In an October 12 opinion, a federal judge in the Southern District of West Virginia struck down as unconstitutional 18 U.S.C. § 922(k), the federal ban possessing or receiving “any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered.” In the same opinion, the judge rejected a challenge to the constitutionality of 922(g)(1), the felon-in-possession ban. The decision is notable both for its application of Bruen and its problematic analysis of Founding Era history.
The judge first considered “[t]he threshold question [of] whether Section 922(k) prohibits conduct that is protected by the plain text of the Second Amendment.” The government argued that the regulation is merely a commercial restriction or qualification and therefore outside the scope of the Second Amendment. The judge observed that, while other laws may require gun manufacturers or sellers to include serial numbers and those laws may be permissible as mere commercial restrictions, 922(k) criminalizes possession and therefore reaches protected conduct.
The judge then noted that, at step two, “the statute is presumptively unconstitutional unless the Government can show that ‘it is consistent with the Nation’s historical tradition of firearm regulation.’” The judge observed that—in his view—Bruen entirely precludes consideration of whether requiring serial numbers to be maintained helps to keep guns out of the hands of criminals or assists law enforcement in solving gun crimes. Rather, the judge emphasized Bruen’s statement that, “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” The judge found that the serialization requirement was enacted to address problems surrounding “crime, including crime involving stolen firearms, and [to] assist law enforcement in solving crime.” That the problem also existed at the time of the Founding but was not addressed in the same way, the judge said, cast significant doubt on the constitutionality of 922(k).
The judge rejected the government’s argument that there are broad historical traditions of regulating the commercial sale of guns and restricting access to especially dangerous weapons. The judge noted that 922(k) criminalizes possession and thus is not a mere commercial restriction, and held that “[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.” Because the judge found that 922(k) seeks to address a societal problem that was addressed in a materially different way at the Founding, and the government failed to point to analogous historical laws, the provision is unconstitutional.
By contrast, the judge relied heavily on Heller’s list of presumptively-lawful regulations and Bruen’s use of the word “law-abiding” to uphold 18 U.S.C. § 922(g)(1), the ban on convicted felons possessing firearms. The judge found that—even though a felon’s possession of a gun is similarly within the scope of the Second Amendment—“the Supreme Court left generally undisturbed the regulatory framework that keeps firearms out of the hands of dangerous felons through its decision in Bruen by reaffirming and adhering to its reasoning in Heller and McDonald.” The opinion cites to nine federal district court decisions since Bruen that have rejected challenges to the felon-in-possession law, often without detailed analysis.
Perhaps because the government argued primarily that either the serial number provision itself, or guns without serial numbers, were outside the scope of the Second Amendment entirely, the actual historical analysis here departs in some ways from other opinions striking down laws under Bruen. After determining that the law was not a commercial restriction and that it regulated protected conduct (possessing a firearm), the judge conducted his own analysis of whether (quoting from Bruen) “earlier generations addressed the societal problem, but did so through materially different means.” The judge defined the “societal problem” broadly as gun crime, including crime involving stolen guns, and noted that “[i]t is difficult to imagine that this societal problem did not exist at the founding.” Perhaps, but the lack of any analysis of this issue is troubling. How does one know that this problem specifically existed at the time of the Founding? Are there statistics regarding the use of stolen guns in crime during that era? The opinion seems to say that these questions are irrelevant, but why?
Also, consider that a narrow framing could completely transform the analysis. If the societal problem is framed as the inability to trace weapons used in crimes through an electronic database of serial numbers, then surely that would be an “unprecedented” societal problem that did not exist around the time of the Founding. This framing would necessitate a more nuanced evaluation of the history.
The opinion also illustrates another major problem with Bruen’s test. What if the Founding generation didn’t address the societal problem in question because there was no political will to do so, or because gun crime was not a pressing issue at the time and therefore was not on the legislative radar? There are many different reasons why a legislature may have chosen not to regulate in a certain way, and—in most cases—the mere lack of regulation should not be “evidence that the challenged regulation is inconsistent with the Second Amendment.” But Bruen emphasizes this point, and lower courts will continue to rely on it. An especially odd aspect of this presumption is that constitutional protections of arms-keeping and bearing were not even in force in many states immediately after 1791. In January 1791, for example, only three of the thirteen states (Massachusetts, North Carolina, and Pennsylvania) protected the right to keep and bear arms in any form in their state constitution, and the federal Second Amendment did not apply to state action as confirmed in Barron v. Baltimore in 1833. While additional state analogue provisions appeared in the early-mid 1800s, many state legislatures around this time simply weren’t constrained at all by any provision similar to the modern Second Amendment. Why, then, should one believe that the regulatory choices made by these legislatures shed any light on the constitutionality question?
Like other courts to consider that prohibition post-Bruen, the judge relied heavily on Heller’s dicta to uphold the federal felon-in-possession law. The judge also signaled that he was potentially more comfortable striking down the serial-number provision due to the existence of the felon-in-possession law, writing that “the founders addressed the ‘societal problem’ of non-law-abiding citizens possessing firearms through ‘materially different means’—felon disarmament laws like Section 922(g)(1).” Putting aside the questionable historical accuracy of that statement, given that felon bans are relatively new, Bruen has created a strange landscape where judges seem content to strike down a variety of regulations so long as the felon ban remains in place. Lacking a reasoned framework for why the felon-in-possession law is consistent with history, judges have merely assumed it is or relied on the Heller dicta without further comment. This all highlights the need for the Supreme Court to clarify Bruen and the basis for its presumptively-lawful list—otherwise, judges may be inclined to strike down almost everything other than those laws the Court has explicitly carved out as constitutional.