When the Supreme Court’s Bruen decision was issued, even I was pleasantly surprised at the breadth of Justice Thomas’ opinion and its probable implications. By focusing strictly on whether particular limits on Second Amendment rights were historically recognized (and invalidating those that are not), the table was set for potential wholesale invalidations of many gun control laws.
In the short time that Bruen has been the law of the land, it is already bearing tangible results. Courts have struck down bans on the carrying of guns by 18 to 21-year-olds and local laws on the possession of firearms. More recently, New York’s petulant legislative response to losing in Bruen is being eviscerated.
Now another shoe has dropped. In United States v. Price, a district court in West Virginia considered whether bans on firearm possession by felons and possession of firearms with obliterated serial numbers were constitutional. While finding that the law barring convicted felons from possessing guns was justified under Bruen, the court found that the laws against removing the serial number on a firearm, or possessing a firearm with an obliterated serial number were not.
As Judge Joseph R. Goodwin wrote . . .
Firearms with no serial number are just as “bearable” as the same firearm with a serial number, and there is no “common use” issue here as the presence or lack of a serial number makes no difference with respect to whether the type of weapon is commonly used. Finally, 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.
The opinion applies Bruen in a straightforward manner. Noting that serial numbers on firearms were essentially unknown until the era of mass production, and laws requiring them and prohibiting their removal dated only to the 1968 Gun Control Act, the court ruled that 18 U.S.C. § 922(k) unconstitutionally infringes on Second Amendment rights.
While not before the court, the court seems to indicate that requiring a manufacturer to serialize the guns it puts into commerce was acceptable, as such did not infringe any right to keep or bear arms.
The court gave the following examples:
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 lawabiding 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.
Before you break out your Dremel tool and start de-identifying your gats, remember that this case isn’t over. While the decision may (and should) be upheld, until it is final and the feds formally acknowledge that Section 922(k) is kaput, you must recognize that it might not be – and once you’ve removed a serial number, you can’t put it back on.
Similarly, there are various state laws that prohibit removal of serial numbers or possession of unserialized guns. While these should eventually be struck down for the same reason, until they are, you would be playing with fire.
I read the court’s opinion as potentially blessing laws enhancing the criminal penalties for committing a crime with a firearm that has had its serial number removed . . . which would give a zealous prosecutor additional ammunition were you to use such a firearm in a Zimmerman or Rittenhouse type self-defense situation.
What are the implications of this ruling? If its logic and reasoning are followed by other courts – again, they should be, as it’s a straightforward application of Bruen – then “ghost gun” bans, serialization requirements for homemade firearms, microstamping requirements, “smart gun” laws, and other recent ideas from the Shannon Wattses of the worlds should be toast.
So too should be things like magazine capacity limits and just about everything the California politicians have come up with in the past couple of decades.
Could it similarly be used to invalidate NFA regulations on suppressors, SBR’s, and SBS’s? Perhaps, although the argument will be made that the NFA is just a tax. The NFA was structured that way because FDR’s DOJ was concerned that straightforward bans on those items would violate the Second Amendment. That issue should be addressed soon by Judge Pittman in the test case on the “Made in Texas” suppressor law.
Could the West Virginia ruling be used to attack the Hughes Amendment? Most definitely.
In the mean time, pass the popcorn. The Bruen show is still just getting started.
Disclaimer: While I am a lawyer, I’m not your lawyer. This essay is journalistic, and neither I, my firm, or TTAG is providing legal advice. Consult your own attorney if you have specific questions.