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December 30, 2009

Sixth Circuit rejects Second Amendment challenge to federal criminal prohibition of possessing machine guns

The Sixth Circuit issued a little panel opinion today in Hamblen v. United States, No. 09-5025 (6th Cir. Dec. 30, 2009) (available here), in which the panel summarily rejects a defendant's Second Amendment challenge to his machine gun possession convictions. Here is how the brief opinion starts:

Petitioner Richard Hamblen appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional.  Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court’s judgment and deny Hamblen’s petition for relief.

This case seems notable not only because it is one of the few post-Heller rulings I have seen dealing with machine guns, but also because the defendant appears to have personally manufactured his machine guns in order to be able to better serve as a member of the Tennessee State Guard (which sounds like a modern version of a "well regulated militia").  But these facts are deemed inconsequential by the Sixth Circuit panel:

We note, as a preliminary matter, that Hamblen’s possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy.  Therefore, this case does not present a novel issue of law regarding the Second Amendment’s prefatory clause.

December 30, 2009 at 11:45 AM | Permalink

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Post-Heller Challenge to Federal Regulation of Machine Guns: At Sentencing Law and Policy, Doug Berman posts on Hamblen v. United States. In Hamblen, the Sixth Circuit ruled that "the Second Amendment does not confer an unrestricted individual right to... [Read More]

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Comments

I think that one has to posit the case as an unenumerated right under the Ninth Amendment. That the common law, and the natural law, expressed the right to bear arms.

When General Grant paroled thousands of confederate soldiers, and sent them home with their sidearms, he was rcongizing this inherent right of men to bear arms to protect themselves on their way about daily life and in no way could this been seen as part of their right as a militia since he had just paroled them. April 9, 1865. The 14th amdt was passed not long thereafter and those folks who passed that Amendment were cognizant of the right to bear arms (and arm bears). We should not be only cognizant of the intent of the Framers of the original Constitution and the Bill of Rights, but the intent of the Amenders in later years. Those Radical Republicans were very aware of the right to bear arms-- and so was General Grant and later Prsident Grant-- and the Framers. If their sidearms were M-16s Grant would have sent them home with them. That is a machine gun.

"Because the Second Amendment does not confer an unrestricted individuals right to keep and bear machine guns". Really? Who are these Tories saying such things?

Posted by: mpb | Dec 31, 2009 5:53:33 PM

i have to agree. That amendment was not to guazrantee the individuals right. but was inf act written by the very people who were CARRYING GUNS who had just run off a govt who tried to control them. It was placed there to tell the govt where to BACK OFF and that they had NO CONTROL over guns PERIOD.

Posted by: rodsmith3510 | Jan 2, 2010 10:33:52 PM

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