UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RANDY PRICE, Defendant - Appellee.
No. 22-4609
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 6, 2024
Argued: March 20, 2024
ON REHEARING EN BANC; PUBLISHED
DISTRICT OF COLUMBIA; CALIFORNIA; COLORADO; CONNECTICUT; DELAWARE; HAWAII; IDAHO; ILLINOIS; MAINE; MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA; NEW JERSEY; NEW MEXICO; NEW YORK; NORTH CAROLINA; OHIO; OREGON; PENNSYLVANIA; RHODE ISLAND; WASHINGTON; THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; EVERYTOWN FOR GUN SAFETY; BRADY; MARCH FOR OUR LIVES,
Amici Supporting Appellant.
Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE, WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, HEYTENS, BENJAMIN, and BERNER, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the majority opinion, in which Chief Judge Diaz, Judge Wilkinson, Judge King, Judge Thacker, Judge Harris, Judge Heytens, Judge Benjamin, and Judge Berner joined. Judge Niemeyer wrote an opinion concurring in the judgment. Judge Agee wrote an opinion concurring in the judgment. Judge Quattlebaum wrote an opinion concurring in the judgment, in which Judge Rushing joined. Judge Gregory wrote a dissenting opinion. Judge Richardson wrote a dissenting opinion.
ARGUED: William Andrew Glaser, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William S. Thompson, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. Janet Carter, William J. Taylor, Jr., EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety. Shira Lauren Feldman, BRADY, Washington, D.C.; Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York; John Graubert, Sarah Suwanda, Kendall T. Burchard, Washington, D.C., Priya Sundaresan Leeds, COVINGTON & BURLING LLP, San Francisco, California, for Amici Brady and March for Our Lives. Karl A. Racine, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Arjun P. Ogale, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Washington, D.C., for Amicus District of Columbia. Rob Bonta, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, Sacramento, California, for Amicus State of California. William Tong, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Anne E. Lopez, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, for Amicus State of Hawaii. Kwame Raoul, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus State of Illinois. Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of Maryland. Dana Nessel, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Edward E. Manibusan, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE NORTHERN MARIANA ISLANDS, Saipan, Northern Mariana Islands, for Amicus Commonwealth of the Northern Mariana Islands. Hector Balderas, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW MEXICO, Santa Fe, New Mexico, for Amicus State of New Mexico. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Amicus State of North Carolina. Philip J. Weiser, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF COLORADO, Denver, Colorado, for Amicus State of Colorado. Kathleen Jennings, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE, Wilmington, Delaware, for Amicus State of Delaware. Lawrence G. Wasden, Attorney General, OFFICE OF THE ATTORNEY
WYNN, Circuit Judge:
Randy Price was charged in a two-count indictment with possession of a firearm with an obliterated serial number, in violation of
This appeal thus presents us with a single question: Is
I.
On May 3, 2022, Price was charged in a two-count indictment with possession of a firearm with an obliterated serial number, in violation of
The district court granted in part and denied in part Price‘s motion. It held that Bruen did not render
II.
We have jurisdiction over this interlocutory appeal pursuant to
We review a district court‘s decision to grant a motion to dismiss an indictment de novo. United States v. Wass, 954 F.3d 184, 187 (4th Cir. 2020)
III.
Section 922(k) provides, in relevant part, that “[i]t shall be unlawful for any person knowingly . . . to possess 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.”1
Following the Supreme Court‘s decision in District of Columbia v. Heller, 554 U.S. 570 (2008)—which held that the Second Amendment confers an individual right to possess and carry weapons for self-defense—courts throughout the country, including
At step one of the post-Heller framework, courts analyzed whether the challenged law regulated activity that fell within the scope of the Second Amendment right to bear arms as “originally understood.” Id. at 18 (quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)); see United States v. Chester, 628 F.3d 673, 680–81 (4th Cir. 2010), abrogated by Bruen, 597 U.S. 1. If a court concluded that the activity fell within that scope, then at step two, it analyzed “how close the law [came] to the core of the Second Amendment right and the severity of the law‘s burden on that right.” Bruen, 597 U.S. at 18 (quoting Kanter, 919 F.3d at 441); see Chester, 628 F.3d at 682.
In Bruen, the Supreme Court rejected courts’ post-Heller, two-step framework as involving “one step too many.” Bruen, 597 U.S. at 19. Although the Court held that step one of that framework was “broadly consistent with Heller, which demands a test rooted in the Second Amendment‘s text, as informed by history,” it rejected the means-end approach of step two. Id. Instead of applying means-end scrutiny to determine whether a challenged regulation passes constitutional muster, Bruen set forth a new framework under which courts must now analyze Second Amendment challenges: “When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 24. More recently, in United States v. Rahimi, 144 S. Ct. 1889 (2024), the Supreme Court further clarified that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024).
Bruen thus establishes a new “two-step evaluation.” Id. at 1928 (Jackson, J., concurring); accord id. at 1932–33 (Thomas, J., dissenting). First, we must ask whether the Second Amendment‘s plain text covers the conduct at issue. If not, that ends the inquiry: the Second Amendment does not apply. Cf. Bevis v. City of Naperville, 85 F.4th 1175, 1197 (7th Cir. 2023) (noting that its conclusion that the arms at issue were not protected by the Second Amendment was sufficient to resolve the constitutional question but nonetheless continuing to the second step of the analysis), cert denied sub nom. Harrel v. Raoul, No. 23-877, 2024 WL 3259606 (U.S. July 2, 2024). But if it does, then, second, we must ask whether the Government has justified the regulation as consistent with the “principles that underpin” our nation‘s historical tradition of firearm regulation. Rahimi, 144 S. Ct. at 1898. Because we conclude below that Price‘s challenge falters at step one, we need only address what is required at that phase of the analysis.
Price argues that our inquiry at step one is extremely narrow: that, at least in this case, the only relevant question is whether the regulation criminalizes “keep[ing] and bear[ing]” any “Arms.”
The Second Amendment provides that “[a] well regulated Militia, being necessary
Most relevant here, Heller concluded that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. That is, the Court recognized that an “important limitation on the right to keep and carry arms” existed regarding the “sorts of weapons protected.” Id. at 627. Drawing on its opinion in United States v. Miller, 307 U.S. 174 (1939), the Court recognized that a limitation on the types of weapons protected was supported by the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Heller, 554 U.S. at 627 (cleaned up).
In Miller, the Supreme Court considered whether a federal ban on the possession or use of a shotgun with a barrel of less than eighteen inches violated the Second Amendment. Miller, 307 U.S. at 178. The Court concluded that “[i]n the absence of any evidence” showing that a short-barreled shotgun had any “reasonable relationship to the preservation or efficiency of a well regulated militia,” it “[could ]not say that the Second Amendment guarantees the right to keep and bear such an instrument.” Id. And it further concluded that “[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Id.
Considering this language, the Heller Court concluded that Miller‘s holding was based on a conclusion that “the type of weapon at issue was not eligible for Second Amendment protection” and that Miller thus stood “for the proposition that the Second Amendment right . . . extends only to certain types of weapons.” Heller, 554 U.S. at 622–23. However, it noted that Miller lacked a detailed analysis of the precise types of weapons to which the Second Amendment extends. Id. at 623–24. The Court thus undertook that analysis itself. Id. at 624–26.
First, the Court acknowledged that Miller‘s reference to “ordinary military equipment” might be read as an indication that the Second Amendment protects “only those weapons useful in warfare.” Id. at 624 (quoting Miller, 307 U.S. at 179). But it flatly rejected such a reading, noting that it would render the National Firearms Act‘s restrictions on machineguns, which were certainly useful in warfare, seemingly unconstitutional. Id. Instead, the Heller Court concluded that Miller‘s reference to ordinary military equipment could only be properly understood in tandem with the language that followed: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id. (quoting Miller, 307 U.S. at 179).
Thus, the Court reasoned that Miller‘s reference to ordinary military equipment was best understood as meaning that the Second Amendment extends only to weapons useful to a Founding-era militia—“arms in common use at the time for lawful purposes like self-defense.”2 Id. (cleaned up). So, Miller stood for the proposition “that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns“—a proposition Heller adopted as “accord[ing] with the historical understanding of the scope of the [Second Amendment] right.” Id. at 625.
Nothing in Bruen abrogated Heller‘s extensive discussion of the contours of the scope of the right enshrined in the Second Amendment. In fact, Bruen confirmed that the limitations on the Second Amendment right identified by Heller are inherent in the meaning of “the right of the people” and should be addressed at the first step of its new framework.
Again, Bruen‘s first step requires us to evaluate whether “the Second Amendment‘s plain text covers an individual‘s conduct.” Bruen, 597 U.S. at 24. The Bruen Court asked three questions to resolve this inquiry: (1) whether the petitioners were “part of the people whom the Second Amendment protects“; (2) whether the weapons regulated by the challenged regulation were “in common use” for a lawful purpose, in that case, “self-defense“; and (3) whether the Second Amendment protected the petitioners’ “proposed course of conduct.” Id. at 31–32 (cleaned up).
The Court in Bruen focused on the third of these inquiries, and for good reason—there was no dispute in that case that the petitioners, “two ordinary, law-abiding, adult citizens,” were among the people protected by the Second Amendment, and neither party disputed that the weapons regulated by the challenged regulation—handguns—were in common use for self-defense. Id. But by engaging in these inquiries at step one, Bruen made clear that the limitations on the scope of the Second Amendment right identified in Heller are inherent in the text of the amendment. Cf. United States v. Avila, 672 F. Supp. 3d 1137, 1143 n.1 (D. Colo. 2023) (“Each of these questions address interpretive issues relating to different ‘textual elements‘—‘the people,’ ‘Arms,’ and ‘keep and bear,’ respectively—of what the Supreme Court calls the Second Amendment‘s ‘operative clause.‘” (quoting Bruen, 597 U.S. at 31–32)); Rahimi, 144 S. Ct. at 1923 (Kavanaugh, J., concurring) (noting that Heller “indicated that . . . the Second Amendment attaches only to weapons ‘in common use‘“).
We thus reject Price‘s argument that we are barred from considering the historical limitations on the scope of the right at step one of the framework set forth in Bruen. A plain reading of Heller and Bruen leads us to the opposite conclusion: we can only properly apply step one of the Bruen framework by looking to the historical scope of the Second Amendment right.3 Id. at 1897 (majority opinion) (citing
Because defining the word “Arms” within its historical context leads us to conclude that some weapons are excluded from Second Amendment protection entirely, and because, as discussed below, the weapons regulated by
IV.
Having explained the inquiry required by Bruen‘s first step, we now turn to applying it in the present case. Because it is outcome determinative here, we focus our analysis on Bruen‘s second step-one inquiry: whether the weapons regulated by
presumptively protected, a law is constitutional only if it has a “relevantly similar” “historical analogue.” Rahimi, 144 S. Ct. at 1901–02 (quoting Bruen, 597 U.S. at 29–30). But where, as here, a weapon falls outside the plain text of the Second Amendment, there is no such presumption of protection and we thus need not parse every arguably similar historical regulation.
unmarked firearms have value “primarily for persons seeking to use them for illicit purposes.” Id. We find these aspects of its opinion persuasive.
That said, the Third Circuit was not convinced that firearms with obliterated serial numbers were entirely analogous to the prototypical example of an unprotected weapon—the short-barreled shotgun—because, it reasoned, “[w]hile a short-barreled shotgun is dangerous and unusual in that its concealability fosters its use in illicit activity, it is also dangerous and unusual because of its heightened capability to cause damage.” Id. (emphasis added). By contrast, while arms with obliterated serial numbers were dangerous because of their likelihood to be used illicitly, they were nonetheless “no more damaging than a marked firearm” when used. Id. For that reason, the Third Circuit court moved to the second step of the pre-Bruen analysis, assuming without deciding that
Price would have us reach the same impasse as the Third Circuit: that while arms with obliterated serial numbers are preferable to criminals because of their concealability, they are functionally no different from serialized arms. And Price argues that, to the extent any bearable arms are excepted from the Second Amendment‘s protection, such exception applies only to weapons that are exceptionally dangerous because of their function. So, in his view, any arguable exception to the Second Amendment is based solely on dangerousness of function and thus does not apply to the arms regulated by
We reject Price‘s view of the scope of the Second Amendment. To the extent the court in Marzzarella was unable to conclude that firearms with obliterated serial numbers were categorically unprotected, that was because it misread Heller as directing courts to look only to a weapon‘s dangerousness, rather than also to whether it is commonly used for a lawful purpose.
individual use“). In other words, while historical tradition regarding the regulation of dangerous weapons supports a limitation on the scope of the Second Amendment right, a weapon must be in common use for a lawful purpose to be protected by that right.
Thus, the Supreme Court has directed us to determine whether a weapon‘s common purpose is a lawful one—such as self-defense—or one that would be unlawful for ordinary citizens to engage in—such as concealing the commission of crimes, as with short-barreled shotguns, or waging war, as with machineguns. This is an inquiry that courts are equipped to apply consistently. For example, if available, courts can look to statistics regarding weapons commonly used in crimes versus weapons commonly chosen by law-abiding citizens for self-defense. And courts can also, as the Supreme Court did in Heller, apply common sense and consider whether there are any reasons a law-abiding citizen would want to use a particular weapon for a lawful purpose. See Heller, 554 U.S. at 629 (“There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.“). If no common-sense reasons exist for a law-abiding citizen to prefer a particular type of weapon for a lawful purpose like self-defense, and no evidence suggests that law-abiding citizens nonetheless commonly choose the weapon for lawful uses, then courts can conclude that the weapon is not in common use for lawful purposes.
contributes to why it would be an unlikely choice for a law-abiding citizen to use for self-defense, and the lethality of a machinegun has led the Supreme Court to conclude that such weapons are best suited for war, not self-defense. As Judge Wilkinson‘s good opinion in Bianchi v. Brown makes clear, a weapon being extraordinarily dangerous is certainly a relevant factor when evaluating whether that weapon is protected by the Second Amendment. Bianchi v. Brown, No. 21-1255, slip op. at 21–22 (4th Cir. Aug. 6, 2024) (discussing the weapons the Supreme Court has determined fall beyond the Second Amendment‘s scope and noting that that “[w]hat brings [them] together, and what separates them from the handgun, is their ability to inflict damage on a scale or in a manner disproportionate to the end of personal protection. As such, they are weapons most suitable for criminal or military use“). But we reject dangerousness of functionality as the sole determinative factor. Put another way, in our view, the Third Circuit in Marzzarella failed to reach a firm conclusion on whether firearms with obliterated serial numbers are categorically excluded from the Second Amendment‘s scope because of its mistaken belief that it needed to conclude both that a firearm with an obliterated serial number was not in common lawful use and that it was functionally more dangerous than other weapons. While the second conclusion is relevant, only the first conclusion is required.
The question before us is thus whether firearms with obliterated serial numbers are in common use for lawful purposes. On that point, we agree with the Third Circuit that there is “no compelling reason why a law-abiding citizen” would use a firearm with an obliterated serial number and that such weapons would be preferable only to those seeking to use them for illicit activities. Marzzarella, 614 F.3d at 95. This is the same common-sense reasoning applied by the Supreme Court in Heller.
Further, there is no evidence before us that law-abiding citizens nonetheless choose these weapons for lawful purposes like self-defense.8 In fact, the opposite appears to be true—firearms with obliterated serial numbers are not common at all. A 2023 report from the Bureau of Alcohol, Tobacco, and Firearms
and-traced-us/download [https://perma.cc/7LTX-ZDVG].9 Of course, this statistic relates only to those firearms seized by law enforcement agencies. But if firearms with obliterated serial numbers are not even in common use for criminal purposes—the only scenario in which we can conceive a reason to prefer such weapons10—then we think it fair to conclude that such arms are not in common use for lawful purposes. Thus, we conclude that
We find the hypothetical example offered by the district court to conclude otherwise to be unpersuasive. The district court evoked a hypothetical “law-abiding citizen” who legally purchases a firearm bearing a serial number and then removes the serial number with “no ill intent.” United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022). When this hypothetical law-abiding citizen dies, he leaves his gun collection to his similarly law-abiding daughter, who—aware that the firearm has an obliterated serial number11—displays it in her father‘s memory. Id. The district court concluded that both its
hypothetical law-abiding citizen and the citizen‘s daughter would be in violation of
In so concluding, the district court noted that “while the law-abiding citizen‘s possession of the firearm was originally legal, it became illegal only because the serial number was removed,” thus infringing on the citizen‘s right to possess a firearm. Id. But the illegal conduct is not the possession of the firearm qua firearm: it is the possession of a firearm with an obliterated serial number. Firearms that are originally lawfully purchased are not somehow imbued with constitutional coverage no matter what happens after they leave the dealer. Regardless of any originally lawful nature, a shotgun becomes contraband
Another hypothetical example further illustrates this point. Imagine a handgun—the admittedly quintessential self-defense weapon—has been modified such that the grip is made of illegally imported ivory. To accept Price‘s view of
The district court‘s hypothetical is also flawed for another reason: it hinges on the notion that the law-abiding citizen removed the serial number with no ill intent. The district court apparently did not consider what legitimate motivation it imagines the law-abiding citizen had for removing the serial number, but even if we could dream up such a peculiar scenario, our conclusion would not change. Heller and Bruen direct us to analyze not only whether a weapon might have some conceivable lawful use, but also whether such use is common. Cf. United States v. Reyna, No. 3:21-CR-41 RLM-MGG, 2022 WL 17714376, at *5 (N.D. Ind. Dec. 15, 2022) (“That a law-abiding citizen could use a gun with an obliterated serial number for lawful self-defense isn‘t evidence that guns with obliterated serial numbers are typically used by law-abiding citizens for lawful self-defense.” (emphasis added)). And here, because we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the Second Amendment‘s protection.
V.
The Supreme Court has made clear that while the Second Amendment protects an individual right to keep and bear arms, certain arms fall outside the scope of that protection. To determine whether a regulated arm is protected by the Second Amendment, we must first ask whether it is in common use for a lawful purpose. Because we conclude that firearms with obliterated serial numbers are not, we conclude they fall outside of the scope of the Second Amendment‘s protection. Thus,
REVERSED AND REMANDED
NIEMEYER, Circuit Judge, concurring in the judgment:
The defendant, who was charged with violating
The focus of the provision—the element that distinguishes it from other
Nonetheless, even subjecting
[B]ecause we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self-defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the Second Amendment‘s protection. . . . Thus,
§ 922(k) ‘s regulation of such arms does not violate the Second Amendment.
Ante at 25–26. I agree with this holding. In reaching it, however, the majority employs an analysis that unnecessarily moves the historical component of the Bruen test into its first step, contrary to what Bruen instructs.
In Bruen, the Court held that a New York law governing the process to obtain a license to carry a handgun in public was unconstitutional because the law conditioned the license‘s issuance on the applicant‘s demonstrating that he or she had some “special need” that justified carrying a handgun beyond a general interest in self-defense. 597 U.S. at 11-13, 38. Without demonstrating that special need, a citizen in New York could not carry a handgun in public for self-defense. In holding New York‘s law unconstitutional, the Bruen Court began by articulating the applicable test for analyzing a government regulation under the Second Amendment. It stated:
When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s unqualified command.
Id. at 24 (emphasis added) (cleaned up). The Court thus adopted a two-step text-and-history test for determining
Explaining the test, the Bruen Court noted that at the first step, a court must focus on the conduct of the person mounting a Second Amendment challenge and determine whether it is covered by the text of the Amendment—“the right of the people to keep and bear Arms.” 597 U.S. at 32 (quoting
After the Court established and explained the two-step analysis for application of the Second Amendment, it then turned to the New York law and, focusing on the conduct regulated, it readily concluded that the “textual” step of the test was satisfied, stating, “The Second Amendment‘s plain text thus presumptively guarantees petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.” Bruen, 597 U.S. at 33. But that was just the first step in determining the scope of the “right” protected. The second step required New York to demonstrate that there was a historical tradition that justified its requiring a license applicant to demonstrate a special need to carry a handgun beyond the needs of ordinary self-defense. On that step, the Court concluded that New York had shown no “historical tradition limiting public carry only to those . . . who demonstrate a special need.” Id. at 38. Accordingly, the Court held, after completing the second step, that the New York licensing law was unconstitutional.
Were this not clear enough, the Supreme Court again in United States v. Rahimi, 602 U.S. 213 (2024), reiterated its text-history two-step analysis, distinguishing between conduct, which the text addresses, and the regulation, which history must justify and on which the government has the burden. Explaining Bruen, the Rahimi Court stated, “We also clarified that when the Government regulates arms-bearing conduct, . . . it bears the burden to ‘justify its regulation.‘” Slip Op. at 6–7 (emphasis added) (quoting Bruen, 597 U.S. at 24). And, as Rahimi repeated, the way the government carries this burden is by showing that the “challenged regulation fits within” “our ‘historical tradition of firearm regulation.‘” Id. at 6 (quoting Bruen, 597 U.S. at 17).
The majority nonetheless loads its historical analysis—from which it determines that because firearms with obliterated serial numbers are “not in common use for a lawful purpose,” they fall outside the scope of the Second Amendment right—into step one of Bruen, contrary to Bruen‘s test, as reaffirmed in Rahimi. In rationalizing its position, the majority states that at step one, three questions must be answered, one of which is “whether the weapons regulated by the challenged regulation were ‘in common use’ for a lawful purpose.” Ante at 12. It then reasons that “[a] plain reading of Heller and Bruen leads us to the . . . conclusion [that] we can only properly apply step one of the Bruen framework by looking to the historical scope of the Second Amendment right.” Ante at 12–13 (latter emphasis added). Finally, the majority points to the historical tradition, already recognized by the Supreme Court, of governments’ restricting weapons that are not “in common use for a lawful purpose.” As it states, the ”historical tradition regarding the regulation of dangerous weapons supports a limitation on the scope of the Second Amendment right,” namely that “a weapon must be in common use for a lawful purpose to be protected by that right,” a conclusion the majority reaches at step one. Ante at 19 (first emphasis added).
In short, while the majority recognizes that historical tradition is the means by which to assess whether
Respectfully, I conclude that the majority‘s shift of the historical tradition to step one is simply wrong.
Nonetheless, I believe that the majority reaches the right conclusion—that a “firearm with a removed, obliterated, or altered serial number is not a weapon in common use for lawful purposes” and thus falls outside “the scope of the right enshrined in the Second Amendment.” Ante at 4. As Bruen pointed out, Heller made clear that the Second Amendment protects “only the carrying of weapons that are those ‘in common use at the time’ as opposed to those that ‘are highly unusual in society at large.‘” 597 U.S. at 47 (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). Based on the publicly available statistics, combined with common sense, the majority was right to conclude that firearms that have had their serial numbers obliterated are rare because the reason people tamper with firearm serial numbers is to make it harder for law enforcement officers to trace their use in criminal activity. Thus, I agree that the weapons regulated by
Accordingly, I concur in the judgment.
AGEE, Circuit Judge, concurring in the judgment:
I agree with the majority in that it reverses the district court‘s order dismissing Price‘s
To mount a successful facial challenge to a law passed by Congress and signed by the president, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). That is to say, the challenger must demonstrate that the law “is unconstitutional in all its applications.” Bucklew v. Precythe, 587 U.S. 119, 138 (2019) (emphasis added). As the Supreme Court has observed, this is a difficult standard to meet. See Salerno, 481 U.S. at 745; see also United States v. Rahimi, 602 U.S. 213 (2024), slip op. at 8 (applying this standard to a Second Amendment facial challenge to
Price is a convicted felon, and a violent felon at that. He has convictions for involuntary manslaughter, aggravated robbery, attempted felonious assault, and domestic violence, among others. As a result of those convictions,
There can be no serious dispute that
At the outset, the Supreme Court has emphasized that the Second Amendment protects “the right of law-abiding, responsible citizens” to keep and bear arms for self-defense. N.Y. State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. 1, 26 (2022) (emphasis added) (quoting District of Columbia v. Heller, 554 U.S. 570, 635 (2008)). It has also been careful not to “cast doubt” on the legality of “longstanding prohibitions on the possession of firearms by felons,” which the Court expressly identified as “presumptively lawful regulatory measures.” Heller, 554 U.S. at 626, 627 n.26; accord McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality opinion); Bruen, 597 U.S. at 72 (Alito, J., concurring); id. at 81 (Kavanaugh, J., joined by Roberts, C.J., concurring). In fact, the Court just reaffirmed this point in United States v. Rahimi, 602 U.S. ---, (2024), providing that ”Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.” Id. (slip op. at 15). And that Heller actually “stated that many such prohibitions, like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.‘” Id.
To be sure, following Bruen and its clarified two-part test focusing on the Second Amendment‘s text and historical tradition, some of our sister circuits have held that
But no federal court has accepted the extraordinary claim that
And for good reason. As multiple jurists and historians have chronicled, there is a robust historical tradition in this country of prohibiting certain individuals deemed to be
dangerous from possessing a firearm. See, e.g., United States v. Perez-Garcia, 96 F.4th 1166, 1189 (9th Cir. 2024) (“[T]he Anglo-American right to keep and bear arms for self-defense has always coexisted with legislative authority to disarm groups or individuals whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, to themselves or others.” (emphasis added)); Duarte, 2024 WL 2068016, at *15–18, *20 (discussing various founding-era laws disarming certain groups of people, such as British loyalists, based on a perceived threat of violence or rebellion); Kanter, 919 F.3d at 454, 458 (Barrett, J., dissenting) (“The historical evidence . . . [shows] that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. . . . [F]ounding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” (emphases added)); Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 265 (2020) (“Like the English, and out of similar concerns of violent insurrections, the colonists disarmed those who might rebel against them. . . . [T]he justification was always that those being disarmed were dangerous.” (emphasis added)).
The upshot of all this is that even if
That being so, Price cannot succeed in bringing a facial challenge to
For this reason, I would not reach the weighty and difficult issues the majority reaches—and decides—today. It is not necessary to do so to resolve this case. And as the Chief Justice has exhorted, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Dobbs v. Jackson Women‘s Health Org., 597 U.S. 215, 348 (2022) (Roberts, C.J., concurring). In deciding more than is necessary to resolve the challenge made here, the majority offers an advisory opinion. And that course runs headlong into Article III‘s limits on the federal courts’ powers, United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947), as well as the “fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) (cleaned up). I would instead reverse the district court‘s dismissal of the
QUATTLEBAUM, Circuit Judge, with whom Judge RUSHING joins, concurring in judgment:
When it comes to determining whether regulations violate the Second Amendment, New York Rifle & Pistol Association v. Bruen presents both a test and a puzzle. 597 U.S. 1 (2022). The test allocates burdens across two steps. If the Second Amendment‘s “plain text” covers the individual‘s conduct, the amendment “presumptively protects that conduct.” Id. at 24. And if so, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 24. The puzzle is ascertaining where the amendment‘s limits—acknowledged in Bruen and before—fit into Bruen‘s two steps.
The limit central to this appeal is common use. The sorts of weapons that the Second Amendment protects are those “in common use at the time.” Id. at 21 (quoting District of Columbia v. Heller, 554 U.S. 570, 627 (2008)). That is, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. But, while this limit to the Second Amendment is clear, the puzzle we face is whether to consider it at Bruen‘s first or second step.
This methodological point matters. Bruen seems to burden different parties on each of its two steps. Bruen does not specify who bears the burden on the plain text step but confirms that if the plain text does cover the conduct of the person challenging the law, the government “must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” 597 U.S. at 24. This sequencing suggests the burden shifts, from the challenger on the first step to the government on the second. In some cases, the burden makes all the difference.
In this case, the majority analyzes common use at Bruen‘s plain text step, while Judge Richardson in dissent and Judge Niemeyer in concurrence reason that common use falls under Bruen‘s historical tradition step. Our sister circuits have also splintered on the issue.1 In my view, common use comes into play on step two. Even so, I would reverse the district court‘s decision holding
I.
Before articulating or applying rules on common use, we must first solve Bruen‘s puzzle. Does common use fit into Bruen‘s first step as a matter of plain text or into Bruen‘s
second step as a matter of historical tradition? To answer this question, we must understand what “plain text” encompasses.On one theory, “plain text” implies a limited inquiry on Bruen‘s first step into definitional sources, saving historical sources for an ultimate determination on the second step. Id. at 24. Since common use limits the types of
But Bruen is not so simple. Bruen alternatively could be read to suggest plain text is based on more than lexical sources. For starters, Bruen relied heavily on Heller, and Heller demonstrated that history informs the entire
Rather, history has some role to play on both of Bruen‘s steps. On the first step, history “elucidates how contemporaries understood the text—for example, the meaning of the phrase ‘bear Arms.‘” United States v. Rahimi, 144 S. Ct. 1889, 1925 (2024) (Barrett, J., concurring) (quoting Heller, 554 U.S. at 582-92). On the second step, history “also plays the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law.” Id. Justice Barrett has called this latter use of history “original contours” history, in that “[i]t looks at historical gun regulations to identify the contours of the right.” Id. Like Justice Barrett, I believe that Bruen‘s first step saves room for more than founding-era dictionaries, allowing courts to refer to historical sources to interpret the
As already discussed, lexicon would not limit “Arms” to weapons in common use, but going beyond lexical sources to interpret the
Nevertheless, further digging unearths additional puzzle pieces that confirm common
Also supporting this conclusion is Heller‘s description of other historically grounded limitations of the
To be fair, the conclusion that common use falls under Bruen‘s second step must be squared with how Bruen applied the common-use principle to a New York licensing regime for the concealed carry of a handgun. Bruen discussed common use in the step one, plain text portion of the opinion. There, the Court stated that handguns are “weapons ‘in common use’ today for self-defense.” Id. at 32 (quoting Heller, 554 U.S. at 627). Why? Candidly, I have no compelling explanation. One possibility
Whatever reason common use appeared in Bruen‘s step one discussion, Bruen also discussed common use in its step two analysis. There, Bruen invoked the common-use concept as it scoured a historical record spanning medieval England to the early twentieth century. It referred to common use to explain why historical laws prohibiting the carrying of weapons then considered dangerous and unusual could not justify current laws restricting the carrying of the same weapons today when they are no longer dangerous and unusual. See id. at 47. If Bruen‘s discussion of common use at step one means that issue must be assessed there, why engage with the issue at step two?
In recent weeks, the Supreme Court has provided another piece to Bruen‘s puzzle. In United States v. Rahimi, 144 S. Ct. 1889 (2024), the Court applied the Bruen test to hold that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the
In the end, perhaps not all the puzzle pieces are in place. But enough are. Common use—one of the limits on the
II.
Since common use is a step two question, the government bears the burden of showing that
If common use hinges on hard data alone, the answer is likely no. The government offers no compelling statistics that show how frequently people use guns with obliterated serial numbers for lawful purposes like self-defense. Instead, the government relies on statistics indicating the low frequency with which such guns are used or suspected of being used in crimes and submitted for tracing to the Bureau of Alcohol, Tobacco and Firearms. If guns with obliterated serial numbers are rarely used for unlawful purposes, the government argues, they cannot be commonly used for lawful purposes. From an empirical standpoint, that seems like a stretch to me. I am hard-pressed to see how the data support any conclusions as to the use of such guns for lawful purposes. But, does common use turn on statistical proof?
To be sure, of the various limiting principles that the Court has distilled from historical tradition, common use could, in many cases, be proved or disproved with statistics on the frequency with which a weapon is used. And doing so grounds the decision in a more objective, predictable analytical framework.4
But the Supreme Court has never said statistical proof is required. In fact, it has said little about how to assess common use. In describing its second step, Bruen
After restating its test, Bruen analogized the government‘s step two burden to its burden in defending laws against
Returning to the
There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
554 U.S. at 629. Elsewhere, Heller wrote that handguns are “the most preferred firearm in the nation to ‘keep’ and use for protection of one‘s home and family.” Id. at 628-29 (quoting Parker v. District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)).5 These comments seem at least partly rooted in what the Court deemed obvious rather than in data. Following the Supreme Court‘s lead, I see no reason courts cannot determine absent data whether guns with obliterated serial numbers are in common
Reliance on more malleable tools, I confess, leaves me a bit queasy. Straying from more concrete evidence might tempt judges to dress their preferred outcomes as flowing from logic or common sense. Both, like beauty, may naturally lie in the eye of the beholder. For two reasons, however, those concerns do not sway me here. One, as already discussed, Heller and Bruen show us that logic and common sense are appropriate to consider when determining common use. Two, statistics seem particularly inconclusive, and perhaps even unhelpful, in this particular case. To explain, it is unsurprising that the parties produced limited data. After all, can we expect folks voluntarily to disclose that they use outlawed guns? The answer seems to be no, making statistics—aside from those seized in criminal investigations—hard to harvest. So, in this case, I would look beyond statistics to evaluate common use.
Doing so, the government asserts that the predominant reason to possess a gun with an obliterated serial number, as opposed to one with an intact serial number, is to evade law enforcement. After all, as the parties agree, the presence or absence of a serial number has no effect on how a gun functions. “Because a firearm with a serial number is equally as effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. The weapons would then have value primarily for persons seeking to use them for illicit purposes.” United States v. Marzzarella, 614 F.3d 85, 95 (3d Cir. 2010) (affirming constitutionality
In response, Price posits that a person “might possess an unserialized firearm because they received it as a gift” or “for other innocuous reasons.” Resp. Br. at 9. The dissent adds that a gun owner might wish to avoid Big Brother‘s watchful eye, even if not to conceal criminal activity. These are fair points, I suppose. But those possibilities do not overcome the government‘s more persuasive logic. Crediting that logic, the Third Circuit before Bruen and a burgeoning brigade of district courts after Bruen have all proven unable to “conceive of a lawful purpose for which a person would prefer an unmarked firearm.” Marzzarella, 614 F.3d at 99; see also United States v. Reyna, No. 3:21-cr-41, 2022 WL 17714376, at *5 (N.D. Ind. Dec. 15, 2022); United States v. Avila, 672 F. Supp. 3d 1137, 1143-44 (D. Colo. 2023); United States v. Serrano, 651 F. Supp. 3d 1192, 1211 (S.D. Cal. 2023); United States v. Trujillo, 670 F. Supp. 3d 1235, 1241 (D.N.M. 2023); United States v. Walter, No. 3:20-cr-39, 2023 WL 3020321, at *5 (D.V.I. Apr. 20, 2023); United States v. Dangleben, No. 3:23-mj-44, 2023 WL 6441977, at *7 (D.V.I. Oct. 3, 2023); United States v. Dixson, No. 4:21-cr-54, 2023 WL 7102115, at *3 (E.D. Mo. Oct. 26, 2023); United States v. Sing-Ledezma, --- F. Supp. 3d ---, 2023 WL 8587869, at *3-4 (W.D. Tex. Dec. 11, 2023); United States v. Alberts, No. CR 23-131, 2024 WL 1486145, at *4 (D. Mont. Apr. 5, 2024).
What‘s more, guns with obliterated serial numbers have long been regulated. Since 1938, federal law has made it unlawful for anyone “to transport, ship, or knowingly receive in interstate or foreign commerce any firearm from which the manufacturer‘s serial number has been removed, obliterated or altered.”
Wrapping up, I conclude that the government has “justif[ied] its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. It has demonstrated that guns with obliterated serial numbers are not “‘in common use’ today for self-defense” or other lawful purposes. Id. at 24, 32 (quoting Heller, 554 U.S. at 627).
III.
For the reasons explained above, not those of the majority, I concur in the majority‘s conclusion that the district court‘s decision as to
GREGORY, Circuit Judge, dissenting:
Today, our Court holds that some weapons that are indisputably commonly owned for lawful purposes—handguns, rifles, and shotguns—are not covered under the
Nevertheless, our Court has decided that
I.
The flaws in the majority‘s analysis begin with its focus on the prohibition identified in
Although the majority‘s approach is not identical to means-end scrutiny, it nonetheless improperly subjects the
Instead, the court‘s role at step one is limited to determining whether the
The Supreme Court‘s decision to conduct a general inquiry in that portion of the opinion suggests the following. First, the
As a threshold matter, the Bruen step one inquiry into “types of weapons” is general and therefore does not concern a
Moreover, under the majority‘s reasoning, any change to a firearm, no matter how minor, would produce a new type of weapon. But the notion that any change to an object produces an entirely new object is simply false. Just as docking a dog‘s tail does not alter the breed of dog, or trimming a tree does not produce a new genus of tree, the removal of a serial number does not transform a handgun or rifle into a new type of weapon under the Bruen step one analysis. Absent any enhancing accessories or functional modifications, a Glock 19 handgun, is a Glock 19 handgun, whether it is shiny or dull, red or green, serialized or not. Categorically banning firearms that are otherwise presumptively protected under the
That is what our Court has chosen to do. In defining the type of weapon at issue as firearms with removed, altered, or obliterated serial numbers, the majority commits an error that dooms its common use analysis from the very start. That initial error is only compounded by the majority‘s later determination that firearms with removed, altered, or obliterated serial numbers are useful only for criminal purposes. According to the majority, “if firearms with obliterated serial numbers are not even in common use for criminal purposes—the only scenario in which we can conceive a reason to prefer such weapons—then we think it fair to conclude that such arms are not in common use for lawful purposes.” Majority Op. at 23. Not so.
While we do not have data regarding lawful use of firearms without serial numbers, it is well known that certain types of firearms are in common use today. For example, handguns and rifles, two types of weapons banned under
What‘s more, even weapons useful for criminal purposes are presumptively protected at step one if they are in common use for lawful purposes. Handguns, for example, are used in the majority of mass shootings, murders, and suicides in our nation each year. But, because handguns are the type of weapon many Americans choose for self-defense, they are presumptively protected under the
That being the case, there is no basis to support the conclusion that all firearms with removed, altered, or obliterated serial numbers are excluded from the right to keep and bear arms based on the
II.
The unintended consequences of our Court‘s decision in this case add weight to the albatross of mass incarceration that burdens our nation. African Americans and Hispanic Americans make up most of the population in many of the communities designated as high crime areas. See David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 677-78 (1994). Although presence in a high crime area alone is insufficient to justify a Terry stop, presence combined with another factor, such as “nervous, evasive behavior” or flight (even if unprovoked), constitutes reasonable suspicion sufficient to render the stop constitutional. Illinois v. Wardlow, 528 U.S. 119, 124, 127 (2000).
Notably, for some, avoidance of police may evince an act of self-preservation. Indeed, as Justice Stevens put it:
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer‘s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.”
Id. at 132 (Stevens, J. concurring). That reality may explain why over 60% of the people stopped and searched in New York City each year from 2003 until 2023 were innocent, and why Black and Latinx people consistently represented over 50% and 25% of the people stopped, respectively. See Stop-and-Frisk Data, New York Civil Liberties Union (Mar. 14, 2019), https://www.nyclu.org/en/stop-and-frisk-data [https://perma.cc/5HYB-5N9H].
What‘s more, if convicted of a firearms offense, minority male offenders are more likely to receive a sentence that includes a term of imprisonment as opposed to probation. According to a study conducted last year by the United States Sentencing Commission, Black and Hispanic males convicted of firearms offenses are 40.4% and 29.8%, respectively, less likely to receive a probationary sentence compared to White males. See 2023 Demographic Differences in Federal Sentencing, U.S. Sent‘g Comm‘n, at 29. Additionally, when sentenced for firearms offenses, Black and Hispanic males receive terms of imprisonment that are 2% and 1.4%, respectively, longer than sentences given to White males. Id. at 29.
One can deduce from the aforementioned statistics that Black and Hispanic
defendant convicted of a firearm offense other than
I use a hypothetical offender convicted of a firearm offense under
At bottom, mass incarceration is exacerbated by the way communities are policed, conduct is prosecuted, and convictions are punished. We may not know if those who most commonly possess firearms with removed, altered, or obliterated serial numbers are law-abiding citizens or not. But we do know that males of color bear the brunt of
RICHARDSON, Circuit Judge, dissenting:
This case should be an easy win for Randy Price. The Government wants to punish him for conduct that falls within the plain text of the
Rather than holding the Government to its burden, today‘s decision loosens the rules in the Government‘s favor. Adopting a limitation that appears nowhere in the
I. Section 922(k) regulates conduct that falls within the plain text of the Second Amendment.
The
The answer to each inquiry is yes, so
The majority does not consider, let alone mention, any of these textual prerequisites. Instead, it contends that Price must prove at Bruen‘s first step that firearms with obliterated serial numbers are in common use for lawful purposes. Majority Op. at 8–14. In defense of this atextual notion, the majority observes that the
I have already explained elsewhere why Heller requires the government to prove that a weapon is both dangerous and unusual at Bruen‘s second step. Bianchi, slip op. at 121-22 (Richardson, J., dissenting). Here, I will add that the majority, like the majority in Bianchi v. Brown, No. 21-1255, misunderstands the relationship between the
With respect to dangerous and unusual weapons, Bruen explained that Heller derived this limit by “rel[ying] on the historical understanding of the Amendment to demark the limits on the exercise of that right.” Id. at 21. So while dangerous and unusual weapons are not within the scope of the
The Supreme Court‘s recent decision in United States v. Rahimi shows how untenable the majority‘s position is. Whereas the majority holds that “the limitations on the
This is supported by what the Court actually did in Rahimi. There, the Court concluded that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the
II. The Government has failed to show that § 922(k) is consistent with our Nation‘s historical tradition of firearm regulation.
Since
As I explain below, I disagree. The tradition of regulating dangerous and unusual weapons distinguished between classes or types of weapons based on their functional characteristics. But serial numbers are ubiquitous features that have no bearing on a weapon‘s functionality. So firearms that lack them do not compose a separate class of arms that are dangerous and unusual. Additionally, the Government‘s analogy fails because the Government did not offer reliable evidence that firearms without a serial number are dangerous and unusual.
Nor do the Government‘s remaining analogues establish
A. The Government has not shown that § 922(k) is analogous to historic laws regulating dangerous and unusual weapons.
The Government‘s primary argument is that
I agree that history and tradition demonstrate that the government may regulate or ban dangerous and unusual weapons. See Bianchi, slip op. at 121–46 (Richardson, J., dissenting). But
Each time the Supreme Court has discussed or applied this tradition, it has considered whether the banned weapons as a “class” or “type” are dangerous and unusual.
This makes sense when you look at the tradition the Court is drawing upon. The relevant nineteenth-century cases that undergird the dangerous-and-unusual tradition also addressed statutes that prohibited the possession or carry of classes of weapons defined by functional—not nonfunctional—characteristics. See Aymette v. State, 21 Tenn. (2 Hum.) 154, 155 (1840) (prohibiting the concealed carry of “any bowie-knife, or Arkansas toothpick, or other knife or weapon that shall in form and shape resemble” such weapon (emphasis added)); Fife v. State, 31 Ark. 455, 461 (1876) (prohibiting “any pistol of any kind whatever” and defining pistol as “a small fire-arm . . . intended to be fired from one hand”); State v. Workman, 35 W. Va. 367, 369 (1891) (prohibiting concealed carry of pistols); State v. Duke, 42 Tex. 455, 456 (1875) (prohibiting the carry of “any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass knuckles, [or] bowie knife,” which the court analyzed as applied to a pistol). These cases then determined whether the proscribed class of weapons was dangerous and unusual by assessing whether that class of weapons was particularly useful for unlawful purposes (dangerous) and whether it was uncommon for lawful purposes (unusual). See Aymette, 21 Tenn. at 158; Fife, 31 Ark. at 461; Workman, 35 W. Va. at 373; Duke, 42 Tex. at 458; see also Bianchi, slip op. at 141–43
Putting this all together, we see that history and tradition permit the government to ban the possession or carry of certain classes of weapon, as defined by their shared functional features, if those classes are dangerous and unusual. But
But even if a firearm‘s functionality does not define this tradition, there‘s a second reason why
Start with the Government‘s first piece of evidence. In its panel briefing, the Government‘s only evidence6 that
The majority instead finds solace in the Government‘s second piece of evidence. In its supplemental en banc briefing, the Government cited a recently created ATF report showing that, between 2017 and 2021, 2.5% of firearms submitted for tracing that could not be traced to a purchaser had partial, incomplete, or obliterated serial numbers. Bureau of Alcohol, Tobacco, Firearms & Explosives, U.S. Dep‘t of Just., National Firearms Commerce and Trafficking Assessment (NFCTA): Crime Gun Intelligence and Analysis, pt. 3, at 5 (2024). The majority takes this statistic and runs with it. It first relies on it to conclude that firearms with removed, obliterated, or altered serial numbers are not even in common use for criminal purposes. Majority Op. at 22–23. It then speculates from this that such arms must not be in common use for lawful purposes, either. Id. at 23. Basically, the majority posits that, because even criminals aren‘t commonly using guns with obliterated serial numbers, law-abiding citizens also must not be using them.
This is a remarkable leap in logic. The majority might be correct that arms with removed, obliterated, or altered serial numbers are not commonly used by criminals. But how can we infer from this fact that such weapons are not in common use for lawful purposes? One might naturally assume that law-abiding and law-breaking citizens have different needs and own guns for different reasons. I simply do not understand how we could equate the two when determining whether a particular firearm is commonly used.8
Furthermore, if arms with removed, obliterated, or altered serial numbers really
The majority ultimately relies on its self-supported conviction that no law-abiding citizen would prefer an unmarked firearm for lawful purposes. The majority interprets Heller to require us to query whether “common-sense reasons exist for a law-abiding citizen to prefer a particular type of weapon for a lawful purpose like self-defense.” Majority Op. at 20. But Heller established no such thing. Rather, the Court examined the practices of the American people and identified the weapons they commonly own for lawful purposes.10
In the end, I do not know whether or why law-abiding citizens might prefer firearms with removed, obliterated, or altered serial numbers. Don‘t get me wrong, I could take the majority‘s tactic and surmise reasons. Maybe some people inherit these weapons from relatives and choose to keep them because of their sentimental value.11 Or maybe some have no intent to use the firearm to break the law but are still uncomfortable with the government potentially tracking their purchases. After all, many law-abiding citizens prefer to use encrypted messaging platforms and disable location tracking on their cell phones for similar reasons. See United States v. Chatrie, No. 22-4489, 2024 WL 3335653, at *43–44 (4th Cir. July 9, 2024) (Wynn, J., dissenting). But whatever the answer is to this question, the burden is not on me or Price to provide it. It is the Government‘s burden, which it must carry by offering something more than mere conjecture. If that‘s too tall a task for the Government, then maybe it confirms that the tradition of regulating dangerous and unusual weapons was never the right analogue for
B. The Government‘s other historic regulations are not analogous to § 922(k).
Besides the tradition of regulating dangerous and unusual weapons, the Government also points to an assortment of inspection and marking laws and commercial restrictions from before and after the Founding. But none of these regulations justify
The Government‘s best historical evidence is early state regulations requiring the inspection and marking of gunpowder and firearm barrels. Between 1776 and 1820, five states required gunpowder to be inspected and marked for quality and prohibited the sale of unmarked powder.13
To the Government‘s credit, these laws arguably imposed a “comparable burden” on the right to keep and bear arms as
Even so, these regulations were not “comparably justified” to
It is no answer to say that these laws and
Besides inspection and marking laws, the Government also analogizes
Contrary to the Government‘s claims, these statutes are not analogous to
*
Section 922(k) seems like a sensible policy. But Bruen did not instruct us to decide cases based on good vibes. It placed the burden on the government to prove that a challenged regulation has a historical pedigree. Rather than carrying this burden, the Government offers halfhearted and surface-level arguments with the expectation that we will squint and say: “Well, good enough.” We should expect more from the government, especially when constitutional liberties are at stake. I thus respectfully dissent.
Notes
Our third concurring colleague takes a different path to reach this conclusion, noting that because the Bruen Court “invoked the common-use concept as it scoured a historical record” at step two, the common-use limitation is confined to step two. Third Concurring Op. at 45. But the Bruen Court only referenced the common-use limitation at its second step as it was rejecting the respondents’ argument that seventeenth-century restrictions on handgun possession—laws that were likely permissible because handguns were, at the time, not in common use—were sufficiently analogous to the challenged law at issue in that case. Bruen, 597 U.S. at 47. In rejecting the relevance of such laws, it noted that such laws only emphasized the point it “already acknowledged in Heller“: “the Second Amendment protects only the carrying of weapons that are those ‘in common use at the time.‘” Id. (emphasis added). Accordingly, the Court was not relegating the common-use limitation to step two, it was merely noting that historical laws supported the inherent limitations on the right it had already recognized: the Second Amendment does not merely permit regulation of some weapons, it “does not protect” weapons “not typically possessed by law-abiding citizens for lawful purposes” at all. Heller, 554 U.S. at 625.
The majority wrongly concludes this approach is “problematic” because of Double Jeopardy concerns. Ante at 15. That is simply incorrect. The approach taken here does not rewrite or otherwise change the elements needed for a conviction under either statute. Under both the majority‘s reading and my own,To illustrate, being a felon in possession of a firearm is not an element of a
All that this concurrence does is follow the separate principle of standing to bring a facial challenge—observing that a criminal defendant cannot challenge the constitutionality of a statute if the statute has had no “adverse impact on his own rights,” based on arguments that the statute may infringe on the constitutional rights of “third parties in hypothetical situations.” Ulster Cnty., 442 U.S. at 154–55. And on that point, the Supreme Court has issued clear guidance: if the alleged constitutional defect does not arise with respect to Price, then he lacks standing to bring a facial challenge on behalf of other potential criminal defendants.
Like the majority, I focus on firearms with obliterated serial numbers. The Government concedes that Price is part of “the people,” at least for purposes of this appeal.And while this Court recently determined that the federal felon-in-possession ban,
Our second concurring colleague, however, faults us for failing to decide that Price falls within
Our colleague‘s suggested path is problematic for another reason. Price was also charged with a violation of
In unpublished opinions, the Sixth and Eleventh Circuits have considered challenges to defendants’ convictions for violating
Section 922(k) also criminalizes possession of a firearm with a “removed” or “altered” serial number, but we focus here on firearms with obliterated serial numbers because that is how the indictment described the firearm found in Price‘s vehicle.
The Government also noted the Third Circuit‘s statement in United States v. Marzzarella that “there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm.” 614 F.3d at 95. The majority likewise uses this quotation to its advantage. With respect for our sister circuit, it cited no evidence for this proposition. And the Government cannot meet its burden by citing an unsubstantiated quote from another court. It must establish facts.For a similar reason, we disagree with our first colleague in dissent who, like us, locates the common-use inquiry at Bruen‘s step one. See First Dissenting Op. at 56. Contrary to our colleague‘s characterization, it is not our view that “any change to a firearm,” id. at 57, would exclude it from the scope of “Arms” to which the Second Amendment applies. Only changes that produce a weapon that is no longer in common use for a lawful purpose are relevant. For example, if a red or green firearm is no more likely to be used in crimes than a black or grey one, such a weapon would still qualify as a constitutionally protected Arm. But here, where the modification to the firearm makes it more useful in crime, such modification is relevant to our analysis.
Even if this study were probative, its findings are not as clear-cut as the Government presents. For example, the study found that within the pool of studied firearms, those used for substantive crimes were 50% less likely to have an obliterated serial number than those associated with mere possession offenses. Kennedy, Piehl & Braga, supra, at 196. Based on this data point, the authors concluded that more serious offenders likely prefer old or stolen guns over those with obliterated serial numbers, while less serious offenders likely acquire arms with obliterated serial numbers for “something other than serious criminal intent,” such as fear of violence or self-defense. Id. at 175–76. This finding seemingly undercuts any claim that firearms without serial numbers are particularly useful for criminal activity.