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 (decision below).
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.
Price at pp. 6-7.
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.
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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