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Federal Court Rules that
federal law making it a crime to possess a firearm with an obliterated
serial number is unconstitutional
On October 12, 2022, a federal district court in West Virginia ruled
that a federal law which makes it a crime to possess a firearm with an
altered, obliterated or removed serial number is unconstitutional under
prohibition contained in the Second Amendment. The decision was
entered in United States of America v. Randy Price, No: 2:22-cr-00097.
In July 2019, local law enforcement in Charleston, West Virginia,
made a traffic stop on Mr. Price’s vehicle based on an alleged improper
registration display. During the stop, a local law enforcement officer
discovered that there was a handgun in Mr. Price’s vehicle which had an
obliterated serial number. One of the federal criminal charges
that arose from this traffic stop is that the federal government
charged Mr. Price with a felony under 18 U.S.C. §§ 922(k) and
924(a)(1)(B). for possession of a firearm with an altered, obliterated
or removed serial number.
The federal judge relied on the United States Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen
in its analysis. In doing so the judge noted that “the Supreme Court
of the United States determined that all of the lower courts had been
incorrect in applying means-end scrutiny” which standard likely would
have found the federal prohibition on possession of firearms with
obliterated serial numbers to be a valid, constitutional government
determination. Id, at p. 2
Instead, the judge followed the clear instructions from the Supreme Court in its Bruen
decision. It stated “Rather than balancing any government interest, no
matter how important the interest may be in our modern society, the
Supreme Court reaffirmed what it said in Heller: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Id. (quoting District of Columbia v. Heller,
554 U.S. 570, 634–35 (2008)) (emphasis in original). Because the Second
Amendment was adopted in 1791, only those regulations that would have
been considered constitutional then can be constitutional now.” Price at pp. 2-3.
With
respect to the issue of a federal statute requiring serial numbers, the
judge noted that the government’s position was that “the requirement
that firearms bear serial numbers is, in its view, a “commercial
regulation” that does not “infringe” on one’s right to keep and bear
arms. The Government’s argument relies mainly on its contention that no
relevant Supreme Court precedent casts “doubt on laws imposing
conditions and qualifications on the commercial sale of arms.” Id,
at p. 5.
But the judge noted that this statute was not one involving
commercial activity. Instead, the judge noted, that this statute
“criminalizes the mere possession of a firearm after a serial number is
removed, obliterated, or altered in any way, whether or not the firearm
is then placed into commerce.” Id. at p. 6.
The judge offered the this scenario to differentiate this statute
which regulates possession from one that regulates commercial activity.
Assume, for example, that a
law-abiding citizen purchases a firearm from a sporting goods store. At
the time of the sale, that firearm complies with the commercial
regulation that it bear a serial number. The law-abiding citizen takes
the firearm home and removes the serial number. He has no ill intent and
never takes any otherwise unlawful action with the firearm. Contrary to
the Government’s argument that Section 922(k) does not amount to an
“infringement” on the law-abiding citizen’s Second Amendment right, the
practical application is that while the law-abiding citizen’s possession
of the firearm was originally legal, it became illegal only because the
serial number was removed. He could be prosecuted federally for his
possession of it. That is the definition of an infringement on one’s
right to possess a firearm.
Now, assume that the law-abiding
citizen dies and leaves his gun collection to his law-abiding daughter.
The daughter takes the firearms, the one with the removed serial number
among them, to her home and displays them in her father’s memory. As it
stands, Section 922(k) also makes her possession of the firearm illegal,
despite the fact that it was legally purchased by her father and
despite the fact that she was not the person who removed the serial
number. These scenarios make clear that Section 922(k) is far more than
the mere commercial regulation the Government claims it to be. Rather,
it is a blatant prohibition on possession. The conduct prohibited by
Section 922(k) falls squarely within the Second Amendment’s plain text.
Price at pp. 6-7.
The judge thus found that the possession of the firearm, with or
without the serial number, was protected by the Second Amendment from
government infringement. The judge then considered whether the
government had shown that the statute was one that is consistent with
the nation’s historical tradition of firearms regulation, which is the
limited range of activities that may be subject to government regulation
post-Bruen.
The judge noted that other cases had concluded, prior to Bruen,
“that the requirement that a serial number not be removed was a minimal
burden on lawful gun owners compared to the value serial numbers
provide to society.” But, that is exactly the type of rationalization
by lower courts that the Supreme Court expressly rejected in Bruen.
While noting that the burden is on the government to prove the
existence of a national tradition that existed at the time that the
Second Amendment was adopted that required serial numbers to be on
firearms possessed by individuals, the judge concluded not only that the
government failed to do so but that it could not do so in the court’s
opinion.
While this case will almost certainly be appealed and while we can
expect similar challenges to arise in other cases in other courts across
the nation, this case does show that the Supreme Court’s holdings in Heller, McDonald and Bruen
are pulling back the presumptive curtain that the mere existence of a
federal, state or local law, even if it has been in existence for
decades requires a finding that the law be upheld as constitutional.
Many, perhaps most, of the firearms regulations now in existence are
likely going to fail the Bruen standards because many if not
most of these laws simply have no clear basis in the nations historical
tradition of firearms regulation as it existed in 1791. Essentially,
if the Founders were not regulating it at the time that the People
forced the 2nd Amendment on the federal government’s authority then
legislatures today have no constitutional basis for regulating the same
conduct today.
At the federal level, this could well illuminate a
path where many federal gun laws, particularly those that impact
individuals, are subject to challenge. The National Firearms Act, the
Gun Control Act and any number of derivatives and amendments to those
laws are now ripe for constitutional challenge. ATF regulations such
as the bumpstock bans, the trigger “reclassifications”, and perhaps even
many of the ATF’s policies regarding the control, regulation and
revocation of federal firearms dealers are subject to challenges.
At
the same time, it is equally likely that many state and local laws and
regulations are at a heightened risk of being struck down as
unconstitutional. This is particularly true in Tennessee.
Finally, the unconstitutional nature of these statutes and regulations is not because Bruen
changed the law. It did not. The Second Amendment has not changed
since it was put in place against the government in 1791. What Bruen
has done is to instruct the state and lower federal courts across the
nation that the United States Supreme Court does not view the 2nd
Amendment as a 2nd class right. Instead, as a constitutional protection
of an independently existing and preexisting right, the sacred
protections afforded that right by the 2nd Amendment require, and the
Supreme Court appears willing finally to say so, that any infringements
on that right are subject to a very high burden on the government – not
the citizen – to demonstrate the existence an acceptable historical
nationally recognized twin or close analogue. |
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Executive Director
johnharris@tennesseefirearms.com
Joining and supporting TFA is an investment in the
fight to restore our constitutional rights and to fight against politicians who
are willing to sell their votes and your rights to whichever business interest
gives them the most money!
TFA Website: www.tennesseefirearms.com
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