Fourth Circuit En Banc Report Part II: Serial Numbers and Common Use

In late March, I attended three en banc oral arguments in Second Amendment cases before the United States Court of Appeals for the Fourth Circuit, sitting in Richmond, Virginia.  The court itself leans left, especially after three Biden appointments—including Judge Nicole Berner, who was confirmed by the Senate and assumed office on March 19, then immediately drove to Richmond and participated in the arguments.  But the cases provide an interesting window into an appellate court grappling with how to reconcile the Supreme Court’s past Second Amendment pronouncements and its recent turn to history in Bruen.  This is the second post in a series of three summarizing the en banc arguments (you can read the other two posts here and here). 

United States v. Price deals with the federal ban on knowingly possessing a firearm with a removed or obliterated serial number.  Randy Price was pulled over in a traffic stop in 2019 in Charleston, West Virginia, and officers discovered a handgun in his car with the serial number scraped off.  Price was indicted on two federal charges—possessing a firearm as a convicted felon (Price had earlier been convicted of involuntary manslaughter and aggravated robbery), and possessing a gun with an obliterated serial number.  He moved to dismiss the indictment under Bruen, and the district judge granted that motion as to the 922(k) serial number charge in an October 2022 decision. 

In that opinion, which we covered here, District Judge Joseph Goodwin first determined that the law “is far more than [a] mere commercial regulation . . . [but r]ather [] a blatant prohibition on possession” that bans conduct protected by the Second Amendment.  At step two of the Bruen test, Judge Goodwin found that “the societal problem addressed by Section 922(k) was likely in existence at the founding but not addressed by similar means” and that serial number requirements (and bans on possessing guns without serial numbers) did not come about until the 20th century.  He also held that whether guns lacking a serial number are in common use for lawful purposes was ultimately irrelevant, because “the presence or lack of a serial number makes no difference with respect to whether the type of weapon is commonly used.”  In other words, the judge embraced the argument that common use inquires only into a firearm’s functionality and not superficial features.  The government appealed Judge Goodwin’s decision and the case was argued in December 2023 before a three-judge Fourth Circuit panel.  Shortly after that argument, but before the panel issued a decision, the circuit took the case directly en banc—an unusual procedural step perhaps motivated by the expediency of hearing Price together with Bianchi, which similarly deals with the common use standard as applied to semiautomatic rifles. 

During the en banc argument, there did not appear to be much support among the Fourth Circuit judges for Price’s position (the position that prevailed at the district court level).  Judge J. Harvie Wilkinson observed that, since Judge Goodwin issued his decision in the fall of 2022, 14 district courts had upheld the same statute against Second Amendment challenge with not one additional judge striking it down (a “phalanx” of lower court support for the government’s position, in Wilkinson’s view).  And even Judge Paul Niemeyer, a George H.W. Bush appointee who dissented from the Fourth Circuit’s 2017 Kolbe decision upholding Maryland’s assault weapons ban, repeatedly voiced his opinion that the serial number ban was not a substantive infringement of Second Amendment rights but merely imposed a de minimis burden.  The judges also seemed hard-pressed to accept that the federal government could lawfully require manufacturers to include serial numbers and ban the act of removing the number, but not also ban possession of the resulting defaced firearm.

When it came to common use, the court seemed to largely reject Judge Goodwin’s conception of the test as limited to firearm functionality.  However, the judges ultimately sparred over two major ancillary questions about how the common use standard might cash out in Price.  First, where does the inquiry take place within the Bruen test?  As in Bianchi, Price argued that common use comes in at the second, historical analogue step—which would mean the government bears the burden of proving that weapons are not in common use for lawful purposes.  On the other hand, the government argued that common use is considered at the step one threshold textual-historical inquiry and that the plaintiff must prove that weapons are commonly used.  These arguments have been a recurring feature of much post-Bruen litigation, often complicated by Bruen’s own suggestion that it is setting forth a one-step test.

Second, putting the burden of proof to the side, what kind of statistical data might suffice to prove (or disprove) common use?  The judges seemed divided on this issue, and increasingly so as the argument progressed.  Both parties in Price argued that the statistics regarding the possession and use of firearms with removed or altered serial numbers were in their favor.[1]  And this is where the argument took an unexpected turn.  Judge Julius Richardson pressed the government attorney on what the statistics on obliterated-serial-number gun possession and use actually show.  In its opening brief, the government cited a 1996 study of youth gun violence in Boston by David Kennedy, Anne Piehl, and Anthony Braga as support for the proposition that serial numbers are not removed from firearms used for lawful purposes.  The Kennedy study analyzed tracing data collected by the Boston branch of the ATF for all crime guns that came into police hands from 1991 to 1996.  The study found that guns with obliterated serial numbers were much more prevalent among youth offenders (under age 21).  To the authors, this suggested that many youth offenders were “acquiring new guns only a few steps from first retail sale.”  Perhaps more important for the common use inquiry, Kennedy and his co-authors found that the percentage of obliterated-serial-number guns obtained from those charged with mere possession offenses was substantially higher than the percentage of such guns obtained from those charged with “substantive crime” offenses.  Of the adult substantive crime guns, for example, only 2.7% had the serial number obliterated or damaged (compared to 9.5% for possession offenses).  The youth data showed that 13.4% of substantive crime offenders had defaced serial number guns (compared to 21.8% of possession offenders).

In a supplemental brief filed before the en banc argument, the government cited both the Kennedy study and a nationwide ATF study of crime guns traced from 2017 to 2021.  The ATF was able to trace about 75% of those guns to the original purchaser.  Of the 25% of failed traces, only 2.5% were due to an obliterated serial number (or 48,601 out of 1,922,577 crime guns).[2]  ATF also noted that, “[o]ver the past three years, the number of recovered and traced crime guns with an obliterated serial has increased by 18% from 2019 (5,564) to 2021 (6,591).”  The government relied on these statistics to argue that obliterated serial number guns are not in common use even by criminals—and, by extension, certainly not in common use by the general population for legitimate purposes.

Judge Richardson pushed the government on these numbers, arguing that the Kennedy study might be read to suggest that criminals are actually less likely to possess obliterated serial number guns than law-abiding citizens.  The idea here, I believe, is that because the Boston data show that a lower rate of substantive crime guns had obliterated serial numbers than possession gun crimes, many more undetected persons likely possessed obliterated serial numbers but were not picked up or charged and thus not reflected in the data.  Offenders whose only offense was possessing the gun—so they were presumably not using it to commit violent crime—might not be viewed as users for an “unlawful” purpose, because it is circular to say that possession of an obliterated serial number gun is itself evidence of use for criminal purposes.  If the ATF study is similarly limited to “substantive crime” guns, Judge Richardson suggested, then it might be revealing the same phenomenon.  The government did not have a ready response to Judge Richardson’s questioning at oral argument.

That said, it seems relatively improbable that a large number of otherwise law-abiding citizens possess guns with obliterated serial numbers for self-defense.[3]  Kennedy and his co-authors, for example, noted that one potential reason to obliterate or remove a serial number is “to avoid being connected to a crime gun one has purchased legally.”  That seemed to be a major animating principle for Judge Richardson—that perhaps people are obtaining guns and removing the serial number in case the gun was previously used in a crime by someone else.[4]  However, the Kennedy study concludes that this is almost certainly not the reason the Boston guns had defaced serial numbers and that the guns were likely not stolen.  Rather, because the guns were on the whole quite new, they had most likely been straw-purchased (purchased on behalf of another individual who was prohibited from buying or possessing a gun) and then defaced to protect the straw purchaser.  Kennedy and his co-authors lament that “the categorization procedures typically followed in surveys of illicit gun acquisition obscure the actual sources of the firearms” and “the magnitude . . . of close-to-retail diversion.”  In other words, a successful straw purchase where the serial number is defaced won’t be picked up in the data as a criminal use or action—and it will often be impossible to trace these guns to the initial criminal acquisition precisely because the serial number is obliterated.

This seems to potentially resolve some of the questions raised at oral argument in Price.  The common use inquiry for obliterated serial number guns should capture not only substantive criminality—like using an obliterated serial number gun to commit a murder, or scratching off the serial number of a stolen gun—but also straw purchasing.  And it’s difficult to measure the true magnitude of straw purchasing through tracing analysis like that conducted in the Boston and ATF studies.

A recording of the oral argument in Price is available here.

[1] As some of the judges observed at oral argument, this is something of an unusual argument from Price’s point of view because common sense would suggest that there is no innocent or lawful reason to remove or alter a gun’s serial number.

[2] Another small percentage of failed traces were because the gun legally lacked a serial number due to a production date before serial numbers were mandated in 1968.

[3] 922(k) does not, by its terms, cover ghost guns or self-manufactured firearms because 922(k) prohibits only the possession of a gun where a pre-existing serial number has been removed, obliterated, or altered.  ATF, by contrast, defines privately-manufactured firearms as guns which “may have no markings at all”—and much of the so-called “ghost-gun” litigation focuses on when in the manufacturing process a serial number must be added.

[4] It’s also possible that some may remove serial numbers from guns so as to prevent any government tracking because they are hoping to stay off the grid or do not believe the government has a right to track their firearm purchases.  It would be quite difficult, of course, to quantify this group—and it seems relatively unlikely they would show up in tracing studies that focus on major urban areas.