The Case of illegal possession of firearms

The facts are not greatly in dispute. According to the record in the Supreme Court, after graduating from Vanderbilt University in 1977, Hamblen served eight years in the Army. Along the way he developed an abiding interest in firearms. He became a collector. In 1999 he signed on as an officer in the Tennessee State Guard. In September 2001, when terrorists attacked New York and Washington, the Tennessee volunteer guardsmen were called briefly into security duty.

Captain Hamblen "recognized that the Guard was woefully unprepared to fulfill its duty if called upon to act as an armed force." Guardsmen historically have provided their own weapons. The captain proposed to provide his battalion with at least a few machine guns. He acquired and repaired nine of them. Then he stored them in a concrete safe at his place of business in Nashville.


In 2004, Hamblen attempted to make his possession legal. He obtained a federal firearms license and purchased the required federal tax stamps. Unfortunately, his belated efforts failed to satisfy federal agents. Acting on a tip, they paid a call. He panicked. Asked if he owned any automatic weapons, he lied. Under renewed questioning he caved, opened the safe and surrendered the weapons. Indictment and trial led to a sentence last year of 15 months in a federal prison. The 6th U.S. Circuit affirmed. Last week the Supreme Court refused to hear his appeal.

Bad facts tend to make bad law. District Judge Robert H. Cleland of Michigan, sitting by designation in the 6th Circuit, spoke for a unanimous panel. He was not impressed by Hamblen's role as a captain in the Guard. True, the Second Amendment proclaims that a well-regulated militia is necessary to the security of a free state, but the Tennessee State Guard appeared to the panel to be a not very militant militia. With an annual budget of only $50,000, it performs largely ceremonial duties and exists primarily to serve in natural or man-made disasters.

Judge Cleland explained: "State Guard members are responsible for purchasing their own uniforms and other equipment. They are not issued weapons by the state. The Guard is, however, provided with 21 M16 rifles and ammunition for use during a three-day annual training session conducted by a State Guard commander. These M16s, capable by design of being operated in a fully automatic mode, have been disabled such that they do not function in that mode. ...

"State Guard policy prohibits members from either keeping State Guard weapons in their possession or carrying their own individual weapons in the course of their duty. If a State Guard member were to carry a personal weapon while serving in his official capacity, he would be subject to court-martial."

Hamblen's principal defense at trial rested in his argument that the Second Amendment sanctions an individual right to keep and bear arms. That position, in my view, is supported overwhelmingly by history and by the bare bones of the Constitution. It is a right that shall not be abridged. At least, it shall not be unreasonably abridged.

But as every student of the Constitution learns in the cradle, no right is absolute. In my business, the newspaper business, we are shielded by a constitutional guarantee against any law abridging our freedom. We had better not try that defense in a suit for libel. The First Amendment forbids any law "respecting an establishment of religion," but a sect in Florida cannot plead a right to the sacramental slaughter of animals on a public street. We have a constitutional right to be secure in our homes against invasion by the police — but the right extends only to be free from "unreasonable" invasion.

So it is with the Second Amendment. It protects a right — an individual
right — to keep and bear arms. The right is not absolute. It may be reasonably abridged, but it cannot be wiped out by three judges on the 6th Judicial Circuit.

That will be the unfortunate interpretation widely placed upon the trial, conviction and appellate affirmation in the case of Captain Hamblen. The defendant was properly convicted. He had no constitutional right to own six working machine guns. Even so, Judge Cleland's opinion is a blow. Bad facts make for bad law. That's what we have here.

(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)

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