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Serial Numbers Upheld by 3rd Circuit

This ruling strikes me as largely correct:

Scirica, who was joined by 3rd Circuit Judge Michael A. Chagares and visiting U.S. District Judge Joseph H. Rodriguez of the District of New Jersey, looked to First Amendment law in deciding that the federal ban on guns with obliterated serial numbers should be subjected to “intermediate scrutiny.”

But even if the law were held to strict scrutiny, Scirica said, it would still pass constitutional muster.

“Serial number tracing serves a governmental interest in enabling law enforcement to gather vital information from recovered firearms,” Scirica wrote, “Because it assists law enforcement in this manner, we find its preservation is not only a substantial but a compelling interest.”

Overall I think this is a reasonable ruling, and shows the courts are willing to take the Second Amendment as seriously as other constitutional rights. The fortunate thing here is that Judge Scirica rejected a rational basis test, 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 cited.

So it would seem at least that three judges of the Third Circuit are willing to treat the Second Amendment fairly. This is encouraging.

13 Responses to “Serial Numbers Upheld by 3rd Circuit”

  1. koveras225 says:

    Thought you might like to know that the link to Volokh is broken, an extra ‘http//’.

    And as much as I’d like them to apply Strict Scrutiny across the board, it’s not likely to happen, and I would have to agree that this would pass it regardless.

  2. jon says:

    Interesting that a Title 18 charge on a Title 27 requirement. I wonder if the person charged in this case was in the business of MANUFACTURE OF FIREARMS FOR SALE?

    Interesting that this Title 18 charge has no teeth on this Title 27 requirement. Just check the Table of Authority on USC (sometimes refered as Book 51 and usually missing in a Law Library only to be found stuffed in some Judges desk out of sight and out of mind). If you ask 1000 lawyers 999 will tell you that case law prevails, but that one Lawyer in a thousand will get you out of a jam by holding the Prosecution to the Letter of the Law.

    Oh well, just another case of pleading to an ERROR AT LAW.

  3. dustydog says:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Denying people the right to obliterate serial numbers engraved on a firearm fall under ‘abridging the freedom of the press’. The term ‘press’ doesn’t just refer to news media; it also refers to books, pamphlets, and engravings for informational purposes.

  4. WallPhone says:

    Dusty:

    I can see how obliterating a serial number could be akin to burning a flag as a political statement, but private destruction of information just doesn’t sit well with me. A lot of what I own that has both high liquidity in value and man-portable also has serial numbers, and even with those I can’t see a non-subversive reason to remove them.

  5. Shootin' Buddy says:

    “And as much as I’d like them to apply Strict Scrutiny across the board, it’s not likely to happen, and I would have to agree that this would pass it regardless.”

    O.K., how about a law requiring serial numbers on books and its obliteration or possession of a book with an obliterated serial number is unlawful?

    It would be declared unconstitutional within minutes of signing.

    Dirty, rotten hypocrites. The Bill of Rights is nothing more than Orwell’s barn–some rights are more equal than others.

  6. koveras225 says:

    “O.K., how about a law requiring serial numbers on books and its obliteration or possession of a book with an obliterated serial number is unlawful?

    It would be declared unconstitutional within minutes of signing.

    Dirty, rotten hypocrites. The Bill of Rights is nothing more than Orwell’s barn–some rights are more equal than others.”

    There are hypocrites, and then there are people who understand the judicial standards of scrutiny. What I personally believe is constitutional is largely irrelevant when it comes to applying a standard. The question at hand is not one of personal belief, but whether or not the law in question can pass the widely accepted ‘test’.

    Skipping Intermediate Scrutiny and going straight to Strict, there are three questions to be asked.

    1. Is it justified by a compelling governmental interest?
    A. Yes, the government has a compelling interest in being able to trace firearms that have been stolen and/or used in the commission of a crime.

    2. Is it narrowly tailored to achieve that goal/interest?
    A. Yes, requiring manufacturers to assign unique serial numbers to firearms and making it illegal to remove or alter such markings implements a single requirement that largely applies only to licensed manufacturers (Type 07 FFL, etc), and makes only two actions illegal (altering/removing the s/n and possessing a firearm with an altered/removed s/n). It might be noted that the serial number requirement only applies to firearms manufactured by FFLs and only then those manufactured after the ’68 GCA. Anything manufactured by a non-FFL or prior to 1968 is not required to have a serial number (although it is still illegal to remove it if present).

    3. Is it the least restrictive means for achieving that interest?
    A. I don’t see any answer other than a ‘yes’ here. Requiring a serial number is about the only effective and simplest way of tracing an individual firearm. Without one, there is effectively no way to act on this particular interest. Allowing anyone to remove any serial number at will also effectively defeats the ability to trace a firearm.

    As usual – Not a lawyer, no wish to be, I could be wrong.

  7. Diomed says:

    jon –

    WTF are you talking about? Title 27 is the federal liquor code. He was charged with violating 18 USC 922(k). That’s the Gun Control Act.

  8. dustydog says:

    Well-ordered liberty is a key concept, that we accept infringements on all our rights for our personal good and for the common good. We should still keep careful accounting.

    As long as your guns have serial numbers, you don’t actually own you guns; you just have an End Users Licensing Agreement with the government.

  9. Sebastian says:

    In that instance I don’t own the computer this blog runs on either, because it has a serial number. Nor do I own my car… It has one too, and much like a gun’s, I can’t deface it.

  10. jon says:

    Diomed…..Title 27 is Alcohol, Tobacco and Firearms, and if you were to read the title page you would find that it concerns only “Manufacture for Sale”.

    Just go down to your local County Courthouse and pull the copy from the Library (Library open to all) and have a good read. If you instead lack the time to do a read at the Library and opt out for an internet search/read you will find that the TITLE PAGE has been opted out. The Title Page tells you a lot about what type of Code (Codes voted into Law by Congress and Codes named by Congress but not voted into Law are noted on the Title Page) you are dealing with and if the Internet sites are leaving it out then you must question: “WHY”.,,,

    WHY, because some of the Titles are Law and some are Regulations. The Law applies to EVERYONE and REGULATIONS apply only to those engaged in the named contents of the Title, ie: TITLE 27..Manufacture for Sale…Ok, lets say I grow a row of Tobacco plants in my garden so I can roll my own Cigars for my personal use. Along comes the ATF and busts me for giving away one of my Cigars to an acquaintance. CHARGED with not paying Cigar Tax. When I get to Court I petition the Bench with a “Statement under penalty of perjury that I am not engaged in the MANUFACTURE FOR SALE as noted on the title page of TITLE 27″. Now it is up to ATF to prove their charge to the Court identifying me as a person who is engaged in the Manufacture for Sale before the Judge can ask “How do you Plead?”….This whole thing is about VENUE, and if I Manufacture for Sale then ATF has venue in Court and if I just enjoy growing and rolling MY OWN cigars then I have VENUE, and any Judge will tell you its all about VENUE and VENUE PREVAILS on all questions at law…….

    Please take the time to do some reading at the County Courthouse Library, It only took me 6 years to read all of books in the County Courthouse.

  11. AM says:

    And how does “tracing” a firearm help since the feds are not allowed to keep a record of firearm sales past thirty days?

    Are they using some other form of registration?

    Inquiring minds would like to know.

  12. koveras225 says:

    @AM

    The feds may not be able to retain data from NICS checks, which don’t involve any specific information concerning the firearm you’re purchasing anyway… But licensed FFL holders are required to keep a bound book recording acquisitions and dispositions of firearms as well as any form 4473s pretty much indefinitely.

    The information contained in the bound book includes, among other things, the make, model, serial number, caliber, type, and information on who it was received from and who it was disposed of to. And all that information is required to be made available to the BATF upon request.

  13. Diomed says:

    Jon,

    You are confusing regulations with laws. Title 27 of the United States Code is law. It deals with liquor. Title 27 of the Code of Federal Regulations is, surprise, regulation – of alcohol, tobacco products, and firearms. Statutory laws and regulations are different, and interchanging them leads to misunderstandings that can fatally undermine whatever point it is you’re trying to make.

    The case at hand deals with a violation of the Gun Control Act, which is at 18 USC 921 et seq. It is in the US Code, it is statute law. The implementing regulations are at 27 CFR 478. The specific regulation for §922(k) is §478.34. It covers any firearm that has been in interstate commerce, and compliance is not restricted to the industry, as you mistakenly believe.

    Whether the government has the authority to make those laws is another discussion. They have and we have to live with them. Your misapprehension of them, no matter how innocent or well-intentioned, will not get you out of jail.

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