A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state.

On Wednesday, a federal appeals court in Cincinnati threw the case out of court.

“Whatever the individual right to keep and bear arms might entail, it does not authorize an unlicensed individual to possess unregistered machine guns for personal use,” said the three-judge panel of the Sixth US Circuit Court of Appeals.

Richard Hamblen was arrested in 2004 by federal firearms agents and charged with possession of nine unregistered machine guns.

Second Amendment argued

At trial and in his appeal, Mr. Hamblen argued that he and his soldiers had a Second Amendment right as members of the state militia to possess military-grade weapons. He said Tennessee’s state guard arsenal included only 21 M-16 rifles for 3,500 volunteer soldiers.

Concerned that his unit, the 201st Military Police Battalion, might get called into active duty, Hamblen obtained gun conversion kits to make semi-automatic rifles into fully automatic rifles. At least one machine gun was used in a training exercise.

Confronted by federal agents, Hamblen told the truth. He showed the unregistered machine guns to the authorities and informed them that he was merely exercising his Second Amendment right to keep and bear arms.

“I wasn’t really consciously setting out to challenge the law and authority, but I figured I’d be on good constitutional footing,” he said in an interview. “It seemed like a good idea at the time – would I do it again? No.”

Hamblen, who runs a mirror and glass business in Memphis, was convicted and served 13 months in prison. He says he’s spent roughly $50,000 on legal fees.

Hamblen had asked the Sixth Circuit judges to endorse his view that all gun control laws are unconstitutional. “If a person can afford to buy it, they can have it,” he says.

Supreme Court has said gun rights may be limited

It is a position that runs counter to the majority view in the US Supreme Court’s 2008 gun rights ruling in District of Columbia v. Heller. In that case, the court struck down a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual right to keep and bear arms. But the high court went on to suggest that individual gun rights are not unlimited and could be subject to reasonable regulations.

Both the Eighth Circuit in St. Louis and the Ninth Circuit in San Francisco have held that individuals do not enjoy a Second Amendment right to possess unregistered machine guns.

Hamblen is not impressed by these rulings. “If the founders had intended for there to be reasonable restrictions on the Second Amendment they would have put that in the language [of the amendment],” he said. “They were certainly capable of writing ‘unreasonable’ into the Fourth Amendment when it talks about unreasonable searches and seizures.”

Hamblen says he’s not surprised that he lost at the appeals court. But he says he is surprised that he’s received no help from gun-rights advocates. “They are treating me like I’m a skunk at the picnic,” he said.

As for his case, he plans to fight on. He says his lawyer is preparing a final appeal, a petition to the US Supreme Court. “Why stop now? I’ve already done the hard part. I’ve already done my time,” Hamblen says. “All they can do is say no.”

-----

Follow us on Twitter.