The Second Amendment and Unmarked Firearms

The Third Circuit has handed down an interesting Second Amendment decision, United States v. Marzzarella. It begins:

This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms. We hold it does not and accordingly will affirm the conviction.

From the opinion:

The District Court could not identify, and Marzzarella does not assert, any lawful purpose served by obliterating a serial number on a firearm. Because a firearm with a serial number is equally effective as a firearm without one, there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm. These weapons would then have value primarily for persons seeking to use them for illicit purposes. . . . . An unmarked firearm, on the other hand, is no more damaging than a marked firearm.

Accordingly, while the Government argues that § 922(k) does not impair any Second Amendment rights, we cannot be certain that the possession of unmarked firearms in the home is excluded from the right to bear arms. Because we conclude § 922(k) would pass constitutional muster even if it burdens protected conduct, we need not decide whether Marzzarella’s right to bear arms was infringed.

The court concludes that different levels of scrutiny should apply to different Second Amendment restrictions, but that intermediate scrutiny should apply to this particular restriction. According to the Third Circuit, the restriction satisfies the intermediate scrutiny standard (and would even satisfy strict scrutiny, the court indicates):

[P]reserving the ability of law enforcement to conduct serial number tracing—effectuated by limiting the availability of untraceable firearms—constitutes a substantial or important interest. Section 922(k) also fits reasonably with that interest in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable. Because unmarked weapons are functionally no different from marked weapons, § 922(k) does not limit the possession of any class of firearms. Moreover, because we, like the District Court, cannot conceive of a lawful purpose for which a person would prefer an unmarked firearm, the burden will almost always fall only on those intending to engage in illicit behavior. Regulating the possession of unmarked firearms—and no other firearms—therefore fits closely with the interest in ensuring the traceability of weapons. Accordingly, § 922(k) passes muster under intermediate scrutiny.

Eugene is cited along the way, but for a First Amendment article rather than a Second Amendment article (see p.30).

Thanks to Howard Bashman for the link.