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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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
ep Ss ak os Sa ee iS a rerEe iil
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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1519%3A1. Public record. Not legal advice.