This one really sucks
And these:
U.S. v. Lucero, 43 Fed.Appx. 299 (10th Cir. 2002):
"Lucero contends that the Second Amendment confers an individual right on him, as a member of an unorganized militia, to possess a firearm of a type that has a reasonable military use. He relies primarily on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).
. . .
At the hearing on the motion to dismiss, an expert testified that machineguns have reasonable military uses and are in fact used by the military.
Lucero's argument is foreclosed by our prior decision in United States v. Haney, 264 F.3d 1161 (10th Cir.2001), cert. denied,536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). In Haney, we rejected a similar challenge to section 922( o). We held that “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia.” Id. at 1165; see also United States v. Baer, 235 F.3d 561, 564 (10th Cir.2000) (stating that “the circuits have consistently upheld the constitutionality of federal weapons regulations like section 922(g) absent evidence that they in any way affect the maintenance of a well regulated militia”). We further held in Haney:
As a threshold matter, [a defendant asserting a Second Amendment claim] must show that (1) he is part of a state militia; (2) the militia, and his participation therein, is “well regulated” by the state; (3) machineguns are used by that militia; and (4) his possession of the machinegun was reasonably connected to his militia service.
264 F.3d at 1165. Lucero argues that he is part of an unorganized militia by virtue of 10 U.S.C. § 311, which defines the “militia of the United States” as consisting of “all able-bodied male[ ]” citizens 17 to 45 years old. We emphasized in Haney, however, that a defendant challenging section 922( o) must show that he is “part of the ‘well regulated’ militia, that is, a ‘militia actively maintained and trained by the states.’ ” 264 F.3d at 1166 (quoting United States v. Wright, 117 F.3d 1265, 1272 (11th Cir.1997)); see also United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977) (“To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy.”). Lucero has made no such showing. Unlike the defendants in Miller and Haney, Lucero has presented evidence that a machinegun has a reasonable military use. Nonetheless, he falls far short of satisfying Haney 's four requirements.
III. Conclusion
We therefore hold that 18 U.S.C. § 922( o) is constitutional as applied in this case, and we AFFIRM the appellant's conviction.
We DENY the United States' motion, filed June 24, 2002, to modify the argument in its answer brief regarding the scope of the Second Amendment. All other motions are DENIED.
LUCERO, Circuit Judge, concurring.
I concur in the result reached by the majority opinion, and would affirm. Even were we to accept the proposition that the defendant has an individual right under the Second Amendment “to keep and bear Arms” in order to serve in “[a] well regulated Militia” subject to call by a “free State,” I am not persuaded that the semi-automatic and fully automatic “machineguns” which defendant sold to federal agents, and which have been outlawed by federal legislation, are the type of arms subject to Second Amendment protection. For that reason I would affirm the judgment of the district court.
I would grant the government's motion to modify its answer brief regarding the scope of the Second Amendment and allow the parties to supplementally brief this issue.