As we will describe below, the “militia” in colonial America consisted of a subset of “the people”

No, the state militias consisted of "the people", a subset of all U.S. citizens.

The Heller court is implying that all U.S. Citizens were "the people". Wrong. As proof, only "the people" could vote. That's not everyone.

Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

Again, the Heller court is selectively picking words.

The phrase in the second amendment is "to keep and bear arms", a phrase which typically appeared in military contexts.

"A machinegun cannot be in common use by the people.'

Of course not. As I already told you, it's banned. How can it be in common use by the people when you can't buy a new one? If a full-auto AR-15 was legal, you can bet your ass there'd be 2 million buyers by next week and it would be more "in common use" than a microwave oven.

"This would only present a problem for your delusional interpretation of the 2nd Amendment."

It would present a problem for your misquided interpretation. Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

For those not in the state militia, their State Constitution spells out their personal RKBA. See how simple this is? See how this keeps with the concept of federalism?

You want a one-size-fits-all federal mandate on guns. I don't.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"?

You don't trust your own state?

The Miller case decided that the type of weapon was not protected by the Second Amendment.

No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case.

But their statement implied that if the weapon served no military purpose it wasn't protected by the second amendment.

"There is no Second Amendment privilege to keep and bear a machinegun."

But the Miller court concluded the second amendment protected those weapons suitable for use by a militia, did it not?

Citizens called to service were not expected to show up with machineguns.

In the War of 1812, many showed up with nothing. So your claim is meaningless.

In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory. But if full-auto AR-15's were legal, citizens would show up with them.

"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."

He did not say that. He said there was an absence of evidence showing that the weapon had military use. Quote:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

But here's the important take-away from Miller: The U.S. Supreme Court is saying the only weapons protected by the second amendment are those weapons used by a militia. You cannot dispute that.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

What makes you think the federal government is interested in protecting your personal RKBA?

Do you trust the federal government to protect the arms you need to defend yourself from the federal government?

You purport to respond to my #235. The quote you provide is from #225 and wrenched from context, as pointed out in my #235.

[nolu chan #225] Federalized troops are NOT the militia cited in the 2nd Amendment. The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.

If you had the intelligence and ambition to use the google, rather than just make shit up, you could easily find confirmation of the two classes of the militia.

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

• Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

• Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The 2nd Amendment pertained to the UNORGANIZED, the Inactive, or the Reserve militia.

As for the state National Guard,

The state National Guard is divided up into units stationed in each of the 50 states and the U.S. territories and operates under their respective state governor or territorial government. The National Guard may be called up for active duty by the state governors or territorial commanding generals to help respond to domestic emergencies and disasters, such as those caused by hurricanes, floods, and earthquakes.

In the spider-infested mind of misterwhite, the state National Guard, when called out by a state governor to combat a natural disaster, such as a hurricane, flood, or earthquake, forms up into a huge firing line and shoots machineguns at it until it surrenders, and upon this need depends the 2nd Amendment right to keep and bear arms.

My #235, which you seem unable to address, pointed out the bullshit piled upon bullshit you pulled and restored context and skewered your previous bullshit.

When called to service to engage in action as a military force, those who respond are the UNORGANIZED (or Reserve or Inactive) militia. They are the ones who brought arms from home with them to use in the call to service. They are the ones referred to in the 2nd Amendment.

Boldface and blue font IN ORIGINAL at #235.

#235. To: misterwhite (#230)

Federalized troops are NOT the militia cited in the 2nd Amendment. [The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.]

When the second amendment was written, there was only one type of militia -- a state militia

You excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit. In the vernacular of the Framing era, the ORGANIZED MILITIA and the UNORGANIZED MILITIA were the INACTIVE MILITIA and the ACTIVE MILITIA, with the distinction being no different than the more modern usage.

[snip]

As I stated, "[y]ou excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit."

The 2nd Amendment made reference to the UNORGANIZED militia, or the INACTIVE militia. I quoted a 1788 source for the 1788 terminology.

Aristocrotis, April 15, 1788, Pamphlet: The Government of Nature Delineated or An Exact Picture of the New Federal Constitution, Carlisle, Pennsylvania.

... see article 1 st sect. 8. "the congress shall have power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, to provide for organising, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states." By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc.

Heller at 554 U.S. 580-81:

As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

"All Americans." Deal with it. Or are you confusing "all Americans" with a small subset of college football players?

Heller at 554 U.S. 589:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

As the U.S. Supreme Court noted, your pretzel illogic is worthy of the Mad Hatter.

Heller at 554 U.S. 596:

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionallyregulated military forces described in the Militia Clauses (art. I, § 8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men.

The 2nd Amendment right is an invidividual right that belongs to the people.

The militia cited in the 2nd Amendment is the UNORGANIZED (or Inactive or Reserve) militia. The U.S. Supreme Court ruled against your bastardized reading of the militia referring to the Organized militia.

The UNORGANIZED MILITIA are CIVILIANS.

This time your bastardized half-quote attributes the words to me, rather than to the quoted article from 1788.

As is typical of your methodology,

[nolu chan #235] [quoting article from 1788] By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

[nolu chan #235] [the continuance you deliberately left out] The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc.

And your horseshit comment:

[misterwhite #241] So what? That says nothing. That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home). OK. So? You have a point?

Bullshit is not an argument.

Those stationed overseas are not the ACTIVE component, any more than those stationed at home are the INACTIVE component.

It is painfully obvious that you have never served in the military, and have not the slightest clue what you are talking about.

The ACTIVE component are those who serve in uniform. The INACTIVE component do not serve at all.

I did 20 years ACTIVE DUTY in the military. I was on ACTIVE duty in the States and Overseas. I did 10 years in the Inactive Reserve. I was a CIVILIAN during those 10 years. Then I was transferred to the RETIRED list. I'm still a CIVILIAN.

The UNORGANIZED, RESERVE, or INACTIVE militia are CIVILIANS. They have NOT been called to service. Until they are actually called to serve, and report and become part of the ORGANIZED militia, they continue to be CIVILIANS. Most CIVILIAN men spend their entire lives being CIVILIANS, even though all able-bodied men are enrolled in the militia from age 17 to 45. To be enrolled in the militia is analogous to being enrolled in the Selective Service System. Until you get drafted and get sworn in, you remain a CIVILIAN.

The UNORGANIZED, RESERVE, or INACTIVE militia refers to CIVILIANS, you thick headed moron.

The Heller court is implying that all U.S. Citizens were "the people". Wrong.

Nobody cares if you think the U.S. Supreme Court is wrong. The Court holds that you are full of shit.

As proof, only "the people" could vote. That's not everyone.

That unsourced, and unsourcable, bullshit is not proof of anything but your own ignorance.

Only a subset of citizens could vote.

Where state law permitted, aliens could vote.

The right of suffrage was not a sign of citizenship. The lack of the right of suffrage was not a sign of alienage.

You are just blowing it out of your ass.

Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

Again, the Heller court is selectively picking words.

Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

Under Heller and McDonald, the 2nd Amendment is an INDIVIDUAL right, and you are full of shit.

Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

For those not in the state militia, their State Constitution spells out their personal RKBA.

The 2nd Amendment applies to the States and the States may not enact any law which in any way conflicts with the 2nd Amendment RKBA as interpreted by the U.S. Supreme Court.

The state cannot grant or protect a right to keep and bear arms in violation of any Federal law. Where Federal law prohibits possession of a short barrel shotgun, a state may not authorize such possession.

You are just blowing make believe bullshit out your ass.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"?

You don't trust your own state?

So, you want your BULLSHIT to be considered the law rather then the actual law, as interpreted by the U.S. Supreme Court?

Also, the state is powerless to enforce any state law which conflicts with any Federal law.

That is your bullshit argument?

Again, nobody gives a good shit if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

You think the state of California has the slightest interest or intent to protect your right to keep and bear arms?

The Miller case decided that the type of weapon was not protected by the Second Amendment.

No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case.

U.S. Supreme Court, as quoted in my #239 to which you purport to respond, emphasis as in my #239.

Heller at 554 U.S. 621-22:

The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

No shithead, they REVERSED the District court and remanded. They did not ask for clarification of jack shit.

From the Mandate:

And whereas, in the present term if October, in the year of our Lord one thousand nine hundred and thirty-eight, the said cause came on to be heard before the said SUPREME COURT, on the said transcript of record, and was argued by counsel:

On consideration whereof,

It is now here ordered and adjudged by this Court that the judgement of the said District Court, in this cause be, and the same is hereby, reversed.

AND IT IS FURTHER ORDERED that this cause be, and the same is hereby, remanded to the said District Court for further proceedings in conformity with the opinion of this court.

May 15, 1939

The U.S. Supreme Court did not ask for jack shit to be clarified. They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court.

Co-Defendant Frank Layton pleaded guilty to the charges reinstated by the U.S. Supreme Court. Defendant Miller was dead and just stayed that way.

Citizens called to service were not expected to show up with machineguns.

In the War of 1812, many showed up with nothing. So your claim is meaningless.

Upon being called up, civilians called to service were expected to show up with weapons in common civilian use at the time.

That some may have showed up empty handed changed nothing.

In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory.

There is no modern state militia.

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."

He did not say that. He said there was an absence of evidence showing that the weapon had military use.

I quoted Oyez verbatim.

https://www.oyez.org/cases/1900-1940/307us174

The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

https://www.oyez.org/about

About Oyez

Oyez (pronounced oh-yay), a free law project from Cornell’s Legal Information Institute (LII), Chicago-Kent College of Law and Justia.com, is a multimedia archive devoted to making the Supreme Court of the United States accessible to everyone.

[snip]

Do write them a sternly worded letter informing them they do not know what they are talking about.

Heller at 554 U.S. 621-22:

The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

Nobody gives a shit about your addle-brained bullshit.

The District court initially DISMISSED the charges, based on a claimed 2nd Amendment right to possess the sawed-off shotgun.

The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges.

Defendant Miller was shot to death before the Supreme Court proceedings. His 2nd Amendment argument having been rejected by the U.S. Supreme Court, Co-Defendant Frank Layton pleaded guilty and was sentenced for unlawfully transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the National Firearms Act.

You may disagree with the U.S. Supreme Court in Heller, or wilfully misrepresent Miller, but nobody cares about your bullshit. You have proven over and over that you are incapable of reading and making sense of a court opinion, or that you simply choose to ignore what they say, and make up your own bullshit and present it as something other than bullshit.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

What makes you think the federal government is interested in protecting your personal RKBA?

The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE.

It was not ratified by the Federal Government.

What makes you think THE PEOPLE are not interested in protecting the INDIVIDUAL rights of THE PEOPLE?

What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?

The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE.

Uh-huh. It was. Now the fate of your RKBA is in the hands of five justices on the U.S. Supreme Court.

"What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?"

That's up to the people of the State of California. My state ptotects my rights.

Do write them a sternly worded letter informing them they do not know what they are talking about.

I should. They're idiots. He never said that.

"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges."

Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification.

That some may have showed up empty handed changed nothing.

It demonstrates that muskets were not in common use by civilians, otherwise they would have brought them along.

"There is no modern state militia."

Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none?

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.

they REVERSED the District court and remanded. They did not ask for clarification of jack shit.

Remand -- return a case to a lower court for reconsideration.

The U.S. Supreme Supreme Supreme Court wanted the District Court to reconsider whether the weapon had any usefulness in a militia. The U.S. Supreme Court was not provided with any facts that said it did.

"They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court."

Bullshit. You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.

They didn't do that because they didn't know that. And they said so.

[misterwhite #260] My state ptotects my rights.

How???

See United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008)

I. Supremacy Clause.

The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a

3

- - - - - - - - - -

valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."

The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says.

[misterwhite #264] Remand -- return a case to a lower court for reconsideration.

Reverse. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.

Remand. To send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some further action.

Black's Law Dictionary, 6th Ed.

Reversal. as used in opinions, judgments, and mandates, the setting aside, annulling, vacating, or changing to the contrary the decision of a lower court or other body. [italics added]

Remand. to send back, as for further deliberation; to send back a matter to the tribunal [or body] from which it was appealed or move. When a judgment is reversed, the appellate court usually remands the matter for a new trial to be carried out consistent with the principles announced in its opinion. Often, the court will simply direct that "the matter remanded [to the lower court] for further proceedings not inconsistent with this opinion."

Law Dictionary, 2 Ed., Steven F. Gifis

The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion. The defendant, having no 2nd Amendment defense, pleaded guilty.

[misterwhite #264] You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.

Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns. Short barrel shotgun possession was illegal per the National Firearms Act.

See U.S. v. Fincher, 538 F.3d 368 (2008)

In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16.

"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges." [Verbatim quote from Oyez https://www.oyez.org/cases/1900-1940/307us174]

[misterwhite #261] Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification.

- - - - - - - - - -

"There is no modern state militia."

[misterwhite #262] Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none?

Running around in the woods, thinking you are Patrick Swayze in Red Dawn, doesn't cut it. I can say it because court opinions say you are full of shit, and people dumb enough to take your arguments to court look like the march of the penguins on their way to prison.

- - - - - - - - - -

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

[misterwhite #263] Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.

- - - - - - - - - -

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 1

The Second Amendment protects those weapons possessed by law-abiding citizens for lawful purposes, ONLY. If the weapon is unlawfully possessed, it is not protected by the Second Amendment.

Richard Hamblen reminds me of the sovereign citizens who tell the cop they are not violating the law about needing a license plate while driving, as they are not driving but traveling.

http://volokh.com/2010/02/27/united-states-v-miller/

The comment below, by Richard Hamblen, is in response to the article, "Why United States v. Miller was so badly written," by David Kopel on February 27, 2010, at The Volokh Conspiracy.

About David Kopel

Research Director, Independence Institute. Associate Policy Analyst, Cato Institute. Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

Richard A. Hamblen • 8 years ago

I am the petitioner in Hamblen vs. the United States.

US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice.

Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis?

Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following:

"***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.***" [emphasis added]

Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia's remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark.

The Court is reduced to sustaining the Gun Laws by lying about its own decisions. It is apparent from the oral arguments in McDonald that the Court wants to go nowhere near Miller and my case. We are submitting our second and final petition for writ of certiorari with the USSC at the end of the month. If you have any interest at all in my case and in the protection of your constitutionally recognized RTKBA, please assist me. I can be contacted at rahamblen@gmail.com. My attorney, Jeffrey S. Frensley can be contacted at chipfrensley@yahoo.com. I have posted a good many of the case documents and background information at http://www.esnips.com/web/HamblenvsUnitedStates

Hamblen was convicted and sentenced to 15 months in federal prison. His petition to the Supreme Court for writ of cert was denied. His motion to vacate was denied, see below.

Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison.

https://www.leagle.com/decision/infdco20081208529

HAMBLEN v. UNITED STATES

No. 3:08-1034.

RICHARD HAMBLEN v. UNITED STATES OF AMERICA.

United States District Court, M.D. Tennessee, Nashville Division.

December 8, 2008.

MEMORANDUM

TODD J. CAMPBELL, District Judge.

I. Introduction

Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence (Docket No. 1), filed by counsel for the Movant/Petitioner (hereinafter "Petitioner"). The Government has filed Responses to the Motion (Docket No. 3, 7), and the Petitioner has filed a Memorandum In Support Of His Motion (Docket No. 6).

The Court has reviewed the pleadings and briefs filed by both parties, the record of Petitioner's underlying conviction, and the entire record in this case. For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate is DENIED, and this action is DISMISSED.

II. Procedural and Factual Background

In the underlying criminal case, the Petitioner was charged in an Indictment with possession of certain machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One), and with possession of certain machine guns that were not registered, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count Two). (Docket No. 1 in Case No. 3:05-00226). The charges were based on Petitioner's possession of nine machine guns and other firearms kept in a safe at the back of his place of business. (Transcript of Trial, Vol. I, at 23-92 (Docket No. 36)).

At the conclusion of a two-day trial, the Defendant was convicted of both Count One and Count Two. (Docket Nos. 17, 18, 23 in Case No. 3:05-00226). At the subsequent sentencing hearing, the Court sentenced the Petitioner to a total term of 15 months of imprisonment. (Docket No. 28 in Case No. 3:05-00226).

The Petitioner appealed his conviction to the Sixth Circuit (Docket No. 39 in Case No. 3:05-00226; United States v. Richard Hamblen, 239 Fed. Appx. 130, 2007 WL 1804393 (6th Cir. June 21, 2007)), and the Sixth Circuit affirmed. Id. The Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, but the Petition was subsequently denied. (Docket Nos. 41, 42 in Case No. 3:05-00226).

III. Analysis

A. The Petitioner's Claims

Petitioner contends that his conviction should be vacated because the statutes under which he was convicted violate the Second Amendment.

B. The Section 2255 Remedy/Evidentiary Hearing Not Required.

Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment under attack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also conducted the trial, he may rely on his recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).

In this case, the Petitioner does not seek an evidentiary hearing to introduce new evidence in support of his constitutional claim. (Docket No. 6). The Court agrees that an evidentiary hearing is not warranted in this case.

C. Procedural Default

The Government argues that the Court need not reach the Petitioner's constitutional claim because that claim has been procedurally defaulted. Petitioner defaulted the claim, according to the Government, because his Second Amendment argument to the appeals court focused on his collective rather than individual right to bear arms.

In the trial court, Petitioner's primary, if only, defense rested in his belief that his firearm possession was protected by the Second Amendment. (Docket Nos. 16, 26, 29 and 38). The Court rejected the Petitioner's argument under the then-prevailing view that the Second Amendment guaranteed only a collective right to bear arms, and that collective right required that the Petitioner show his possession had some reasonable relationship to the preservation or efficiency of a well-regulated militia. (Transcript of Trial, Vol. II, at 273-74, 334-35 (Docket No. 37)). The Court also charged the jury to that effect. (Id.)

In considering Petitioner's Second Amendment argument on appeal, the Sixth Circuit reiterated the state of the law at that time that the Second Amendment guarantees a collective rather than an individual right to bear arms, and that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 806 (1939), the Petitioner was required to show that his possession of machine guns had some reasonable relationship to the preservation or efficiency of a well-regulated militia. 239 Fed. Appx. at 134-35. Finding that the Petitioner had failed to make that showing, the Sixth Circuit rejected his Second Amendment argument. Id. As noted above, Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied. (Docket Nos. 41, 42 in Case No. 3:05-00226).

Approximately one year after the Sixth Circuit affirmed Petitioner's conviction, on June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognizing for the first time an individual right to bear arms guaranteed by the Second Amendment.

Relying primarily on Heller, Petitioner now argues that his conviction and sentence violate his Second Amendment rights.

The Court is persuaded that the Petitioner fairly presented to this Court and the Sixth Circuit on direct appeal the Second Amendment argument he now raises in the pending motion to vacate. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed. 438 (1971)(In the context of a state prisoner habeas case, the Court explains that claims must first be "fairly presented" to state court); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)(Procedural default rules developed in state habeas corpus cases apply in federal habeas corpus cases). The Petitioner clearly presented to the Sixth Circuit his claim that his conviction violated his Second Amendment rights. Picard, 404 U.S. at 277 (A mere variation in legal theory does not automatically indicate that the defendant has failed to fairly present a claim). See also Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005). Accordingly, the Court concludes that the Petitioner has not defaulted the claim by failing to raise it on direct appeal.

D. Second Amendment

In raising the Second Amendment claim here, Petitioner primarily relies on District of Columbia v. Heller. In Heller, the Court held that the District of Columbia's prohibition on the possession of handguns in one's home violates the Second Amendment. 128 S.Ct. at 2814-18. In reaching its decision, the Court held that the Second Amendment confers an individual right to keep and bear arms. Id.

At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

* * *

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'

Heller, 128 S.Ct. at 2816-17 (footnote and citations omitted).

Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:

Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. . . . We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. . . .

128 S.Ct. at 2815-16.

The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."

In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did . . ." 286 Fed. Appx. at 386.2

The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written.

IV. Conclusion

For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief under 28 U.S.C. § 2255. Therefore, the Petitioner's Motion Under § 2255 is denied, and this action is dismissed.

Should the Petitioner give timely notice of an appeal from this Memorandum and Order, such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. 2253(c). The Court concludes that Petitioner has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable. See, e.g., Castro v. United States, 310 F.3d 900 (6th Cir. 2002). Accordingly, the Court will issue a certificate of appealability on Petitioner's Second Amendment claim.

It is so ORDERED.

FootNotes

1. 28 U.S.C. § 2255 states, in part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

2. The defendants in Fincher and Gilbert, like the Petitioner here, were charged with possession of machine guns in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and possession of unregistered firearms in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See 538 F.3d at 870; 286 Fed. Appx. at 385.

"chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment"

Miller had a 12ga, sawed-off, double-barreled shotgun. Not even close to the actual WWI combat shotgun -- the Winchester Model 1897 trench gun, a 5-round, pump-action, 12ga shotgun with a 20" barrel, sling swivels, barrel shroud, and bayonet lug.

"His motion to vacate was denied, see below."

Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.

If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."

So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax?

Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns

No it didn't. Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia.

The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion.

Correct. And that opinion was that the second amendment only protected weapons suitable for use by a militia. Meaning, the District Court had to provide evidence that a sawed-off shotgun fell into this category.

[misterwhite #268] Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.

- - - - - - - - - -

[misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax?

- - - - - - - - - -

[misterwhite #270] Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia.

- - - - - - - - - -

[misterwhite #271] And that opinion was that the second amendment only protected weapons suitable for use by a militia.

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 2

Channel misterwhite, act accordingly, take your bullshit to court, go to prison.

Hollis Wayne Fincher argued "that he has the right to possess these weapons [a machinegun and a sawed-off shotgun] under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia."

As that was a matter a law, it was a matter for the judge to decide. The Court did not err in prohibiting Fincher from presenting such bullshit to the jury. Fincher presented his bullshit to the court, out of the presence of the jury, and the court found it to be bullshit. The court imposed concurrent sentences of 78 months imprisonment on each of two counts.

Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison.

https://www.leagle.com/decision/infco20080813073

U.S. v. FINCHER

Nos. 07-2514, 07-2888.

538 F.3d 868 (2008)

UNITED STATES of America, Appellee, v. Hollis Wayne FINCHER, Appellant.

United States Court of Appeals, Eighth Circuit.

Submitted: March 10, 2008.

Filed: August 13, 2008.

Attorney(s) appearing for the Case

Quentin M. Rhoades, argued, Missoula, MT, for appellant.

Wendy L. Johnson, AUSA, argued, Fort Smith, AR, for appellee.

Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia. Fincher also challenges the district court's determination that he is not eligible for court appointed counsel and challenges the district court's request to resentence him. We affirm the conviction and remand the issue of Fincher's eligibility for court appointed counsel to the district court for further inquiry.

I. Second Amendment

A. Background

Before Fincher's trial began, the government became aware of Fincher's intention

[538 F.3d 871]

to argue to the jury that his possession of guns was protected under the Second Amendment. Because that issue is a matter of law, the government filed a motion in limine asking the district court to prevent Fincher from arguing matters of law to the jury. After hearing oral argument on the motion, the district court granted the motion in part and denied it in part. In doing so, the district court stated that matters of law are "quintessentially within the province of the judge and not matters to be addressed to the jury." Nevertheless, the district court stated that it would allow Fincher to present evidence outside the presence of the jury that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), and United States v. Hale, 978 F.2d 1016 (8th Cir.1992), his possession of the guns was reasonably related to a well regulated militia.

At the close of the government's case, Fincher moved for judgment of acquittal. The district court denied the motion, stating that it was based on an attack on the law and not the evidence, and that under Hale, 978 F.2d 1016, the fact that a particular weapon may be susceptible to military use does not by itself establish a Second Amendment right to possess the weapon.

During his case-in-chief, Fincher presented his own testimony, which the district court heard in camera. Fincher testified that he possessed the guns as part of his membership in the Washington County Militia ("WCM"), an organization he helped found in 1994. He testified that the purpose of the WCM is to ensure the militia can operate as effectively militarily as possible in a time of state emergency and that the WCM has regular meetings and training sessions for its members. Fincher testified that between seven and nine individuals attend any given meeting of the WCM, though it is not always the same individuals in attendance. The WCM does not maintain a roster of its members or an inventory of weapons.

The WCM is not a secret organization. In fact, along with the other members of the WCM, Fincher wrote and sent letters to federal agencies via certified mail informing them of the WCM's existence and attempting to put them on notice that the WCM was lawful under state law. Fincher also sent at least one letter to the governor of Arkansas, informing him about the WCM, seeking approval, and stating that the governor's failure to object to the WCM's declaration would provide affirmation that the state of Arkansas did not object to the WCM. Fincher denied receiving a letter from the governor stating that the state records did not contain any reference to the WCM and that no such organization was registered with, or sanctioned by, the office of the governor or the state of Arkansas.

In addition to sending written notice of the WCM to various governmental offices, Fincher invited local sheriffs to view the WCM facilities and weapons. Fincher also told state officials that the WCM possessed machine guns, which the public could observe at any one of the three annual picnics sponsored by the WCM, and he showed the machine guns to at least one sheriff. Fincher also testified about how the weapons used by the WCM were chosen and stored, some at the WCM facility and others at the individual members' residences.

When asked about the procedures for activating the WCM in the case of an emergency, Fincher stated that if an emergency occurred while he was the commander of the WCM, he would contact "the sheriff if — if I was able, you know, depending on the emergency, or the governor, or probably any other — or maybe the mayor of a city or any — anyone or no one. If there was an emergency that had to be

[538 F.3d 872]

taken care of, we have the right to preserve life, liberty, and pursuit of happiness. We have the duty to. You don't stand around and wait for someone to tell you you can protect your life or perform emergency medical assistance or put out a fire. These are natural offices of the people." He also testified that the state could call up the militia at any point, and that even though the written notices that WCM sent to various governmental offices did not contain any phone numbers or other direct contact information, the governor would know how to contact them.

The district court ruled that Fincher's proffered testimony would not be admitted because the WCM, despite its attempts to receive state recognition, was an unorganized and unregulated militia and therefore, as a matter of law, did not fall within the auspices of the Second Amendment. The district court also noted that even if the WCM was a state-sponsored or state-connected militia, there was no evidence that the person in charge of that militia would determine that possession of machine guns or sawed-off shotguns was necessary to the preservation of a well regulated militia.

B. Discussion

Fincher asserts that the district court erred by not allowing the jury to determine whether his possession of firearms was reasonably related to a well regulated militia and therefore protected by the Second Amendment. We review a district court's grant of a motion in limine for abuse of discretion, Robinson v. Potter, 453 F.3d 990, 995 (8th Cir.2006), and we accord it great deference on evidentiary rulings such as the admissibility of proffered testimony, United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.1997). We review de novo the district court's legal conclusions, such as whether possession of firearms in relation to membership in a non-state-sponsored militia is protected by the Second Amendment. United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004).

The role of the jury is to decide facts, not legal issues. United States v. Peck, 161 F.3d 1171, 1174 (8th Cir.1998). Accordingly, the district court did not err in prohibiting Fincher from arguing or presenting evidence regarding a question of law to the jury.

We turn to the question whether the district court erred by concluding that Fincher's possession of the guns did not fall within the protection of the Second Amendment. We conclude that the district court's determination that the WCM was not affiliated with the state militia and therefore not subject to the protections of the Second Amendment under Miller and Hale is well supported by the record.

Fincher contends that our decision in Hale, 978 F.2d 1016, established an affirmative defense to the charge of unlawful possession of firearms. In Hale, we stated that the possession of firearms is not protected unless the possession bears a reasonable relationship to a well regulated militia. 978 F.2d at 1020; see also United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir.2004) (citing Hale); United States v. Farrell, 69 F.3d 891, 894 (8th Cir.1995) (same). Although the WCM is not a secretive organization and has held relatively regular training sessions and meetings over the years, we stated in Hale that "'[t]echnical' membership in a state militia (e.g., membership in an 'unorganized' state militia) or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test." Hale, 978 F.2d at 1020 (citing United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977)). In Arkansas, the state militia is defined as:

[538 F.3d 873]

(a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard.

(b) The militia shall consist of all able-bodied male residents of the state between the ages of seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless exempt by law, together with all other acceptable volunteers, waiving necessary requirements.

Ark.Code. Ann. § 12-61-101 (emphasis added). Thus, despite WCM's attempts to contact the governor's office and become an organized state militia, the district court correctly concluded that Fincher's testimony, even if believed by the jury, would not support his Second Amendment argument because Fincher is not a member of an organized state militia. Rather, Fincher's testimony established that the WCM was an "unorganized" militia because it is not the Army National Guard or the Air National Guard and is not formally connected with the state of Arkansas. Therefore, under Hale, Fincher's possession of firearms is, as a matter of law, not reasonably related to a well regulated militia and is thus not protected by the Second Amendment.

In reaching this conclusion, we have taken into account the Supreme Court's recent decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008),1 in which the Court held that the District of Columbia's complete prohibition on the possession of usable handguns in one's home violated the Second Amendment. Id. at 2817-18. In holding that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation," Id. at 2797,2 the Court also stated that the right to possess firearms is not beyond the reach of all government regulation. Id. at 2799, 2816 ("Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.").

In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms:

[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons

[538 F.3d 874]

and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Id. at 2816-17 (internal citations and footnote omitted).

Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury.

II. Court Appointed Counsel

A. Background

The circumstances surrounding Fincher's court appointed counsel are fully recited in the district court's order, United States v. Fincher, No. 06-50064-001, 2007 WL 2177062 (W.D.Ark. July 27, 2007), and are largely undisputed by Fincher. For the purpose of our analysis, we will highlight the main facts.

Fincher was arrested on November 9, 2006, for violating 18 U.S.C. § 922(o). When he made his initial appearance later that day, he requested the appointment of an attorney because of his financial inability to retain counsel. He executed a "Financial Affidavit In Support of Request For Attorney or Other Court Services Without Payment Of Fee" ("the financial affidavit"), which indicated that he had no personal income, that his wife made $10.50 an hour, that he had $2,000 in savings, that he owned two vehicles of unknown value, one on which he was still making payments, and that he owned his home and 120 acres of real estate in Fayetteville, Arkansas, which had unknown value. Based upon that information, the district court appointed counsel to represent Fincher pursuant to the Criminal Justice Act.

On December 13, 2006, Fincher's appointed counsel withdrew because Fincher had retained other counsel. Thereafter, Fincher was convicted on both counts charged in the indictment. On March 8, 2007, Fincher informed the district court that he no longer had counsel and requested that counsel be appointed for him, which was done.

Before Fincher was sentenced, he executed a quitclaim deed conveying the 120 acres of real estate to his daughters in exchange for consideration of "One dollar ($1.00) and other good and valuable consideration," and reserving a life estate in the property for himself and his wife. Thereafter, the district court imposed concurrent sentences of 78 months' imprisonment on each count. Fincher was also subject to a fine of up to $250,000. Although the guidelines range called for a fine of between $12,500 and $125,000, the district court imposed a fine of only $1,000 under the belief that Fincher had no significant assets.

After sentencing, Fincher requested release on bond pending appeal. The district court conducted a hearing on the

[538 F.3d 875]

matter and agreed that Fincher could be released on $100,000 bond. Fincher indicated that he could not post bond in that amount. The district court noted that Fincher might be able to use his real estate to secure the bond, whereupon Fincher's daughters executed a mortgage for that purpose. As a result, the district court became aware that Fincher's property had significant value, and that Fincher had conveyed it to his daughters.

As a result of these circumstances, on July 3, 2007, the district court held an evidentiary hearing to determine Fincher's financial eligibility for court appointed counsel. The district court received testimony from Fincher, his wife, and his two daughters. The district court also requested that Fincher provide supporting documents, such as his contract with retained counsel and the deed transferring the real estate. In addition, the district court ordered an independent appraisal of the property, which estimated that it had a value of $455,000.

On July 27, 2007, the district court entered an order stating that Fincher "is not now, nor has he ever been at any time material to this proceeding, financially unable to obtain counsel to represent him in this proceeding and that appointments of counsel for him were improvidently made." Fincher, 2007 WL 2177062, at *10. Accordingly, the district court ordered Fincher to reimburse the United States Treasury $8,357.55 for the legal services provided to him by the attorneys appointed under the Criminal Justice Act. Id.

B. Discussion

Fincher asserts that the district court's July 27, 2007, order revoking his eligibility for court appointed counsel should be reversed because he did not misrepresent the value of his real estate when he stated that the value was unknown. He also challenges the appraised value of the property and the district court's conclusion that he owns the property free and clear. Fincher asserts that he was subjectively unaware of the value of the property when he filled out the affidavit, that the property is not worth nearly as much as the appraised value because it is landlocked, and that he owned it as a joint tenant with his wife. Fincher further contends that the transfer of the property to his daughters was legitimate because he informed the Assistant United States Attorney who was working on the case about the transfer.

The Criminal Justice Act provides a framework for ensuring that individuals who are financially unable to afford defense counsel are provided counsel as required by the Sixth Amendment. United States v. Brockman, 183 F.3d 891, 897 (8th Cir.1999). The Act requires that each United States district court create "a plan for furnishing representation for any person financially unable to obtain adequate representation...." 18 U.S.C. § 3006A(a). A person is eligible for court appointed counsel if, after the United States magistrate judge or court conducts an "appropriate inquiry," the court is satisfied that "the person is financially unable to obtain counsel." 18 U.S.C. § 3006A(b). Financial inability to obtain counsel is not the same as being indigent or destitute, but the defendant has the burden of establishing that he or she is financially unable to obtain counsel. Brockman, 183 F.3d at 897; Museitef v. United States, 131 F.3d 714, 716 (8th Cir.1997). "If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate." 18 U.S.C. § 3006A(c); see also 18 U.S.C. § 3006A(f) ("Whenever the United States

[538 F.3d 876]

magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid...."); Museitef, 131 F.3d at 715.

Thus, our review of the district court's determination of financial eligibility for court appointed counsel is a three-step process. See United States v. Parker, 439 F.3d 81, 92 (2d Cir.2006) (reviewing district court's mid-case appointment of counsel). We must ask, (1) whether the district court conducted an "appropriate inquiry" into the defendant's financial eligibility, (2) whether the district court correctly determined the defendant's financial eligibility, and (3) whether the district court erred when it weighed the "interests of justice." Id. at 92-93. Because we ultimately remand this issue to the district court for further review, we reach only the first of these three questions.

To determine a defendant's financial eligibility, the district court should make a "full inquiry" into the defendant's actual ability to retain counsel. Museitef, 131 F.3d at 716. A full-scale adversarial hearing is not required, however, before a district court may order repayment of attorney's fees under the Criminal Justice Act. United States v. Vale, 140 Fed.Appx. 302, 303 (2d Cir.2005) (unpublished opinion) (citing United States v. Crosby, 602 F.2d 24, 28 (2d Cir.1979)); see also Parker, 439 F.3d at 93 ("The task necessarily varies with the circumstances presented, and no one method or combination of methods is required." (internal quotation omitted)). We review de novo the adequacy of the district court's inquiry. Parker, 439 F.3d at 93 n. 12.

In this case, the district court's initial inquiry was based upon the financial affidavit submitted by Fincher. See id. at 93 (noting that in some cases the court's inquiry may be limited to the defendant's statements on the financial affidavit). Based upon the limited information available at that time, the district court did not err in appointing counsel for Fincher. Brockman, 183 F.3d at 897 (any doubt about the defendant's eligibility for court appointed counsel should be resolved in the defendant's favor); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir.1969) (district court's determination that defendant was ineligible for court appointed counsel based upon the ownership of real estate with an unknown value and without a more searching inquiry was error).

Although a district court should investigate information contained in an affidavit when the information provided renders the defendant's eligibility questionable, the district court's initial determination of eligibility can be amended when new information comes to light. See In re Boston Herald, Inc., 321 F.3d 174, 179 (1st Cir.2003) (erroneous eligibility determinations can be corrected at a later time). In this case, the district court became aware of the fact that Fincher's property had significant value when it was mortgaged to secure Fincher's $100,000 bond and Fincher testified that he knew that property in the same area had recently sold for between $2,000 and $4,000 an acre. This new information was sufficient to warrant a reexamination of Fincher's eligibility.3

[538 F.3d 877]

Fincher argues that the district court erred in determining that he was not eligible for court appointed counsel because the district court did not take into consideration the fact that the property is landlocked and therefore is not as valuable as the appraisal indicates. Fincher testified at the hearing, however, that the property is located one mile off a public road and that there is an unpaved road that goes directly to the property. Fincher also informed the district court that the property has a right-of-way that, although not currently used, is attached to ownership of the property. Furthermore, it is undisputed that Fincher and his wife currently reside on the property, suggesting that the property is not in fact inaccessible. The appraisal acknowledges that any ingress and egress to the property would need to be improved, as the current road is not paved. Accordingly, we conclude that the district court did not err in accepting as accurate the appraiser's opinion that the property had a value of $455,000, which falls within Fincher's estimate that the property is worth between $2,000 and $4,000 an acre.

Fincher argues for the first time on appeal that because he owned the property as a joint tenant with his wife, he did not own it free and clear, and that the district court therefore erred by concluding otherwise. This late-raised assertion is directly contradicted, however, by the testimony of Fincher's daughter, who testified that Fincher's name is the sole one on the title. Furthermore, Fincher's wife testified that she did not know if she had ever been deeded any portion of the property. Although the quit claim deed that transferred the property to Fincher's daughters in early 2007 recites that Fincher and his wife each owned an undivided one-half interest in the property as tenants in common, there is no evidence in the record that Fincher and his wife owned the property as joint tenants. Accordingly, the district court did not err when it found that Fincher owned the property free and clear because Fincher has not established that there are any mortgages or liens on the property.

Regarding Fincher's transfer of the property to his daughters via quit claim deed, we conclude that Fincher's letter to the Assistant United States Attorney regarding the transfer of the property does not insulate the transfer from later question. Testimony at the evidentiary hearing from Fincher, his wife, and his two daughters, as well as the letter sent to the AUSA, all indicate that the property was transferred after Fincher's conviction to avoid the possibility of the property being sold to pay any fine imposed by the district court as part of Fincher's sentence. Accordingly, the district court did not err in concluding that the attempted transfer of the property should be considered when determining Fincher's eligibility for court appointed counsel.

Despite these conclusions and the fact that the district court conducted a more thorough inquiry into Fincher's eligibility in July 2007 than it did initially, the district court's analysis leaves factual questions unanswered. Thus, we remand this issue to the district court for further consideration of whether Fincher's wife has any ownership in the property and, if so, whether that affects Fincher's ownership of the property or the application of the Arkansas Homestead Exemption. Specifically, the district court must consider whether the entire 120 acres of real estate is protected by the Homestead Exemption, making Fincher eligible for court appointed counsel despite his ownership of the property, or whether the exemption protects

[538 F.3d 878]

only a portion of the real estate. See Ark.Code Ann. § 16-66-210; see also United States v. Trevino, 679 F.Supp. 636, 636 (S.D.Tex.1987) (doubting that defendants should have to sell their homestead to appeal criminal conviction); Perry v. Chief of Police of City of Marianna, Ark., 660 F.Supp. 1546, 1552 (E.D.Ark.1987) (in determining indigency, defendant should not be required to sell his inexpensive car or his home).4 Additionally, the district court should consider whether Fincher has the current ability to reimburse the United States Treasury for the legal services he received in light of the transfer of the real estate to Fincher's daughters.

III. IFP Status on Appeal

We turn next to Fincher's request for in forma pauperis ("IFP") status on appeal. Because we remand to the district court for further review the issue of Fincher's eligibility for court appointed counsel, we do not reach this issue. Nevertheless, Fincher's IFP status on appeal is dependent upon his eligibility for court appointed counsel at the trial level. If the district court concludes that Fincher is eligible for court appointed counsel and therefore should not be required to reimburse the cost of the legal services he received, and Fincher's financial circumstances do not change between the time of the district court and the appellate court proceedings, he should be granted IFP status on appeal. See United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir.2003) (court appointed counsel continues on appeal unless defendant's financial situation changes and he or she is no longer financially eligible).

IV. Sentencing

On the basis of its conclusion that Fincher misrepresented his financial eligibility for court appointed counsel, the district court seeks a remand for resentencing. In light of our conclusion that the district court must conduct a more searching inquiry into Fincher's eligibility for court appointed counsel, we decline the request for remand. Moreover, it is questionable whether we have jurisdiction to remand in the absence of an appeal or cross-appeal from the government, or whether the district court has jurisdiction to resentence a defendant in the absence of statutory authority to do so. See Greenlaw v. United States, ___ U.S. ___, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (holding that a circuit court cannot increase a defendant's sentence without a government appeal or cross-appeal); United States v. Ross, 245 F.3d 577, 585-86 (6th Cir.2001) (district court may not resentence defendant without statutory authority); see also United States v. Sadler, 234 F.3d 368, 373-74 (8th Cir.2000) (a district court's "change of heart as to the appropriateness of the sentence, rather than a correction in the application of the guidelines," is not the type of "clear error" that can be corrected under Rule 35(c) (internal quotation and citation omitted)); cf. United States v. Fortino, No. 07-3476, 2008 WL 2388893, ___ Fed.

[538 F.3d 879]

Appx. ____ (8th Cir. June 13, 2008) (per curiam).

V. Conclusion

The conviction is affirmed. The order directing Fincher to reimburse the United States Treasury $8,357.55 for the legal services he received pursuant to the Criminal Justice Act is vacated and the case is remanded the district court for further proceedings consistent with the views set forth in this opinion.

FootNotes

1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller.

2. We note that the Supreme Court did not address the question whether the Second Amendment is incorporated through the Fourteenth Amendment and thus applicable to the states.

3. In its July 27, 2007, order, the district court noted that it should have conducted a investigation beyond Fincher's financial affidavit before it initially appointed him counsel. Fincher, 2007 WL 2177062, at *7. Nevertheless, the district court reasoned that the defendant has the burden of establishing financial eligibility for court appointed counsel and that Fincher did not meet this burden and in fact misrepresented his financial eligibility by listing the 120 acres as having an unknown value when, in fact, he knew that real estate in the same area had recently sold for between $2,000 and $4,000 an acre. See id. (citing United States v. Lefkowitz, 125 F.3d 608 (8th Cir.1997)).

4. Generally, cases in which a defendant's ineligibility for court appointed counsel has been affirmed are based upon the defendant's income and cash flow, not a requirement that the defendant sell his homestead to facilitate the payment of defense costs. See, e.g., Lefkowitz, 125 F.3d at 621 (defendant had recently spent several hundred thousand dollars on other attorney's fees and personal expenses and district court found defendant's own testimony of indigence to be lacking credibility); United States v. Harris, 707 F.2d 653, 661 (2d Cir. 1983) (district court found that defendant had "substantial income" in the past two years and might have had other undisclosed income); United States v. Wetzel, 488 F.2d 153, 157 (8th Cir. 1973) (affirming reimbursement order (for about $350) because defendant received $19,000 for the sale of cattle and owned real estate (the opinion provides no indication that the real estate was defendant's homestead)).

[nolu chan #265] If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."

[misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax?

The quote at #265 was correctly attributed by me to the opinion of the court in United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008). They are not my words, but those of the court, copied verbatim.

Assuming you are neither a licensed firearms dealer, nor purchasing for a police department, regarding your purchase of a brand new machinegun, when you report to federal prison, I promise to make a donation to your commissary fund.

https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/

(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.

The date that title took effect was May 29, 1986.

https://www.gpo.gov/fdsys/pkg/STATUTE-100/pdf/STATUTE-100-Pg449.pdf

Public Law 99-308, 100 Stat. 451 (29 May 1986)

Section 102. Amendments to Section 922.

Section 922 of Title 18, United States Code, is amended—

[...]

(9) by inserting after the subsection added by paragraph (8) of this section the following:

"(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.

Section 110. Effective Date.

[...]

(c) MACHINEGUN PROHIBITION.—Section 102(9) shall take effect on the date of the enactment of this Act.

Approved May 19, 1986.

http://www.thefirearmblog.com/blog/2014/09/11/atf-approves-post-86-machine-gun-form-1/

There are 186,619 transferable machine guns in the USA, and this number is as fixed as fixed gets. The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that. What is perceived as a loophole by addressing a technicality, will not undo this act of congress.

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 3

[misterwhite #244]

Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

For those not in the state militia, their State Constitution spells out their personal RKBA.

The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home.

From United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), quoted in full below:

Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia".

[...]

Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.

Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison.

https://law.justia.com/cases/federal/appellate-courts/F2/978/1016/183710/

United States of America, Plaintiff-appellee,
v.
Wilbur Hale, Defendant-appellant

978 F.2d 1016 (8th Cir. 1992)

U.S. Court of Appeals for the Eighth Circuit - 978 F.2d 1016 (8th Cir. 1992)

Submitted June 10, 1992.
Decided Oct. 20, 1992.
Rehearing Denied Nov. 20, 1992

Michael A. Skipper, Little Rock, Ark., argued, for defendant-appellant.

Clarence Dan Stripling, Little Rock, Ark., argued (Charles A. Banks and Robert L. Roddey, on the brief), for plaintiff-appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Wilbur Hale appeals his conviction of thirteen counts of possession of a machine gun pursuant to 18 U.S.C.A. § 922(o) (West Supp. 1992) and three counts of possession of unregistered firearms pursuant to 26 U.S.C. § 5861(d) (1988). He argues that the statutes under which he was prosecuted have no nexus with interstate commerce, and are therefore beyond the constitutional power of Congress; that the indictment violates his Second Amendment right to bear arms; and that the trial court erred both in admitting affidavits as to the nonregistration of his weapons and in refusing to take judicial notice of material concerning the reliability of firearm registration records. We affirm the judgment of the district court.1

On March 8, 1991, agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant on Hale's residence and seized numerous weapons and gun parts. These included one MAC-10 .45 caliber submachine gun, three "Sten-type" 9 millimeter fully automatic submachine guns, two M-1 carbines with kits for enabling fully automatic fire, one .22 caliber pistol with a silencer, and five .223 caliber assault rifles modified into "M-16 type" fully automatic machine guns. The agents also seized the principal components or "receivers" of one MAC-10, one Sten, and one "M-16 type" machine gun. Hale was charged in a sixteen-count indictment and a jury convicted him of all counts.

Hale asserts pro se that there is no federal jurisdiction because the statutes under which Hale was prosecuted, 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d), assert no nexus with interstate commerce, and thus are beyond the power granted to Congress under the Constitution.2 The Supreme Court recognized the breadth of the commerce power in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), explaining that Congress could properly regulate a class of activities that affected interstate commerce without proof that any particular intrastate activity within that class had an effect on interstate commerce. Id. at 152 to 153, 91 S. Ct. at 1360 to 1361. "Where the class of activities is regulated, and that class is within the reach of federal power, the courts have no power to 'excise, as trivial, individual instances' of the class." Id. at 154, 91 S. Ct. at 1361 (emphasis in original) (citation omitted).

18 U.S.C. § 922(o) regulates the possession of machine guns. The legislative history of section 922(o) indicates that Congress considered the relationship between the availability of machine guns, violent crime, and narcotics trafficking. See H.R.Rep. No. 495, 99th Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31. When it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce power. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 225 (1968). The 1986 amendments to section 922 added sub-section (o) without substantially altering the findings of fact on this point. See Firearm Owner's Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). We conclude, as did the Ninth Circuit on similar grounds, that 18 U.S.C. § 922(o) is within the authority granted to Congress by the Commerce Clause. See United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991).

The same general argument is applicable to 26 U.S.C. § 5861(d). Furthermore, the Ninth Circuit has upheld § 5861(d) as a valid exercise of the taxing power of Congress. United States v. Tous, 461 F.2d 656, 657 (9th Cir. 1972) citing United States v. Giannini, 455 F.2d 147 (9th Cir. 1972). The Sixth Circuit has upheld section 5861 as a "reasonable regulation for the maintenance of public order." United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3168, 49 L. Ed. 2d 1185 (1976).

Therefore, we reject Hale's arguments and conclude that both 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d) are within the authority granted to Congress under the Constitution.

Hale next argues that the indictment violates his Second Amendment rights: "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." U.S. Const. amend. II. Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia".

In Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce. In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon:

In the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller, 307 U.S. at 178, 59 S. Ct. at 818 (citation omitted).

Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. See generally Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.Dayton L.Rev. 5 (1989). These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent. Over the next 200 years, state militias first faded out of existence and then later reemerged as more organized, semi-professional military units. The state provided the arms and the equipment of the militia members, and these were stored centrally in armories. With the passage of the Dick Act in 1903, the state militias were organized into the national guard structure, which remains in place today. Id.

More recently, the Supreme Court in Perpich v. U.S. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), has analyzed the early history of the militia, including the Act of 1792 which required militia members to provide themselves "with a good musket or firelock," as well as cartridges and other equipment. The Court observed that these requirements were virtually ignored for more than a century. Id. at 341, 110 S. Ct. at 2423. Perpich discusses in detail the relationship between the militia and the National Guard and recognizes that the "Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Id. at 351, 110 S. Ct. at 2428. While Perpich does not deal with the Second Amendment issue present here, its discussion of the militia gives further dimension to our analysis.

Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S. Ct. at 818. Miller simply "did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action." Warin, 530 F.2d at 106.

This court has on at least three occasions, citing and relying on Miller, denied challenges to the constitutionality of arms control legislation, because there was no evidence of a reasonable relationship to the maintenance of a militia. See United States v. Nelsen, 859 F.2d 1318 (8th Cir. 1988); Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S. Ct. 454, 34 L. Ed. 2d 303 (1972); United States v. Decker, 446 F.2d 164 (8th Cir. 1971). In Nelsen and Cody we also cited and relied on the decisions of other circuits discussed in this opinion.3

The Supreme Court has not addressed a Second Amendment issue since the Miller decision. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943) remains one of the most illuminating circuit opinions on the subject of "military" weapons and the Second Amendment. Cases states that "under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual, as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." Id. at 922. After carefully examining the principles and implications of the then recent Miller decision, the First Circuit concluded that the existence of any "reasonable relationship to the preservation of a well regulated militia" was best determined from the facts of each individual case. Id. Thus, it is not sufficient to prove that the weapon in question was susceptible to military use. Indeed, as recognized in Cases, most any lethal weapon has a potential military use.4 Id. Rather, the claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a well regulated militia. See id. at 923. Where such a claimant presented no evidence either that he was a member of a military organization or that his use of the weapon was "in preparation for a military career", the Second Amendment did not protect the possession of the weapon. Id.

Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.

Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. Hale introduced no evidence and made no claim of even the most tenuous relationship between his possession of the weapons and the preservation of a well regulated militia.

Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222 (1990), Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. See Miller, 307 U.S. at 178, 59 S. Ct. at 818; United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926, 98 S. Ct. 1493, 55 L. Ed. 2d 521 (1978); Cody, 460 F.2d 34. Whether the "right to bear arms" for militia purposes is "individual" or "collective" in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia.

Hale next argues that the trial court's acceptance of affidavits as to the non-registration of his weapons violated his rights as guaranteed by the confrontation clause of the Sixth Amendment. The government introduced two affidavits signed by a Bureau of Alcohol, Tobacco and Firearms specialist stating that, after a diligent search of the its National Firearms Registration Branch records from 1934 to the present, the Bureau had located no record of any application by Hale to register his weapons. The court admitted the affidavits over hearsay objections by Hale's trial counsel.

The Federal Rules of Evidence provide for an exclusion from the hearsay rule:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Fed.R.Evid. 803(10).

The trial judge correctly admitted the affidavits under this rule. Numerous cases have held that the admission of "negative records" under Rule 803(10) does not violate the constitutional right of confrontation. United States v. Metzger, 778 F.2d 1195 (6th Cir. 1985), cert. denied, 477 U.S. 906, 106 S. Ct. 3279, 91 L. Ed. 2d 568 (1986); United States v. Neff, 615 F.2d 1235 (9th Cir. 1980), cert. denied, 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980); United States v. Harris, 551 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 836, 98 S. Ct. 125, 54 L. Ed. 2d 98 (1977). At oral argument, Hale's counsel admitted that Rule 803(10) is "firmly rooted" in the common law as an exception to the hearsay rule and that the affidavits complied with the self-authentication standard of Federal Rule of Evidence 902(1).

Hale's reliance on Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) is misplaced. The trial court's ruling discussed records regularly made and preserved by a public agency; Brown addressed the admissibility at trial of testimony given in a preliminary hearing by a declarant unavailable to give live testimony at trial. Id. at 58-62, 100 S. Ct. at 2535-2537. The availability of the declarant is immaterial under Fed.R.Evid. 803.

Hale further argues that the trial court erred in failing to admit or take judicial notice of material regarding the reliability of Bureau firearm registration records. Hale attempted to introduce portions of a transcript of hearings held before a Senate subcommittee in 1979. These excerpts included material which Hale alleged would show that the recordkeeping system used by the Bureau for firearm registration records was unreliable. The trial court denied admission because the transcripts were hearsay and were too old to be deemed reliable. The trial court also declined to take judicial notice of the transcript's contents. Hale has failed to demonstrate that the district judge abused her discretion in making either of these determinations.

Hale raises numerous other arguments, particularly in his pro se brief, but these do not merit discussion. The judgment of the district court is affirmed.

BEAM, Circuit Judge, concurring specially.

I concur in the result reached in Judge John R. Gibson's opinion in this matter. I agree completely with the portions dealing with Hale's hearsay and confrontation contentions. I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree.

1 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas

2 Where a party is represented by counsel, our court policy is to refuse to consider pro se briefs. However, as the issue raised here questions our jurisdiction, which we must independently ascertain, we consider Hale's argument

3 The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases

4 It is evident that Hale's weapons were of a military nature and most undoubtedly of them possessed the capability of killing or maiming groups of persons

I would call it a "posse" at best.

The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.

Using what as their authority? Because they're scary?

How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns?

Local police departments have machine guns. Why not local militiamen? Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.

[misterwhite #275] Fincher's "militia" did not meet the criteria of a "well-regulated state militia with officers appointed by the state". Horrible case example.

Convicted. 78 months.

Only enlistment or commission in the National Guard would meet the requisite militia definition. The court opined Fincher would have lost on an individual right argument as well. Civilians, to include those enrolled in the unorganized militia, have no right to possess an unlicensed machinegun.

From Fincher, supra.

Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia.

[...]

In Arkansas, the state militia is defined as:

(a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard.

[...]

Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury.

[...]

FootNotes

1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller.

[The Firearm Blog] The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.

[misterwhite #276] Using what as their authority? Because they're scary?

How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns?

The Firearm Owners' Protection Act of 1986 (FOPA) is federal law, upheld as constitutional power of Congress. It is the law of the land, supreme over anything the state may say.

Everyone in a State National Guard is also enlisted or commissioned in the U.S. National Guard. The Federal Government provides virtually all of the funding, materiel, and leadership for the state Guard units.

The unorganized militia (CIVILIANS) is prohibited, by law, from running around with unlicensed machine guns, or machine guns manufactured after May 19, 1986.

Ordinary citizens are not expected to gather and form a militia with machine guns. The authority to provide for organizing, arming, and disciplining, the militia was granted to the Federal Congress by the U.S. Constitution. The Federal Government reorganized the militia as the National Guard.

[misterwhite #277] The entity to challenge a second amendment violation should be the state itself. And I bet they'd win.

Keep your bet. The Federal gun regulations have been held to be constitutional. They are the supreme law of the land because the U.S. Supreme Court has repeatedly said so.

[misterwhite #277] Local police departments have machine guns. Why not local militiamen?

Federal law regulates civilian possession of machineguns. Membership in the Wolverines, and running around in woods playing Patrick Swayze in Red Dawn does not count. Such "patriots" have no right to possess a machinegun. Members of a police department may be authorized to possess a brand spanking new machinegun.

It's the law.

Hale broke the law and was convicted. Everyone who goes to court and argues your silly crap gets convicted.

[misterwhite #277] Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.

The unorganized militia, that great mass of people meeting certain qualifications between ages 17 to 45 are CIVILIANS. Civilian possession of machineguns is strictly regulated.

The organized militia are in the National Guard. Their machineguns, for on duty use, are provided by the Federal government.

From Hale, supra,

Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.

Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship.

The former state militias are now organized as the National Guard. Joining the State National Guard means also enlisting or being commissioned in the U.S. National Guard. When federalized, the members of a state National Guard are considered discharged from that organization.

Members of the National Guard of the United States may be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. During such periods, the second Militia clause is no longer applicable.

This merely recognizes the supremacy of federal power in the military affairs area.

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 4

[misterwhite #244]

Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

For those not in the state militia, their State Constitution spells out their personal RKBA.

The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home. An off duty military member caught running around in the woods with his M-16 would be court-martialed by the military, and may be prosecuted by the civilian authorities.

Federal law is supreme and prohibits a state from authorizing machinegun possession at home of military weapons. Weapons provided to the National Guard are provided by the Federal government. Members of the State National Guard are also enlisted or commissioned in the United States National Guard.

From United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008), quoted in full below.

The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

And,

The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802.

Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. Keith Gilbert was sentenced to eight years in prison. The court did not permit him to testify as to his bullshit about the Second Amendment. Pleading bullshit in court is not allowed. In court, you cannot argue your personal belief of what the law is. The court determines what the law is and so instructs the jury.

https://casetext.com/case/us-v-gilbert-35

United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008)

U.S. v. GILBERT

United States Court of Appeals, Ninth Circuit, Jul 14, 2008, 286 Fed. Appx. 383 (9th Cir. 2008)

MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

- - - - - - - - - -

Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms in violation of 18 U.S.C. § 371, one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), seven counts of possession of a machinegun in violation of 18 U.S.C. § 922(o), and two counts of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Gilbert challenges the refusal of a requested jury instruction, the propriety of a given jury instruction, and the court's exclusion of testimony regarding his beliefs about the Second Amendment. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Gilbert's criminal history includes felony convictions which prevent him from possessing firearms, including two separate 1966 convictions, one for receiving stolen property and unlawful possession of explosives, and another for assault with a deadly weapon. Between 2003 and 2004, a police informant made four controlled purchases of AK rifles from Gilbert. Portions of all of the transactions were recorded and agents conducted surveillance during the last three transactions. In 2005, a search of Gilbert's residence yielded approximately 70 firearms, multiple firearm parts, over 23,000 rounds of ammunition, and books and videos about firearms.

At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers.

The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction:

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

I. Jury Instructions

Gilbert argues that the district court erred by giving this instruction and refusing to instruct the jury that the Second Amendment affords an individual right to possess firearms for personal use. We review de novo the district court's refusal to give a defendant's jury instructions when that decision is based on a question of law. See United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir. 1997). A district court's formulation of jury instructions is reviewed for an abuse of discretion. See United States v. Shipsey, 363 F.3d 962, 966 n. 3 (9th Cir. 2004); United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th Cir. 2003) ("In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation."). Although a defendant is entitled to have the judge instruct the jury on his theory of defense, that theory must be supported by law and have some foundation in the evidence. United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007).

We conclude that the challenged instruction did not make the instructions as a whole misleading or inadequate to guide the jury's deliberation. Garcia-Rivera, 353 F.3d at 792. The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law. The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802.

II. Exclusion of Testimony

Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment. Gilbert maintains that by sustaining the government's objections to his attempt to testify to that effect, the court prevented him from presenting a defense. We review a district court's ruling excluding evidence for abuse of discretion. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004).

In firearms prosecutions, the government is not required to prove that a defendant knew that his possession of the firearms at issue was unlawful. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Accordingly, the charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length. Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible under Fed.R.Evid. 402. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense.

AFFIRMED.

Only enlistment or commission in the National Guard would meet the requisite militia definition.

Again, we have to go back. What was the original intent of the second amendment?

It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional.

Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller.

Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.

Ordinary citizens are not expected to gather and form a militia with machine guns.

If they had machine guns back in 1790 they would have been. You disagree?

You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional.

This merely recognizes the supremacy of federal power in the military affairs area.

Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government?

The Founders were scared to death of what they were creating. Which is why the U.S. Constitution was written such that the states gave only certain, defined, limited powers to it and kept the rest of the powers to themselves.

You're not only misreading the second amendment. You're ignoring the intent.

It is not to protect the right of the active duty organized militia to carry machineguns while on duty.

Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question.

[misterwhite #282]

Again, we have to go back. What was the original intent of the second amendment?

It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional.

Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller.

Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.

Once again, a lot of truly ignorant noise with no research or knowledge of the subject matter. In Heller' fault, because — Benghazi.

The militia was reorganized into the National Guard in 1903, 105 years before Heller.

And Heller and McDonald are the law of the land.

32 Stat. 775, The Dick Act of 21 January 1903, an Act to promote the efficiency of the militia, and for other purposes.

CHAP. 196.—An Act To promote the efficiency of the militia, and for other purposes.

Be it enacted by the Senate and House ofRepresentatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.

The National Guard was Federalized in 1916, 92 years before Heller.

39 Stat. 188, 211; National Defense Act of 3 Jun 1916 § 111,

SEC. 111. NATIONAL GUARD WHEN DRAFTED INTO FEDERAL SERVICE.—When Congress shall have authorized the use of the armed forces of the United States, for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination, as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army, and shall be embodied in organizations corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. The commissioned officers of said organizations shall be appointed from among the members thereof, officers with rank not above that of colonel to be appointed by the President alone, and all, other officers to be appointed by the President by and with the advice and consent of the Senate. Officers and enlisted men in the service of the United States under the terms of this section shall have the same pay and allowances as officers and enlisted men of the Regular Army of the same grades and the same prior service.

[nolu chan #279] Ordinary citizens are not expected to gather and form a militia with machine guns.

[misterwhite #283] If they had machine guns back in 1790 they would have been. You disagree?

You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional.

I'm not depriving anybody of anything.

The Congress was empowered by the Constitution "to provide for organizing, arming, and disciplining, the militia...." The Congress has provided for organizing and arming the militia. You don't seem to like the way they have done it. I am not concerned with your personal problems.

It is not 1790 and personal possession of unlicensed machineguns is a violation of Federal law. The law has been upheld as constitutional on multiple occasions. It is the law of the land. Your pretending otherwise is insane bullshit.

When your bullshit is taken to court, sovereign morons get convicted and sent to a well regulated prison.

[nolu chan #280] This merely recognizes the supremacy of federal power in the military affairs area.

[misterwhite #284] Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government?

That was a fishhook for your dumbass to bite on. It is taken from a unanimous opinion of the U.S. Supreme Court.

The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs.

- - - - - - - - - -

You're not only misreading the second amendment. You're ignoring the intent.

Tell it to the unanimous U.S. Supreme Court.

[nolu chan #281] It is not to protect the right of the active duty organized militia to carry machineguns while on duty.

[misterwhite #285] Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question.

The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms.

You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. Anything in a state constitution which is contrary to the Federal Constitution, any Federal law or treaty, falls to the Federal provision which is the law of the land, and is supreme over all state laws.

It is called the Supremacy Clause. See Article VI, § 2:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Your most profound legal claim thus far is in your #282:

Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.

Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is.

This Constitution, and the laws of the United States which shall be made in pursuance thereof;

Supreme Court decisions are just to be dismissed as stupid

Damn few are in compliance with the Constitution, so you're full of it!

That's correct. Disregard most of them since they're not in compliance with the US Constitution either.

You're a STUPID scofflaw copy & paste wanabe SCOTUS tyrant!

Nolu Chump has spoken

It is taken from a unanimous opinion of the U.S. Supreme Court.

Perpich v. DOD, 496 U.S. 334 (1990) was a ruling limited to the federalization of state militias. I agree with the ruling.

Had you been honest with your quote, rather than trying to pull a "Gotcha", I wouldn't have to waste my time with you.