Dangerous use of Serial Numbers found Unconstitutional

 

The most dangerous use of a serial number on a firearm is as a registration number. In effect, gun registration is gun confiscation. It was not the intent for which serial numbers were made. They were originally created as a way to track firearms with production changes and as a way for government arsenals to track production and military use of weapons.  

A federal court recently held a federal law, passed in 1990, which makes possession of firearm with a removed serial (registration) number illegal, is unconstitutional.

This is an important decision. It has relatively minor effects, at this time. The law was a step toward universal firearms registration.

Finding the law unconstitutional subverts the push for government control over firearms. 

If a person cannot be punished for the mere possession of a firearm from which a serial number has been removed, the entire scheme for government control over legally owned firearms falls apart.  

There cannot be effective gun registration, if a person cannot be punished for possessing a gun which has had the serial number removed.

The legal ability to possess firearms without serial numbers buttresses the deterrent effect of an armed population.

If government agents demand a person turn in a firearm which is registered to them, they can remain silent. 

If the firearm appears at some later date, and the serial number has been removed, it becomes difficult to connect the firearm to the person it was registered to.

It becomes difficult to punish a person for an act someone else commits with a firearm originally purchased by them.

A unique serial number is key to efforts to register and control firearms by the administrative state. Nelson T. "Pete" Shields, of Handgun Control, inc. laid out the plan in 1976: 

 “We’ll take one step at a time, and the first is necessarily – given the political realities – very modest.  We’ll have to start working again to strengthen the law, and then again to strengthen the next law and again and again.  Our ultimate goal, total control of handguns, is going to take time.  The first problem is to slow down production and sales.  Next is to get registration.  The final problem is to make possession of all handguns and ammunition (with a few exceptions) totally illegal.”

When people may not be punished for the possession of a firearm whose serial number has been removed, the plan falls apart.

Serial numbers were not required on most firearms, by the government, until 1968. They were required on National Firearms Act weapons, as a means of registration of machine guns, short barreled rifles, short barrled shotguns, and silencers in 1938. 

The registration of firearms is almost never used to solve violent crimes. The large costs of firearms registration make for a very large cost to benefit ratio. 

The major purpose of gun registration is to enable the confiscation of firearms when the government desires to do so.

Serial numbers were first used on US military weapons in 1865. They were first used on Winchester rifles in 1866.

Serial numbers were first used as a tool of oppression in 1893.

Florida enacted a stature which required the recording of a repeating rifle's serial number (later to include pistols) with the county commissioners, in 1893.  While the wording of the act is somewhat ambiguous, the title makes plain the purpose was to regulate the carrying of firearms.

1893 Fla. Laws 71-72, An Act to Regulate the Carrying of Firearms, chap. 4147, §§ 1-4.

The history of the Florida law implies it was meant to apply to black people, and not to white people.  The surety required ($100 in 1893, about $3,000 in 2020 dollars) immediately placed the permit beyond the capability of people with modest incomes. About fifty years later, a judge said the law was never meant to be used against white people, and he had never heard of a case where a white person was prosecuted under the 1893 law. From Watson v. Stone:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. We have no statistics available, but it is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested.

It should be noted the serial number, as such, appears to have had little to do with the actual, discriminatory enforcement of the law in Florida. It wasn't until the infamous New York Sullivan law, recently found to be unconstitutional, that the attempt was made to use serial numbers to oppress people. 

The Sullivan law eventually tied a specific firearm to a specific person on a broad scale. Other states, particularly in the Northeast, followed suit. The state of New York under the prodding of the organized crime boss, Big Tim Sullivan, pushed the registration of guns well ahead of most of Europe.  

In Europe, registration of firearms appears to be an artifact created after World War I. In Germany registration of firearms was installed after 1919 as part of the requirement of the Treaty of Versailles. England had no registration of firearms until the1920 Firearms Act. Italy installed registration of firearms under Mussolini with the 1931 Public Safety Act. France installed general firearms registration from 1935 to 1939.

Most of these measures were touted as public safety measures. 

In the case of England, research done by Joyce Lee Malcomb (US) and Chief Inspector Colin Greenwood (at Cambridge) showed fear of an armed population drove the legislation. The crime rate, at the time, was extraordinarily low. The purpose of the registration was to allow the government, in times of doubt, to disarm its percieved enemies and arm its perceived friends.  From Guns and Violence, the English Experience, page 162:

Second, the Firearms Act of 1920, which took away the traditional right of individuals to be armed, was not passed to reduce or prevent armed crime or gun accidents.  It was passed because the government was afraid of rebellion and keen to control access to guns.

Chief Inspector Colin Greenwood found the same result. 

World War I caused immense turmoil in Europe. Along with many other problems, it may be rightly blamed for the rise of gun registration there. 

Before the use of serial numbers, disarming of the population had to rely on brute force and physical searches for weapons. 

In England, before the English Bill of Rights, in 1660, by the dubious method of royal proclamation, gunsmiths were once required to keep lists of people they sold firearms to. 

Such lists were not registration of firearms, because they did not tie a particular gun to a particular  individual.  The adoption of the English Bill of Rights in 1689 was partly in response to this sort of action. 

The requirement to keep lists by royal declaration was "a device of uncertain legal status" according to Malcolmb. The proclamation was issued in December of 1660.  From Malcolmb: 

With this police apparatus in place, the King turned to the royal proclamation, a device of uncertain legal status, to tighten arms control. In September, 1660, he issued a proclamation forbidding footmen to wear swords or to carry other weapons in London.[87] In December another proclamation expressed alarm that many "formerly cashiered Officers and Soldiers, and other dissolute and disaffected persons do daily resort to this City."[88] All such soldiers and others "that cannot give a good Account for their being here" were to leave London within two days and remain at least twenty miles away indefinitely.[89] At the same time the royal government launched a campaign to control firearms at the source. Gunsmiths were ordered to produce a record of all weapons they had manufactured over the past six months together with a list of their purchasers.[90] In future they were commanded to report every Saturday night to the ordnance office the number of guns made and sold that week.[91] Carriers throughout the kingdom were required (p.300)to obtain a license if they wished to transport guns, and all importation of firearms was banned.[92]

It was less than a month later that King Charles II ordered a general disarmament of those considered his enemies:

The timing of the Fifth Monarchist uprising was especially opportune, for it occurred the very day the last regiments of the Commonwealth army were due to be disbanded. In response to this visible danger, these regiments were retained and twelve more companies were recruited to form the nucleus of a royalist army.[95] The militia and volunteers throughout the realm were ordered to carry out a general disarmament of everyone of doubtful loyalty.[96] By January 8, 1661, two days after the Venner uprising, Northamptonshire lieutenants reported that all men of known "evill Principles" had been disarmed and secured "so as we have not left them in any ways of power to attempt a breach of the peace."[97]

Registration with serial numbers allows governments to circumvent the difficult and dangerous task of physically searching for firearms. 

The government can simply demand the weapons tied by registration be turned in. If they are not available, various forms of coercion can be applied.  State agents need never approach a persons home. 

Disarmament is seldom general. There are always exceptions for agents and friends of those in power. Hitler disarmed Jews and others he deemed "enemies of the state" using local registration lists. Dictators always make exceptions for those who they believe can be relied on to support them.

The firearms owners Protection Act, passed in 1986, prevents the establishment of a national firearms registry.  From congress.gov:

Amends the rulemaking authority of the Secretary to provide that no regulation may require: (1) the transfer of records required under this Act to a facility owned, managed, or controlled by the United States or any State; or (2) the establishment of any system of registration of firearms, firearm owners, or firearm transactions.

While those who want a disarmed population can initiate house to house searches to disarm people, as was done by tyrants in the past, doing so in the United States, under the Constitution, is very difficult

Holding laws which make the possession of firearms which have the serial number removed illegal, to be unconstitutional, puts teeth in the current laws against gun registration. 

It makes the disarmament of the people incrementally, over a long period of time, very difficult. 

It is a significant part of restoring the limitations on government power required by the Constitution.

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

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