NO.

09-5025

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RICHARD HAMBLEN
Plaintiff/ Appellant
vs.

UNITED STATES OF AMERICA

Defendant/Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
DISTRICT COURT NO. 3:08-1034

BRIEF ON BEHALF OF PLAINTIFF/APPELLANT

RICHARD HAMBLEN

JEFFERY S. FRENSLEY
211 Third Avenue North
Nashville, TN 37219
(615) 256-2111
Attorney for Appellant
 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RICHARD HAMBLEN )
Plaintiff/Appellant )
v. ) No. 09-5025
)
UNITED STATE OF AMERICA )
Defendant/Appellee )

DISCLOSURE OF CORPORATE AFFILIATIONS

AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 26.1, Richard Hamblen makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation?

NO.

If the answer is YES, list below the identity of the Parent Corporation or
affiliate and the relationship between it and the named party:

2. Is there a publicly owned corporation, not a party to the appeal that has a
financial interest in the outcome?

NO.

If the answer is YES, list the identity of such corporation and the nature of
the financial interest:

s/Jeffery S. Frensley March 2, 2009

Jeffery S. Frensley Date

ii
 TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL

INTEREST .............................................................................................................. ii

TABLE OF CONTENTS ................................................................................. iii, iv

TABLE OF AUTHORITIES ............................................................................ v, vi

STATEMENT REGARDING ORAL ARGUMENT ...........................................1

STATEMENT OF APPELLATE JURISDICTION.............................................1

STATEMENT OF THE ISSUES........................................................................ 1-2

ISSUE ONE

THE SECOND AMENDMENT PROTECTS MR.

HAMBLEN’S INDIVIDUAL RIGHT TO POSSESS WEAPONS
REASONABLY RELATED TO HIS MEMBERSHIP IN THE
TENNESSEE STATE GUARD.

ISSUE NO. TWO

MR. HAMBLEN’S CONVICTION UNDER 26 U. S. C. §

5861 (D) DEPENDS ENTIRELY UPON THE VALIDITY OF
HIS CONVICTION UNDER 18 U. S. C. § 922 (O).
STATEMENT OF THE CASE ..............................................................................2

STATEMENT OF THE FACTS . ..........................................................................3

SUMMARY OF ARGUMENT...............................................................................9

BRIEF AND ARGUMENT...................................................................................10

ISSUE ONE ............................................................................................................10

ISSUE TWO ...........................................................................................................21

STANDARD OF REVIEW ...................................................................................22

CONCLUSION.......................................................................................................23

iii
CERTIFICATE OF COMPLIANCE ..................................................................24

CERTIFICATE OF SERVICE ............................................................................25

iv
 TABLE OF AUTHORITIES
Cases

Hamblen v. United States of America, 128 S. Ct. 523 ..............................................3

District of Columbia v. Heller, 128 S. Ct. 2783 (2008)................................... passim

United States v. Faasse, 265 F. 3d 475, 480 (6th Cir 2001) .....................................23

United States of America v. Hamblen, 2007 WL1804393........................................2

United States v. Miller, 307 U. S. 174, 59 S. Ct. 816, 83 L. Ed 2d 1206 (1939)

...................................................................................................................... passim
Statutes

18 U. S. C. § 922 (o). ...............................................................................................22

26 U. S. C. §5861 (d) ...............................................................................................22

28 U. S. C. § 2255.....................................................................................................3

28 U. S. C. § 1291......................................................................................................1

28 U. S. C. § 2255..................................................................................................1, 3

T. C. A. § 58-1-410 ....................................................................................................4

OTHER AUTHORITIES

National Firearms Act, 48 Stat. 1236. 128 S. Ct. 2814 (emphasis added) ..............13

RULES

Rule 34 Federal Rules of Appellate Procedure .........................................................1

Constitutional Provisions

v
Second Amendment ......................................................................................... passim

vi
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 34 of the Federal Rules of Appellate Procedure and the

Rules of the Sixth Circuit Court of Appeals, the Appellant submits that oral

argument is appropriate in this case, in that the issues in this case are of

constitutional significance and fact specific and would be helpful to the resolution

of the issues presented.

STATEMENT OF APPELLATE JURISDICTION

This is an appeal from the district court's entry of Judgment entered on

December 5, 2008, denying Mr. Hamblen’s Motion to Vacate, Set Aside or Correct

Sentence pursuant to 28 U. S. C. § 2255. (R. 8, Motion to Vacate, Set Aside or

Correct Sentence in Case No. 3:08-1034) A Notice of Appeal was timely filed on

January 5, 2009. (R. 11, Notice of Appeal in Case No. 3:08-1034). Jurisdiction is

conferred on this Court pursuant to 28 U. S. C. § 1291.

STATEMENT OF THE ISSUES

ISSUE ONE

THE SECOND AMENDMENT PROTECTS MR.

HAMBLEN’S INDIVIDUAL RIGHT TO POSSESS WEAPONS
REASONABLY RELATED TO HIS MEMBERSHIP IN THE
TENNESSEE STATE GUARD.

ISSUE NO. TWO

MR. HAMBLEN’S CONVICTION UNDER 26 U. S. C. §

5861 (D) DEPENDS ENTIRELY UPON THE VALIDITY OF
HIS CONVICTION UNDER 18 U. S. C. § 922 (O).
 STATEMENT OF THE CASE

On December 14, 2005, the Appellant, Richard Hamblen, was charged in a

two (2) count indictment in the instant case. (R. 1, Indictment, in Case No. 3:05-

0226). The case proceeded to trial and on May 31, 2006, the jury returned a verdict

of guilty on counts 1 and 2 of the indictment. (R. 23, Jury Verdict in Case No.

3:05-0226).

On August 25, 2006, the district court held a sentencing hearing and

sentenced Mr. Hamblen to a term of imprisonment of fifteen (15) months as to

each count to run concurrently followed by a two (2) year period of supervised

release. (R. 28, Judgment in Case No. 3:05-0226).

Mr. Hamblen appealed his conviction and sentence to the United States

Court of Appeals for the Sixth Circuit in case number 06-6170. On appeal, Mr.

Hamblen argued that the statutes violated his Second Amendment right to keep and

bear arms as a member of the Tennessee State Guard and that the statutes were

unconstitutionally vague as applied to him. On June 21, 2007, the United States

Court of Appeals for the Sixth Circuit affirmed his conviction and sentence at 2007

WL1804393.

Mr. Hamblen filed a Petition for Writ of Certiorari in the United States

Supreme Court designated with the case number 07-426 as to whether the Second

Amendment guarantees members of a legitimate state authorized militia to keep

2
and bear arms supplied by themselves of the kind in common use by the military at

the time.

On October 29, 2007, the United States Supreme court denied Mr.

Hamblen’s Petition for Writ of Certiorari at 128 S. Ct. 523 (mem.). Following the

Supreme Court’s grant of the Petition for Writ of Certiorari in District of Columbia

v. Heller, 07-290, Mr. Hamblen filed a Petition to reconsider which was denied on

January 9, 2008.

Mr. Hamblen filed a timely Motion under 28 U. S. C. § 2255, to vacate, set

aside or correct sentence. (R. 1, Motion to Vacate in Case No. 3:08-1034). That

Motion was denied by the district court for the reasons set forth in its

memorandum opinion on December 5, 2008. (R. 8, Memorandum in Case No.

3:08-1034). The Court concluded that Mr. Hamblen made a substantial showing of

the denial of a constitutional right as to his second amendment claim which

reasonable jurists could find debatable and issued a certificate of appealability.

(Id.) Mr. Hamblen filed a timely Notice of Appeal and this matter is now before

the Court. This is Mr. Hamblen’s first Petition or application after direct appeal

concerning this judgment of conviction in any court.

STATEMENT OF THE FACTS

Richard Hamblen graduated from Vanderbilt University, Sum Cum Laude,

majoring in Greek and Latin in 1977. (R. 37, Transcript in Case No. 3:05-0226

3
Hamblen Pg. 158). While at Vanderbilt, Mr. Hamblen was a member of the ROTC.

Mr. Hamblen comes from a long line of descendants who actively served in the

United States Military from the War of 1812 to the Vietnam War. (Id. at Pgs. 178-

79).

Mr. Hamblen served eight (8) years in the United States military obtaining

the rank of First Lieutenant before being honorably discharged in 1984. (Id. at Pg.

158-59). After leaving the United States service, Mr. Hamblen enlisted in 1999 in

the Tennessee State Guard. (Id. At Pg. 160).

The Tennessee State Guard is an all volunteer force created by Tennessee

State Law under the auspices of the Tennessee Department of the Military. (R. 36,

Greer, Transcript in Case No. 3:05-0226 Pg. 97). Pursuant to its statutory authority,

the Tennessee State Guard is authorized to act as an armed force. T. C. A. § 58-1-

410; (R. 36, Greer, Transcript in Case No. 3:05-0226 Pg. 99). There were

approximately eleven hundred (1,100) members of the Volunteer State Guard in

2001. (R. 36, Transcript in Case No. 3:05-0226 Chalfant Pg. 120).

All members of the State Guard are responsible for purchasing their own

uniforms and other equipment. (R. 36, Transcript in Case No. 3:05-0226 Greer

Pgs. 104-05). The State of Tennessee maintains twenty-one (21) M-16 machine

guns for use by the State Guard. (Id. at Pgs. 106-108). Members of the State Guard

receive annual training which includes weapons familiarization and includes live

4
fire exercises with the M-16s. (R. 36, Transcript in Case No. 3:05-0226 Greer, Pgs.

103-05).

At the live fire training, a civilian employee of the Department of the

Military signed for and received the M-16s from the Tennessee National Guard

Armory in Smyrna, Tennessee then provided the weapons to the Tennessee State

Guard who was responsible for bringing their own ammunition and magazines,

cleaning and maintaining the weapons and overseeing the live fire exercises. (R.

37, Transcript in Case No. 3:05-0226 Hamblen, Pgs. 168-171; R. 36, Chalfant,

Pgs. 120-123).

Throughout its history, the Tennessee Guard has been used on occasion to

perform official state functions. (R. 36, Transcript in Case No. 3:05-0226 Cannon,

Pgs. 137-38). The Guard has on occasion performed those functions in an armed

capacity. (Id.).

After September 11, 2001, the Tennessee State Guard was utilized to

perform security functions at the United States Naval Air Base in Millington,

Tennessee. (R. 36, Transcript in Case No. 3:05-0226 Chalfant, Pgs. 117-119). In

the months immediately after September 11, there was discussion regarding further

use of the Tennessee State Guard with respect to security functions relating to

possible chemical and biological attacks. (R. 37, Transcript in Case No. 3:05-0226

Hamblen, Pgs. 162-167).

5
 In September 2001, Mr. Hamblen held the rank of Captain in the Tennessee

State Guard. (R. 37, Transcript in Case No. 3:05-0226 Hamblen, Pg. 160). Mr.

Hamblen was directly responsible for supervision of the 201st Military Police

Battalion. Based upon his years of experience and training and given his

understanding of the roles a State Guard might be called upon to fulfill, Mr.

Hamblen realized that there was the possibility that the Guard would be utilized as

an armed force at some point in the future. (R. 37, Transcript in Case No. 3:05-

0226 Hamblen, Pgs. 162-167). Similarly, based upon his experience and training

and years of service with the Tennessee State Guard, he recognized that the Guard

was woefully unprepared to fulfill their duty if called upon to perform such a

function. Specifically, the State of Tennessee was not adequately prepared to arm

the Guard should they be called to act upon in such a capacity. (Id.).

In light of his understanding of the situation, the potential for being called to

act in such fashion and his duty to the State of Tennessee, as well as, the men he

commanded, Mr. Hamblen obtained materials necessary to rebuild weapons which

have been used by the armed forces of the United States for military purposes.

(Id.).

Mr. Hamblen eventually realized that the Tennessee State Guard would not

be utilized in its full constitutional and statutorily authorized capacity as an armed

force. (R. 37, Transcript in Case No. 3:05-0226 Hamblen, Pgs. 222-223). By this

6
time, Mr. Hamblen already had the weapons in question. The weapons were stored

along with other military weapons and equipment at Mr. Hamblen’s place of

business located on Houston Street in Nashville, Tennessee. (R. 37, Transcript in

Case No. 3:05-0226 Hamblen, Pgs. 166-167). The weapons were kept in a concrete

safe with a steel door secured by a steel deadbolt lock. (Id.).

In light of the fact that there was a decreasing likelihood of there being a

need for the weapons, Mr. Hamblen set about to find a way to dispose of the

weapons in a lawful manner. Mr. Hamblen first obtained a Federal Firearms

License (FFL) and was preparing to obtain a Class 3 Special Occupational Tax

Sticker which would allow him to lawfully register and transfer the weapons in

question. (Id.). To obtain a Federal Firearms License one must go through an

extensive vetting process which includes background and criminal history checks.

(R. 36, Transcript in Case No. 3:05-0226 Kehn, Pgs. 52-55). Once an individual

obtains a F. F. L., which is the most rigorous application process, he can then

simply pay a fee to the government to purchase the tax stamps to manufacture and

sell. (Id.).

In March 2004, Mr. Hamblen successfully obtained his F. F. L after being

subjected to the extensive background investigation. (R. 37, Transcript in Case No.

3:05-0226 Hamblen, Pgs. 177-178). After agents from the FBI and ATF initially

contacted him he completed the application, paid the fee and subsequently received

7
the Special Occupational Tax Stamp. (R. 37, Transcript in Case No. 3:05-0226

Hamblen, Pgs. 174-180).

On April 22, 2004, agents with the FBI and Alcohol, Tobacco and Firearms

Agency went to Mr. Hamblen’s place of business on Houston Street in Nashville,

Tennessee. (R. 36, Transcript in Case No. 3:05-0226 Kehn, Pg. 36). The Agents

were investigating a tip that Mr. Hamblen might be in possession of automatic

weapons. (Id.). The agents did not have a search warrant. (Id.).

Mr. Hamblen greeted the agents and was very cooperative in his interaction

with them. (R. 36, Transcript in Case No. 3:05-0226 Kehn, Pgs. 42-43). Mr.

Hamblen was asked if he had any automatic weapons in possession and he initially

stated that he did not. (R. 36. Transcript in Case No. 3:05-0226 Kehn, Pgs. 31-34).

Mr. Hamblen was asked if he would consent to a search of his premises to which

he agreed. (Id.). He was again asked if he had any automatic weapons in his

possession at which time he acknowledged that he did in fact have such weapons

and directed the agents to the safe described above. (Id.).

Inside the safe Mr. Hamblen directed the agents to nine (9) items in various

operational conditions which he stipulated at trial met the statutory definition of a

machine gun even though not all were actually functioning weapons. (R. 36,

Transcript in Case No. 3:05-0226 Pg. 95, Ex. 3, Stipulation). Mr. Hamblen assisted

the agents in loading the firearms in their vehicle and voluntarily forfeited the

8
weapons. (R. 36, Transcript in Case No. 3:05-0226 Kehn, Pgs. 35-37).

On December 14, 2005, Mr. Hamblen was charged in a two (2) count

indictment. (R. 1, Indictment in Case No. 3:05-0226). The case proceeded to trial

and on May 31, 2006, the jury returned a verdict of guilty on both counts. (R. 23,

Jury Verdict in Case No. 3:05-0226). Mr. Hamblen was subsequently sentenced to

a term of imprisonment of fifteen (15) months has to each count to run

concurrently followed by a two (2) year period of supervised release which he is

currently serving. (R. 28, Judgment in Case No. 3:05-0226).

SUMMARY OF ARGUMENT

In District of Columbia v. Heller, the United States Supreme Court held that

the Second Amendment confers an individual right to keep and bear arms. ____ U.

S. ______, 128 S. Ct. 2783, 2814-18, 171 L. Ed 2d 637 (2008). Mr. Hamblen

contends that in light of this ruling the lower court’s erred in not allowing him to

mount a defense based upon the Second Amendment. As a member of the

Tennessee State Guard, a well regulated statutorily created militia, and in light of

the decision in Heller, the Second Amendment protects his individual right to bear

arms and thus the conviction in this case violate his Second Amendment rights.

Mr. Hamblen contends that to the extent the decision in Heller could be read

to limit his particular right to bear arms of the kind he possessed and for which he

was convicted that decision is inherently inconsistent and grounded in a clear and

9
obvious misstatement of the procedural and factual posture of United States v.

Miller, 307 U. S. 174, 59 S. Ct. 816, 83 L. Ed 2d 1206 (1939) and the history of the

Second Amendment and militias in the United States. This clear error by the Court

with respect to the scope of the right protected under the Second Amendment for

an individual to bear arms (a matter beyond the scope of the question presented in

Heller) requires that the Court revisit this issue in order to address the glaring

errors with respect to this matter by the Supreme Court in Heller.

BRIEF AND ARGUMENT

ISSUE ONE

THE SECOND AMENDMENT PROTECTS MR.

HAMBLEN’S INDIVIDUAL RIGHT TO POSSESS WEAPONS
REASONABLY RELATED TO HIS MEMBERSHIP IN THE
TENNESSEE STATE GUARD.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008), represents the first

time the United States Supreme Court has considered the Second Amendment

since its decision in United States v. Miller in 1939. In addition to being a

landmark constitutional case, Heller represents a fascinating look into how cases

arrive before the Supreme Court and the interesting positions litigants take.

Heller was a civil action challenging the District of Columbia’s handgun

law. The Plaintiffs, hand selected citizens of the District supported by lawyers

affiliated with the Cato Institute, sought to essentially rewrite the Second

Amendment removing the militia clause from consideration. The rewrite sought by

10
Mr. Heller and the Cato Institute was that the Second Amendment protects the

rights of individuals to keep and bear arms in their homes for their own personal

protection. According to the Heller Plaintiffs and ultimately five members of the

Supreme Court, the militia clause of the Second Amendment was superfluous.

The District’s position in Heller ultimately adopted by four members of the

Supreme Court was that the militia clause was not in fact superfluous and was

critical to the scope of the right protected under the Second Amendment. Of

course, despite Mr. Hamblen’s membership in a legitimate statutorily created and

recognized militia of the State of Tennessee the government did not support Mr.

Hamblen’s Petition for Writ of Certiorari. Mr. Hamblen’s Petition argued that the

individual right protected under the Second Amendment was related to militia

membership. Ultimately, the Court decided to deny Mr. Hamblen’s petition and

accept the petition of the District of Columbia appealing the ruling of the D. C.

Circuit.

While the ruling of the Supreme Court is reported as a five to four decision

there appears to be little disagreement among the Court that the Second

Amendment creates an individual right to bear arms. As noted above, the true

disagreement appears to be whether or not that right is related to membership in an

organized militia. The majority held that militia membership was irrelevant to the

right protected while the minority concluded that there had to be some sort of

11
relationship.

For Mr. Hamblen’s purposes however the important part of the decision in

Heller lies in four pages of the voluminous majority opinion. It is in that section of

the opinion that the majority appears to address the issue raised in Mr. Hamblen’s

case pending before this Court.

As the Heller majority noted, the types of weapons permitted was not before

the Court but they decided to address that issue nonetheless. 128 S. Ct. at 2815.

Specifically, the Court referenced machine guns and arguably held that such arms

would not be protected under the Second Amendment. Id. S. Ct. at 2817. This

determination was based exclusively upon what Mr. Hamblen would respectfully

submit is a misinterpretation of United States v. Miller.

The majority’s consideration of Miller focused primarily upon two (2)

issues. First, as not precluding the conclusions the majority reached about the

meaning of the Second Amendment and second, to justify its limitations on the

sorts of weapons protected. However, the majority’s analysis of these issues blends

together. On these issues, the majority interpreted Miller as follows: Miller stands

only for the proposition that the Second Amendment right, whatever its nature,

extends only to certain types of weapons. 128 S. Ct. 2814.

As noted above, the primary distinction between the majority and minority

opinions in Heller rests not upon whether the right conferred in the Second

12
Amendment is an individual or collective right but rather whether “. . . the Second

Amendment right is no more than the right to keep and use weapons as a member

of an organized militia . . . .” 128 S. Ct. 2802. While the majority ultimately held

that militia membership is not a requirement for the amendment to apply, its own

analysis did not require such a bold statement. The majority certainly could have

dispensed with the argument by announcing, consistent with its historical analysis

that the ordinary definition of the militia was all able bodied men, a body already

in existence and not dependent upon organization by Congress or any other

governmental entity. 128 S. Ct. 2800. While Justice Scalia believes that Miller did

not “. . . purport to be a thorough examination of the Second Amendment” Miller

did consider this issue and clearly reached that same conclusion. United States v.

Miller, 59 S. Ct. 818-820. Thus, as the majority noted, its interpretation of the

Second Amendment that an individual does not need to be a member of an

organized militia in order to enjoy the protection of the Second Amendment is

consistent with the ruling in Miller. In that regard, the petitioner agrees with the

Court’s analysis of Miller but that is where the agreement ends.

The first point of disagreement clearly establishes Justice Scalia and the

majority are not beyond reproach. In discussing Miller, Justice Scalia wrote: “the

judgment in the case upheld against the Second Amendment challenge two men’s

federal convictions for transporting an unregistered short barreled shotgun in

13
interstate commerce in violation of the National Firearms Act, 48 Stat. 1236. 128

S. Ct. 2814.” (emphasis added) However, Miller was not before the Court on

Petition of the Defendants and there was no conviction. Miller was before the

Court on the government’s appeal of the dismissal of the indictment against the

individually named defendants. Miller, 59 S. Ct. 816.

The next error in Justice Scalia’s opinion is in the very next sentence in

which he states “it is entirely clear that the Court’s basis for saying that the Second

Amendment did not apply was not that the Defendants were ‘bear[ing] arms’ not

‘for . . . military purposes’ but for ‘non military use’”. Id. (Emphasis in original).

This error is compounded in the next sentence where Justice Scalia writes, “rather,

it was that the type of weapon at issue was not eligible for Second Amendment

protection . . . .” Id. Both of these statements suggest that the Miller court found

that the Second Amendment did not apply to the Defendants when in fact it made

no such finding. On that issue, the Court held that the record was incomplete and

that it could not take judicial notice that the type of weapon in question was ‘any

part of the ordinary military equipment or that its use could contribute to the

common defense.’” Miller, 59 S. Ct. at 818.

With respect to the militia requirement, Justice Scalia pointed out that had

the Court in Miller believed that the Second Amendment protects only those

serving in an organized militia it could have ruled that the Second Amendment did

14
not apply because the two (2) defendants were not militiamen. Heller, 128 S. Ct.

2814. Similarly, had the Court intended to hold as Justice Scalia suggests it could

have done so very clearly by saying that a short barreled shotgun is not a protected

weapon. It did not. Instead, what the court in Miller stated was “in the absence of

any evidence tending to show that possession or use of a ‘shotgun having a barrel

of less than eighteen inches in length’ at this time has some reasonable relationship

to the preservation or efficiency of a well regulated militia, we cannot say that the

Second Amendment guarantees the right to keep and bear such an instrument.”

Miller, 59 S. Ct. at 818. The Court then went on to state that it could not take

judicial notice that the weapon was part of the ordinary military equipment or

contributed to the common defense. The manner in which this passage is written

clearly suggests that had there been evidence in the record that possession of the

weapon had a reasonable relationship to the preservation or efficiency of a militia

it would be protected by the Second Amendment. Thus, the majority opinion in

Heller misstates the holding in Miller on this critical point.

It becomes clear that the Court in Heller rests its analysis of Miller on

incorrect facts. First, that the Defendants in that case were convicted and secondly,

that the Second Amendment did not protect their right to possess the type of

firearm in question; a short barreled shotgun. However, the Court apparently

recognized its conundrum in limiting certain types of weapons in light of Miller’s

15
phrase “part of ordinary military equipment.” Therefore, the Court went on to

address that issue.

The majority held that Miller’s “ordinary military equipment” language had

to be read with a portion of the Miller Court’s examination of the nature of the

militia that “ordinarily when called for service these men were expected to appear

bearing arms supplied by themselves and of the kind in common use at the time.”

Heller, 128 S. Ct. 2815. (quoting Miller, 307 U. S. at 179). As such, this means that

the protection extends only to small arms weapons typically possessed by law

abiding citizens for lawful purposes. Thus, the Court established the major premise

for concluding that weapons useful in military service could be banned.

Specifically, with respect to machine guns, the Court concluded that because such

military weapons were not of the sort possessed and “in common use at the time”

they would not be protected in current times, stating “ . . . the fact that modern

developments have limited the degree of fit between the prefatory clause and the

protected right cannot change our interpretation of the right.” Heller, 128 S. Ct.

2817.

Holding that machine guns and other sophisticated military weapons are not

protected under the Second Amendment because they were not of the type in

common use at the time the Amendment was drafted is ironic given the court’s

earlier admonition that “some have made the argument, bordering on the frivolous,

16
that only those arms in existence in the 18th Century are protected by the Second

Amendment. We do not interpret constitutional rights that way.” Heller 128 S. Ct.

2791. However, that is in fact what the Court did in its ruling with regard to

machine guns and other military weapons. While it recognizes that such weapons

would clearly be necessary for a militia to be as effective as the militias in the 18th

century it nonetheless holds that they are not protected.

In Heller, Justice Scalia was faced with the difficulty of on the one hand

desperately wanting to recognize an individual right to bear arms under the Second

Amendment while on the other hand desperately wanting to maintain existing

federal gun laws. Mr. Hamblen respectfully submits that those positions are

mutually exclusive in light of the Supreme Court’s decision in United States v.

Miller. It is clear that Miller recognized an individual right despite the manner in

which lower courts have bastardized the decision as recognizing a collective one

applying only to possession of guns while serving in the organized militia. As

Justice Scalia wrote: “Had the Court believed that the Second Amendment protects

only those serving in the militia it would have been odd to examine the character of

the weapon rather than simply note that the two crooks were not militiamen.” 128

S. Ct. 2814.

The true distinction and ultimate incongruity between Heller and Miller rests

in the standard for determining what types of weapons are protected. Under Miller,

17
only those weapons useful in warfare as “part of ordinary military equipment” or

that “contribute to the common defense” are protected. Under Heller, only small

arms weapons “in common use” at the time the second amendment was adopted

are protected. 128 S. Ct. 2817. The majority suggestion that these views are

consistent is intellectually dishonest and dependent only upon an interpretation of

Miller that both ignores and misstates the relevant facts and conclusions of that

decision.

The majority’s limitations on the type of weapons protected is unpersuasive

at many levels. First there is the point noted above that the court states at one point

that such an argument would be frivolous. Second, there is the fact that it ignores

the further criteria set forth in Miller for protection that the equipment’s use “could

contribute to the common defense.” Despite this language being clearly stated in

Miller, it is conspicuously absent from the majority’s opinion in Heller. Applying

that standard, it is hard to imagine that any weapon would not contribute to the

common defense. Additionally, it ignores the historical and practical reality that

the weapons held by militiamen were limited only by their available resources. As

the D. C. Circuit noted in the underlying opinion early militia acts even had

provisions for the upgrading of weapons as time progressed. Similarly, individuals

who had the financial resources were both able and expected to supply more

expensive ergo-sophisticated weapons such as cannons and the like.

18
 The Court‘s further argument for declining to extend the protection to

machine guns, that they are not “in common use . . . for lawful purposes” is

equally unavailing. There are circumstances under which citizens can legally

possess machine guns manufactured before 1986, if they have completed the

rigorous and expensive licensing process that Mr. Hamblen had begun prior to his

arrest. Similarly, possession of those weapons was not outlawed and thus lawful

until the National Firearm Act of 1934, leading to the reasonable conclusion that if

such weapons were not common at the time there would be no need to regulate

them.

By far the most important misstatement regarding Miller is the conclusion

that short-barreled shotguns are not covered by the Second Amendment. That is

simply not what Miller says. On this issue, the Miller Court stated that “there was a

‘. . . absence of any evidence. . .’ that a short barrel shotgun had a reasonable

relationship to the preservation or efficiency of a militia.” Miller 59 S. Ct. at 818.

Second, the Court stated that it could not take judicial notice of whether the

weapon was any part of the ordinary military equipment or its use could contribute

to the common defense. Neither of these statements lead to the conclusion drawn

by the majority that a sawed off shotgun is not protected. Had the court intended

such a result it could have simply stated it. However, both of these statements

suggest that were such evidence a part of the record the weapon would be

19
protected. The Court then went about creating a process for such facts to be placed

in the record by remanding the case “. . . for further proceedings.” Id. at 820.

Unfortunately, there were no further proceedings because the Defendants, who did

not participate in the Supreme Court case never participated in any further

proceedings.

It is clear that the Court does not want its decision to condone the possession

of weapons such as the machine guns possessed by Mr. Hamblen in this case. By

removing the militia clause or at worst neutralizing it allowed the majority to shift

the focus regarding the type of weapon protected away from any military

connection or connotation thereby limiting the types of weapons protected under

the amendment to those which are more politically palatable. At the same time it

put them outside the scope of government regulation.

The dissent accomplished the goal of limiting the type of weapons protected

through its requirement that the amendment only applies to possession of guns

while serving in the “organized” militia. Thus, presumably, whoever organized the

militia could limit or restrict the types of weapons lawfully possessed. Mr.

Hamblen submits that because of the reasons set forth herein, neither of these

interpretations is supported by the Supreme Court’s precedent in Miller.

Regardless, of whether it is a popular or politically correct decision, Miller

still represents the most reasonable, honest, and appropriate interpretation of the

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Second Amendment. Under that interpretation, the Second Amendment creates an

individual right protecting weapons, which are “part of the ordinary military

equipment,” or “could contribute to the common defense.”

Neither the district court nor any of the other courts that have addressed this

issue post Heller offer any independent analysis. Instead, they rely solely upon the

error filled interpretation of Miller advanced by the Supreme Court in its decision

in Heller. While this approach in understandable, it does nothing to address the

fundamental problems in the Heller Court’s reasoning. The errors in the Heller

decision are of the type which supports reconsideration of the ultimate findings.

That is what Mr. Hamblen respectfully asks this court to do.

There can be no dispute that the Supreme Court simply misstated the

procedural posture of Miller. It is likewise beyond dispute that the Supreme Court

misstated the ultimate finding in Miller with respect to the legitimacy of the

possession of a short barreled shotgun. Each of these errors necessarily raise

significant concerns regarding the legitimacy of the scope of the protection of the

Second Amendment vis a vis weapons which are clearly “part of ordinary military

equipment,” when possessed by members of a legitimate, statutorily created

militia.

The weapons possessed by Mr. Hamblen for which he was charged are

clearly a part of the ordinary military equipment and could contribute to the

21
common defense as the proof at trial unequivocally established. To the extent that

he has an individual right to keep and bear those weapons he should be granted the

relief which he has requested.

ISSUE TWO

MR. HAMBLEN’S CONVICTION UNDER 26 U. S. C. §

5861 (D) DEPENDS ENTIRELY UPON THE VALIDITY OF
HIS CONVICTION UNDER 18 U. S. C. § 922 (O).

Mr. Hamblen’s challenge to his conviction under 26 U. S. C. §5861 (d) has

nothing to do with his Second Amendment claim being based on an individual or

collective right. Rather, his conviction under §5861 (d) is related solely to the

validity of his conviction under § 922 (o). If Mr. Hamblen unlawfully possessed

the weapons, there is no need to reach the registration issue. However, if that

possession was lawful, it is Mr. Hamblen's position that the registration was not

required by law.

The proof at trial and the law is well established that an individual cannot

register a machine gun based on a statue prohibiting possession of such weapons.

However, that position assumes that the possession itself is unlawful. If, as Mr.

Hamblen contends, his possession was lawful, failure to register would not be a

basis for conviction because he could not have registered the firearms to begin

with.

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 STANDARD OF REVIEW

Mr. Hamblen raises various constitutional challenges to his conviction. This

Court reviews the constitutionality of the statute de novo. United States v. Faasse,

265 F. 3d 475, 480 (6th Cir 2001).

CONCLUSION

WHEREFORE, for all the foregoing reasons, Petitioner respectfully submits

that he has an individual right under the Second Amendment to possess the

weapons for which he was charged as they are part of ordinary military equipment

and that his Appeal should be granted.

Respectfully Submitted,

s/Jeffery S. Frensley
JEFFERY S. FRENSLEY, ESQ. #17358
211 Third Avenue North
P.O. Box 198288
Nashville, Tennessee 37219-8288
615-256-2111
Attorneys for the Plaintiff/Appellant

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 CERTIFICATE OF COMPLIANCE

I hereby certify pursuant to Rule 32 (a) (7) (C) of the Federal Rules of

Appellate Procedure that the foregoing brief complies with the type-volume

limitations and contains five thousand three hundred and seventy-one (5,371)

words.

s/Jeffery S. Frensley
JEFFERY S. FRENSLEY, ESQ.

24
 CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing document has been
forwarded via U.S. Mail, postage prepaid, to:

Matthew Everitt, Esq.

Asst. U.S. Attorney
110 Ninth Avenue South, Ste. A-961
Nashville, TN 37203-3870

On this the 2nd day of March 2009.

s/Jeffery S. Frensley
Jeffery S. Frensley

25
 UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RICHARD HAMBLEN )
Plaintiff/Appellant )
v. ) No. 09-5025
)
UNITED STATE OF AMERICA )
Defendant/Appellee )

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE
TODD CAMPBELL, DISTRICT JUDGE, NO. 3:08-1034
_____________________________________________________________

APPELLANT'S DESIGNATION OF RELEVANT DISTRICT COURT

DOCUMENTS
_____________________________________________________________

Comes the Appellant, Richard Hamblen, through undersigned counsel,

pursuant to 6th Circuit Rule 28 and 30, and hereby designate the following relevant

district court documents. This is an appeal from an action brought by Mr. Hamblen

under 28 U. S. C. § 2255. Therefore the record in this case involves both his

underlying criminal case; 05-00226 and the Motion under 28 U. S. C. § 2255:

3:08-1034. The documents are designated and referenced in the brief according to

the case to which they relate.

Description of Item Date Record Entry

Case No. 3:05-00226

Indictment 12/14/05 1

Jury Verdict 05/31/06 23

26
Judgment 08/25/06 28

Notice of Appeal 09/01/06 31

3:08-1034

Motion to Vacate, Set Aside 10/24/08 1

Or Correct

Memorandum 12/05/08 8

Notice of Appeal 01/05/09 11

INDEX TO TRANSCRIPT REFERENCES

Description of Entry Page where testimony

Begins in transcript
Case No. 3:05-00226

Testimony of 137-138, 142-143

Cannon, Devereaux

Testimony of 111-126
Chalfant, Bertram

Testimony of 241-242, 254-258

Frame, John

Testimony of 97, 99-100, 102-108

Greer, David

Testimony of 158-160, 162-171, 174-180

Hamblen, Richard 194-195, 214-219, 222-3

Testimony of 31-37, 42-43, 46, 51-55

Kehn, Eric

Exhibit 3 95
Stipulation

27