Law Against Possession of Gun Without Serial Number ruled Unconstitutional in WV

On October 12, 2022, in the US District Court for the Southern District of West Virginia, Judge Joseph R. Gordon granted a motion to dismiss the charge of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k) as being facially unconstitutional. Judge Gordon was appointed by President Bill Clinton.  From the decision:

Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government’s argument that Section 922(k) does not amount to an “infringement” on the law-abiding citizen’s Second Amendment right, the practical application is that while the law-abiding citizen’s possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one’s right to possess a firearm.

Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father’s memory. As it stands, Section 922(k) also makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite the fact that she was not the person who removed the serial number. These scenarios make clear that Section 922(k) is far more than the mere commercial regulation the Government claims it to be. Rather, it is a blatant prohibition on possession. The conduct prohibited by Section 922(k) falls squarely within the Second Amendment’s plain text.

This decision strikes at the heart of the ineffective and unconstitutional scheme to place government control over the possession of firearms in the United States. Such a scheme is blatantly unconstitutional under the protections afforded by the Second Amendment of the United States Constitution.

The primary purpose of requiring serial numbers on firearms is to allow for registration of particular firearms to a particular individual.

The government then has effective control over the possession of the registered firearms. 

If particular firearms can be legally linked to particular individuals, and the link is required by law, the government can demand the firearms be turned in, one by one, or en mass.

This is because government agencies would be able to require specific firearms to be turned in, under numerous possibilities for penalties and punishment.

Gun registration is effectively, gun confiscation.

Firearms can be gradually confiscated over time, as happened in England and has been happening, in small increments, in California, New York, and Illinois.

The key to registration is the ability to identify a particular firearm and link it to a particular individual.

Every attempt to impose national gun registration in the United States has relied on the requirement for individual guns to be uniquely identified.

In 1938 and in 1968 the provisions requiring mandatory national firearms registration were removed from the gun control bills by Congress. 

Those pushing for gun registration gained federal control over serial numbers.

In 1938, removing a serial number and possessing a firearm from which the serial number had been removed were made illegal under federal law.

In 1968, manufacturers were required to place serial numbers on all cartridge firearms.

Opinion

Such "tracing" has always been ineffective, yielding a very poor cost to benefit ratio in preventing and controlling crime. Benefits, (of tracing), for preventing crime, are small to non-existent. Costs are high.

The unstated purpose was to make national firearms registration possible.

Crime immediately went up after the Gun Control Act of 1968, and continued rising for decades.

If the West Virginia decision stands, which seems likely under Bruen, the ability to use serial numbers for gun registration and confiscation is dead. The decision does not remove the requirement for manufacturers to mark their guns with serial numbers.

It has the effect of allowing people who fear government confiscation to legally possess guns without serial numbers. It eliminates the ability of governments in the USA from banning the possession of guns without serial numbers.

It will have virtually no effect on crime or public safety from criminals.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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