UNCONSTITUTIONAL: 922(k), prohibits possession of a firearm with altered or removed serial number

Until recently, federal courts uniformly applied at least intermediate scrutiny to firearms laws and conducted a means-end analysis to determine whether the state’s interest in the regulation was sufficient to overcome whatever burden the law placed on one’s Second Amendment right. See, e.g., United States v. Carter, 669 F.3d 411 (4th Cir. 2012). In Bruen, however, the Supreme Court of the United States determined that all of the lower courts had been incorrect in applying means-end scrutiny. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). 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.

Supreme Court provided the following mandate:

To justify its regulation, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

Section 922(k) 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.

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.

It is undisputed that serial numbers were not required, or even in common use, in 1791. Rather, serial numbers arose only with the advent of the mass production of firearms. The first legal requirement for serial numbers did not appear until 1934 when Congress passed the National Firearms Act. That requirement only applied to certain firearms, such as machine guns and short-barreled rifles. The first precursor to Section 922(k) appeared in the Federal Firearms Act of 1938 and made it unlawful “for any person to transport, ship, or knowingly receive in interstate or foreign commerce any firearm from which the manufacturer’s serial number has been removed, obliterated, or altered.” Pub. L. No. 75-785, § 2(i), 52 Stat. 1250, 1251 (1938).

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.” Pub. L. No. 101-647, § 2202(b), 104 Stat. 4789, 4856 (1990)

Conclusion: 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.

Full case here: UNITED STATES OF AMERICA, v. RANDY PRICE, CRIMINAL ACTION NO. 2:22-cr-00097, https://storage.courtlistener.com/recap/gov.uscourts

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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