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A Founding-era Analog for Modern Serial Number Requirements

By on February 10, 2023 Categories: , ,

As Andrew Willinger wrote here recently, in December a federal district court in Indiana rejected a challenge to the federal law, 18 U.S.C. § 922(k), that criminalizes possession of a firearm with the factory-embossed or engraved serial number removed or altered. As Andrew explained, what is particularly noteworthy about the opinion is its rigorous approach to Bruen step 1 and its conclusion that the conduct covered by the statute falls outside the textual purview of the Second Amendment. Resolving the case at step 1 meant that the court did not have to reach the second step of Bruen’s rubric, which involves looking for historical analogs in the Founding era for the modern law being challenged.

I completely agree with Andrew’s insightful analysis of the Reyna decision from the court in Indiana.  I am writing to comment on what the court there did not reach – the Founding-era precedent for requiring serial numbers.

In E. Wayne Carp’s 1984 book To Starve the Army at Pleasure: Continental Army Administration and American Political Culture, 1775-1783 (which won the National Historical Society Book Prize the next year), he explains that George Washington, in order to reduce the number of army-issued guns his soldiers would take home and attempt to keep, had all Continental Army firearms stamped with an insignia, starting in 1776, to mark them as public property, though apparently this did not solve the theft problem completely. The marking was alphanumeric: “U.S.XIII,” and though it did not assign a unique serial number to each firearm, the marking served the same purpose as serial numbers today – it allowed the government to identify guns and their source to help enforce antitheft and other laws (such as the prohibition on selling guns to the enemy). (pp. 66-67)

In her 1981 book Supplying Washington’s Army, military historian Erna Risch writes that officers in the War of Independence complained that conscripts would report for duty without bringing their guns from home, even though they owned guns, because they expected the Continental Army to issue them new weapons from the military supply. This was the norm: “More often than not, however, the men arrived at camp without arms,” Risch notes. (pp. 348-49)

According to Risch, after 1775, George Washington began a policy of keeping muskets that men brought with them even after the men returned home. “He ordered that no soldier upon the expiration of his term of enlistment was to take with him any serviceable gun. If the musket was his private property, it should be appraised, and he would be given full value for it.” (p.349) As a penalty for violations, Washington withheld the last two months’ pay from any soldier who returned home with a gun he had brought with him when he first reported for duty, though Risch concludes that many Continental soldiers apparently ignored these regulations and took their guns home with them anyway. Washington informed the Continental Congress in 1776 that there were two thousand soldiers in his camp without muskets. (p. 350) Risch adds, “As late as the spring of 1780, Washington was still warning his officers to give strict tension to prevent soldiers from carrying away their arms when their times of service expired. He had used every means in his power to prevent this practice, but he was persuaded they do it in a variety of instances nevertheless.” (p. 356)

It is easy to imagine that some of the “theft” was not intentional or malicious – presumably, some soldiers took their military-issued weapons home expecting to be called up again for another tour of duty, or expecting to join local militia musters that occurred when the Continental Army was absent from the locale. And presumably some number of guns were dropped or lost in battle, seized by enemy combatants, and so on. Washington’s numbering system would have helped identify guns that his soldiers found or intercepted as having originally been issued by the Continental Army.

The modern prohibition on removing or altering serial numbers in § 922(k) is a necessary prophylactic rule to preserve the serial number system itself.  Serial numbers are necessary for enforcing other laws, like the federal tax on firearms (in the same way that our tax system depends on Social Security Numbers, Employer Identification numbers, and various identifying numbers, such as those issued to tax-exempt organizations).  Enforcing an excise tax on the manufacture or import of each firearm depends upon a system of identifying numbers for taxed items.  Enforcing various gun trafficking laws – whether those that apply to interstate gun sales or exports to foreign countries – necessitates a numbering system for tracking guns, as do rules about manufacturers shipping new inventory to licensed dealers (at wholesale) rather than selling directly to individual retail consumers. Of course, the most well-known use of gun serial numbers is to allow gun tracing by law enforcement – not only to solve gun homicides, but to trace stolen or trafficked guns they recover.

The Continental Army’s rule for marking all its guns with an alphanumeric identifier was a primitive version of modern serial numbering, which involves a unique number for each firearm (of course, the guns themselves were more primitive as well). But Bruen mandates “a well-established and representative historical analogue, not a historical twin.”  The numbering served a very similar purpose – enforcing laws and regulations against theft, trafficking, and so on.  In any case, if we are concerned about the original public meaning of the Second Amendment, the public at the time of ratification would have been familiar with alphanumeric marking requirements for firearms at least in the context of preventing theft or inadvertent loss from the military’s inventory (even if historians suggest the system did not work perfectly).  

I anticipate an objection that there was no numbering requirement for manufacturers at the time, nor was it illegal to own an unmarked gun.  But that may be a difference without substance, if, as the war progressed, most of the guns in circulation in the colonies would have been employed in the service of one or the other military.  The shortage of weapons indicated by the historians mentioned above suggests that the armies would have commandeered any guns they could find, and that there was not a surplus of readily available firearms on the market at the time.  It is plausible, therefore, that by the later years of the war, most of the guns in circulation that were not in British hands would have ended up in the Continental Army’s inventory and had the alphanumeric marking added to them.  This is especially likely if, as some scholars have suggested, 15% or more of the total population of certain colonies served in the militia during the war.  After the war, if the Army liquidated its stockpiles of weapons, presumably a lot of guns that passed back into the private marketplace had the markings from the war years.  There is no indication in the Congressional records from the time that the drafters thought the Second Amendment would end the type of gun-marking systems that developed during the War of Independence.