Litigation Highlight: Indiana Federal Judge Rejects Challenge to Federal Serial-Number Law

  • Date:
  • January 30, 2023

On December 15, Senior District Judge Robert Miller of the Northern District of Indiana issued an opinion in United States v. Reyna rejecting a Second Amendment challenge to 18 U.S.C. § 922(k)—the federal prohibition on possessing a firearm with a removed, obliterated, or altered serial number.  The decision is notable, especially when compared to an earlier decision from the Southern District of West Virginia in United States v. Price striking down that same regulation (we covered the West Virginia opinion here).

In Reyna, Judge Miller first determined that the defendant was permitted to bring a facial constitutional challenge to 922(k).  Next, the judge turned to whether the plain text of the Second Amendment covers conduct that is regulated by 922(k).  Citing the Third Circuit’s recent decision in Range (which we discussed here, and which has now been vacated and will be reheard by the en banc Third Circuit next month), the judge noted that “the very same phrase that indicates an individual right — ‘the people’— also limits the Second Amendment right to members of the political community and excludes criminals.”  Thus, the Second Amendment’s text does not encompass possession by all people, nor does it encompass possession of all weapons.

Reyna splits with Price by defining 922(k)’s regulated conduct as “possession of a firearm with an obliterated serial number,” rather than mere possession of a firearm.  Judge Miller justified this choice by observing that in neither Heller nor Bruen “did the Supreme Court distill the challenged regulation to so abstract a level as mere possession or mere carrying of a firearm.”  Further, in the judge’s view, “[f]or Step One to have any meaning, the regulated conduct must be defined specifically enough that it can meaningfully compare to the Second Amendment’s plain text — a plain text that is more complex than mere possession.”

The judge next considered whether the plain text covers possessing a gun with an obliterated serial number.  Observing that the Second Amendment does not extend to “weapons not typically possessed by law-abiding citizens for lawful purposes,” the judge determined that firearms with obliterated serial numbers fall into that category.  Such guns are more difficult to trace and, even though excluding them from Second Amendment protection will decrease the total universe of available weapons, “[a] law-abiding citizen who uses a gun for self-defense has no reason to prefer a deserialized gun to a gun with serial number intact.”  The judge found that serial number obliteration does not relate to gun functionality and does not make a gun more useful for self-defense.  Therefore, Judge Miller denied the motion to dismiss the indictment.

One major takeaway from Reyna is its careful consideration of how to define the regulated conduct.  While many judges to apply Bruen thus far have quickly concluded that “mere possession” is the relevant conduct, that conclusion likely misses the mark in most Second Amendment cases.  As Judge Miller notes, neither Heller nor Bruen defined the “conduct” in question so expansively.  Rather, in Heller, the Court defined the conduct as “handgun possession in the home” and, in Bruen, the Court defined the conduct as “publicly carrying a handgun.”  Reyna also correctly concludes that defining the conduct as mere possession—for anything other than a total legislative ban on private gun possession—renders “step one” of the analysis largely meaningless. 

Rendering the first step of the test meaningless by defining the regulated conduct in almost every case as mere gun possession would appear to be a gambit that allows judges to circumvent half of the Supreme Court’s test.  Judges who want to skip straight to the historical step can do so merely by defining the conduct broadly, placing the burden on the government to come forward with historical analogues for a law that doesn’t regulate protected conduct.  Bruen certainly does not mandate historical analogues for every gun-related law, only laws which cover conduct protected by the Second Amendment; no Justice suggested any requirement that regulatory choices be tied to history when the Second Amendment is not implicated.   Of course, there are many instances where a law regulating narrowly-defined conduct does implicate the Second Amendment—Heller and Bruen are examples of this, as are locational restrictions.  But Reyna shows the importance of carefully conducting the “step one” textual inquiry at the correct level of generality.