Petition for Writ of Certiorari — Hamblen v. United States (No. 07-426)

r ¥ Supreme Com, U.S.

No. = 07-426 SEP 11 2007

Jn the OFFICE OF THE CLERK

Supreme Court of the Anited States

RICHARD HAMBLEN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

JEFFERY S. FRENSLEY

Counsel of Record

211 THirp AVENUE NortH

P.O. Box 198288

NASHVILLE, TN 37219-8288

(615) 256-2111

Counsel for Petitioner

Richard Hamblen

September, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

I. QUESTION PRESENTED

Whether the Second Amendment Guarantees Members Of

A Legitimate State Authorized Militia To Keep and Bear

Arms Supplied By Themselves Of The Kind In Common Use

By The Military At The Time.

il

II. PARTIES TO THE PROCEEDING

The Petitioner, Richard Hamblem, was_ the

Defendant/Appellant below.

Respondent, United States of America was_ the

Plaintiff/Appellee in the Court of Appeals.

if]

TABLE OF CONTENTS

5, QPRPA Ee PRENUE UEP co ee ewer cn eeses i

Il. PARTIES TO THE PROCEEDING ........... il

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RP CIE FRU PRED ow eee ct eevee Vv

re 0a Sd o' Gs es vee ee boa 1

Pe Ek 0 ois a Owes OR es ]

V. CONSTITUTIONAL AND STATUTORY

PORTE ET TUNE ote ch eeenes 1

VI.STATEMENT OF THE CASE .............. 2

Vil. REASONS FOR GRANTING THE WRIT OF

ee | She ra kn ea eae 7

Whether the Second Amendment Guarantees

Members Of A Legitimate State Authorized Militia

To Keep and Bear Arms Supplied By Themselves

Of The Kind In Common Use By The Military At

RRA EI Raa er che trl in aEaye eee a ene 7

Ws SO ne 17

APPENDIX

Appendix A: 6/21/07 Circuit Court Opinion. ..... la

1V

Appendix B: 8/25/06 District Court Judgment in a

CE ede es OP REED

Appendix C: 7/13/07 Mandate .............

Vv

TABLE OF AUTHORITIES

Cases

Hampton and Company v. United States,

oy Se ee eee 11

Marbury v. Madison,

SU. 3. Ace, 137, 174 CIBOS) . ww ce 9

Parker v. District of Columbia,

2 Be ey i: A ed & Tee |: 7) er 8

Perpich v. Department of Defense,

496 U. S. 334, 110 S. Ct. 2418,

aca, Se EE, , cv nec cee teens eces 15

United States v. Bournes,

oe Be | ir mae 12

United States v. Emerson,

27a. sa Ce 0)... ws ee ante ees 8

United States v. Miller,

307 U. S. 174, 59 S. Ct. 816,

oe Ue UE eee passim

United States v. Oakes,

S64 FP: 20 306. 367 (10" Cir. 1977) 2... ke er

United States v. Warin,

SSO F. 2d 208, 106.16" Cir. 1976) .......... 8, 12

vi

Statutes and Codes

se ae se he eh eke hee ee a ee 2

Se at Ri RE ca tb a ee SEER I

te ee eee ere eee 2

Other Authorities

C. Greenwood, Firearms Control: A Study of Armed Crime

and Firearms Control in England and Wales 7 (1972); C.

Hollister, Anglo-Saxon Military Institutions, Chap. 2

A 6b 6 eA Oa eR ee ke 10

Constitutional Provisions

Comes. ant: 5. OS. Ge. 15-16 ow ee oe he ewes 1,11

Pare meee deed, 3 eek, 27 Cee hw ee pc wee eae 11

ree ee eT ee eee passim

]

Ill. OPINION BELOW

Tne opi: ... of the United States Court of Appeals for the

Sixth Circui i. reproduced in the appendix hereto.

IV. JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Sixth Circuit was entered on June 21, 2007.

This petition for writ of certiorari is filed within ninety (90)

days of that judgment. This Court's jurisdiction is invoked

under 28 U.S. C. § 1254 (1)

V. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second Amendment provides “A well regulated

militia, being necessary to the security of a free state, the

right of the people to keep and bear arms shall not be

infringed.”

The Militia Clauses of the Constitution, art. I, § 8, cls.

15-16, empower Congress "[t]o provide for calling forth the

Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions" and "[tJo provide for

organizing, arming, and disciplining the Militia, and for

governing such Part of them as may be employed in the

Service or the United States, reserving to the States

respectively, the Appointment of the Officers, and the

Authority of training the Militia according to the discipline

prescribed by Congress.”

2

18 U. S. C. § 922 (0) states:

(o)(1) Except as provided in paragraph (2), it shall be

unlawful for any person to transfer or possess a

machinegun.

(2) This subsection does not apply with respect to--

(A) a transfer to or by, or possession by or under the

authority of, the United States or any department or

agency thereof or a State, or a department, agency, or

political subdivision thereof; or

(B) any lawful transfer or lawful possession of a

machinegun that was lawfully possessed before the

date this subsection takes effect.

VI. STATEMENT OF THE CASE

Richard Hamblen graduated from Vanderbilt University,

Summa Cum Laude, majoring in Greek and Latin in 1977.

While at Vanderbilt, Mr. Hambien was a member of the

Army ROTC. Mr. Hamblen comes from a long line of

descendants who actively served in the armed forces of the

United States and State of Tennessee. Mr. Hamblen himself

served eight (8) years in the United States Army obtaining the

rank of First Lieutenant before being honorably discharged in

1984. After leaving United States service, Mr. Hamblen was

commissioned as an officer in 1999 in the Tennessee State

Guard.

The Tennessee State Guard is an all volunteer force

created and authorized by Tennessee State Law within the

Tennessee Department of the Military. T.C.A. § 58-1-104,

58-1-410. Pursuant to its statutory authority, the Tennessee

3

State Guard is authorized to act as an armed force. Id. There

were approximately eleven hundred (1,100) members of the

Tennessee State Guard in 2001. All members of the State

Guard ave responsible for purchasing their own uniforms and

other equipment.

The State of Tennessee maintains twenty-one (21) M16A1

rifles, defined by federal law as machine guns for use by the

Tennessee State Guard. Members of the State Guard receive

annual training which includes weapons familiarization and

includes live fire exercises with these MI6AIs.

At the annual live fire training exercise, a civilian

employee of the Tennessee Department of the Military signed

for and received the MI6A\1s from the Tennessee National

Guard Armory in Smyrna, Tennessee and then provided the

weapons to ‘Tennessee State Guardsmen who were

responsible for supplying their own ammunition and

magazines, cleaning and servicing the weapons, conducting

the live fire exercises and securing the weapons during the

training.

Throughout its history, the Tennessee State Guard has

been used on occasion to perform official state duties. The

Guard has on occasion performed those functions in an armed

Capacity.

Immediately after September 11, 2001, the Tennessee

State Guard was utilized to perform security functions at the

United States Naval Air Station in Millington, Tennessee. In

the months following September 11, there was discussion

regarding further use of the Tennessee State Guard with

respect to security functions relating to preparation for

possible chemical and biological attacks.

4

In September 2001, Mr. Hamblen held the rank of

Captain in the Tennessee State Guard. Mr. Hamblen was in

command of the 201st Military Police Battalion. Based upon

his years of experience and training in the U.S. Army, and

given his understanding of the role the State Guard might be

called upon to fulfill, Mr. Hamblen never questioned that

there was the possibility that the Guard would be utilized in

its statutorily authorized capacity as an armed force.

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 its duty if called

upon to act as an armed force. Specifically, the State of

Tennessee was not adequately prepared to arm the Guard

should it be called upon to act in such a capacity.

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 his duty to the men and women he

commanded, Mr. Hamblen used materials legally obtained on

the open market necessary to rebuild demilitarized weapons

which have been or are currently used by the Armed Forces

of the United States and its NATO allies.

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. By this

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. The weapons were

kept locked in a concrete safe with a steel door secured by a

steel deadbolt lock. ‘ 7

In light of the fact that there was a decreasing likelihood

of the Tennessee State Guard being used in its authorized

5

Constitutional role, Mr. Hamblen set about to find a way to

dispose of the weapons in a manner consistent with federal

law. Mr. Hamblen first obtained a Federal Firearms License

(FFL) and subsequently obtained a Special Occupational Tax

Stamp which would allow him to register and transfer the

weapons in question in accordance with federal law. To

obtain a Federal Firearms License an individual must

complete a vetting process which includes extensive

background and criminal history checks. Once an individual

obtains a F. F. L., which is the most rigorous application

process, he can then simply pay a tax to the Treasury to

purchase the Special Occupational Tax stamps necessary to

manufacture, register and sell weapons of the type Mr.

Hamblen had.

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

being subjected to the extensive background investigation.

After agents from the FBI and ATF initially contacted him he

completed the application, paid the tax and subsequently

received the Special Occupational Tax Stamp for 2004, 2005,

and received a renewal notice for 2006.

On April 22, 2004, agents with the FBI and Bureau of

Alcohol, Tobacco, Firearms and Explosives went to Mr.

Hamblen’s place of business on Houston Street in Nashville,

Tennessee. The Agents were investigating an alleged tip from

an informant that Mr. Hamblen might be in possession of

automatic weapons. The agents did not have a search warrant.

Mr. Hamblen greeted the agents and was very cooperative

in his interview with them. Mr. Hamblen was asked if he had

any automatic weapons in possession and he initially stated

that he did not. Mr. Hamblen was asked if he would consent

to a search of his premises to which he agreed. He was again

asked if he had any automatic weapons in his possession at

6

which time he acknowledged that he did in fact have such

weapons and directed the agents to the safe described above.

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. Mr.

Hamblen voluntarily forfeited the weapons and assisted the

agents in loading the firearms in their vehicle.

On December 14, 2005, a year and a half later Mr.

Hamblen was charged in a two (2) count indictment. The case

proceeded to trial and on May 31, 2006, the jury returned a

verdict of guilty on both counts. Mr. Hamblen was

subsequently sentenced to a term of imprisonment of fifteen

(15) months on each count to run concurrently followed by a

two (2) year period of supervised release, which he is

currently serving.

On June 21, 2007, the United States Court of Appeals for

the Sixth Circuit affirmed Mr. Hamblen's conviction. The

Sixth Circuit held that the Second Amendment creates a

collective rather than an individual right to keep and bear

arms and that no facts supported Mr. Hamblen’s position that

his possession of machine guns was authorized by his

membership in the Tennessee State Guard.

7

VII. REASONS FOR GRANTING THE

WRIT OF CERTIORARI

Whether the Second Amendment Guarantees

Members Of A Legitimate State Authorized Militia

To Keep and Bear Arms Supplied By Themselves

Of The Kind in Common Use By The Military At

The Time.

This Court has not addressed the parameters of the Second

Amendment to the United States Constitution with respect to

an individual’s right to keep and bear arms in connection with

his membership in a well regulated Militia since the 1939

decision in United States v. Miller, 307 U. S. 174, 59S. Ct.

816, 83 L. Ed 2d 1206 (1939). Mr. Hamblen submits that it

is no understatement to say that this case is the most

significant Second Amendment case since United States v.

Miller.

The Sixth Circuit’s ruling that the Second Amendment

guarantees only a collective right to bear arms and that an

individual such as Mr. Hamblen a duly enrolled member of

a lawful statutorily authorized militia does not have the right

to keep and bear arms for his use in the Militia is not only

contrary to the plain language of the Second Amendment but

renders the amendment absolutely meaningless. At a time

when our country faces growing threats internationally and

domestically the right of our citizens to arm and protect

themselves to respond to these threats both individually and

collectively is important and deserving of review by this

Court.

This Court should grant certiorari for four reasons: first,

there is a split of authority at the Circuit Court level as to the

nature of the right guaranteed by the Second Amendment;

8

second, the decision of the Sixth Circuit Court of Appeals is

in conflict with this Court’s decision in United States v.

Miller; third, the Court must determine whether the United

States Government may prohibit members of a lawful, state

authorized Militia from possessing weapons supplied by

themselves of the kind in common use by the armed forces at

the time; and finally, these proceedings involve questions of

exceptional importance regarding the meaning, scope and

application of the Second Amendment.

This case represents the best opportunity for the Court to

address the parameters of the Second Amendment with

respect to the nature of the right guaranteed by that

Amendment. Not only does this case squarely present an

opportunity for the Court to resolve the conflict regarding

whether the Second Amendment creates a collective or

individual right but goes a step further by focusing that

inquiry in the context of the Petitioner’s membership in a

legitimate statutorily created and recognized Militia.

A. There is a spilt of authority at the Circuit Court

level as to the nature of the right guaranteed by the

Second Amendment.

In the opinion below, the Sixth Circuit Court of Appeals

reaffirmed its ruling in United States v. Warin, joining the

majority of Circuit courts holding that the Second amendment

guarantees a collective rather than an individual right. 530 F.

2d 103, 106 (6" Cir. 1976). The Fifth Circuit and now the D.

C. Circuit have interpreted the second amendment to

guarantee an individual right. United States v. Emerson, 270

F. 3d 203 (5" Cir 2001); Parker v. District of Columbia, 478

F. 3d 370 (D. C. Cir. 2007). The court should grant

Certiorari in this case in order to resolve this issue of great

constitutional importance.

9

Under any conceivable interpretation of the Second

Amendment, the collective rights view is wrong because some

individuals among “the people” must in fact personally and

physically “keep and bear arms.” If those individuals do not

include at least the actual members of “a well-regulated

militia” within a state, then the Second Amendment is

meaningless, and if meaningless is without effect. However,

“[i]t cannot be presumed” - let alone held - “that any clause

of the constitution is intended to be without effect.” Marbury

v. Madison, 5 U. S. 1(Cranch), 137, 174 (1803).

It is impossible to imagine a “collective” right for a militia

as a disembodied institution to “keep and bear arms” that does

not entail an “individual” right for each member of that

militia to do so in his own hands. The right, after all is

exercised only through the actual “keep[ing] and bear[ing]

arms, “ which can be done only by a human actor.

Considering the original intent and the language of the

drafters of the Constitution, it is clear that the Bill of Rights,

with the exception only of the Tenth Amendment was

intended to protect personal liberty. Consideration of the text,

historical background and writings contemporaneous to its

adoption, it is clear that the drafters and ratifiers of the Bill of

Rights intended the Second Amendment to guarantee an

individual right. This case provides the court the vehicle and

opportunity to resolve this issue about which the lower courts

are conflicted.

10

B. The Decision of the Sixth Circuit Court of Appeals

is in Conflict with the Supreme Court’s decision in

United States v. Miller.

The single most significant aspect of this case is that the

Defendant, Mr. Hamblen was a member of a legitimate,

statutorily authorized Militia; the Tennessee State Guard.

While individuals have previously attempted to justify firearm

possession based upon membership in some ad hoc private

militia or sedentary militia, this appears to be a case of first

impression regarding enrolled membership in a legitimate,

statutorily authorized militia.

Since their settlement, the American colonies endured the

threat of attack by numerous enemies. The colonists shared

their ancestors’ fear and distrust of a standing army in

peacetime and unwilling to maintain such adopted the time

honored militia system which dates back to the English Assice

of Arms in 1181. In the absence of a police force or standing

army in peace time, every free Englishman was both

permitted and required to keep such arms as he could afford

both for law enforcement and military service; as well as for

personal protection. C. Greenwood, Firearms Control: A

Study of Armed Crime and Firearms Control in England and

Wales 7 (1972); C. Hollister, Anglo-Saxon Military

Institutions, Chap. 2 (1962). With slight variations, the

different colonies and in turn the independent states required

virtually every able bodied free white man between the age of

majority and a designated cut off age to keep arms and muster

occasionally for drill. In 1792, The Congress,(including many

of the same men who drafted and adopted the Second

Amendment) meeting following the enactment of the Second

Amendment, defined the Militia to include the entire able

bodied military age male citizenry of the United States and

required each of them to own supply his own firearm. First

1]

Militia Act, 1 Stat. 271 (1792); See e. g., Hampton and

Company v. U. S., 276 U. S. 394, 412 (1928), and cases

cited therein. Thus, those arms owned personally by an

individual were the arms of the Militia.

The Constitution empowers the Federal Government to

call forth the militia “to execute the Laws of the Union,

suppress Insurrections and repel Invasions.” Article I, Section

8, Clause 15. The Militias are the only constitutional

establishments to which the constitution explicitly assigns

those duties. Therefore, maintenance of the militia and

complete compliance with constitutional principles is

mandatory. One of those constitutional principles is that

members of the militia must be suitably armed. Therefore,

since the Constitution cannot be internally self-contradictory,

Congress can have no power to disarm the States’ Militia

directly or to achieve the same result indirectly by preventing

their members from arming themselves if the State’s neglect

to do so. The conclusion is inescapable that Congress is

absolutely prohibited from enacting any law that prohibits an

enrolled member of a state Militia, otherwise acting lawfully,

from actually possessing the types of firearms suitable for

Militia use that are involved here, whether he obtains those

firearms directly from the State or, based on the State’s

dereliction of duty, is compelled to supply them himself.

United States v. Miller, discussed the Second Amendment

in the context of the militia. No one participated in the

proceedings on the behalf of Mr. Miller. It is therefore

unclear what Miller’s status was vis 4 vis the Militia.

However, the Court reasonably interpreted the term “militia”

as it existed at the drafting of the Constitution and the first

Militia Acts. Nonetheless, lower Courts have attempted over

time to narrow the definition of what constitutes a militia by

refusing to recognize membership in private militias or

12

sedentary militias as worthy of consideration. See e. g. United

States v. Warin, supra; United States v. Oakes, 564 F. 2d

384, 387 (10" Cir. 1977); United States v. Bournes, 339 F.

3d 396 (6" Cir. 2003).

The decision below by the Sixth Circuit is inconsistent

with the original intent of the Framers, historical

understanding of the rights and obligations of Militia men and

contrary to this Court’s opinion in Miller. Having no choice

but to recognize the lawfulness and legitimacy of the

Tennessee State Guard and of Mr. Hamblen's membership in

it, the court nonetheless determined that his firearm

possession was not protected by the Second Amendment. Mr.

Hamblen submits there is simply no way to reconcile this

decision with the Second Amendment and this Court’s ruling

in Miller; and if this decision is allowed to stand whereby an

individual can be a member of a Militia but not possess and

maintain personal weapons of a type related to that Militia

service the Second Amendment is in fact a dead letter. In

other words, if someone like Mr. Hamblen, who is a member

of a legitimate statutorily created and authorized Militia, does

not have the right to keep and maintain weapons of a military

character which would be related to service in that Militia,

then no one has the right, rendering the amendment

meaningless.

There can be no question that Miller applies in its fullest

force in this case. Although there was no evidence that the

individual Defendants in Miller were enrolled members of any

actual state Militia, the Court treated the Second Amendment

as applicable and the Government raised no objection. The

only question addressed in Miller was whether a particular

weapon, a shotgun, was a suitable firearm for a Militia, a

question the Court could not answer because there was no

evidence in the record on that matter. Here, there is no

13

question that Hamblen was an enrolled member of

Tennessee’s Militia and the firearms at issue in this case are

precisely of the types used everywhere throughout the world

by light infantry forces.

If the Sixth Circuit’s decision were correct, then Miller

should have held that the Defendants there had no Second

Amendment defense at all as a matter of law; not that the

validity of their defense depended on a disputed question of

fact relating to the type and use of the firearm at issue.

Conversely, if Miller is correct, then the validity of Mr.

Hamblen’s defense likewise, must turn on whether the

firearms he possessed were, or could be “part of the ordinary

military equipment” that “could contribute to, defense,”

which no one can deny. Thus, the Sixth Circuit’s decision can

be correct only if Miller is incorrect; a decision only the

Supreme Court can make.

C. The Court Must Determine Whether The United

States May Prohibit Members Of A Lawful, State

Authorized Militia From Possessing Weapons

Supplied By Themselves Of The Kind In Common

Use By The Armed Forces At The Time.

Though Miller offered little in the way of resolution in the

many years since it was decided, one portion of the opinion

is absolutely clear and not debatable:

. these show plainly enough that the militia

comprised all males physically capable of acting in

concert for the common defense. . . [a]nd further, that

Ordinarily when called for service these men were

14

expected to appear bearing arms supplied by

themselves and of the kind in common tse at the time.

307 U. S. at 179.

The opinion below cites Miller for the proposition that

weapons possession is protected under the Second

Amendment if it “has some reasonable relationship to the

preservation or efficiency of a well regulated militia.” But,

the lower court goes on to hold that Mr. Hamblen cannot

make such a showing because: (1) If necessary the state would

arm and equip its Militia and; (2) there was no order from the

state requiring him to possess and maintain such weapons.

Mr. Hamblen submits that these arguments miss the point.

Miller implicitly recognizes that the personal possession of

firearms by an individual presumed to be a member of a

Militia preserves the efficiency thereof under modern

conditions. Given the growth of the modern military

establishment unimaginable and perhaps unwanted by the

Founders; the contemporary view of the Militia is that it is a

resource Only for times of dire necessity such as keeping

order when the Armed Forces and federalized National Guard

have been committed elsewhere or in the aftermath of some

catastrophic attack or natural disaster. This was the very

motivation for Mr. Hamblen obtaining the firearms in the first

place.

Given that the very circumstances which would require

the calling up of the Militia today would probably prevent

them from drawing weapons from centralized armories; their

personal possession of weapons facilitates Militia service

today no less than at the time of the adoption of the Bill of

Rights. The Sixth Circuit’s optimistic assessment of the

State’s ability to arm the Militia under such circumstances

defies both logic and experience. Given the well-documented

15

difficulties the United States Army had arming and protecting

troops in Iraq it is incredible to believe that the State of

Tennessee would be able to arm and equip the Tennessee

State Guard given the chaotic circumstances which would lead

to such a situation. This is true especially since, according to

the testimony of the commanding General of the Tennessee

State Guard, no contingency plan for doing so exists and at a

time of relative calm, the State possesses only 21 M16A\1s for

the entire Tennessee State Guard and no ammunition or

accessories.

D. These Proceedings Involve Questions Of

Exceptional Importance Regarding The Meaning,

Scope And Application Of The Second

Amendment.

Sovereignty ultimately resides in the people who delegate

certain enumerated powers to the governments they establish.

All powers not delegated to federal or state governments

through their respective Constitutions are retained by the

People. One such power reserved to the People through the

Second Amendment of the Bill of Rights is the right to keep

and bear arms in order to provide themselves with the means

necessary to form themselves into militias to maintain the

security of a free state. This right pre dates the Constitution,

and is recognized by the Constitution as an_ intregal

mechanism for maintaining the Constitution’s very existence

by granting the federal government the power to call the

militia into Federal Service in order to ensure that the laws

are faithfully executed, suppress insurrection and repel

invasion.

The Militia has been recognized by law throughout the

history of this country. Perpich v. Department of Defense,

496 U. S. 334, 110 S. Ct. 2418, 110 L. Ed 2d 312 (1990).

16

Organizations such as the Tennessee State Guard, of which

Mr. Hamblen was a member, are recognized as the militia of

the Constitution and current law. As Miller states, the Second

Amendment was ratified with the purpose of maintaining the

efficiency of the militia, and thus the security of a Free State.

Any law or act of government, which impairs the efficiency

of the militia by infringing upon its right to acquire and

maintain weaponry of the type in common use at the time, is

contrary to these well-established principals.

In these times when our elected officials are continually

warning the People of the United States to be especially

vigilant in the face of threats presented by foreign enemies

and their domestic allies it would seem foolhardy to deprive

the people in this country of the means to utilize the time

honored and constitutionally sanctioned methods of

maintaining the very freedoms and existence guaranteed by

the Bill of Rights. The Second Amendment guarantees the

right of the people to keep and bear arms as well as the

continued existence and utility of the militia, stated by the

Constitution as so “necessary for the security of a Free

State.”

Each of these arguments point out the deficiencies in the

reasoning of the Court of Appeals. Further, the lower court

fails to recognize the distinction between that which is a right

and that which is required. The fact that the State of

Tennessee or the Tennessee State Guard leadership did not

require members to obtain or possess personal weapons in no

way undermines the legitimacy of members doing so on their

own. These facts were all recognized by this Court in Miller

as a constitutionally guaranteed given. The only true question

is whether the arms at issue were “ . any part of the

ordinary military equipment or that its use could contribute to

the common defense.” There is undisputed trial testimony that

17

Mr. Hamblen’s weapons were of the type expected to be used

and in fact trained with by members of the State Guard.

Further, it is undisputed that these weapons are part of the

ordinary military equipment and of the type used by the

modern armed forces.

In sum, the holding of the United States Court of Appeals

for the Sixth Circuit is that even if an individual is a member

of a legitimate statutorily authorized Militia and the firearms

at issue are part of the ordinary military equipment or could

contribute to the common defense, that individual is

nonetheless not protected by the Second Amendment in

possessing such weapons. If the Second Amendment does not

protect an individual’s possession of such firearms under these

circumstances, then it offers no protection whatsoever and is

meaningless. Such a decision is inconsistent with historical

principles, the original intent of the Constitutional Framers

and the recognized authority of this Court in United States vs.

Miller. This Court should grant Certiorari in order to clarify

the nature of the right guaranteed by the Second Amendment,

establish the parameters for applying that right and upholding

the legal and historical precedent of this court and the

Constitution.

VIII. CONCLUSION

For the foregoing reasons the Petitioner prays that a Writ

of Certiorari issue to review the decision of the Sixth Circuit

and vacate the decision below and order the case remanded.

18

Respectfully Submitted,

JEFFERY S. FRENSLEY #17358

Counsel of Record

211 Third Avenue North

P. O. Box 198288

Nashville, Tennessee 37219-8288

615-256-2111

Attorney for the Petitioner