Dеfendant is charged in a one-count indictment with knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). 1 The government alleges that, in April of 2006, officers of the Pennsylvania State Police received information from a confidential informant that the Defendant was involved in gun trafficking in and around Meadville, Pennsylvania and that the Defendant possessed a firearm with an obliterated serial number. According to the government, an undercover Pennsylvania State Trooper accompanied the confidential informant to the Defendant’s apartment on April 26, 2006, where the Defendant sold the undercover officer a .25 caliber titan pistol with a partially obliterated serial number. It is alleged that this same undercover officer purchased a second firearm from the Defendant on May 16, 2006, at which time the Defendant informed the officer that the serial number on the second firearm could be obliterated in a similar fashion.
Defendant now moves this Court to dismiss the Indictment on the ground that the charge against him infringes his Second Amendment rights. For the reasons set forth below, Defendant’s motion will be denied.
DISCUSSION 2
The Second Amendment to the United States Constitution provides:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
U.S. Const, amend. II.
In
District of Columbia v. Heller,
— U.S.-,
generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. SeeD.C.Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§ 22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.[ ]
Based on Heller, Defendant argues that 18 U.S.C. § 922(k), as applied to his case, is unconstitutional. He asserts that, under Heller, “[t]he core right of the Second Amendment is the private possession of firearms for use in defense of hearth and home” and “[t]he only limitations on the right to keep and bear arms identified by the Court were those limitations in effect at the time of the enactment of the Second Amendment.” (Def.’s Mot. to Dismiss Indictment [60] at p. 4.) Because serial numbers had not yet come into use at the time of the Second Amendment’s enactment, there were no laws extant in 1787 requiring serial markings on firearms. Defendant thus theorizes that:
[s]ince possession of a handgun with an obliterated serial number was not proscribed under the common law, and therefore not an exception to the right to keep and bear arms codified by the Second Amendment, § 922(k), as applied to this case, purports to outlaw the otherwise lawful possession of a handgun by a citizen in his home.
{Id. at p. 7.)
Defendant further theorizes that the right to possess an unmarked handgun is a fundаmental constitutional right, such that any government regulation burdening the right must be subjected to strict scrutiny. In Defendant’s view, § 922(k) cannot meet the demands of strict scrutiny and, thus, he concludes, the indictment charging him under that statute must be dismissed.
Since the Supreme Court issued its opinion in
Heller
nearly seven months ago, numerous defendants prosecuted under the federal firearms laws have challenged their criminal proceedings on Second Amendment grounds. Notably, Defendant cites no case in which § 922(k) — or any other subsection of § 922, for that matter — has been found invalid. On the contrary, it appears that every court which has considered a Second Amendment challеnge to 18 U.S.C. § 922,
post-Heller,
has upheld the statute as constitutional.
See, e.g., United States v. Frazier,
No. 07-6135, — Fed.Appx.-,
I likewise conclude that nothing in Heller invalidates the specific provision of § 922 that is being challenged in this case. Fundamentally, Heller must be viewed in its proper perspective and distinguished from the case before me.
It must be noted at the outset that the regulations which
Heller
struck down were far broader in scope than the restriction imposed by § 922(k). As described by the
Heller
Court, the D.C. law “totally ban[ned] handgun possession in the home” and “also require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.”
The regulation at issue here imposes a burden on gun ownership that is practically negligible when compared to the District of Columbia’s complete ban on operable firearms within the home. In relevant part, § 922(k) merely prohibits individuals from possessing a firearm if the individual has knowledge that the firearm’s serial number has been obliterated, removed or altered. Since firearms with intact serial numbers are the nоrm and are readily available in our society through ordinary commercial channels, it cannot be said that § 922(k) meaningfully burdens the “core” Second Amendment right recognized in
Heller
— i.e., possession of an operable fire
Defendant attempts to liken this case to
Heller
by characterizing § 922(k) as a “complete ban on possessing a handgun that has an altered or obliterated serial number” (Def.’s Mot. to Dismiss Indictment [60] at p. 5 of 9), but the comparison is flawed. Firearms lacking serial numbers cannot be equated to “an entire class of ‘arms’ that is overwhelming chosen by American society for [the] lawful purpose” of self-defense,
Heller may also be inapposite for another reason. Defendant claims that he is being prosecuted for engaging in “the very core conduct protected by the Second Amendment” (Def.’s Mot. to Dismiss, supra, at p. 5 of 9.), but the “core” Second Amendment right recognized by Heller, as Defendant himself admits, is the right to possess a firearm “for use in defense of hearth and home.” (Id. at p. 4.) Here, the evidence allegedly will show that the Defendant was trafficking in firearms and that he sold the subject firearm to an undercover law enforcement officer. The Defendant’s possession of a firearm in connection with its private sale to another is inherently inconsistent with an intention to possess the firearm for defense of the Defendant’s home, since the Defendant cannot protect himself with a weapon that he sells away.
As the Heller Court made clear, the right to bear arms under the Second Amendment is not unconditional:
Like most rights, the right secured by the Second Amendment is not unlimited. Frоm Blackstone through the 19th-cen-tury cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... For example, the majority of the 19th-centu-ry courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [ ]
Defendant acknowledges that the right to bear arms is not without limits, but he interprets the foregoing language as indi-
In this regard I think the Defendant reads too much into
Heller.
It is clear from the majority’s language that it was disavowing any effort to establish definitive boundaries on the scope of the Second Amendment’s protection. In addition, the majority made clear in footnote 26 that the “presumptively lawful regulatory” measures which it had identified were merely exemplary and not exhaustive. In my view, the majority’s language, cited above, should not be read as implying that all modern-day gun regulations are presumptively unconstitutional.
See Luedtke,
In any event, it is worth considering that among the types of regulations which the Court implicitly sanctioned were “laws imposing conditions and qualifications on the commercial sаle of arms” and “prohibitions on the possession of firearms by felons and the mentally ill,”
Section 922(k) is one aspect of a broad statutory scheme designed both to regulate the commercial sale of firearms
and
to keep them out of the hands of those individuals who are considered dangerous. The provision, as originally enacted, was part of the Federal Firearms Act of 1938, an Act expressly designed “[t]o regulate commerce in firearms.” Pub.L. No. 785, 52 Stat. 1250. By this Act, Congress intended “to prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind.” S.Rep. No. 1189, 75th Cong. 1st Sess., 33 (1937) (quoted in
Barrett v. United States,
When Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, the provision was incorporated into Title IV of the Act and codified at 18 U.S.C. § 922(i). 5 Within months, Title IV was amended by Congress’ enactment of the Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213 (1968), which expanded upon Title IV’s regulations and re-codified § 922(i) at § 922(k). 6 See id. at § 922(k), 82 Stat. 1221.
The goal of the Gun Control Act was “not ... merely to restrict interstate sales” of firearms but, more broadly, “to keep firearms away from persons Congress classified as potentially irresponsible and dangerous.”
Barrett v. United States,
[cjommerce in firearms is channeled through federally licensed importers, manufacturers, and dealers in an attempt to halt mail-order and interstate consumer traffic in these weapons. The principal agent of federal enforcement is the dealer. He is licensed, §§ 922(a)(1) and 923(a); he is required to keep records of ‘sale ... or other disposition,’ § 923(g); and he is subject to a criminal penalty for disposing of a weapon contrary to the provisions of the Act, § 924.
See Huddleston v. United States,
Section 922(k)’s proscription against dealing in firearms with obliterated serial numbers serves these broad purposes. As our circuit court of appeals has observed:
the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving сrimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers ...
Mobley,
Importantly for our purposes, it should be noted that Congress further amended § 922(k) in 1990 so as to also make it unlawful for any person knowingly “to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” Comprehensive Crime Control Act of 1990, Pub.L. 101-647, § 2202(b), 104 Stat. 4789, 4856. The intent of this amendment wаs to expand the time frame for establishing interstate movement of the contraband, thereby expanding federal jurisdiction beyond direct interstate trafficking in untraceable weaponry to include intrastate trafficking as well. See H.R.Rep. No. 681, 101st Cong., 2d Sess., pt. 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6510 (explaining that the amendment will “expand Federal jurisdiction to permit prosecution for transactions involving ... firearms missing serial numbers where the firearms have already moved in interstate or foreign commerce” prior to the obliteration of the mark); Comprehensive Violent Crime Control Act of 1989: Hearing on H.R. 2709 Before the Subcomm. on Crime of the House Comm, on the Judiciary, 101st Cong., 2d Sess. 79-80 (1990), comments of Assistant Attorney General Edward Dennis (explaining that the amendment “would expand federal jurisdiction to permit federal prosecution for trafficking in firearms which ... have had the serial number removed or altered and which have moved in interstate commerce at any time”).
Although the Heller Court declined to exhaustively define the outer boundaries of the Second Amendment’s protection, its implicit sanctioning of laws imposing conditions and qualifications on the commercial sale of arms and laws prohibiting presumptively risky individuals from possessing firearms is significant. Section 922(k) partakes, to some extent, of both characteristics. It is part of a regulatory scheme designed to impose and enforce a specific condition upon the commercial sale of arms — namely, the requirement that all firearms which pass at some time through interstate commerce bear an intact serial number. This requirement, in turn, serves the government’s interest in discouraging the availability of untraceable firearms and ensuring that they do not fall into the hands of those individuals who would be inclined to use them for unlawful purposes. 7
In addition, the fact that the Second Amendment is enumerated in the Bill of Rights does not necessarily mean that strict scrutiny must be applied as a matter of course whenever a law burdens the right to bear arms in any manner. As one constitutional scholar has explained:
The Court has never purported to apply strict scrutiny in every provision of the Bill of Rights. Of the “first ten amendments” a grand total of two trigger strict scrutiny. Laws invading on First Amendment rights of speech, association, and religious liberty are often subject to strict scrutiny, as are laws that restrict the due process and (invisible) equal protection guarantees of the Fifth Amendment. But strict scrutiny is nowhere to be found in the jurisprudence of the Second Amendment, the Third Amendment, the Fourth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, or the Tenth Amendment. Two amendments trigger strict scrutiny; eight do not.
See Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 Const. Comment. 227, 229 (Summer 2006); id. at 239 (“[T]he old adage about laws infringing fundamental rights being subject to strict scrutiny remains a favorite of scholars, judges, and law students. And it is flatly wrong.”).
Given the
Heller
Court’s several references to First Amendment jurisprudence in the course of its opinion, Defendant contends that “it is appropriate to look to the Court’s free speech jurisprudence to discern how strict scrutiny review should be applied to legislation that burdens the right to keep and bear arms.” (Def.’s Mot. to Dismiss Indictment [60] at p. 8 of 9.) From there, Defendant likens § 922(k) to a content-based regulation of speech which invokes a presumption of unconstitutionality,
see United States v. Playboy Entertainment Group, Inc.,
Assuming for the moment that First Amendment law provides a suitable framework for determining the validity of § 922(k), it does not necessarily follow that strict scrutiny is the appropriate standard of review in this case:
Perhaps the most preferred of all rights is the freedom of speech, the so-called First Freedom. Yet strict scrutiny is not always applied in free speech cases. Traditional speech doctrine distinguishes between regulations that are content-based and those that are content-neutral. The former generally trigger strict scrutiny, but the latter do not. Content-neutral laws that limit the freedom of speech are subject to the much more deferential standard of United States v. O’Brien [391 U.S. 367 ,88 S.Ct. 1673 ,20 L.Ed.2d 672 (1968) ],[ ] under which laws are regularly upheld.[ ] Even content-based speech regulations do not always receive strict scrutiny treatment. If the content regulated is commercial speech, the courts apply a form of intermediate review established in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York [447 U.S. 557 ,100 S.Ct. 2343 ,65 L.Ed.2d 341 (1980) ].[ ] A similarly less stringent form of review is applied to content-based regulations when the government is acting as an employer (as compared to a sovereign) undеr the rule of Pickering v. Board of Education [391 U.S. 563 ,88 S.Ct. 1731 ,20 L.Ed.2d 811 (1968) ].[ ] These First Amendment doctrines have led Ashutosh Bhagwat to characterize intermediate scrutiny as the “test that ate everything” in free speech jurisprudence^ ]
Adam Winkler, supra, at 237-38 (endnotes omitted). Thus, even in cases involving the infringement of First Amendment rights, it is by no means a given that strict scrutiny will be applied.
In the area of free speech jurisprudence, “laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed” are considered content-based.
Turner Broadcasting Sys., Inc. v. FCC,
Restrictions on speech that are neutral in terms of viewpoint and subject-matter, on the other hand, “may permissibly regulate the time, place, or manner of expression if they are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”
Startzell,
To determine if a restriction is content neutral, “(t)he principal inquiry ..., in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward [v. Rock Against Racism ], 491 U.S. [781, 791, 109 S.Ct. 2746 ,105 L.Ed.2d 661 (1989) ]. It is the government’s purpose that controls. Id. A rеgulation is deemed content neutral if it serves purposes unrelated to the content of speech, regardless of whether it incidentally affects certain speakers or messages and not others. Id. That is, government regulation of speech is properly regarded as content neutral if it is “justified without reference to the content of the regulated speech.” Id. (citation and internal quotations omitted) (emphasis in original).
Startzell,
Here, as I have discussed, the restriction imposed by § 922(k) does not target any particular “class of ‘arms’ overwhelmingly chosen by American society” for a lawful purpose,
If this Court were to fashion a standard of review based on principles borrowed from First Amendment jurisprudence, a more appropriate standard of review would be the standard applicable to content-neutral time, place and manner restrictions. Section 922(k), as previously discussed, is designed to discourage the use of untraceable firearms and, in so doing, assist law enforcement in solving crimes and in keeping firearms away from those individuals who are likely to use them toward unlawful ends. As I previously noted, firearms with intact serial numbers are the norm in this society and are readily available to citizens who are otherwise permitted under the law to possess guns. As a practical matter, in the overwhelming majority of cases, the restriction imposed by § 922(k) will burden only those individuals who have a particular interest in possessing an untraceable weapon — a characteristic for which this Court is hard-pressed to imagine any legitimate use. Thus, the regulation is narrowly tailored and leaves open ample opportunity for law-abiding citizens to own and possess guns within the parameters recognized by Heller. Under this standard of review, § 922(k) passes constitutional muster.
CONCLUSION
In sum, I see nothing in the Supreme Court’s recent decision in District of Columbia v. Heller that would compel the conclusion that 18 U.S.C. § 922(k), as applied in this case, is unconstitutionаl. Defendant cites no other case or source of law which arguably places the validity of § 922(k) in question. Accordingly, for the reasons set forth above, the Defendant’s motion to dismiss the indictment will be denied.
ORDER
AND NOW, to wit, this 14th day of January, 2009, for the reasons set forth in the accompanying Memorandum Opinion,
Notes
. That provision states:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(k).
. Under the Federal Rules of Criminal Procedure, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense.
See United States v. Hurst,
No. CRIM.A.04-94-1,
. In fact, the only individuals who are appreciably burdened by § 922(k) are those individuals who have a specific interest in owning a firearm with an obliterated serial number. As is discussed infra, the only reason for obliterating a firearm’s serial number is to render the firearm "anonymous” and untraceable — a trait that is likely useful only to those who would use the firearm for illicit purposes.
. To support this assertion Defendant cites the majority's observation that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislature or (yes) even future judges think the scope too broad.” (Def.’s Mot. [60] to Dismiss the Indictment at p. 4 (citing
Heller,
. The wording was amended slightly to read:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm the importer’s or manufacturer’s serial number of which has been removed, obliterated, or altered.
Pub.L. No. 90-351, § 922(i), 82 Stat. 231.
. The wording was once again slightly modified to read:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered.
Pub.L. No. 90-618, § 922(k), 82 Stat. 1221.
. Section § 922(k), as applied to this case, is no less constitutionally valid simply because the Defendant is not a federally licensed firearms dealer. I do not read the
Heller
majori