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In an important Second Amendment decision that charts a course for evaluating the validity of gun laws now that the U.S. Supreme Court has declared the right to be an individual one, the 3rd U.S. Circuit Court of Appeals has refused to strike down a federal law that bans possession of guns with obliterated serial numbers.
Perhaps the most important lesson to be gleaned from U.S. Circuit Judge Anthony J. Scirica's opinion in United States v. Marzzarella is that courts faced with unanswered questions in the Second Amendment arena should consider looking to the extensive jurisprudence on First Amendment claims for guidance.
"The First Amendment is the natural choice," Scirica wrote, noting that the U.S. Supreme Court's watershed decision in District of Columbia v. Heller repeatedly invoked the First Amendment in establishing principles governing the Second Amendment.
"We think this implies the structure of First Amendment doctrine should inform our analysis of the Second Amendment," Scirica wrote.
Scirica, who was joined by 3rd Circuit Judge Michael A. Chagares and visiting U.S. District Judge Joseph H. Rodriguez of the District of New Jersey, looked to First Amendment law in deciding that the federal ban on guns with obliterated serial numbers should be subjected to "intermediate scrutiny."
But even if the law were held to strict scrutiny, Scirica said, it would still pass constitutional muster.
"Serial number tracing serves a governmental interest in enabling law enforcement to gather vital information from recovered firearms," Scirica wrote, "Because it assists law enforcement in this manner, we find its preservation is not only a substantial but a compelling interest."
In the appeal, Michael Marzzarella argued that his conviction under Section 922(k) for possessing a gun with an obliterated serial number should be overturned because the law is unconstitutional under the U.S. Supreme Court's decision in District of Columbia v. Heller.
Marzzarella reserved his right to appeal when he entered a conditional guilty plea to one count of violating 922(k) after U.S. District Judge Sean McLaughlin of the Western District of Pennsylvania refused to dismiss the indictment.
McLaughlin held that the Second Amendment does not protect a right to own handguns with obliterated serial numbers and that 922(k) does not meaningfully burden the "core" right recognized in Heller -- the right to possess firearms for defense of hearth and home.
Instead, McLaughlin concluded that because 922(k) is designed to regulate the commercial sale of firearms and to prevent possession by a class of presumptively dangerous individuals, it is analogous to several long-standing limitations on the right to bear arms identified as presumptively valid in Heller.
After losing his motion to dismiss the indictment, Marzzarella entered a conditional guilty plea and was sentenced to nine months' imprisonment. Now Marzzarella has lost his appeal, but the appellate ruling in his case is sure to be required reading in future Second Amendment cases because the 3rd Circuit set out to draw a road map for how to approach such cases and unpacked all of the available guidance that may be drawn from Heller.
"As we read Heller," Scirica wrote, "it suggests a two-pronged approach to Second Amendment challenges."
First, Scirica said, courts should ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee. If it does not, the inquiry is complete. If it does, the law should then be evaluated under "some form of means-end scrutiny."
Turning to Marzzarella's challenge to 922(k), Scirica found that the threshold inquiry should focus on whether the law regulates conduct that falls within the scope of the Second Amendment.
"In other words, we must determine whether the possession of an unmarked firearm in the home is protected by the right to bear arms," Scirica wrote.
The Heller Court, Scirica said, focused on an individual's right to bear arms in the home to be prepared for "confrontation," and explained that the "prefatory" clause referring to militias was meant only to explain the purpose for guaranteeing the individual right, meaning the prevention of disbandment of the militia by the federal government.
But Scirica said the Heller Court also declared that the right protected by the Second Amendment is "not unlimited," and does not extend to all types of weapons, only to those typically possessed by law-abiding citizens for lawful purposes.
Heller also identified several other valid limitations on the right, including "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Marzzarella's lawyer, Assistant Federal Defender Thomas W. Patton, argued that 922(k) is unconstitutional because the Second Amendment categorically protects the right to possess unmarked firearms.
Heller, he said, defined the Second Amendment by looking to what the right meant at the time of ratification.
Because the Second Amendment protects weapons "of the kind in common use at the time," Patton argued, it must be read to protect firearms without serial numbers.
But Scirica said the court was "not persuaded by Marzzarella's historical syllogism."
Unmarked guns are not a class of firearms, Scirica found, because serial numbers are "wholly unrelated" to a gun's utility.
"A person is just as capable of defending himself with a marked firearm as with an unmarked firearm. With or without a serial number, a pistol is still a pistol," Scirica wrote.
"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," Scirica wrote.
Nonetheless assuming that 922(k) burdens Marzzarella's Second Amendment rights, Scirica turned to the second step of the test and considered the standard to apply.
Assistant U.S. Attorney Laura S. Irwin argues a rational basis test should apply, but Scirica said the Heller Court clearly rejected that standard for laws burdening Second Amendment rights.
Marzzarella argued that strict scrutiny should apply because the right to bear arms is an enumerated, fundamental constitutional right.
But Scirica drew guidance in First Amendment law and found that even an enumerated right may be subjected to varying levels of scrutiny depending on the facts.
In the First Amendment arena, Scirica said, a content-based regulation on speech in a public forum is subjected to strict scrutiny, while less exacting standards apply to content-neutral regulations of speech that impose only time, place or manner restrictions.
Scirica concluded that 922(k) should be evaluated under intermediate scrutiny because the burden it imposes does not severely limit the possession of firearms.
Again looking to First Amendment law, Scirica found that an intermediate test calls for proof that the asserted governmental end to be more than just legitimate -- either "significant," "substantial," or "important" -- and that the law ought to "fit" that goal and not impose more of a burden than necessary.
Applying that test, Scirica found that 922(k) passes muster because it serves a law enforcement interest in enabling the tracing of weapons.
"Firearms without serial numbers are of particular value to those engaged in illicit activity because the absence of serial numbers helps shield recovered firearms and their possessors from identification," Scirica wrote.
"Their prevalence, therefore, makes it more difficult for law enforcement to gather information on firearms recovered in crimes. Accordingly, preserving the ability of law enforcement to conduct serial number tracing -- effectuated by limiting the availability of untraceable firearms -- constitutes a substantial or important interest."
The law also "fits reasonably with that interest," Scirica said, "in that it reaches only conduct creating a substantial risk of rendering a firearm untraceable."
Patton, Marzzarella's lawyer, could not be reached for comment.
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