                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0439p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 RICHARD HAMBLEN,
                                                 -
                           Petitioner-Appellant,
                                                 -
                                                 -
                                                     No. 09-5025
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 UNITED STATES OF AMERICA,
                                                 -
                                                N
                  Appeal from the United States District Court
                for the Middle District of Tennessee at Nashville.
      Nos. 05-00226-001; 08-01034—Todd J. Campbell, Chief District Judge.
                               Argued: December 4, 2009
                        Decided and Filed: December 30, 2009
                Before: SILER, GILMAN, and ROGERS, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Jeffery S. Frensley, RAY & FRENSLEY, Nashville, Tennessee, for Appellant.
Blanche Bong Cook, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,
for Appellee. ON BRIEF: Jeffery S. Frensley, RAY & FRENSLEY, Nashville, Tennessee,
for Appellant. Matthew J. Everitt, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee.
                                  _________________

                                        OPINION
                                  _________________

       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.


                                             1
No. 09-5025           Hamblen v. United States                                                 Page 2


                                         BACKGROUND

                                                                        1
        Hamblen enlisted in the Tennessee State Guard in 1999. The all-volunteer State
Guard is one of four organizations within the Tennessee Department of the Military and
is authorized by Tennessee statute. The State Guard’s mission is to augment the
Tennessee National Guard, and it typically performs ceremonial duties.

        The State Guard is authorized to become an armed force if it is activated by the
governor of Tennessee. Although it has been called into service, the State Guard has not
recently been activated. If activated, the governor of Tennessee is authorized to obtain
weapons needed to equip the State Guard. Tenn. Code Ann. § 58-1-405.

        As volunteers in an honored, traditional form of service in Tennessee, all State
Guard members are responsible for purchasing their own uniforms and other equipment,
but they are not issued weapons. The State Guard is, however, provided with twenty-one
M16 rifles and ammunition for use during a three-day annual training session conducted
by a State Guard commander. State Guard policy prohibits members from either keeping
State Guard weapons in their possession or carrying their own individual weapons in the
course of their duty.

        Hamblen believed that the State Guard might be activated and used as an armed
force after September 11, 2001. Because the State Guard had only a few weapons and
over a thousand members, Hamblen concluded that the State Guard did not have the
resources to perform its duties as an armed force and began looking for a means to better
equip the State Guard. He was aware that State Guard members were specifically
instructed after September 11, 2001 not to carry weapons in connection with their duties.
Nevertheless, he purchased parts kits with his own funds and used his metalworking
expertise to build nine machine guns. On at least one occasion, Hamblen had members
of his unit train with his 1919 A4 machine gun. At the time, he knew that this training
exercise violated State Guard policy.



        1
         This background statement is substantially taken from our unpublished opinion in United States
v. Hamblen, 239 F. App’x 130 (6th Cir. 2007).
No. 09-5025        Hamblen v. United States                                      Page 3


         Hamblen never discussed his machine gun possession with his superiors at the
State Guard, and no law enforcement officials or State Guard superiors knew of
Hamblen’s machine guns. Hamblen admitted that no one at the State Guard ever ordered
or even authorized him to obtain any weapons for the State Guard. He also admitted that
he knew that his possession of the machine guns violated the statutes under which he
was convicted. He believed, however, that he was authorized to possess the machine
guns because the U.S. Constitution provides an exception to gun control laws and gives
people the right to possess militarily useful weapons for an armed force like the State
Guard.

         In 2004, Hamblen took steps to make his possession of the machine guns legal
by obtaining a federal firearms license, which permitted him to sell pistols, revolvers,
shotguns and rifles. However, he had not paid a special occupation tax that would have
enabled him to deal in National Firearms Act weapons, such as machine guns.
Moreover, none of the nine machine guns was ever registered to Hamblen in the
National Firearms Registration and Transfer Record.

         The Bureau of Alcohol, Tobacco, Firearms and Explosives began an
investigation of Hamblen in 2004 after receiving information that he illegally possessed
machine guns. When federal agents asked Hamblen whether he possessed automatic
weapons, he admitted that he possessed some and directed the agents to a safe at the
back of his building that contained the machine guns.

         In 2005, Hamblen was charged in a two-count indictment for unlawfully
possessing machine guns, in violation of 18 U.S.C. § 922(o), and possessing unregistered
firearms, in violation of 26 U.S.C. § 5861(d). After trial, he was convicted on both
counts of the indictment. The district court denied Hamblen’s motion for judgment of
acquittal, which was based on the allegedly unconstitutional infringement of Hamblen’s
Second Amendment rights that he claimed would result from his conviction under
18 U.S.C. § 922(o). In 2006, Hamblen was sentenced to a term of imprisonment of
fifteen months for each count, to run concurrently, followed by a two-year period of
supervised release.
No. 09-5025         Hamblen v. United States                                         Page 4


        Hamblen appealed his convictions and two concurrent sentences. United States
v. Hamblen, 239 F. App’x 130 (6th Cir.), cert. denied, 522 U.S. 922 (2007). Holding
that the statutory prohibition against possessing machine guns did not violate the Second
Amendment right to bear arms as applied to Hamblen, that the statutory prohibition
against possessing machine guns was not unconstitutionally vague as applied, and that
the statutory prohibition against possessing unregistered firearms was not
unconstitutional as applied, this court affirmed the judgment of the district court. Id. at
134-37. In 2008, Hamblen filed a 28 U.S.C. § 2255 motion to vacate his sentence. The
district court denied the motion and issued a certificate of appealability on Hamblen’s
Second Amendment claim.

                              STANDARD OF REVIEW

        In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo
standard of review to the legal issues and uphold the factual findings of the district court
unless they are clearly erroneous. Benitez v. United States, 521 F.3d 625, 630 (6th Cir.
2008). To warrant relief under 28 U.S.C. § 2255, a petitioner must demonstrate the
existence of “an error of constitutional magnitude which had a substantial and injurious
effect or influence on the guilty plea or the jury’s verdict.” Griffin v. United States, 330
F.3d 733, 736 (6th Cir. 2003).

                                     DISCUSSION

        The Second Amendment provides: “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.” 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.
No. 09-5025        Hamblen v. United States                                       Page 5


       Hamblen’s challenge to his conviction for unlawful possession of unregistered
machine guns has been directly foreclosed by the Supreme Court, which specifically
instructed in Heller that “the Second Amendment does not protect those weapons not
typically possessed by law-abiding citizens for lawful purposes.” Id. at 2815-16.
Moreover, the Heller Court expressly rejected Hamblen’s reading of United States v.
Miller, 307 U.S. 174 (1939), when it opined that it would be a “startling” interpretation
of precedent to suggest that restrictions on machine guns, set forth in the National
Firearms Act, might be unconstitutional. See Heller, 128 S. Ct. at 2815. Thus,
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.

       AFFIRMED.
