591 F.3d 471 (6th Cir. 2009), 09-5025, Hamblen v. United States

Docket Nº:09-5025.
Citation:591 F.3d 471
Opinion Judge:SILER, Circuit Judge.
Party Name:Richard HAMBLEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Attorney:Jeffery S. Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant. Blanche Bong Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee. Jeffery S. Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant. Matthew J. Everitt, Assistant United States Attorney, Nashvi...
Judge Panel:Before: SILER, GILMAN, and ROGERS, Circuit Judges.
Case Date:December 30, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 471

591 F.3d 471 (6th Cir. 2009)

Richard HAMBLEN, Petitioner-Appellant,

v.

UNITED STATES of America, Respondent-Appellee.

No. 09-5025.

United States Court of Appeals, Sixth Circuit.

December 30, 2009

Argued: Dec. 4, 2009.

ARGUED:

Jeffery S. Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant.

Blanche Bong Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

Jeffery S. Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant.

Matthew J. Everitt, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Page 472

Before: SILER, GILMAN, and ROGERS, Circuit Judges.

OPINION

SILER, Circuit Judge.

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.

BACKGROUND

Hamblen enlisted in the Tennessee State Guard in 1999.1 The all-volunteer State Guard is one of four organizations within the Tennessee Department of the Military and is authorized by Tennessee statute. The State Guard's mission is to augment the Tennessee National Guard, and it typically performs ceremonial duties.

The State Guard is authorized to become an armed force if it is activated by the governor of Tennessee. Although it has been called into service, the State Guard has not recently been activated. If activated, the governor of Tennessee is authorized to obtain weapons needed to equip the State Guard. Tenn.Code Ann. § 58-1-405.

As volunteers in an honored, traditional form of service in Tennessee, all State Guard members are responsible for purchasing their own uniforms and other equipment, but they are not issued weapons. The State Guard is, however, provided with twenty-one M16 rifles and ammunition for use during a three-day annual training session conducted by a State Guard commander. State Guard policy prohibits members from either keeping State Guard weapons in their possession or carrying their own individual weapons in the course of their duty.

Hamblen believed that the State Guard might be activated and used as an armed force after September 11, 2001. Because the State Guard had only a few weapons and over a thousand members, Hamblen concluded that the State Guard did not have the resources to perform its duties as an armed force and began looking for a means to better equip the State Guard. He was aware that State Guard members were specifically instructed after September 11, 2001 not to carry weapons in connection with their duties. Nevertheless, he purchased parts kits with his own funds and used his metalworking expertise to build nine machine guns. On at least one occasion, Hamblen had members of his unit train with his 1919 A4 machine gun. At the time, he knew that this training exercise violated State Guard policy.

Hamblen never discussed his machine gun possession with his superiors at the State Guard, and no law enforcement officials or State Guard superiors knew of Hamblen's machine guns. Hamblen admitted that no one at the State Guard ever ordered or even authorized him to obtain any weapons for the State Guard. He also admitted that he knew that his possession of the machine guns violated the statutes under which he was convicted. He believed,...

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