The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From U.S. v. Price, decided yesterday by Judge Joseph R. Goodwin (S.D. W. Va.):
Section 922(k) states, in pertinent part,
It shall be unlawful for any person knowingly to transport … in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess … any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce….
18 U.S.C. § 922(k).
The threshold question [under Bruen] is whether Section 922(k) prohibits conduct that is protected by the plain text of the Second Amendment. The Government argues that it does not because 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." In his concurring opinion in Bruen, Justice Kavanaugh explained that the Court did not intend "to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms." This idea is rooted in Heller and McDonald—precedent that Bruen reaffirmed—which also left commercial regulations untouched. This makes sense because commercial regulations that apply only to manufacturers and sellers do not implicate an individual's right of possession.
Importantly though, the statute at issue here is not a commercial regulation. Rather, 18 U.S.C. § 923(i) is the commercial regulation that requires manufacturers to place serial numbers on firearms: "Licensed importers and manufacturers shall identify by means of a serial number engraved or cast on the receiver or frame of the weapon … each firearm imported or manufactured by such importer or manufacturer." Other commercial regulations may well require that any firearm sale only involve firearms bearing a manufacturer's serial number. Section 922(k) goes farther. It 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.
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….
Having found that Section 922(k) does implicate conduct that is protected by the Second Amendment, the statute is presumptively unconstitutional unless the Government can show that "it is consistent with the Nation's historical tradition of firearm regulation." This analysis is constrained by the Supreme Court's definition of "historical tradition" as the time of the founding and ratification of the Second Amendment in 1791. According to Bruen, "[h]istorical evidence that long predates [the ratification] … may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years." Likewise, the Court cautions that lower courts "must also guard against giving postenactment history more weight than it can rightly bear," by only considering those postenactment sources that help "determine the public understanding of [the Second Amendment]" at the time of its ratification.
Taking those instructions together, the crux of the historical inquiry is to determine the understanding of the right at the time it was enshrined in the Constitution. Any modern regulation that does not comport with the historical understanding of the right is to be deemed unconstitutional, regardless of how desirable or important that regulation may be in our modern society….
Prior to Bruen, courts considering the constitutionality of Section 922(k) found 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. Specifically, by requiring serial numbers and "channeling the sales of firearms through federally licensed dealers," who keep a record of those sales, the Gun Control Act on the whole helps to keep firearms out of the hands of "individuals whose possession of them would be contrary to the public interest." And, the Third Circuit explained, "It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible." Certainly, the usefulness of serial numbers in solving gun crimes makes Section 922(k) desirable for our society. But the Supreme Court no longer permits such an analysis.
Under Bruen, I am limited to considering whether Section 922(k) is "consistent with the Nation's historical tradition of firearm regulation." Where the regulation confronts a longstanding "perceived societal problem" that the founders could have addressed but either did not address or addressed through "materially different means," the regulation is unconstitutional. On the other hand, where the societal problem addressed by the regulation is "unprecedented," such that it would have been "unimaginable at the founding" or is based on "dramatic technological changes," the approach may be more nuanced. In those instances, the Government may point to an analogous regulation in the relevant historical tradition as evidence that the modern regulation is constitutional. In either case, the burden is on the Government to establish the constitutionality of Section 922(k)….
Serial numbers were not broadly required for all firearms manufactured and imported in the United States until the passage of the Gun Control Act of 1968…. Notably, these prohibitions were only on transporting, shipping, or receiving firearms—that is to say, when the firearms were in the stream of commerce.
Even in 1968 there was no prohibition on mere possession of a firearm that had the serial number altered or removed. In fact, it was not until the Crime Control Act of 1990 that Section 922 was amended to insert "or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce." …
Given this history, the "societal problem[s]" addressed by Section 922(k) appear to be crime, including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791. And, insofar as the Gun Control Act was intended to keep firearms out of the hands of those who might commit crimes with them, there is evidence, as I discuss later, that the founders addressed that problem through materially different means. According to Bruen, that the societal problem addressed by Section 922(k) was likely in existence at the founding but not addressed by similar means "is relevant evidence that the challenged regulation is inconsistent with the Second Amendment."
Even assuming the societal problem addressed by the regulation is "unprecedented," such that it would have been "unimaginable at the founding" or is based on "dramatic technological changes," it is the Government's burden to show that there were analogous regulations at the time to support Section 922(k)'s constitutionality. In an attempt to meet its burden, the Government argues broadly that there is a historical tradition of "restricting the types of weapons that can be possessed," and that "there is a general historical practice of imposing 'conditions and qualifications on the commercial sale of arms.'" As I have already held, Section 922(k) is not a commercial regulation because it criminalizes possession even after a firearm is out of the stream of commerce. Evidence of historical commercial regulations is therefore inapposite.
As for its argument that restrictions on certain types of weapons are constitutional, the Government starts and stops by explaining that the Court in Heller acknowledged three permissible limits: the firearms must be "bearable arms" to receive protection, the arms must not be "dangerous or unusual weapons," and the arms must be kinds in "common use." The Government makes no attempt to explain how any of these limits are analogous to Section 922(k)'s prohibition on possessing a firearm without a serial number, and I find no apparent analogue….
[Among other things,] I can find no authority for the idea that a firearm without a serial number would meet the historical definition of a dangerous or unusual firearm. In fact, as the Government points out, the commercial requirement that a serial number be placed on a firearm "does not impair the use or functioning of a weapon in any way." …
A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time. While I recognize there is an argument, not made by the Government here, that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering. And the founders addressed the "societal problem" of non-law-abiding citizens possessing firearms through "materially different means"—felon disarmament laws like Section 922(g)(1). Under Bruen, this is "evidence that [the] modern regulation is unconstitutional."
I appreciate the court's careful analysis, and I'm glad it takes Second Amendment rights seriously. But I think Bruen provides more room for regulations such as this, which have very little effect on people's ability to keep and bear arms. This is particularly clear in footnote 9 to the majority's opinion, which upheld licensing requirements for carrying guns:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' "shall-issue" licensing regimes, under which "a general desire for self-defense is sufficient to obtain a [permit]."
Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials, rather than requiring the "appraisal of facts, the exercise of judgment, and the formation of an opinion"—features that typify proper-cause standards like New York's.
That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
Of course, licensing requirements do interfere in some measure with the right to carry guns: they impose at least some "wait times" and some "fees." Nor did the Court suggest that there was a longstanding tradition or history supporting such licensing requirements.
Rather, the Court suggested that a modest burden, which does not "prevent" the exercise of the right, would be constitutional, at least so long as it serves the traditionally recognized government interest in "ensur[ing] … that those bearing arms … are … 'law-abiding, responsible citizens.'" "[L]engthy wait times" would be unconstitutional, but modest ones would be fine. "[E]xorbitant fees" would be unconstitutional, but modest ones would be fine.
And this is reflected in the Court's more general discussion. The Court distinguished some earlier, historically recognized, gun controls on the grounds that "[n]one of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York's restrictive licensing regime." "[T]he burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York's proper-cause standard."
The Court also said that the Second Amendment inquiry must focus on "whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified," and on "how and why the regulations burden a law-abiding citizen's right to armed self-defense." That too suggests that the magnitude of the burden matters.
Given that guns with serial numbers are indeed, as the court pointed out, just as effective at self-defense as guns without, the serial number requirement seems to me to be a much lighter burden than the burden of objective, easy-to-comply-with licensing requirements, which the Court in Burden endorsed. True, the serial number requirement does interfere with the privacy of gun transactions and gun ownership, and privacy hawks may be concerned about that. But of course the shall-issue laws upheld in Bruen also interfered with the privacy of gun carrying, since people would need to identify themselves to the government to get the license. (Note that Bruen held that carrying guns was just as protected as home ownership, so I don't think the serial number requirement can be distinguished from the carry license requirements on the basis that the serial numbers must be present even on guns kept in the home.)
And though the serial number requirement isn't directly "designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens,'" it is designed to deter and more effectively punish criminal misuse of guns by non-law-abiding people, which of course is even more clearly outside the Second Amendment than is possession by such people. I expect the government to appeal, so it will be interesting to see what the Fourth Circuit says.
Congratulations to Lex A. Coleman of the West Virginia Public Defender's Office, who prevailed on this issue.