Brief Introduction to Hamblen vs.

the United States

3:08-1034

My name is Richard A. Hamblen. I am 54 years old and a native of Nashville, TN. I am a

summa cum laude graduate of Vanderbilt University and a veteran of the United States
Army. I have had my own business for the last 22 years.

I am currently involved in a Second Amendment case before the Sixth Circuit Court of
Appeals which addresses all the issues which Heller vs. Washington DC did not. Up until
2006, I was a commissioned officer in the statutorily created, well regulated Militia of the
State of Tennessee, the Tennessee State Guard. While the Tennessee State Guard (TNSG)
is distinct from the Tennessee National Guard, it reports directly to the commander of the
National Guard (NG) in Tennessee, who is in turn reports to the Governor of Tennessee.
The TNSG was created by law as an armed reserve force for the National Guard whenever
any or all of the National Guard is called to service outside the borders of Tennessee. The
TNSG is an all volunteer force, each member supplying his own uniforms and gear. There
is no pay. Practically the only thing the State of Tennessee provides to the TNSG is an
identification card with the state seal on it. In spite of the statutory requirement that it be
an armed reserve force for the NG, the TNSG possesses only 21 sub standard M16A1
rifles for the entire 3500 man force. The TNSG does not even own magazines for these
rifles. These rifles are defined by federal law as “machine guns”. The TNSG trains with
these machine guns at the annual training held each summer. I have helped conduct the
live fire range training with these machine guns.

The gist of my case is that during the runup to the invasion of Iraq, there was a real
possibility that the TNSG would be called to actual service. I was the commander of the
201st Military Police Battalion at the time. As I said, the State owns only 21 obsolete
M16A1 rifles for the entire 3500 man force statewide, and has no intention of acquiring
more (trial testimony of the commander of the TNSG). I chose to exercise my Second
Amendment right to provide myself and my soldiers with weapons, in the words of US v.
Miller (1939), (the only Supreme Court case to address the Second Amendment prior to
Heller), that were part of the “ordinary equipment of the soldier“, provided by ourselves,
“of the type in common use at the time“. The weapon in common use at this time by the
ordinary soldier, as well as the type we actually trained with, is, in the words of the
Solicitor General of the United States (in the oral arguments to Heller in 2008), the
“machine gun“. His actual words were

“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.”

For my efforts I was charged with and convicted of violating the National Firearms Act of
1934 and the Omnibus Crime Bill of 1986. The former requires payment of a registration
tax to comply with the law, while the latter instructs the US Treasury to refuse to accept
these tax payments. In other words I was convicted of failure to pay a tax which the
government refuses to accept. Gun Control is based on the Taxing Authority. Remember,
the power to tax is the power to oppress. If a poll tax is an infringement on the right to
vote, then a firearms tax is an infringement on the right to keep and bear arms.

I was sentenced to 15 months in prison, from September 2006 to October 2007, and two
years of probation, which is set to end at the end of October. We appealed all the way to
the Supreme Court. My case was before the court at the very same time as Heller. You
see whom they picked to hear. The Heller decision established the right to keep and bear
arms as an individual right, but the only good thing I can say about Heller otherwise is
that it allowed my trial judge to grant me a certificate of appealability on my writ of
habeas corpus. The jury in my trial in 2006 was formally instructed that there is no
individual right to keep and bear arms in the Sixth Circuit under the Constitution, which
Heller now contradicts. While Judge Campbell in December, 2008 did not vacate my
sentence, he did remove all the procedural objections the government could raise to my
appeal, and concluded his memorandum with this statement:

"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.”

This is critical. Since the case is now a civil action, I am not automatically entitled to a
hearing. I get one now as a result of this ruling. The judge also said in his memorandum
words to the effect that there is a real conflict between Miller and Heller, but that it was
above his authority to resolve that conflict, an interesting statement for a Federal judge to
make.

This is where we stand now (August 2009). We have filed our brief with the Sixth Circuit,
the prosecution has replied, and we have requested oral arguments.

My case is ostensibly about guns, but the real issue is the Constitution and the utter
contempt in which the Federal Government holds it. If such a fundamental right as the
Right to Keep and Bear Arms can in effect be nullified by sophistic word play, then what
chance does the rest of the Constitution stand? The Feds’ tactic is to adopt an obscure
definition for words in the Constitution, words which were previously perfectly clear until
the New Deal, and then, when one appears close to meeting those definitions, the
meanings are suddenly changed. I call it the moving target theory of jurisprudence. But
their most effective tactic is to simply act quietly and then ignore the case and the actual
question. There was no publicity surrounding my arrest and trial. I never had to post a
bond and was in the lowest possible level of incarceration, and was even allowed to self
surrender to prison. I am presently on the lowest category of supervised release, and have
been told that as long as I mail in my monthly reports, to not expect to ever have any
direct contact with the Probation Office. My Probation Officer does not even know who I
am, nor have I even met the current one I’m assigned to.

While Heller established the Right to Keep and Bear Arms as an individual right, it is in
fact a very limited and narrow decision. It is a terrible decision to gauge from how recent
circuit courts have interpreted the ruling to maintain the current gun control regime. Heller
states that the Right to Keep and Bear Arms is an individual right, but subject to
“reasonable restrictions”. What is reasonable? “Anything we say” is the Government’s
response. Heller is not, as a point of law, legally controlling on anything other than the
Washington DC handgun ban. In other words its pronouncements on other aspects of
the Second Amendment are mere dicta, the legal term for opinion not directly related to
the issue under consideration and therefore of no legal authority.

My case covers the full range of the Second Amendment. I ask all the questions that
Heller fails to ask. Heller is in conflict with Miller and consequently in conflict with the
Constitution. But since a case is heard by the Supreme Court at its sole discretion there is
a real likelihood that the Supreme Court will say publicly that it has ruled on the Second
Amendment and will never ever take another Second Amendment case. That is the real
danger in relying on the court system to protect fundamental Constitutional rights.

There is a whole lot more to this case than I can present in such a short time, a great many
more issues and details. I would invite you to go to
http://www.esnips.com/web/HamblenvsUnitedStates for a look at all the most recent
filings. You the Public need to know about my case. It is fundamental to restoring the
Second Amendment, and indeed the entire Constitution. The worst possible outcome
for all this would be for my case to be resolved negatively and no one know about it.
Feel free to contact me at rahamblen@gmail.com.

Richard A. Hamblen
510 Houston Street
Nashville, TN 37203
(615) 438-2397