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Unpublished opinion re: State Guards
I found an interesting unpublished 6th Circuit decision. The 6th has long been a "collective rights" circuit. This ruling dealt with a fellow who had unlicensed full autos, but was a member of the State Guard, a State-organized group designed to augment the National Guard, and subject to activation by the governor. Members of the State Guard are (at least when not activated) expected to provide their own firearms, and given three days annual trainng by the Guard.
Defendant testified that after 9/11 he became concerned that the State Guard was under-armed, and so he assembled some full autos for their use, and sometimes trained his unit with them.
OK, you can see where this is going to cause heartburn for a "collective right" approach. The fellow actually is a member of a State organized militia, and testifies that he prepared arms for them. But the court upholds his conviction, adopting a test from the 10th Circuit: a defendant "must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service." The court essentially rules that since the State Guard can be armed by the State when activated, and the governor *probably* would do that, ownership of the guns was not reasonably related to its purposes. Nevermind the question of training before being activated, or that the governor might find it convenient for the units to have their own equipment.
Hat tip to Mad Duck.
[1] UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[2] No. 06-6170
[4] June 21, 2007
[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD HAMBLEN, DEFENDANT-APPELLANT.
[6] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
[7] The opinion of the court was delivered by: Cleland, District Judge.
[8] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
[9] OPINION
[10] BEFORE: GIBBONS and COOK, Circuit Judges; and CLELAND, District Judge.*fn1
[11] Defendant-Appellant Richard Hamblen appeals his conviction for possessing machineguns in violation of 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d).*fn2 He contends that these statutes are unconstitutional as applied to him because they (1) violate his Second Amendment right to keep and bear arms as a member of the Tennessee State Guard ("State Guard"), which, he says, constitutes a "well-regulated militia," and (2) are unconstitutionally vague as applied to him. For the reasons stated below, we reject both arguments and affirm.
[12] I.
[13] Defendant-Appellant Richard Hamblen enlisted in the Tennessee State Guard in 1999. The all-volunteer State Guard is one of four organizations within the Tennessee Department of the Military and is authorized by Tennessee statute.*fn3 In its current incarnation, the State Guard has existed since the 1980s and has an annual budget of approximately $50,000. The State Guard's mission is to augment the Tennessee National Guard, and it typically performs ceremonial duties. State Guard training emphasizes responding to natural or man-made disasters.
[14] Under Tennessee statute, the State Guard is authorized to become an armed force if the State Guard is activated by the Governor of Tennessee. The State Guard has not recently been "activated,"*fn4 although it has been called into service.*fn5 The State Guard is to serve as an armed force only as a last resort. If "activated," the governor of Tennessee is authorized to obtain weapons needed to equip the State Guard. Tenn. Code Ann. § 58-1-405.
[15] As volunteers in an honored traditional form of service to the State of Tennessee, all State Guard members are responsible for purchasing their own uniforms and other equipment. State Guard members are not issued weapons. The Guard is, however, provided with twenty-one 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 and the user must pull the trigger once for each shot fired. State Guard policy prohibits members from either keeping State Guard weapons in their possession for possible emergency or other use 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 State Guard capacity he would be subject to a court-martial.
[16] According to Hamblen's trial testimony, he believed that the State Guard could be activated and used as an armed force after September 11, 2001. Because the State Guard had only a few weapons and over a thousand members, Hamblen claimed to have concluded that the State Guard did not have the resources to perform its duties as an armed force and began looking for a means to better equip the State Guard. Hamblen was aware that State Guard members were specifically instructed after September 11, 2001 not to carry weapons in connection with their duties. Hamblen purchased parts kits with his own funds and used his metalworking expertise to build the machineguns himself. He built a walk-in safe at his place of business to store the machineguns and added security to the building. On at least one occasion, Hamblen had his unit train with his 1919 A4 machinegun. At the time, Hamblen knew that this training exercise violated State Guard policy.*fn6
[17] Hamblen never discussed his machinegun possession with his superiors at the State Guard, and no law enforcement officer or State Guard superior knew of Hamblen's machinegun possession. Hamblen admitted that no one at the State Guard ever ordered or even authorized him to obtain any weapons for the State Guard. Hamblen also admitted that he knew at the time that his possession of the machineguns violated the statutes under which he was convicted. Hamblen testified that he believed he was authorized to possess the machineguns because the Constitution provides an exception to gun control laws and gives people the right to possess militarily useful weapons for an armed force like the State Guard.*fn7
[18] In March 2004, Hamlen took steps to make his possession of the machineguns legal by obtaining a "Type 1" federal firearms license, which permitted him to sell pistols, revolvers, shotguns and rifles. Hamblen, however, had not paid a special occupation tax that would enable him to deal in National Firearms Act weapons, such as machineguns. Furthermore, the parties stipulated that none of the nine machineguns were ever registered to Hamblen in the National Firearms Registration and Transfer Record.
[19] The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") began an investigation in early 2004 after receiving information that Hamblen was illegally possessing machineguns. On April 22, 2004, Eric Kehn, an ATF agent, and Greg Franklin, an FBI agent, spoke with Hamblen at his place of business. The agents asked Hamblen whether he possessed any automatic weapons, and he denied such possession. Hamblen admitted at trial that he denied possessing any automatic weapons because he "had something to hide" and "panicked." Hamblen consented to a search of the premises. After the agents again asked Hamblen whether he possessed automatic weapons, Hamblen admitted that he possessed some and directed the agents to a walk-in safe at the back of the building.
[20] The safe contained nine machineguns: (1) three Model 1919 A6 machineguns; (2) four Model G3 machineguns and (3) two Model MG-42 machineguns. Hamblen told the agents that he had made the machineguns himself from parts kits that he had purchased. At trial, the agents testified that when they asked Hamblen why he assembled and kept these machineguns, Hamblen explained that he was a World War II re-enactor and a collector, and he did not mention either the Second Amendment or the Tennessee State Guard. While Hamblen admitted at trial that he told the agents he was a World War II re-enactor and collector, Hamblen contended that he also told them that he was keeping the machineguns in case they were needed by the State Guard in an emergency. Agent Franklin testified that the first time he heard Hamblen's Second Amendment claim was eighteen months later.
[21] On December 14, 2005, Hamblen was charged in a two-count indictment for unlawfully possessing machineguns in violation of 18 U.S.C. § 922(o) and possessing unregistered firearms in violation of 26 U.S.C. § 5861(d). The case proceeded to trial and, on May 31, 2006, the jury returned a verdict of guilty on both counts of the indictment. After return of the verdict, the district court denied Hamblen's motion for judgment of acquittal based on the allegedly unconstitutional infringement of Hamblen's Second Amendment rights that would result from the application of 18 U.S.C. § 922(o). At Hamblen's August 25, 2006 sentencing hearing, the district court sentenced Hamblen to a term of imprisonment of fifteen months for each count, to run concurrently, followed by a two-year period of supervised release. Hamblen filed a timely notice of appeal.
[22] II.
[23] This court reviews a district court's ruling on the constitutionality of a federal statute de novo. United States v. Faasse, 265 F.3d 475, 480 (6th Cir. 2001) (citing United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000)). "In reviewing the denial of a motion for acquittal, 'the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Landham, 251 F.3d 1072, 1083 (6th Cir. 2001) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
[24] III.
[25] Hamblen appeals his conviction for unlawfully possessing machineguns under 18 U.S.C. § 922(o), claiming that this statute is unconstitutional as applied to him because it violates his Second Amendment right to keep and bear arms. The Second Amendment of the United States Constitution states that "[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." Hamblen contends that he can establish a valid Second Amendment defense because he satisfies the following four-part test established by the Tenth Circuit:
[26] As a threshold matter, [a defendant making a Second Amendment claim] must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is "well regulated" by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service.
[27] United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001). Hamblen claims that he is a part of the Tennessee State Guard, a well-regulated militia, and that the machineguns he possessed were both of the type used by the State Guard and reasonably connected to his service in the State Guard. Accordingly, Hamblen submits that 18 U.S.C. § 922(o) is unconstitutional as applied to him because it violates his Second Amendment right to keep and bear arms.
[28] Although the Sixth Circuit has not expressly adopted the Haney four-part test, this circuit has held that "the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976). Additionally, the Supreme Court has stated that a valid Second Amendment claim requires a defendant to establish that his possession or use of a weapon "has some reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller, 307 U.S. 174, 178 (1939). Thus, at a minimum, Hamblen must assert a collective right by satisfying Miller.*fn8
[29] Hamblen contends that his possession was reasonably related to his State Guard service because the State Guard could have been activated after September 11, 2001 and Hamblen's machineguns were necessary in light of the State Guard's limited equipment and resources.*fn9 In his brief, Hamblen also argues that even though he was never ordered to obtain weapons for the State Guard, he was somehow authorized to do so by the Second Amendment and Miller.
[30] We disagree. As stated above, the Second Amendment protects weapons possession or use only if it "has some reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, 307 U.S. at 178. Hamblen has failed to show that his machinegun possession was reasonably related to the State Guard's preservation or efficiency. Hamblen points to the State Guard's meager budget and arms supply to show the need for him to possess machineguns for State Guard use. This argument is unavailing because Tennessee statute both allows for the activation of the State Guard as a military force and also provides the means to arm and equip that force. See Tenn. Code Ann. § 58-1-405. It is not reasonable to assume that the governor of Tennessee would use his statutory authority to activate the State Guard without also using his statutory authority to arm and equip the State Guard such that State Guard members would themselves need to acquire firearms, especially machineguns, to preserve the State Guard or its efficiency.
[31] Furthermore, there are no facts to support the position that Hamblen's machinegun possession was authorized by the State Guard. Although Hamblen appears to claim that he was authorized to possess the machineguns by virtue of his State Guard membership alone, State Guard policy prohibited individual members from using their personal weapons in the course of their State Guard duties, and any violations would result in court-martial. Indeed, Hamblen agreed at trial that no one "from the State Guard at any time ever authorize[d him] in any way to possess any of the nine weapons." Hamblen also admitted that, even post-September 11, 2001, State Guard policy prohibited his behavior. Hamblen has thus failed to show how his individual decision to purchase machineguns based on his own perception of the State Guard's future activation and financial need was reasonably related to the preservation or efficiency of the State Guard, whose own policies prohibited this very behavior.
[32] Accordingly, we affirm the district court's denial of a motion for judgment of acquittal on Hamblen's Second Amendment claim.
[33] IV.
[34] Hamblen next contends that both 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d) are unconstitutionally vague as applied to him. He claims that 18 U.S.C. § 922(o) is unconstitutionally vague because (1) it provides an exception for machinegun possession that is "under the authority of" the United States or a State, but does not provide sufficient guidance as to what constitutes proper authority and (2) it allows for arbitrary enforcement. Hamblen also argues that 26 U.S.C. § 5861(d) is unconstitutionally vague because (1) it requires registration that would be impossible to obtain and (2) it allows for arbitrary enforcement.
[35] The government objects to these claims because Hamblen did not raise them at the district court level. "This court is not compelled to hear, nor should it hear, an issue not presented to the district court unless reaching that issue serves an over-arching purpose beyond that of arriving at the correct result in an individual case." Foster v. Barilow, 6 F.3d 405, 408 (6th Cir. 1993). Hamblen asserts that the panel should consider this issue because it affects his substantial rights, addresses a matter of constitutional significance and is a matter of law that does not require further development of the factual record. Because Hamblen's as-applied constitutional vagueness challenge is by its nature a fact-specific individualized claim, see Maynard v. Cartwright, 486 U.S. 356, 361 (1988), Hamblen has not shown an over-arching purpose warranting review of his claims that are raised here for the first time.
[36] Even if we were to review this issue on the merits, Hamblen has failed to show that these statutes are unconstitutionally vague as applied to him. Due process requires that a statute give notice of prohibited conduct such that a person of ordinary intelligence can conform his conduct to comply with the law. Kolender v. Lawson, 461 U.S. 352, 357 (1983). "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard, 486 U.S. at 361 (citations omitted).
[37] Hamblen contends that 18 U.S.C. § 922(o)(2)(A) is unconstitutionally vague, as applied, because it does not provide sufficient guidance for Hamblen to know if he was authorized to possess machineguns for State Guard use. Hamblen's claim fails for the reasons stated above. Hamblen's machinegun possession was admittedly against State Guard policy, and Hamblen himself testified that the State Guard did not authorize him to possess machineguns for State Guard use. Accordingly, we conclude that, under the facts of this case, a person of ordinary intelligence would have been placed on sufficient notice that Hamblen's conduct was prohibited under 18 U.S.C. § 922(o). Hamblen's claim that the vagueness inherent in 18 U.S.C. § 922(o) encourages arbitrary enforcement must fail for the same reasons.
[38] Hamblen also claims that 26 U.S.C. § 5861(d) is unconstitutional as applied to him because it prohibits possession of an unregistered firearm when it would have been impossible for Hamblen to register his machineguns due to 18 U.S.C. § 922(o). Hamblen recognizes that this court has previously held that it is not a violation of due process to convict a defendant under § 5861(d) for possessing unregistered machineguns that could not be registered under § 922(o). See United States v. Bournes, 339 F.3d 396, 399 (6th Cir. 2003). In Bournes, the court held that the defendant could have easily complied with both statutes "by electing not to possess the machine guns at issue in this case." Id. Hamblen attempts to distinguish Bournes by noting that it also found that the defendant's possession was unlawful under § 922(o), whereas here, Hamblen claims his possession was lawful under the Second Amendment. Since we rejected Hamblen's Second Amendment defense, however, there is no basis to distinguish Bournes. Accordingly, Hamblen's impossibility defense fails because, as in Bournes, Hamblen could have satisfied both statutes by refraining from possessing machineguns altogether.
[39] Hamblen additionally argues that State Guard members who participated in live fire exercises using State Guard weapons during annual training would technically violate § 5861, which prohibits an individual from possessing a weapon that is not registered to them individually. Hamblen therefore argues that the statute creates the potential for arbitrary enforcement. Although requiring a penal statute to provide minimal guidelines to discourage arbitrary enforcement is "perhaps the most meaningful aspect of the vagueness doctrine," Smith v. Goguen, 415 U.S. 566, 574 (1974), we need not decide whether § 5861 creates the potential for arbitrary enforcement under that hypothetical. Because Hamblen was not prosecuted for possessing State Guard weapons during annual training, that scenario is simply not before the court and cannot constitute the basis for an as-applied constitutional vagueness challenge.
[40] V.
[41] For the foregoing reasons, we affirm the judgment of the district court.
Opinion Footnotes
[42] *fn1 The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation.
[43] *fn2 The term "machinegun" will be used to denote weapons that fit within the statutory definition of "machinegun" set forth at 26 U.S.C. § 5845(b) for purposes of 18 U.S.C. § 922(o). The parties have stipulated that each of the nine weapons Hamblen was convicted of possessing constitutes a machinegun.
[44] *fn3 The other three organizations are the Army National Guard, the Air National Guard and the Tennessee Emergency Management Agency.
[45] *fn4 In a prior incarnation, the State Guard was used on occasion to perform its duties in an armed capacity.
[46] *fn5 After September 11, 2001, the State Guard was utilized to perform unarmed security functions at the United States Naval Air Base in Millington, Tennessee.
[47] *fn6 Lower-ranking officials such as Hamblen are not authorized by the State Guard to conduct any firearms training.
[48] *fn7 While Hamblen initially testified that the Statue Guard is required to be an armed force, Hamblen later admitted that the Tennessee Code authorizes, not requires, the State Guard to be an armed force.
[49] *fn8 Because it is clear that Hamblen cannot show that his machinegun possession has some reasonable relationship to the preservation or efficiency of the State Guard, we need not accept or reject the Tenth Circuit's test and refrain from deciding whether the State Guard is a well regulated militia under the Second Amendment.
[50] *fn9 The government submits that it is unlikely that Hamblen's machinegun possession was truly motivated by his State Guard service because he allegedly failed to explain to the agents that the machineguns were for State Guard use and because Hamblen failed to inform any State Guard superior of his machinegun possession. For the reasons stated above, even if Hamblen subjectively intended to possess the machineguns for State Guard use, his possession was not reasonably related to the preservation or efficiency of the State Guard.
17 Comments | Leave a comment
This is one of those cases where the specific facts don't make for a clear cut argument in favor of the defendant (Hamblen).
On the other hand, it also shows that the collective rights sophistry just explains why a citizen doesn't have rights the government doesn't want him to have. The discussion makes clear that for the 6th circuit, no one has a right to any weapon under the 2A and they can always explain why.
To me the most telling part of the argument is that to eliminate the "relationship to the militia" requirement, the government simply has to say that the policy of the militia unit is for them not to carry arms. Instantly, no one has the right any more. I thought the whole idea of a constitution was to lay down the part of the law that the government itself could not change. Rights with the caveat "unless the government says otherwise" are not rights at all.
This shows the bankruptcy of the collective right and sophisticated collective right interpretations of the Second Amendment. So many qualifications will be placed upon the right that it will be effectively meaningless. Which is what they want.
It also shows the dishonesty of the sixth circuit.
If this view is the one that prevails and applies the 10th Circuit test to arms possession, 2A rights are finished in this country. It will be standard that will be impossible to meet simply by having any militia declare any personal arms as not be allowed.
At which point, we have no mechanism to argue 2A protection for our possession of them due to militia policy and/or state law (both in this case) and thus, we cannot fall under its protection. Our possession of arms at that point is well and truly a privilege.
Matt
As Brannon Denning so clearly proved in his law review article, federal trial and appeal judges are just intellectually dishonest when it comes to the Second Amendment. Any expressed standard that any one does meet will be instantly abandoned in favor of something the particular defendant cannot meet.
It's more than sophistry, it dishonestly, it's bad faith, it's ... . Words fail me to express the contempt that I hold for these judges. Now I understand how the German courts could stand by and approve every step of the Final Solution. We don't have "equal justice under law." We have "whatever result the judge desires to reach."
Well we know why this opinion is unpublished. They didn't want anyone seeing what a stretch they made.
Well they can't unpublish it now that we have found it. Looks like more fodder for the Heller brief.
Such an interesting way of applying the collective "rights" model. It is clearly not a legal rule based on the 2nd amendment so much as a fancy way of saying "skip ahead to the 4th amendment, nothing to see here."
The defendant's first mistake in this case is to state that he is a member of a well regulated militia. He set a trap for himself by accepting the premise that the national guard or his "state Defense force" was the militia under the Second Amendment.
"Mr. Chairman—A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. - George Mason, 1788
Individual gun rights are mainly a matter of common law and state legislation under state constitutions, not a Second Amendment matter. If the electorate wants gun laws that vary from those that now exist, they need to elect officeholders who favor the changes they seek.
His First mistake was forgoing his 4th and 5th amendment rights to keep his trap shut and not have his place searched.
His second mistake was not attacking the law in question under the Judicial Review Act instead of inviting arrest and appealing a conviction.
His third mistake was in not realizing that he was in a collective rights jurisdiction, meaning the only way he would prevail would be a cert grant. And the facts of this case are substantially less favorable than those of Parker/Heller.
His fourth mistake was admitting that he knew everything was doing was illegal and further conceding that it was for his enjoyment rather than for his use in the militia.
"Mr. Chairman—A worthy member has asked, who are the militia..."
George Mason, in this often-quoted passage, was smart enough to foresee that the character of the militia as it existed in 1788 could change with time. It has, according to the U.S. Supreme Court:
“The National Guard is the modern Militia reserved to the States by Art. I. 8, cl. 15, 16, of the Constitution.” ( U.S. Supreme Court, Maryland v. United States, 1965)
The Fifth Circuit, citing the Supreme Court as authority, made a similar pronouncement:
“We begin our consideration of this appeal with full recognition that the national guard is the militia, in modern-day form, that is reserved to the states by Art I, 8, cls. 15, 16 of the Constitution. Maryland v. United States, 381 U.S. 41, 46 (1965).” (Fifth Circuit Court of Appeals, James H. Lipscomb v. Federal Labor Relations Authority (2003) )
And one month later, Judge Cleland was back in his own District Court making up new elements for these same offenses to screw 3 law enforcement officers for having post 86 firearms that had been purchased after being approved by the ATF. The man is a threat to us all.
""Mr. Chairman—A worthy member has asked, who are the militia..."
George Mason, in this often-quoted passage, was smart enough to foresee that the character of the militia as it existed in 1788 could change with time. It has, according to the U.S. Supreme Court:"
And that is exactly why he demanded that A Bill of Rights be added so that it would guarantee that the militia remained the same in 1788 or 2008 under the Second Amendment unless the Constitution itself was amended, not by legislative acts.
After all, we have the 1990 case of Perpich v. DOD which suggests the status of National Guard members is quite a bit more complicated, and that the National Guard is not really the "whole enchilada" of a state's militia.
viz:
"The District Court rejected the Governor's challenge, holding that the Federal Guard was created pursuant to Congress' Article I, 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed."
and...
"The unchallenged validity of the dual enlistment system means that the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the state militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia from which the member has been temporarily disassociated."
"Each member of the Army National Guard of the United States or the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District of Columbia, as [496 U.S. 334, 348] the case may be, from the effective date of his order to active duty until he is relieved from that duty." 32 U.S.C. 325(a).
and...
"Congress has provided by statute that in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own. 25 [496 U.S. 334, 353]"
USC 10 was never repealed and it predates the National Guard by about 116 years. So obviously the founders did mean a citizens' militia. That law is still in effect. The second amendment still reads "....people.....shall not be infringed". Both of them put the lie to the obsolesence argument and the replacement of the militia by the institution of the National Guard.
The National Guard is an arm of the government. The militia is a body of armed and trained (well regulated) citizens, responsible for supplying their own arms of such effect as to be capable of the same use as all the terrible instruments of war.
All above was stated unequivocally many years ago by the unprecedented amalgam of geniuses that founded our country. No one, and I mean no one, has ever improved on their reasoning as regards this issue.
In MILLER, the court ruled that a sawed off shotgun
COULD be a firearm protected by the SECOND amend.
as it was part of the ordinary military equipment or could contribute to the common defense.
MILLER had standing to possess the shotgun and to have standing in court.
The 6th didn't know this?
That needs to be appealed up a bit higher, that court is really reaching to deny this man his rights.