We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
ANOTHER WEEK, ANOTHER ATTACK ON 18 USC § 922
I reported a few weeks ago on a Western District of Texas ruling holding that the ban on people under indictment having guns or ammo (18 USC § 922(n)) was unconstitutional in the wake of last June’s Supreme Court decision in New York State Rifle & Pistol Ass’n v Bruen. Last week, a Southern District of West Virginia district court joined the fracas, holding that 18 USC 922(k) – which prohibits possession of guns with obliterated serial numbers – “implicate conduct that is protected by the Second Amendment… [making] the statute is presumptively unconstitutional” under Bruen.
The West Virginia defendant was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.”
Firearms were not required to carry serial numbers until the Gun Control Act of 1968. The “societal problem[s]” addressed by § 922(k) appear to be crime, the Court wrote, “including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.”
Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said that “the rejection of Bruen-based attacks on felon-in-possession prohibition is already become quite common. As the Price opinion notes “Relying on the same [‘law-abiding’] dicta in the wake of Bruen, at least nine federal district courts have rejected constitutional challenges to Section 922(g)(1)… [But] based on my first quick read of this opinion, I am not sure I am wholly convinced by the analysis driving either part of the ruling.”
United States v. Price, Case No 2:22-cr-00097, 2022 U.S.Dist. LEXIS 186571 (S.D.W.Va., Oct. 12, 2022)
Sentencing Law and Policy, Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen (October 13, 2022)
– Thomas L. Root