Ruling: Second Amendment Does Not Apply to “Machine Guns”

Sheepdog Academy’s alumni already know that H.R. 218-LEOSA, 18 U.S.C. §§ 926B, 926C does not apply to machine guns, silencers, or destructive devices.    For those who have not made it to one of our seminars or webinars and expected to argue that the Second Amendment to the United States Constitution protects and individual right to own or carry automatic firearms, be advised that four U.S. Circuit Courts have now held otherwise.

The Ninth Circuit Court of Appeals recently held in U.S. v. Mathew Henry that “machine guns” are “dangerous and unusual weapons” within the meaning of the Heller decision and therefore not included within the protections of the Second Amendment.  Henry, a resident of Alaska, was prosecuted for illegal possession of a “machine gun” within his home.  The firearm was a .308 caliber semi-auto rifle which Henry converted into an automatic rifle.  Agents from the ATF found conversion instructions, kits, and parts within Henry’s home.

The Ninth Circuit looked to Heller and noted that the High Court stated that the Second Amendment only protects the right to own certain weapons, and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Id. at 625. The Heller Court also concluded that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ” limits the right to keep and carry arms. Id. at 627.

The Ninth Circuited acknowledged that Heller did not specify that machine guns were excluded, but relied upon decisions in other circuits for that support, citing United States v. Allen, 630 F.3d 762, 766 (8th Cir. 2011); United States v. Marzzarella, 614 F.3d 85, 94-95 (3d Cir. 2010). cert. denied, 131 S. Ct. 958 (2011); Hamblen v. United States, 591 F.3d 471, 472, 474 (6^th Cir. 2009); United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008), cert. denied, 555 U.S. 1174 (2009).

The Henry Court reasoned that a machine gun is “unusual” because private possession of all new machine guns, as well as all existing machine guns that were not lawfully possessed before the enactment of § 922(o), has been unlawful since 1986.   You can read the decision at

http://www.ca9.uscourts.gov/datastore/opinions/2012/08/09/11-30181.pdf

Sheepdog Exclusive: LEOSA Tested In Hawaii (This Ain't Kansas)

For those who have attended a Sheepdog Academy seminar or webinar, you know that Hawaii is not the most LEOSA friendly state in the union.  Handgun carry permits are not a realistic option in Hawaii, so for retired LEOs and all off-duty LEOs other than active Federal LEOs who carry off-duty under Federal agency authority, LEOSA is the only statutory carry authority in Hawaii.  Hawaii bans ammunition magazines above ten rounds and requires handgun registration which is preempted by LEOSA. 

In November 2011, we wrote about off-duty Diplomatic Security Special Agent Chris Deedy who was charged by Hawaiian authorities in an alleged fatal shooting inside a McDonalds in Waikiki, Hawaii.  Deedy's nose was reportedly broken by the aggressor prior to the shooting which was captured on video and is expected to argue self-defense.  Since Agent Deedy carried both under LEOSA and his agency’s authority in Hawaii, his case is a mixed LEOSA case.  However, Mark Hunsaker, a potential witness in the Deedy case has tested LEOSA in Hawaii.  No, this was not a defense gimmick.  This was valiant conduct which embodies why Congress enacted H.R. 218-LEOSA.

Hunsaker is a licensed accountant in Hawaii and consults for Federal agencies in criminal prosecutions against accountants.  He was not, however, consulted by the Deedy defense team for his accounting skills.  Hunsaker is also a use of force expert.  When he is not preparing 1040 tax forms or assisting the FBI, he moonlights one week per month on the mainland as a deputy sheriff in Chautauqua County, Kansas.





Deputy Sheriff Hunsaker in Kansas

 On February 29, 2012, Hunsaker was at a local park when he observed what appeared to be a fight between two men.  One man had a hammer and the other a meat cleaver.  Hunsaker was armed with a .45, a cell phone, and his wits.

He took cover, dialed 9-11, and informed the communications center that he was an off-duty officer, described the scene, and requested uniformed assistance.  Before the local police arrived, Hunsaker was able to stop the fight from a safe distance.  Hunsaker then approached the man with the hammer, he had a wound on the back of his head.  "Then he started to go back with the hammer, back towards the guy with the meat cleaver."  Hunasker ordered the man with the hammer to stop, which he did.  That suspect then fled.

Hunsaker did not pursue, instead he kept sight of the man with the cleaver and waited for the local police.  A lone officer was first to respond and Hunsaker assisted as the officer approached and ordered the man to drop the cleaver.  The suspect was non-compliant and was subdued by additional responding officers.

Hunsaker likely saved one or both men from killing each other.  Hunsaker said it best, "I'm not there to enforce laws," "I'm in there to stop great bodily harm or death."  This is precisely the sort of conduct Congress hoped for when it enacted LEOSA in 2004 and expanded its coverage in 2010.  800,000 qualified law enforcement officers and perhaps one million qualified retired LEOs with authority to carry concealed firearms nationwide to stop violent crime and terrorists who prey upon our society.

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We thank Federal LEO Bullock for alerting us to this story.  If you know of a LEOSA news story or pending case, let us know so we can help inform others.

An active off-duty officer who was recently arrested for unlawful possession outside his jurisdiction called us in February 2012 and reported that he had already spent $25,000 in legal fees and wished he had taken one of our classes before he was arrested.  That officer had been on our contact list for two years and never attended any of our seminars or webinars.  Was he too cheap to spend a few dollars or did he think he already knew all he had to?  Who knows but that profile no doubt sounds like an active or retired LEO that you know.

Compare his story to the retired LEO alumni from one of our seminars who mistakenly drove into Canada with a backup handgun buried in his trunk.  He had no problems leaving the country, but was detained when he crossed the border back into the U.S.  Well trained U.S. CBP officers found the handgun.  The stunned retired LEO had forgotten about it, and when questioned by CBP said, I have my “grand jury kit” and can explain.  One of the CBP officers responded, ‘you must have taken the Sheepdog Academy LEOSA seminar.’ The retired LEO was then allowed to continue on with his journey and very happy that $50 spent on our seminar saved him a night in jail and thousands of dollars in legal fees.

We cannot guarantee that outcome in every case, but can guarantee we know more about LEOSA than you do and can help you reduce your risk of arrest or risk of being sued for carrying off-duty or as a retiree.  Help us help you by signing up today for our DVD and/or seminar materials booklet. 

Meanwhile, we will be presenting live LEOSA seminars in Newport News, Virginia on 28 April 2012 and in Las Vegas, Nevada on 24 May 2012. “Like us” on Facebook and see our website for information on course registration: http://hr218leosa.com/?page=courses

See what agencies and what LEOs have been to our seminars and webinars: http://www.hr218leosa.com/docs/Table%20of%20LEO%20Authorities.pdf
and http://www.hr218leosa.com/docs/LEOSA-Attendee-Agencies.pdf