain cells to rub together knows we have been fighting the Miller opinion for some 70 years. And that the NFA has never been ruled uncontitutional.

 

No matter what you or I think, I'ts not unconsitutional until the Supreme Court says it is. And they haven't said making machineguns outside of the NFA is consitutionally protected activity. So I just don't buy the defense. If he was that niaeve then he should be punished for being stupid -- since there is no fix for that.

 

We may quibble about the definition of case, or any number of the finer points of the law. But I don't think anyone here would argue or suggest making machineguns would be a good idea to do and test the consitutionality of the NFA -- BEFORE heller was even taken for cert much less decided.

 

I put him in the same catagory as those who say the income tax was never approved and you don't have to pay it and that the Sheriff is supreme law over all. Until 5 people in black robs say it so -- it ain't.

 

If I strapped on a gun and got arrested before Heller ofr UUW I would not expect the world to bail me out for being stupid. And even in a post Heller world, if I did it here in Illinois I still wouldn't.

 

I do see a plan to attack UUW post McDonald. But it will not involve me or anyone else strapping on a gun and walking down the street begging to be arrested.

 

You want to challenge the NFA and the ban on new full autos for civilian use there is a way to do it that 1 doesn't put you in jepardy of felonies. 2. have a chance of succeeding. 3 is built upon a foundation of legal precedent.

 

Doing what he did in a pre-heller world was idiotic. and now we sufer bad precident becuse of it. Best thing that can happen is for the court to deny cert.

[GarandFan]

Best thing that can happen is for the court to deny cert.

 

+ 10,000

[w00dc4ip]

Best thing that can happen is for the court to deny cert.

That would be the best thing for those of us who hope to maybe regain the right to own a machine gun at a later date.

[c-rock]

I wish the guy the best of luck, but like T says, its the system.

 

 

The system is just too far gone. There is nothing to really stop it.

[Glock21]

I'm not making this comment about anyone here, or questioning anyones thoughts or intentions. I've read this thread, and it's obvious to me that if this is what it's come to - Millions to lawyers, a government more interested in denying rights than protecting them, and people willing to name call and let those, who have been arrested and convicted of breaking a law that is contrary to our rights, hang out to dry, because their case isn't politically sexy - then the second amendment is not salvageable under the present circumstances. And truth be told, I've thought that for 20-years. I'm not saying I've quit trying, and I'm not inciting revolution...It just kind of makes my stomach turn everytime I face the reality of how broken our nation is, and how weak most people are when it comes to really standing up for thier rights.

 

The person cited in the case above is RIGHT. Morally, and constitutionally. And just because some of us don't like it, or find his methods distasteful, or wish the circumstances were different, it still stands. He has an Article II right to own the same small arms as issued to the military infantryman of the day. And if we're not willing to publiclly defend it, then we're dishrags. Arguing case law and semantics is just so beyond what intent and proper application was/is of Article II We all know the Second Amendment exsists so We, the People, can SHOOT tryants, should they deny us our rights. And here we find ourselves begging for that right from the same institutions that those tyrants may someday sprout from. we act all surprised when they twist and redefine words at will. We spend fortunes and generations fighting them about a PERMIT to exercise the right. We cower and tremble at the enforcers. And we, like Judas, have the nerve to point fingers at those who are arrested for violating unconstitutional laws and claim they "had it coming." Shame on us.

 

I will personally state in public at anytime the Second Amendment secures the right of every one of us to own as many machineguns as we can afford. I don't own any, and I don't find the idea that appealing, but it is my, your, and this mans right - Supreme Court and case law be damned. And untill we start pushing forward boldly we will never get anywhere. Begging for scraps is no way to live, and that's exacty what comes of these court cases - scraps. But, the alternative isn't pretty, either.

 

Again, I'm not saying anything about anyone here - on the contrary, I always find these discussions informative and enlightning. I'm just frustrated with the direction because I see it as treading water and an eventual complete waste of time. of course, I have no better idea...sorry to say.

[lockman]

Glock21, I agree.

 

Any law that places a felony burden on someone for an act that violates nobody's rights and is not even immoral, other than the fact the government say's it is. Such penalties should be reserved for crimes against people, their property or acts that would directly result in crimes against person or property. If we can just get back to basics.