Third Circuit Weighs In on Scrutiny for Second Amendment

[Bartholomew Roberts]

The case is United States v. Mazarella. The defendant was arrested in a sting on illegal firearms trafficking (selling .25ACP Titan pistols) and convicted of possession of a handgun with an obliterated serial number. He challenged the conviction on Second Amendment grounds.

The Third Circuit defined the core right protected by Heller as "the right of law-abiding citizens to possess non-dangerous (i.e. not the dangerous or unusual weapons mentioned in Heller) weapons for self-defense in the home." The Third Circuit also mentions that to some degree it must protect the right of law-abiding citizens to possess firearms for "other, as yet undefined, lawful purposes"

Relying on the "dangerous and unusual" language from Heller, the Third Circuit determined that an unmarked firearm is outside the scope of the Second Amendment; but that even if it was, the regulation in question would survive both strict scrutiny and intermediate scrutiny (though they suggested only intermediate scrutiny applied).

Good discussion at the Volokh Conspiracy, as usual.

[Mike Irwin]

Hum...

An unmarked firearm?

I have numerous guns that don't have serial numbers because they weren't required prior to 1968.

I wonder how those would fit into this.

[Tennessee Gentleman]

Mike,
Great point! I suspect that the requirement of firearms to have serial numbers would indeed survive any level of scrutiny as they pose no impediment to ownership. However, to comply with said law I think you should engrave your SSN on the gun. Just in case...

[Bartholomew Roberts]

In this case, he removed an existing serial number on a post-1968 firearm. Like you, I've got quite a few unmarked pre-1968 firearms myself. A lot of the cheaper rifles and shotguns typically didn't bother with serial numbers back then.

My main concern with the ruling here is that is sets the stage for microstamping or similar types of laws being upheld. While I think microstamping imposes a much heavier burden than the law in question does, I'm concerned because we don't always get a fair hearing on those issues.

[JWT]

Does an "obliterated serial number" imply that the gun had a serial number that was removed to avoid identification of the gun. That would seem to be quite different than a gun that never had any serial number.

[sakeneko]

I rather doubt that the court would treat a requirement for microstamping of ammunition as being materially similiar to a requirement that guns have serial numbers. The burden that a microstamping requirement would place on legitimate ownership and use of firearms is orders of magnitude greater than that posed by requiring serial numbers.

I'm also quite sure that the law treats guns that never had a serial number becuase, when manufactured, there was no requirement that they have a serial number, quite differently from guns that were manufactured with a serial number that was subsequently removed.

Volokh Conspiracy is an *excellent* site. It's on my regular reading list. :-)

[maestro pistolero]

An un-serialized gun may not pass constitutional protection, but I am VERY concerned that they relied on the 'dangerous and unusual' clause to arrive at that decision. We don't want an overly broad definition of 'D and U', when we go after AWBs.

[knight0334]

The case wasn't about guns that never had a serial number, it was about guns which the numbers were removed.

A gun which never had numbers, that isn't one of the "dangerous" classes, would be protected. If you make your own pistol out of a block of metal and never assign it a serial number, or buy a pre-'68 GCA gun without numbers, it would be as protected as a new Ruger GP100 would be.

[Mike Irwin]

"However, to comply with said law I think you should engrave your SSN on the gun. Just in case..."

On its face, that would violate GCA 1968 in that two firearms from the same manufacturer cannot have the same serial number.

I've not read the ruling yet.

Does it actually use the words "unmarked firearm," or does it reference firearms that have had a factory applied serial number removed?

If the former, that could potentially be a real catch. If the latter, then it's not a concern.

I'm just worried that the court's ruling might not draw a distinction between maliciously altered or defaced serial number and a gun that never had a serial number in the first place.

[Wildalaska]

The decision is based on an obliterated serial number.

[thallub]

Does an "obliterated serial number" imply that the gun had a serial number that was removed to avoid identification of the gun.

Yes, it does.

"obliterate" defined:

http://www.thefreedictionary.com/obliterated

·blit·er·ate (-blt-rt, -blt-)
tr.v. o·blit·er·at·ed, o·blit·er·at·ing, o·blit·er·ates
1. To do away with completely so as to leave no trace. See Synonyms at abolish.
2. To wipe out, rub off, or erase (writing or other markings).
3. Medicine To remove completely (a body organ or part), as by surgery, disease, or radiation.

The perp was found guilty of owning a gun that the serial number had been removed from. The perp claimed a Second Amendment right to own a gun from which the serial number had been removed-a far stretch.

[DogoDon]

The statute at issue in this case (18 U.S.C. 922(k)) makes it unlawful to possess, receive, transport, etc., any firearm "which has had the manufacturer's or importer's serial number removed, obliterated, or altered". So that was the question before the court.

The court's opinion says that it uses the term "unmarked" as a synonym for "removed, obliterated, or altered".

[DogoDon]

The court's analysis of the level of scrutiny is interesting. The court first notes that under 1st Amendment analysis, either strict scrutiny or intermediate scrutiny can apply, depending on the type of law challenged and the type of speech involved. So it reasons that the same should be true of 2nd Amendment analysis.

It then goes on to say that since the supposed burden on 2nd Amendment rights in this case is clearly less than for the handgun ban in Heller, the level of review for the present case must be intermediate scrutiny.

But the court went on to analyze the statute under strict scrutiny also, and found that it passes constitutional muster even under the higher standard.

I think the court's indication that either strict scrutiny or intermediate scrutiny (or, in the right circumstances, even rational basis review) can apply to 2A challenges depending on the exact circumstances could be helpful to future courts.

[DogoDon]

Relying on the "dangerous and unusual" language from Heller, the Third Circuit determined that an unmarked firearm is outside the scope of the Second Amendment . . . .

I didn't read the opinion to say that. On the contrary, the 3rd Circuit said it could not be certain that possession of unmarked firearms in the home is excluded from the right to bear arms (see p. 22).

[full.tang.halo]

The court's opinion says that it uses the term "unmarked" as a synonym for "removed, obliterated, or altered".

That's a pretty **** poor synonym. If I have a unmarked folder, it doesn't have anything on it, it hasn't had markings removed, obliterate or altered it's lacking markings. An unmarked police car wasn't a marked police car that had all the lights and decals removed and re-sprayed so it looks like any other car, it came that way. I don't know enough about the law, but I'd hate for someone to latch onto unmarked and use it in a way the courts didn't intend.

[sakeneko]

full.tang.halo -- as a technical writer, I have to agree that the court's use of the term "unmarked" was rather slipshod in this case. However, the context provided by the case and the court's explicit statement mean that the ruling is clear even if their use of that term was poorly conceived. IMHO a law that requires that a serial number not be obliterated or removed after the gun is manufactured is *not* a threat to the second amendment. If it isn't, then this ruling isn't either.

Wheeww! :-)

[DogoDon]

That's true, FTH, but in order for a court to address the issue of the constitutionality of a law making it illegal to possess a gun that never had any serial number, first there would have to be such a law to challenge. I'm not aware of any such law anywhere in the U.S.

If such a law were ever passed, I'm sure it would be challenged, and then the court would have to decide whether such an "unmarked" firearm is within the 2A right to keep and bear arms (the answer would almost certainly be "yes"), and whether the law passes the level of scrutiny the court applied.

It's an interesting hypothetical whether the law would pass muster. The 3rd Circuit in Mazarella based its decision that the law is constitutional largely on the fact that Mr. Mazarella could just as easily have acquired a gun that had a serial number, in terms of his being able to "keep and bear arms" for self-defense in the home. So the law in question did not unduly burden his right.

Perhaps the same could be said of a gun that never had a serial number. At least the government would probably argue that the defendant had other viable choices (i.e., a gun with a serial number) and thus could have exercised his/her right to keep and bear arms despite the law.

I predict such a hypothetical law against possession of "never-marked" guns may well pass the test.

[Bartholomew Roberts]

Originally Posted by DogoDon

Quote:
Relying on the "dangerous and unusual" language from Heller, the Third Circuit determined that an unmarked firearm is outside the scope of the Second Amendment . . . .

I didn't read the opinion to say that. On the contrary, the 3rd Circuit said it could not be certain that possession of unmarked firearms in the home is excluded from the right to bear arms (see p. 22).

You are correct, the court did not say that. They spent pages 16-22 explaining why they thought the firearm in question might be outside the scope of the Second Amendment and then on page 22 said they didn't need to reach that issue because the regulation in question would survive strict scrutiny even if it did burden the scope of the Second Amendment right protected.

I think the dicta gives a pretty good sign of how the Third Circuit regards the "dangerous and ununusal" language from Heller though.

[maestro pistolero]

The opinion quotes Heller:

" . . . the Second Amendment, affords no protection to “weapons not
typically possessed by law-abiding citizens for lawful purposes.”

Selling stolen firearms with obliterated serial numbers is not a lawful purpose.

[thallub]

The opinion quotes Heller:

" . . . the Second Amendment, affords no protection to “weapons not
typically possessed by law-abiding citizens for lawful purposes.”

Selling stolen firearms with obliterated serial numbers is not a lawful purpose.

+1

That says it all.

[Aguila Blanca]

Originally Posted by sakeneko

I'm also quite sure that the law treats guns that never had a serial number becuase, when manufactured, there was no requirement that they have a serial number, quite differently from guns that were manufactured with a serial number that was subsequently removed.

I believe you would be correct. It is extremely difficult to obliterate, obscure, remove or alter something that never existed.

[Aguila Blanca]

Originally Posted by maestro pistolero

Selling stolen firearms with obliterated serial numbers is not a lawful purpose.

And such are not normally possessed by law-abiding citizens.

An interesting ancillary question that I would like to see questioned is the portion of the Federal law regarding possession of firearms with removed or altered serial numbers that provides for the purpose of that law that the person found in possession of the firearm is presumed to be the person who performed the removal or alteration. So if a serial number on a firearm manufactured in 1969 was removed in 1970, the gun was subsequently sold six times, and you are found in possession of it in 2010 ... the law says you are guilty of removing or altering the serial number. Period.

To me, that seems highly unconstitutional.

[44 AMP]

So if a serial number on a firearm manufactured in 1969 was removed in 1970, the gun was subsequently sold six times, and you are found in possession of it in 2010 ... the law says you are guilty of removing or altering the serial number. Period.

It does seem to be a presumption of guilt.

But if the serial number was removed in 1970 (or at any time), how do you determine the gun was made in 1969?

With pre-68 guns, which never had a serial number, it is fairly simple, as those guns will not have a place where the serial number was removed/altered/defaced.

Now, consider this one; suppose the gun was made in 1950, with a serial number, and the number was removed in 1960? Legal at the time? or not?
After all, the serial number was not required until the GCA 68, right?

I believe that even before 1968, obliterating an existing serial number was a criminal act. I'm not certain, but I think it was. What the GCA 68 did was require serial numbers on all new made firearms (along with a lot of other things).

[Aguila Blanca]

Originally Posted by 44 AMP

But if the serial number was removed in 1970 (or at any time), how do you determine the gun was made in 1969?

I have no idea -- I chose that to make a point. Maybe it was a model that was first manufactured in 1969.

Originally Posted by 44 AMP

Now, consider this one; suppose the gun was made in 1950, with a serial number, and the number was removed in 1960? Legal at the time? or not?
After all, the serial number was not required until the GCA 68, right?

I think that's part of the catch 22. I don't know if removal or alteration of a serial number was legal before 1968. Let's assume that it was, so in 1960 someone removed a serial number from a firearm that was manufactured in 1950. Even if the removal was legal when performed, the current law makes no exception for removals that might have been legal when performed. Further, it doesn't care when the removal was performed or by whom, it clearly states that whoever is found in possession is presumed to be the party who did the dirty deed.