A Federal District Court Judge in Charleston, West Virginia has ruled unconstitutional the ban against possessing a firearm whose serial number has been removed. This is the latest fallout from the Supreme Court’s Bruen Decision, which continues to redefine modern firearms law.
Judge Joseph Goodwin ruled in the case of United States vs. Price, in which the defendant, Randy Price of Ohio, was charged with being a felon in possession of a firearm and possession of a firearm whose serial number had been removed. Price’s attorneys argued that neither charge was Constitutional under Bruen.
Goodwin upheld the felon in possession charge but struck down the serial number law as unconstitutional. The law in question, U.S. Code § 922 (k), states that:
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.
Government Justification
Goodwin wrote that “the threshold question is whether Section 922(k) prohibits conduct that is protected by the plain text of the Second Amendment.” Government attorneys argued that it does not because the serial number requirement is a commercial regulation. The law requiring serial numbers, 18 U.S. Code § 923(i), applies directly to manufacturers and importers, not private citizens.
The Government argued that extending the requirement to prohibit possession of firearms whose serial number was removed does not “infringe” on the right to keep and bear arms guaranteed by the Second Amendment. Judge Goodwin disagreed, writing that § 922(k) is not a commercial regulation because “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.”
Goodwin’s analysis is quite interesting and his arguments powerful. Space prohibits recounting them here, but they are worth your time. He concludes 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.”
Text, History, and Tradition Once Again
Goodwin wrote that § 922(k) falls under the Second Amendment’s text and is therefore unconstitutional unless the government could show that “it is consistent with the Nation’s historical tradition of firearm regulation.” “Historical tradition,” under Bruen, is limited to the time of the Second Amendment’s adoption in 1791.
Goodwin further wrote that “the crux of the historical inquiry is to determine the understanding of the right at the time it was enshrined in the Constitution.” Or as Justice Clarence Thomas put it in the Bruen majority opinion, “as it was adopted by the People.” Goodwin further held that “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.”
The decision further notes that even in 1968, when the requirement to serialize firearms was enacted, possession of a firearm whose serial number had been altered or removed was not a crime. That only came about in 1990, when Section 922 was amended. There is no evidence of a similar law up to that time in the United States.
Bruen Gets an Assist From Heller
The Government also argued that restrictions on certain types of firearms are Constitutional, but Judge Goodwin shot that down as well. The Heller Decision declared that to receive protection, firearms must be “bearable arms,” that the arms must not be “dangerous or unusual weapons,” and that the arms must be kinds “in common use.”
“The Government,” wrote Goodwin, “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 of 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.”
The Second Amendment is Not a Second-Class Right
Justice Clarence Thomas, in Bruen’s majority opinion, wrote that:
The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him.
The Bruen Decision is shining a bright light on how the Second Amendment has been relegated to a lower stance than its Bill of Rights brethren. The results are reverberating throughout the gun control apparatus. More is certain to come. Bruen was built on the shoulders of the Heller and McDonald Decisions and is proving to be perhaps the most powerful pro-Second Amendment decision in history.
Much remains to be done and Bruen’s impact is still gaining steam. We will keep you up to date on the progress of the march to take back our Second Amendment rights.
Judge Goodwin’s entire decision may be found at courtlistener.com under United States of America vs. Randy Price.
