Possession of Firearm With Obliterated Serial Number Not Protected by Second Amendment

US v. Price: Price was involved in a traffic stop, during which a firearm was recovered from him, a firearm with an “obliterated” serial number. Due to prior convictions, he was charged both as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and possession of a firearm with an obliterated serial number under § 922(k). Price moved to dismiss both counts, arguing that under the Supreme Court’s decision in Bruen both statutes violated the Second Amendment. The district court disagreed as to § 922(g)(1), but granted the motion as to § 922(k), concluding that Price’s possession of the firearm was conduct covered by the Second Amendment and that no analogous regulation was demonstrated in the historical record.

The Government took an interlocutory appeal. After an initial oral argument before a panel, the court sua sponte set the case for rehearing en banc and reversed the district court’s grant of Price’s motion to dismiss on the § 922(k) count.

Writing for the court, Judge Wynn (joined by eight others) concluded that Price’s possession of the firearm was not conduct that fell within the protection of the Second Amendment. In other words, his challenge failed at the “first step” of the Bruen analysis, relieving the court of the need to dive into the issue of whether the historical record demonstrated the necessary analogous regulation. Instead, the court concluded that because there is no reason for a law-abiding person to knowingly possess a firearm with an obliterated serial number such firearms were not in “common usage.” In doing so, the court concluded that at least some historical analysis was involved in the first step analysis.

Judge Niemeyer concurred, arguing that the simple possession of the firearm did fall within the ambit of the Second Amendment, but that Price’s challenges fails at the second step (where questions of history are properly analyzed). Judge Agee also concurred, arguing that because Price was a felon, and thus couldn’t possess a firearm anyway, § 922(k) could not be unconstitutional as applied to him. Judge Quattlebaum (joined by Judge Rushing) also concurred, largely along the same lines as Judge Niemeyer.

Judge Gregory dissented, criticizing the majority for being unable to “fathom why a person would own a firearm with an imperfect serial number for any non-criminal purpose.” He continued that the majority opinion departed from the Bruen analysis and “could also have a disparate impact that may not be apparent.” Finally, Judge Richardson also dissented, arguing that the Government had failed bear its burden of showing that § 922(k) survived a Second Amendment challenge.