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Upholding § 922(k) Ban on Unmarked Firearms, Court Charts Course for Second Amendment Challenges

In a ruling upholding 18 U.S.C. § 922(k), which bars possession of firearms with obliterated serial numbers, the Court sets forth an extensive gloss on the proper approach to Second Amendment challenges under the Supreme Court’s path-breaking decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). Heller concluded that the Second Amendment confers an individual right to keep and bear arms, at least “for the core purpose of allowing law-abiding citizens to ‘use arms in defense of hearth and home.’” Elaborating on that ruling, today’s decision in United States v. Michael Marzzarella, Third Circuit No. 09-3185, is clearly at pains not to open any Pandora’s box. Defendants charged with gun offenses may perhaps find instead a mixed bag.

On the one hand, dicta in the new decision further entrenches a proposition as to which Heller likewise urged it would not “cast doubt”: the Second Amendment “affords no protection,” the Circuit says, “for the possession of dangerous and unusual weapons, possession by felons and the mentally ill, and the carrying of weapons in certain sensitive places.” The decision also finds several routes to upholding § 922(k), even as applied to possession exclusively within the home.

On the other hand, the Court reasons that the statute’s constitutionality should be reviewed under a standard of “intermediate scrutiny,” which is to be informed by reference to First Amendment jurisprudence addressing laws burdening protected expression. The Court further suggests that at least some gun laws may be subject to strict scrutiny. Under even intermediate scrutiny, the purpose served by a regulation burdening a protected Second Amendment interest must not be more than “reasonably necessary.”

Michael Marzzarella was charged under § 922(k) with possession of a firearm with an obliterated serial number. He moved to dismiss the indictment under the Second Amendment, lost, and entered a conditional guilty plea reserving the right to appeal the constitutional question. Affirming the motion’s denial, the Court, with Judge Scirica writing, offers an exegesis of Heller. It finds that decision to suggest a two-step approach to Second Amendment challenges, whereby a court must first ask whether a law imposes a burden on conduct falling within the scope of the Amendment’s guarantee. If it does, the court must next determine whether the law survives the appropriate “form of means-end scrutiny” – that is, rational basis review, intermediate scrutiny, or strict scrutiny.

Elaborating on the first step in this two-step approach, the Court reiterates Heller’s dictate that the Second Amendment “affords no protection to weapons not typically possessed by law-abiding citizens for lawful purposes.” By contrast, “commercial regulations on the sale of firearms do not fall outside the scope of the Second Amendment,” and will thus warrant review of “the nature and extent of the imposed condition.”

Turning to § 922(k), the Court “cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms.” It then concludes that § 922(k) withstands either intermediate or strict scrutiny, although it favors the less demanding of the two: “While it is not free from doubt, we think … § 922(k) should be evaluated under intermediate scrutiny.” Whichever standard applies, the decisive fact is that banning the possession of unmarked firearms “restricts possession only of weapons which have been made less susceptible to tracing,” and not of “any otherwise lawful firearm.” Unable to “conceive of a lawful purpose for which a person would prefer an unmarked firearm,” the Court finds that “the burden will almost always fall only on those intending to engage in illicit behavior.” Accordingly, any intrusion upon a protected Second Amendment interest is trumped by the “law enforcement interest in enabling the tracing of weapons via their serial numbers.” By “enabling law enforcement to gather vital information from recovered firearms,” § 922(k) serves “not only a substantial but a compelling interest.”


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