The Third Circuit has handed down an interesting Second Amendment decision, United States v. Marzzarella. It begins:
This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We hold it does not and accordingly will affirm the conviction.
From the opinion:
The District Court could not identify, and Marzzarella does not assert, any lawful purpose served by obliterating a serial number on a firearm. Because a firearm with a serial number is equally effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. These weapons would then have value primarily for persons seeking to use them for illicit purposes. . . . . An unmarked firearm, on the other hand, is no more damaging than a marked firearm.Accordingly, while the Government argues that § 922(k) does not impair any Second Amendment rights, we cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms. Because we conclude § 922(k) would pass constitutional muster even if it burdens protected conduct, we need not decide whether Marzzarella’s right to bear arms was infringed.
The court concludes that different levels of scrutiny should apply to different Second Amendment restrictions, but that intermediate scrutiny should apply to this particular restriction. According to the Third Circuit, the restriction satisfies the intermediate scrutiny standard (and would even satisfy strict scrutiny, the court indicates):
[P]reserving the ability of law enforcement to conduct serial number tracing—effectuated by limiting the availability of untraceable firearms—constitutes a substantial or important interest. Section 922(k) also fits reasonably with that interest in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable. Because unmarked weapons are functionally no different from marked weapons, § 922(k) does not limit the possession of any class of firearms. Moreover, because we, like the District Court, cannot conceive of a lawful purpose for which a person would prefer an unmarked firearm, the burden will almost always fall only on those intending to engage in illicit behavior. Regulating the possession of unmarked firearms—and no other firearms—therefore fits closely with the interest in ensuring the traceability of weapons. Accordingly, § 922(k) passes muster under intermediate scrutiny.
Eugene is cited along the way, but for a First Amendment article rather than a Second Amendment article (see p.30).
Thanks to Howard Bashman for the link.
David Newton says:
Definitely ruled in the correct way. Guns are made with serial numbers just like a great many other articles (except home-made guns) and although the entering of gun serial numbers into a comprehensive registration database should trip civil liberties alarms, the use of a serial number to trace a specific firearm which has been used in a crime is a perfectly legitimate investigative tool. As the ruling notes those who remove serial numbers are overwhelmingly criminals (with the others who might do it particularly anti-government and somewhat paranoid individuals).
It is the fact that removal of the serial number does not alter the functionality or effectiveness of the firearm in any way (except a very, very minor change to its centre of mass and a change in the texture of a small part of the surface) which is the crux. The second amendment is about enabling the possession of effective weapons for self defence and other legitimate uses: it says nothing about protecting activities which are solely designed to prevent effective investigation of crimes.
This is like felons trying to use DC v Heller to overturn laws banning possession of firearms by felons as a general principle and it should be squashed even further in the unlikely event that it goes to SCOTUS.
July 30, 2010, 6:12 amSk says:
“…any lawful purpose served by obliterating a serial number on a firearm.”"”
He was bored and he felt like it?
I have no problem with the overal finding, but isn’t requiring an assertion of a lawful purpose for one’s actions akin to requiring that one prove one’s innocence (rather than the State prove one’s guilt)?
sk
July 30, 2010, 6:46 amDavid Newton says:
The principle being discussed was the constitutionality of the law banning removal of serial numbers from a firearm. In the constitutionality review whether there are any substantive legitimate reasons that someone could remove a serial number from a firearm was the main question. The court could not conceive of any and consequently concluded that the law could stand under the second amendment.
It should be noted that just because he was bored and decided to do it is not a substantive reason in this case. The most familiar equivalent that most people are aware of is the substantive non-infringing use standard for copyright cases.
I would imagine that it was a point of fact that Marzzarella was in possession of a firearm with a remove serial number. That’s the thing that people forget about appeal courts: they are not triers of fact, they are triers of points of law. Even in things like habeas corpus cases they are not deciding on the merits of the facts whether someone is innocent or guilty: they are deciding whether the facts as they stand constitute a breach of procedural habeas corpus rules.
July 30, 2010, 7:11 amcboldt says:
Is there a federal penalty for altering or obliterating the serial number on a bicycle? Would such a law be constitutional?
July 30, 2010, 7:44 amAnd looking the other direction, I believe it is a federal crime to produce or make a firearm that dos not have a serial number and accompanying paperwork to facilitate traceability. Would it be constitutional to establish a similar law for, e.g., homemade bicycles? homemade automobiles?
ruuffles says:
And a list of state statutes follows.
http://www.boss302.com/legal.htm
July 30, 2010, 8:34 amDJR says:
The question, “Is it constitutional?” comprises two parts: 1) Is it within the power of the government to pass such a law? and 2) Is there anything in the Constitution that prohibits passing or enforcing that law?
On your bicycle question, if Congress were to put in a hook to interstate commerce, it would fall within Congress’s power under the current interpretation of the Commerce Clause (E.g., “Because of the prevalence of interstate bicycle theft and stolen bicycle trafficking internationally and across state lines, every bicycle manufactured in or imported into the United States shall have affixed to it a serial number registered with the National Bicycle Serial Number Registry. Altering or obliterating a bicycle serial number or possession of a bicycle with an altered or obliterated serial number shall be a Class 1 misdemeanor.”)
So long as such a law had a rational basis, i.e., to prevent bicycle theft and help facilitate the return of stolen bicycles to their rightful owners, it would be constitutional. I can’t think of anything in the Constitution that would prevent the enforcement of such a law. So at least with regard to requirements for serial numbers and prohibitions on altering them generally, yes, that would be constitutional. Here, the court applied a higher standard of scrutiny because of the specific protections of the Second Amendment, so more than simply a rational basis was required.
July 30, 2010, 8:39 amSmooth, like a Rhapsody says:
and awaaaay we go:
The gun nuts have got their constitutional decisions and now they are feeling their oats.
Stand by for comparison between an AK-47 and “I am Curious (Yellow)”, in 5…4…3…
July 30, 2010, 8:47 amUrsus Maritimus says:
“Because of the prevalence of interstate extortion, kidnapping, mail fraud and libel, and also internationally and across state lines, every printer, copier, typewriter or printing press manufactured in or imported into the United States shall have affixed to it a serial number registered with the National Printed Matter Serial Number Registry. Altering or obliterating a serial number or possession of a device to produce printed matter with an altered or obliterated serial number shall be a Class 1 misdemeanor”
July 30, 2010, 8:55 amFASTAC 6 says:
“Gun nuts”?
July 30, 2010, 8:58 amSpoken like the ignorant coward you are.
/s
Martinned says:
Am I to understand that you are starting to grasp the concept of rational basis/intermediate scrutiny/strict scrutiny review? If not, you should keep making comments like this and sooner or later someone with more time on their hands than I will write you a post-length explanation of the concept.
July 30, 2010, 9:04 amMahles says:
No, “gun nuts” is right. There are also “bike nuts,” “World of Warcraft nuts,” etc. Sharing a particular nuttiness doesn’t make it any less nutty, nor are non-nuts automatically “cowards” or whatever.
July 30, 2010, 9:08 amcboldt says:
Not to the question of whether or not serial numbers can be mandatory, I note this Court failing either the test of “reading the law,” or the test of basic integrity.
“Absent evidence we cannot say” is converted into, “we have the evidence, and we say.”
July 30, 2010, 9:19 amSCOTUSblog » Friday round-up says:
[...] Legal Intelligencer’s Shannon P. Duffy summarizes that opinion, which Orin Kerr excerpts at the Volokh Conspiracy. (Thanks to How Appealing for the former link.) The Washington Post’s Maria Glod reports that gun [...]
July 30, 2010, 9:25 amDJR says:
Uh, yes. So question 1 is whether this is within Congress’s Commerce power. Probably it is. Question 2: Is there a rational basis? A close question. Is tracking printers rationally related to the goal of eliminating interstate extortion, etc.? I don’t know. I’m having a hard time thinking of a regulatory scheme that connects serial numbers on printers (or the alteration thereof) to the named crimes. Maybe if you required the printer serial number to be embedded in every printout from the printer (so you could potentially track an offending printout), but of course that wouldn’t work for traditional printing presses and typewriters. If, on the other hand, the goal was to prevent theft of printers and track them for that purpose, I think there would be a rational basis.
Part 2 of question 2 is whether there’s another Constitutional reason it couldn’t be enforced, which gets you to the First Amendment question. I don’t know whether requiring serial numbers and punishing serial number alteration on printing devices would inhibit freedom of speech or of the press. I’m sure you could argue that it does, though I don’t know how convincing those arguments would be.
July 30, 2010, 9:47 amMike says:
I think it’s a stupid law that should be repealed, but that doesn’t make it unconstitutional. It falls more under the general category of extraneous laws than an actual infringement of second amendment rights. It is legal, by the way, to make homemade guns. And it is easy enough to do that making it illegal wouldn’t really change things.
What purpose does this law serve? It allows you to prosecute “criminals” for possession of a gun, because they might file the serials off before they commit a crime? If they are actually previous criminals, wouldn’t it already be illegal for them to have a gun? Shouldn’t our laws already be reasonably strict for anyone caught in the act of committing a crime that being able to tag on five years for filing the serials off be pointless?
I’m having a hard time seeing what this law helps. The only people you could prosecute for it that would further the interests of the state are those who have not committed a felony before and can therefore legally own a gun, who are not currently in the act of committing a crime, but are planning on committing one in the future and have therefore filed the serials off their gun in preparation. AND who have been stopped and searched by the police in the intervening time period between removing their serials and committing a crime with the gun so they can be caught with teh offending gun and prosecuted…
Does that still sound like a valid restriction?
Again, I agree it’s constitutional, but that doesn’t make it make any sense…
July 30, 2010, 9:47 amJaimeInTexas says:
I must not be able to read. Where again is the authority for the FedGov to require serial numbers on anything? Ah, yes, the grantor of unlimited and unchecked powers … the interstate commerce clause.
OK. If the gun has never left the state?
Another, ah, yes, because in the aggregate it may affect interstate commerce.
Is it then OK for me to manufacture a gun without a serial number? If not, then, serial numbers can be construed to be licenses.
There yo have it, we must have licenses to exercise fundamental individual rights.
That printer stuff is equally scary.
July 30, 2010, 9:51 amcboldt says:
– It is legal, by the way, to make homemade guns. –
July 30, 2010, 9:57 amThat depends, I think, on the technical details of the firearm. Muzzle loaders, yes, even muzzle-loaded canon.
Some categories of breech-loaded firearm cannot be legally homemade. Stewart is in jail for a homemade machine gun.
I recently read a case of a man convicted of a federal firearms violation for stuffing carpet padding into a plastic bottle (silencer).
JaimeInTexas says:
Serial numbers are already embedded in printers, certainly in color printers.
July 30, 2010, 10:02 amJaimeInTexas says:
I presume that the serial numbers are tied to a ballistics “fingerprint” database? Easy enough to alter without affecting gun performance.
July 30, 2010, 10:04 amSteve says:
A license that the government can’t deny, sure. How terrifying.
I am honestly shocked that we have not had a single “SHALL NOT BE INFRINGED!!!!” comment yet. The fact that some people see something as uncontroversial as serial numbers to be creeping fascism, on the other hand – not shocking at all.
July 30, 2010, 10:08 amcboldt says:
– I presume that the serial numbers are tied to a ballistics “fingerprint” database? –
July 30, 2010, 10:10 amIn part, but probably in small part.
The more common function is parallel to the serializing of automobiles, some auto parts, motorcycles, bicycles, stereo equipment, etc. – that being to trace ownership and facilitate property recovery in case of theft.
With firearms, the serialization is also used to facilitate filing of criminal charges or civil complaints against sellers, who either knew or should have known the sale they were making was illegal. Extending that to fully legal sales, the traceability also facilitates argument that legal sales in neighboring states must be curtailed, because some legally sold weapons are diverted to illegal use.
cboldt says:
– Serial numbers are already embedded in printers … –
July 30, 2010, 10:12 amI think what you mean to express is that the serial numbers are imparted to the printed works.
EconGrad says:
Under Federal law it is legal to self-make any Title 1 firearm you are otherwise qualified to own. Although ATF likes to suggest otherwise, you are not required to put a serial number (or any other marking) on a home made firearm. Excise tax is not due on a self-made firearm that is made for, and used for, personal use. You may also self-make any Title 2 firearm (silencers, short barreled rifles, short barreled shotguns, AOW’s, etc.) that you are qualified to own as long as you file a Form 4, pay the $200 tax, and receive the approved form back before making the firearm. Self-made title 2 firearms are required to have serial numbers (ostensibly due to the fact that they are taxable articles under the NFA).
Due to 18USC922(o) it is generally not possible for most non-SOT payers to legally self-make a machine gun.
Regarding the court seeing no conceivable purpose for obliterating a serial number — they just haven’t gotten the right case yet. ATF generally holds that if you engrave the original serial number in a new location and remove the one from the original location, you still have a firearm with an obliterated serial number. Unfortunately certain types of firearm modifications are obstructed by the location of the serial number (for instance when you want to remove the magazine well from an AR15 type lower receiver and the serial number is (generally) on the magazine well. I believe (but haven’t validated by looking at the legislative history) that the serial number requirement in the GCA had more to do with the ability to verify that the excise taxes were paid and nothing whatsoever to do with “tracing” guns.
In the hypothetical case of a person who relocated the serial number on a firearm for a legitimate purpose, and was subsequently charged with violating 922(k) – I’d expect the court to find 922(k) unconstitutional “as applied” to that case.
July 30, 2010, 10:14 amJardinero1 says:
The conviction stands but the question arises, is the punishment cruel and unusual, given the nature of the crime? Does one earn nine months in jail for removing the VIN from an auto?
July 30, 2010, 10:15 amMark H Robinson says:
To label anyone a ‘nut’ implies a super-majority consensus that their viewpoint is outside of societal ‘norms’ to the extent that their mental health is in question. When in fact there are guns in a majority, and possibly even a super-majority, of American homes; when more than 80 million Americans are gun owners; and when the Second Amendment to the Constitution makes gun ownership an explicit right; it seems to me that the label ‘nut’ is more accurately applicable to those who are implacably opposed to gun ownership.
July 30, 2010, 10:17 amruuffles says:
Yes. Again, see link for statutes
http://www.boss302.com/legal.htm
July 30, 2010, 10:18 amDJR says:
The rationale is this: Felons owning guns is illegal, but felons still want to own guns. As a reader of this site, you must know well that there are many reasons to want to own a gun other than to commit a crime. The only way a felon can get a gun (assuming an effective system for preventing normal retail purchases) is from someone who is not a felon and who can buy guns. Such a person might have a good incentive to sell guns to felons, even though it’s illegal, because felons are willing to pay a premium for a gun because they cannot otherwise obtain one.
Serial numbers make it easier to trace guns. If guns are easily traceable, people who can buy guns legally are less willing to illegally sell them to felons. Therefore, it is harder for felons to get guns. If it’s legal to file off the serial number, however, then the disincentive from selling guns to felons is removed because the original purchaser can just file off the serial number before selling to a felon. Of course, if the seller ignores the prohibition on filing off, then the restriction does no good. So it’s also necessary to punish the felon for purchasing a gun with a filed off serial number. And there’s no way to tell whether the felon purchased the gun without a serial number or whether he filed it off himself, so you have to make the prohibition on possessing a gun with a filed off number.
While this does result in a somewhat odd situation that it’s illegal to possess a firearm, but even worse if you possess the same firearm without a serial number, the scheme is necessary to generally suppress illegal firearms sales.
July 30, 2010, 10:20 amSteve says:
I think an awful lot of those 80 million people have no problem with the concept of serial numbers.
July 30, 2010, 10:24 amFederal Farmer says:
It can also be argued that the serial numbers (which are only required on guns that are sold) has a nexus with interstate commerce.
As another pointed out, there is no requirement for serial numbers on guns one makes for ones own use.
July 30, 2010, 10:29 amSebastian the Ibis says:
Well said Econ Grad.
July 30, 2010, 10:36 amcboldt says:
– If it’s legal to file off the serial number, however, then the disincentive from selling guns to felons is removed because the original purchaser can just file off the serial number before selling to a felon. –
July 30, 2010, 10:37 amAs a matter of forensics, filing a serial number off only removes it from casual view. The serial number evidence is quite persistent.
Separately, to address the use of the word “nut,” I take those (and similar remarks) as insults leveled by small-minded, vindictive and petty people.
OrenWithAnE says:
This is a very simple charge to prove. Did he possess the gun? Was the serial number filed off? End of case. Meanwhile the underlying criminal charge might be a complicated conspiracy with witnesses that wind up in the morgue.
The term ‘gun nut’ is generally not applied to those 80 million Americans that want to own a gun. It is applied to the small minority of those Americans that take an extreme position on the relation of the 2A to all gun regulation, no matter how minor the burden (or in this case, not burdensome at all) or how compelling the government need (felon bans). And, of course, I recognize the existence of the antigun-nut, the kind that would ban all private handgun possession and so forth.
In between those two you will find a lot of people, gun owners and not, that take moderate positions on the possession and regulation of firearms.
July 30, 2010, 10:43 ammack says:
There is no comprehensive national data base of serial numbers – there are data bases of serial numbers – some in possession of the federal government and most in possession of private companies and individual businesses. Essentially – a manufacturer produces a gun and per law it is stamped with a serial number on the frame (at minimum) as the frame is considered the firearm – sometimes other parts may have serial numbers also. When sold to wholesalers the transation is recorded per the FFL system paperwork and so on down the line to retailer and then initial buyer. Thus when a gun is found at a crime scene the police will contact the manufacturer who will check their records and tell them who they sold it to, then the police contact the wholesaler who tells them who they sold it to and so on down the line to the initial buyer – usually the trail ends in a stolen gun or an otherwise dead end. Sometimes it may be useful as when the police arrest a husband for murdering his wife and they want to show that he purchased the murder weapon, but not so much useful like in TV shows where they use it to track down a killer. Businesses (FFL license holders) that have gone out of business have to turn their paperwork/databases over to the ATF – and those records are the ones in possession of the feds. Some states have laws on ballistic fingerprinting but the technology is very poor for identification – hence micro-stamping – but even that technology is poor and has not been shown to be very viable and it is very easy to circumvent – and even poor cleaning could defeat it, such as carbon or dirt build up in the microstamping.
Given the record of confiscation of registered guns in other countries and the similar example of so called assault weapon registration in CA and NY it is no wonder that gun right advocates strongly oppose national registration of guns. Interestingly there are alot of long guns without serial numbers as until mid-century it was not required that all long guns have serial numbers. My father had two shotguns of I believe 50′s vintage that had no serial numbers.
Canada has national registration of guns and has had very poor compliance with the law – and the money to establish and maintain the system has been incredible – with no demonstrable benefit. Even the Machine gun registry kept by the ATF as part of NFA 1934 and GCA of 1968 and later the Hughes Amendment – though dealing with a very small number of the over-all guns owned in the US has significant errors and owners of NFA weapons are all painfully aware that they had best carefully preserve their own copies and records or they may well enjoy a trip to club fed.
July 30, 2010, 10:45 ammikeyes says:
Many years ago I purchased two AR-18 rifles one of which had a serial number on the upper receiver and the other on the lower receiver. (I no longer own them.) I could mix and match the two to have a rifle with two different serial numbers and one with none. Is that a criminal act?
July 30, 2010, 10:45 amJim W says:
Many pre-1968 firearms do not have serial numbers. There are millions of them in circulation.
As the posters above have pointed out, the whole serial number scheme is a giant mess.
July 30, 2010, 10:47 amDJR says:
I have no idea whether there is a database that tracks forensics information to serial numbers. It sounds like a good idea. But even if there is, a serial number is a much easier way to track a firearm than forensics data. So if, on a domestic violence call, you seize 10 firearms from a felon and want to find out where they came from, it would be much easier to look up the serial numbers in some database than to retrieve forensics information (by firing the gun?) and do a forensics data search (presuming there is such a thing) on all 10 guns. If the latter were necessary, the police might conclude it’s not worth it.
[Edit: If Mack (above) is correct, there is no such database, and forensics tracing is unreliable. Whether the databases are in private hands or not, serial number tracing is more effective.]
July 30, 2010, 10:48 amcboldt says:
– I could mix and match the two to have a rifle with two different serial numbers and one with none. Is that a criminal act? –
July 30, 2010, 10:51 amConstructive obliteration!
SeaDrive says:
Mike, your whole post (only partly reproduced here) is a study in missing the point which is not to put anyone in jail, but to reduce the number of unmarked firearms. Indeed, the point of most criminal laws is not to punish the violators, but to prohibit an activity.
July 30, 2010, 10:53 amht4 says:
I wonder if there are any statistics on how many crimes were solved by tracing the serial number of a firearm. I suspect it is quite low (though I certainly can be proven wrong). The court seems to take for granted that the criminal justice system will grind to a halt if the police are unable to get a serial number off a gun. Assuming that the number is as low as I suspect, I question whether this would/should meet strict or intermediate scrutiny.
July 30, 2010, 10:55 amcboldt says:
– I have no idea whether there is a database that tracks forensics information to serial numbers. –
July 30, 2010, 11:00 amMy remark was that the serial number itself is subject to forensic evaluation, and recovery. Filing the serial number off doesn’t obliterate the serial number.
I understand your remark is one of associating a serial number with a fired projectile or expended cartridge.
In the case of a firearm that has no serial number (for example, never had one, like a “zip gun”), some evidence other than a serial number would have to be used to associate the weapon with the case.
I think a government project of requiring an association between an individual firearm and an individual owner (serial number, ballistics data, or firing pin impression, etc.) is signal of a deep-seated distrust of the people.
mack says:
I think there are some cases – I remember a story about a firearms collector and his family who were murdered and later a couple of perps were arrested for an unrelated crime. They were found in possesion of some of the guns that had been taken from the murdered collector and I believe were eventually tied to the crime by other additional evidence.
July 30, 2010, 11:06 amSeaDrive says:
On the macro level for the solution of serious violent crime, I think you may be right. On a local level, I think it’s highly productive. Guns with serial numbers are often recovered from criminal homes, and can then be tied back to reported thefts. Judging from comments on internet gun sites, it’s common enough for the routine check of a serial number to determine that a gun has been stolen.
Crime aside, the serial is useful on a gun for the same reason that it’s useful on a computer or camera. It enables tracking for proof of ownership, warranty and insurance.
July 30, 2010, 11:13 amSerial Numbers Upheld by 3rd Circuit | Snowflakes in Hell says:
[...] which was asked for by the US Attorney, and made the comparison directly to the First Amendment. Orin Kerr has more here, including a link to the opinion itself. Eugene Volokh is [...]
July 30, 2010, 11:21 amArchitectJS says:
That’s not a firearm (obviously) and does not speak to whether it is legal to make home-made firearms.
July 30, 2010, 11:22 ammack says:
Yes, many manufacturers put serial numbers on their guns before they were legally required to do so – for puposes of inventory, quality control, and so on – so even without the law requiring it – most would continue to do so – that is however of course different then the law regarding removing serial numbers or the laws regarding the recording of serial numbers in transactions.
Interestly, sometimes it is legal to remove a serial number – gunsmiths often have to do this – though they must re-number it also and document it.
July 30, 2010, 11:24 amSmooth, like a Rhapsody says:
Someone who excoriates the NEA for pulling the funding from “Piss Christ” and exclaims the 1st Amendment is thereby endangered is a nut.
Someone who says that the 2nd Amendment precludes a legislature from making it illegal to possess a handgun the serial number of which has been intentionally effaced, is, in much the same way, a nut.
July 30, 2010, 11:25 amFriday round-up Internet Related Technologies Friday round-up says:
[...] Legal Intelligencer’s Shannon P. Duffy summarizes that opinion, which Orin Kerr excerpts at the Volokh Conspiracy. (Thanks to How Appealing for the former link.) The Washington Post’s Maria Glod reports that gun [...]
July 30, 2010, 11:25 ammack says:
“ArchitectJS says:
cboldt: – I recently read a case of a man convicted of a federal firearms violation for stuffing carpet padding into a plastic bottle (silencer).
That’s not a firearm (obviously) and does not speak to whether it is legal to make home-made firearms.”
Yes, it was construed to be a silencer – and thus an NFA device – and thus an unregistered or unlicensed NFA device and therefore illegal and a felony. The NFA is a minefield of statutes and interpetations – mostly because parts of it are vague and arbitrary in nature.
In most states it is legal to manufacture your own firearm – so long as it is not a machine gun or covered by the NFA – (which involves federal laws).
July 30, 2010, 11:34 amArchitectJS says:
I noted my error as I continued to read related posts. I retract my statement.
July 30, 2010, 11:40 amL says:
If they outlaw unmarked firearms, then only outlaws will have unmarked firearms. I’m not sure this is a problem.
I think this is going to end up like abortion. The Supreme Court says we have a constitutional right to abortion. The government can burden that right if the burden is not “undue.” I think we’ll see the same thing with guns. Does requiring serial numbers on guns impose an undue burden on the right to keep and bear arms? Seems to me like it doesn’t, but of course there are arguments.
July 30, 2010, 11:43 amreality check says:
I look at it this way – the presence of a serial number does not greatly assist a future tyrannical government’s ability to prevent me from revolting against it while bearing arms.
Databases of registry numbers, however, do.
July 30, 2010, 11:46 amht4 says:
I’m not a con law lawyer, so correct me if I am off base, but I didn’t think that was the relevant inquiry under strict and intermediate scrutiney. I thought you looked at the gov’t interest involved and the means with which that end is sought.
July 30, 2010, 11:52 amyankee says:
“Undue burden” is what Justice O’Connor came up with in Casey to replace the unworkable trimester theory of Roe v. Wade. As far as I know SCOTUS hasn’t applied it beyond the abortion context, though Wikipedia claims some lower courts have.
July 30, 2010, 12:01 pmL says:
Yes, this, and just to be clear, I’m not saying there’s any precedent for applying it in a RKBA context, just a sort of gut prediction. Probably I will be wrong.
July 30, 2010, 12:13 pmMike says:
I don’t dispute that. But what is the purpose of reducing the number of unmarked firearms? The overarching goal of any law like this should be to reduce crime, usually by making it costlier to commit by making it easier for cops to find criminals. So what benefits do we receive from reducing the number of guns without serial numbers?
Having the serial number on a gun after a crime was committed tells you almost nothing, because the gun was most likely stolen or sold between private parties with no record of the transaction. FBI trace data backs this up. I guess we wouldn’t have as good of FBI trace data to say it was worthless if there were more guns without serial numbers…
It makes it easier to return the gun to the original owner, assuming it ever makes it out of the evidence locker…
It makes it easier to add easy-to-prove charges on top of harder to prove ones, such as robbery or murder. However, you could say the same of any arbitrary law made (“We can’t prove you murdered that guy, but we can *definitely* prove that you jaywalked to get to him”) and applied at the DA’s discretion.
So… we should make a behavior a felony so the FBI has better trace statistics, and it might, occasionally, if we’re lucky, but usually doesn’t, lead back to a handgun purchased by the offender?
Again, I’m just not seeing the great social benefit here.
July 30, 2010, 12:17 pmLarryA says:
I’ve got a couple of NSN rifles too. Serial numbers were first required by the Gun Control Act of 1968.
AFAIK most AR series rifles have serial numbers on the lower receiver. However, it is not uncommon for high-end or military firearms to start out with the serial number stamped into more than one part. As these firearms age it is also not uncommon for the parts to get switched or replaced. Collectors thus prize firearms with matching numbers over those with mixed. The serial number on the receiver remains the official one for the firearm.
I would seriously check that before doing so. I believe you need a federal manufacturer’s license. Plus, you need to check for state laws referring to “zip guns” or the equivalent. In Texas a zip gun is “a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.”
As for “full-auto,” I would also point out that if you have a semiauto with a worn/broken sear, to the point it will sometimes “double” or fire more than one shot per trigger squeeze, you need to get it fixed pronto. BATFE has no sense of humor about such.
Watch the details. Despite the blog title this case and the law it references aren’t about “unmarked” firearms, they’re about marked firearms where the marking has been obliterated. There’s a big difference.
July 30, 2010, 12:27 pmCliveStaples says:
What if I wanted to put a smiley-face sticker on my gun? Would my aesthetic interest in having a gun with a sticker on it instead of a gun without one be a “lawful purpose?” What about an aesthetic preference for a gun without numbers emblazoned on its frame?
What about a privacy interest? An intensely private person might not want to have property that discloses information about him; if he can eliminate the unwanted disclosure while retaining the use of the property, why should he be prevented? Is this not a “lawful purpose?”
July 30, 2010, 12:29 pmjames says:
sounds more like it would look at what is strict liability versus looking at intent…
July 30, 2010, 12:37 pmgasman says:
Bit of a circular argument. Removing serial numbers is criminal, so therefore “… those who remove serial numbers are overwhelmingly criminals…”
July 30, 2010, 12:47 pmwfgodbold says:
Circular arguments are great!
My favorite is the one that upholds NFA bans on automatic weapons because they are not in common use, when they are not in common use because they have been banned since 1934 (some day we’ll reach the point where none of the legal-to-own automatic firearms will be able to be repaired, and no one will be able to have one. Stupid Hughes amendment).
July 30, 2010, 1:09 pmcboldt says:
– My favorite is the one that upholds NFA bans on automatic weapons because they are not in common use, when they are not in common use because they have been banned since 1934 –
July 30, 2010, 1:59 pmAnd compounding the comedy of law by reading the substantive holding of the 1937 precedent for the opposite of what it says in simple and plain terms.
Stormy Dragon says:
It’s known that nearly all consumer printers and copiers encode the date, time, and serial number of the device in every single page they produce in a pattern of yellow dots:
http://www.eff.org/issues/printers
July 30, 2010, 2:35 pmt1 says:
How, exactly, do you know this?
If an otherwise law-abiding citizen removes the serial numbers from a firearm, how would anyone ever know that?
July 30, 2010, 2:53 pmGlen says:
Wrong.
It is generally legal to build a firearm for personal use, and it is not necessary to mark it with a serial number. Such weapons rarely run afoul of state “zip gun” laws, as there is no “original device” other than raw materials and components (steel, aluminum, screws, bolts, etc.).
For a more comprehensive (and accurate) discussion, see EconGrad.
July 30, 2010, 2:56 pmJay says:
Im gonna cite ‘slippery slope’
For many decades in this nation guns did not have serial numbers, only as ‘gun control’ was introduced did it become mandated
A gun w/ a serial number is no more dangerous than one without, and saying that(via this ruling)that our Right to Keep and Bear arms is contingent upon such a thing is a dangerous precedent IMO
July 30, 2010, 4:08 pmJeff Semenak says:
Is ‘knowingly’ implied to the bolded section ? I’m not sure how any non-expert could know whether a number had been altered, much less had a particular firearm been shipped in interstate commerce.
July 30, 2010, 4:19 pmJeff Semenak says:
Even better, modern copiers have computer hard drives which saves all images copied.
July 30, 2010, 4:22 pmhttp://www.identitytheft.com/article/are_photocopiers_a_risk
zippypinhead says:
In my (admittedly anecdotal) experience, almost all cases I have seen alleging either theft of firearms or possession of stolen firearms depended on the serial number to prove that the recovered firearm was the same one that was previously stolen.
IMHO, the Third Circuit had the correct holding, on almost the correct reasoning – but I wish they had re-phrased the no legitimate purpose discussion so it does not (erroneously) imply permissible burden-shifting to the defendant. I think it’s extraordinarily significant that the panel appears to have acknowledged that strict scrutiny IS appropriate for infringements at the core of the Second Amendment. If strict scrutiny applies to the core of the RKBA, I’m not as troubled by an intermediate level of scrutiny for somewhat more peripheral issues such as obliterating manufacturers’ serial numbers. Of course, defining the line between “core” and “peripheral” will be a major challenge.
July 30, 2010, 4:26 pmDennis N says:
It is, except in the case of major structural modifications as discussed above. If, for example, you remove the entire magazine well from an AR-15, there’s no metal left for the forensic specialist to extract the serial number from.
Prior to the Gun Control Act of 1964, it was not uncommon for inexpensive firearms, particularly .22 rifles, to be manufactured without serial numbers. The GCA required all firearms to bear serial numbers. But I don’t know if the prohibition against effacing or altering SNs predates the GCA.
July 30, 2010, 4:40 pmcboldt says:
– Is `knowingly’ implied to the bolded section –
July 30, 2010, 4:43 pmI think the “knowingly” is held to pertain to the simple fact of possession or receipt. IOW, it’s a strict liability crime.
zippypinhead says:
Not to beat a dead horse, but methinks “gun nut” is only OK when used in the context of the extraordinarily small subset of people who have an unhealthy pathological fascination with firearms. Unfortunately that wasn’t the context in which it was first used in this thread – an ad hominum attack implying that anyone with a broad view of the scope of the Second Amendment is a “gun nut.” Very poor form, IMHO.
I once heard a story about a young prosecutor doing closing argument in his first 922(g) felon-in-possession jury trial. He got so wound up that he called the defendant a “gun nut.” Defense counsel objected, but the District Judge ruled from the bench that on the facts of the case, the phrase was fair commentary on the evidence and not unduly prejudicial. The trial apparently had testimony that the defendant polished his already-sparkling firearms collection almost every night and called his extensive portfolio of photos of himself in fake tactical garb posing with assault weapons his “gun porn,” so I guess one could argue that the Judge wasn’t committing reversible error.
July 30, 2010, 4:54 pmDennis N says:
Probably. ATF can be very anal about interpreting things. They are consumate bureaucrats, and have made some bizarre rulings.
No, but I believe NCIC maintains an (unreliable) list of the serial numbers of stolen property, especially firearms.
There is nothing in the statute to prohibit adding markings to a firearm (e.g. “Property of CliveStaples”) Indeed some organizations do so regularly.
That IS covered by statute.
July 30, 2010, 5:01 pmzuch says:
I’m afraid I must insist on my right to sail on a sailboat with an unnumbered hull….
And then, documentation and/or registration is quite beyond the pale….
Cheers,
July 30, 2010, 6:28 pmDavid Newton says:
This is something that I would classify as common knowledge, along the lines of it being common knowledge that gravity causes things to fall towards the earth. I classify it as common knowledge due to the following train of thought:
1. Serial numbers on a firearm do not affect its functionality in any significant way at all (with possible exceptions for things like the AR-15 mentioned above);
2. The removal of serial numbers only affects the traceability of a firearm;
3. Why would someone want to affect the traceability of a firearm?
The answers to point three that I can think of are criminals trying to cover their tracks and paranoid individuals who think that every arm of government is out to get them. The numbers of such paranoid individuals are comparatively low and consequently that leaves the vast majority of people who wish to go to the considerable trouble of removing a firearm’s serial number to be criminals trying to cover their tracks.
What other answers are there to point three? I can’t think of plausible ones.
July 30, 2010, 6:46 pmRoy W says:
FWIW, I manufactured a firearm last week. Built it up from machined parts, put a serial number on it a few days later in case it ever needs to be transferred. As a result, I’m quite familliar with the ATF website.
http://www.atf.gov/firearms/faq/general.html#gca-manufacturing
“Q: Does the GCA prohibit anyone from making a handgun, shotgun or rifle?
With certain exceptions a firearm may be made by a non-licensee provided it is not for sale and the maker is not prohibited from possessing firearms. However, a person is prohibited from assembling a non-sporting semi-automatic rifle or non-sporting shotgun from imported parts. In addition, the making of an NFA firearm requires a tax payment and approval by ATF. An application to make a machine gun will not be approved unless documentation is submitted showing that the firearm is being made for a Federal or State agency.
[18 U.S.C. 922(o) and (r), 26 U.S.C. 5822, 27 CFR 478.39, 479.62 and 479.105]
”
http://www.atf.gov/firearms/faq/firearms-technology.html#commercial-parts-assembly
“… Individuals manufacturing sporting-type firearms for their own use need not hold Federal Firearms Licenses (FFLs). However, we suggest that the manufacturer at least identify the firearm with a serial number as a safeguard in the event that the firearm is lost or stolen. Also, the firearm should be identified as required in 27 CFR 478.92 if it is sold or otherwise lawfully transferred in the future.”
There are restrictions on what constitute acceptable serial numbers as well– Roman Characters and Arabic Numerals only.
http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2002-6.pdf
July 30, 2010, 8:07 pmOrenWithAnE says:
At least here in MA, there are numerous cases of those guns being returned to their rightful owners after the criminal trial was over.
Similarly, a gun with a serial number is just as effective for the purpose of self-defense as one without.
July 30, 2010, 9:08 pmleo marvin says:
The law is obviously intended to discourage a young Italian-American war hero from shooting the heroin kingpin and corrupt New York Police Captain who tried to kill his father. With the havoc that could have wreaked on the plot, and thus profitability of a great motion picture franchise, and knowing as we do who controls the movie industry, this law sounds anti-Semitic to me.
(BTW, what was the deal with the supposedly fingerprint resistant tape Clemenza put on the gun? Does that really exist, and if so is it legal to put on a gun? And what about leaving the gun loud to scare any “pain in the ass innocent bystanders”? That wasn’t very nice.)
July 30, 2010, 9:47 pmKenneth C. Brooks says:
Seems to me the whole serial number thing is overblown. Now they have other means to associate a bullet with a gun. I mean I don’t really see the need to have serial numbers any more. Can any one name one time in criminal law whereby a suspect was found guilty of a crime, other than the crime related to the serial number, based upon the serial number of a gun. If you ask me it is a first amendment violation to require a gun to have a serial number. What if I want my gun to be know by a name, such a Fred or Darlene. What the hell is this intermediate scrutiny crap. A fundamental right is a fundamental right. It just rattles me to the bone how the Carolene Products footnote, a little squib by a freakin law clerk, can arise to articulating fundamental rights subject to strict scrutiny, but the damn words written by men that provide the only justification for this judge to have authority to do anything is subject to lesser scrutiny. The Second Amendment was written at a time when the British were a serious threat. Has anyone looked at our economic system, or the gulf coast. The Federal Reserve and our entire financial system is run by English Bankers . . . and the Gulf Coast, hell, Lousianna was destroyed by an English company. If there were ever a time to require an armed citizenry it is now. What I question is the allegiance of this panel of judges to the principles of the United States as set forth by the men that gave the judges the authority in the first place.
July 30, 2010, 9:52 pmLarryA says:
It’s fairly difficult to alter a number stamped deeply into metal without it being obvious. Most of the “alterations” consist of filing off the numbers.
Unless a firearm has been entirely manufactured in Texas (in my case) I’d presume it had been shipped across state lines to get to me.
Learn something every day.
Fingerprints (composed of oils and salts left behind in a pattern) are clearest on polished, non-porous surfaces like steel, smooth varnished wood, etc. The ridges can also be molded into a surface like clay. A tape with a surface that’s rough or absorbent might be less likely to leave usable prints, particularly during the era of The Godfather. I doubt the Corleones were worried about its legality.
The “leave the gun loud” idea is less realistic. Any revolver fired inside a room is going to leave your ears ringing. And adding a “silencer” doesn’t work with a revolver because of the gap between the cylinder and the barrel.
Personally, I have a list of all the serial numbers of my firearms, as well as everything else I own that has them. That way if any are lost or stolen, and then recovered, I can positively identify them and get them returned.
July 31, 2010, 1:52 amFriday round-up | theConstitutional.org says:
[...] Legal Intelligencer’s Shannon P. Duffy summarizes that opinion, which Orin Kerr excerpts at the Volokh Conspiracy. (Thanks to How Appealing for the former link.) The Washington Post’s Maria Glod reports that gun [...]
July 31, 2010, 7:25 amThe Girl with the Dragon Tattoo | girls cooking says:
[...] The Volokh Conspiracy » The Second Amendment and Unmarked Firearms [...]
July 31, 2010, 10:41 pmilbob says:
You hit the nail on the head. We long ago got to the point where it is not whether there is some legitimate government interest in a law so much as everything except the most egregious government conduct is considered acceptable under some legal doctrine cooked up by the people in black robes. And even then, some pretty outrageous stuff has been accepted by the courts.
August 5, 2010, 9:39 amilbob says:
I am pretty sure that under current rules the lower receiver has to be serialized on this type of firearm.
I am guessing that the typical police mentality would be to charge you and put you through the wringer if you happened to assemble it that way.
August 5, 2010, 9:54 amU.S. Constitutional Law » Opinion — RIGHT TO BEAR ARMS — U.S. v. Marzzarella (3d Cir.) says:
[...] Shannon P. Duffy, Prof. Douglas A. Berman, Prof. Orin Kerr, Keith [...]
August 10, 2010, 11:23 pm