The Tenth Amendment War Over the Scope of the Second Amendment and the Common Defence Clause



The U.S. Government is waging a Tenth Amendment War over the Second Amendment and the Common Defence clause of the Preamble to the Constitution while simultaneously demonstrating incompetence in defending this country from invasions and terrorist attacks. After you read the links below you may find yourself supporting the Firearms Freedom Act Movement and study up on Maj. George Westmoreland, USMC Ret., How to Start and Train a Militia Unit, PM 8–94 (Supercedes Manual PM 7–94) 1994, and start you own unorganized militia unit. See 10 U.S.C. § 311(b)(2). But be aware of Title 18 of the U.S. Code, Part I, Chapter 115 Treason, Sedition, and Subversive Activities; § 2386 Registration of Certain Organizations. 18 U.S.C. § 2386(A)(1) through (5) criminalizes the unorganized militia, 10 U.S.C. § 311(b)(2) unless your unorganization militia unit is registered with the U.S. Attorney General under 18 U.S.C. § 2386(B)(1) Condition 2 because recruiting an unorganized militia unit can be construed as engaging in both civilian military activity and political activity. A conflict in these laws exists when 18 U.S.C. § 2386(B)(2)(b) exempts the organized militia, 10 U.S.C. § 311(b)(1) but NOT the unorganization militia from the registration requirement. This exemption from registration, in my opinion, seems to violate not only the Second Amendment but also civil rights laws on discrimination and the First Amendment right to freedom of association.

The following presentation on machinegun court cases accentuates the Tenth Amendment War over the constitutionality of 18 U.S.C. § 922(0) highlighting Miller’s “Not in Common Use” circular argument the federal courts use to deny law-abiding citizen’s their Second Amendment right to own, carry, and use machineguns for lawful purposes of self-defense, for the defense of others, and for the defense of the State under the “Common Defence” Clause of the Preamble to the Constitution.

Kim Zetter, TSA Withdraws Subpoenas Against Bloggers,, December 31, 2009

Josh Gerstein, TSA Subpoena Lifted, Politico: Under the Radar, December 31, 2009

Josh Gerstein, Critics Bemoan ‘Familiar’ Intel Issues, Politico, December 30, 2009


 Warren Richey, No Right to Bear Unlicensed Machine Guns, Federal Court Says, Christian Science Monitor, December 30, 2009. (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.”)


Gun rights advocates treating Richard Hamblen like a skunk at the picnic in 2009? Would that be the NRA? That sounds a lot like the way Wayne LaPierre and Robert Dowlut of the NRA treated me IN 2002 with my Second Amendment case as as a U.S. Merchant Seaman for the Right to Openly Keep and Bear Arms in intrastate, interstate, nautical and maritime travel as a vital function of the Common Defence. I present proof in the NRA letter from Robert Dowlut refusing my request for NRA help. It is my belief that my National Open Carry Handgun agenda that my Second Amendment case presented was a threat to the NRA’s National Reciprocity for Concealed Carry agenda. It appears to me that the NRA is a useless and pathetic organization who only picks and chooses the cases that won’t jeopardize their financial longevity. Taking on Second Amendment cases that pursue the full scope of Second Amendment rights would threaten to hurt or destroy their financial future because the Second Amendment fight will have been ultimately won.

Hamblen v. United States, 6th Cir. No. 09-5025 (December 30, 2009) (SILER, Circuit Judge. Petitioner Richard Hamblen appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional. Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court’s judgment and deny Hamblen’s petition for relief.) … (In interpreting the scope of the Second Amendment, we are guided by District of Columbia v. Heller, 128 S. Ct. 2783 (2008). We note, as a preliminary matter, that Hamblen’s possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy. Therefore, this case does not present a novel issue of law regarding the Second Amendment’s prefatory clause.)

Jacob Sullum, Why No Right to Machine Guns?, June 26, 2008. (As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.)


 United States v. Hollis Wayne Fincher, 8th Circuit, Nos. 07-2514 and 07-2888 (August 13, 2008). Rehearing denied September 25, 2008. Appealed U.S. Supreme Court, No. 08-840, December 24, 2008. (February 14, 2009 Waiver of right of respondent United States to respond filed. {The tradition insult to the appellant.}). Cert. Denied February 23, 2009. U.S. District Judge Jimm Hendren removed the jury from the courtroom for about 70 percent of the time Fincher was defending himself with things like the law and the state and federal constitutions.

The full Docket with PDF links to court documents for United States v. Hollis Wayne Fincher, U.S. District Court, Western District of Arkansas (Fayetteville) No. 5:06-cr-50064-JLH-1

Part 1 of 3. Audio Interview (9 minutes) July 24, 2007 with Hollis Wayne Fincher, 61-year-old militia leader for Arkansas Militia of Washington County

Part 2 of 3. Audio Interview (9 minutes)  July 24, 2007  with Hollis Wayne Fincher, 61-year-old militia leader for Arkansas Militia of Washington County

Part 3 of 3. Audio Interview (9 minutes)  July 24, 2007  with Hollis Wayne Fincher, 61-year-old militia leader for Arkansas Militia of Washington County

Hollis Wayne Fincher Blog. Last entry was May 1, 2007. Arkansas Militia of Washington County.


United States v. Stewart, 348 F.3d 1132 (9th Cir. November 13, 2003) (Stewart appeals his conviction for unlawful possession of machineguns, claiming that 18 U.S.C. § 922(o) is an invalid exercise of Congress’s commerce power and violates the Second Amendment; he appeals his conviction for possession of a firearm by a felon on Second Amendment grounds.). Appealed U.S. Supreme Court 04-617. Upon granting certiorari, the Supreme Court of the United States vacated the Ninth Circuit’s ruling and remanded the case back to the court for further consideration in light of its recent ruling in Gonzales v. Raich, 545 U.S. 1 (June 6, 2005). Gonzales v. Raich (previously Ashcroft v. Raich was a case in which the United States Supreme Court ruled on June 6, 2005 that under the Commerce Clause of the United States Constitution which allows the United States Congress “To regulate Commerce … among the several States,” Congress may ban the use of marijuana even where states approve its use for medicinal purposes.

2 thoughts on “The Tenth Amendment War Over the Scope of the Second Amendment and the Common Defence Clause

  1. Pingback: Pro Gun Lobby Was No Help In My Case « Richard Hamblen's Blog

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