Law Against Possession of Unserialized Gun Ruled Unconstitutional in West Virginia

U.S.A.-(AmmoLand.com)-– 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 the registration of particular firearms to a particular individual.

The government then has effective control over the possession of 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 effective gun confiscation.

Firearms can be gradually confiscated over time, as happened in England and have 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 possess guns without serial numbers legally. 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.


About Dean Weingarten:

Dean Weingarten has been a peace officer, and a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering and retired from the Department of Defense after a 30-year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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gregs

these unconstitutional regulations are beginning to fall like dominos after the scotus strict scrutiny required after nyspra
when looked with strict scrutiny, as scotus stated, they are blatantly unconstitutional and are being struck down.
literally, no regulations on firearms are constitutional as they all violate the Second Amendment.

DIYinSTL

Bruen decision actually rejected strict scrutiny. Only history (1791 or in some cases maybe 1868) and tradition can be used to justify a restriction.

Bubba

There was also mention in the Bruen Ruling that anything after the Sullivan Act of 1911 was most like unconstitutional.

That means just about every law in the country was unconstitutional.
We need many more decisions like this one…

Green Mtn. Boy

Each and every gun control law is un Constitutional but that hasn’t prevented infringement.

Wild Bill

With more Trump “Original Meaning” judges and given some time, I am hopeful.

Montana454Casull

Right, example bump stock ban by executive order . Unconstitutional bullcrap !

3%er

Dean, that sure seems like a contradictory statement. If the 1938 law didn’t make it a federal crime to be in possession of a firearm w/o a serial #, what difference would it make what you did with it after that?

3%er

Dean, thanks for the clarification.

Bubba

What do you make of the:

Mention in the Bruen Ruling that anything after the Sullivan Act of 1911 was most like unconstitutional.
That means just about every law in the country was unconstitutional.

StLPro2A

As Kevin Jamison, KC MO attorney, likes to point out….”It doesn’t have to make sense. It’s just the law.”

Montana454Casull

Home made firearms that never had a serial number are exempt because the number never existed or was not removed . Correct ?

TGP389

“Tracing” is about the most useless investigative tool available. Only in the case of the original purchaser being the suspect, or if every transfer can be documented, would there be any value at all.

Add to that the fact that there are tens of thousands of firearms in circulation in the US which have no serial number, or have serial numbers that were not unique. This is just another slice off of our RIGHTS that would accomplish nothing.

Boom

Also, bye bye newer 80% rule.. … Haha, what fools they are.

Orion

unfortunately, a single federal court ruling is NOT enough. it will take another SCOTUS decision in our favor to make it so.

RetNav

I wonder how this will affect guns registered under the NFA! Can we now possess non-serialized Class III weapons? If so, how will the government ever track them?

TGP389

This is potentially very big. Now I wish I had that nickel plated 1911 my brother traded off because it had an obliterated serial number.

Roland T. Gunner

So why would we still require manufacturers to put serial mumbers on firearms in the first place? If you want a serial number on your gun, go have one engraved on it.

DIYinSTL

I keep requesting my congress-critters to ask ATF director Tweetle-dumb (?) how many cases of physical violence have been solved where the single clue leading to the perpetrator was a firearm’s serial number. Maybe we’ll get an answer someday.