USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 1 of 84

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4609

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

RANDY PRICE,

Defendant – Appellee.

------------------------------

DISTRICT OF COLUMBIA; CALIFORNIA; COLORADO; CONNECTICUT; DELAWARE; HAWAII; IDAHO; ILLINOIS; MAINE; MARYLAND; MASSACHUSETTS; MICHIGAN; MINNESOTA; NEW JERSEY; NEW MEXICO; NEW YORK; NORTH CAROLINA; OHIO; OREGON; PENNSYLVANIA; RHODE ISLAND; WASHINGTON; THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; EVERYTOWN FOR GUN SAFETY; BRADY; MARCH FOR OUR LIVES,

Amici Supporting Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:22-cr-00097-1)

Argued: March 20, 2024 Decided: August 6, 2024 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 2 of 84

Before DIAZ, Chief Judge, and WILKINSON, NIEMEYER, KING, GREGORY, AGEE, WYNN, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, HEYTENS, BENJAMIN, and BERNER, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the majority opinion, in which Chief Judge Diaz, Judge Wilkinson, Judge King, Judge Thacker, Judge Harris, Judge Heytens, Judge Benjamin, and Judge Berner joined. Judge Niemeyer wrote an opinion concurring in the judgment. Judge Agee wrote an opinion concurring in the judgment. Judge Quattlebaum wrote an opinion concurring in the judgment, in which Judge Rushing joined. Judge Gregory wrote a dissenting opinion. Judge Richardson wrote a dissenting opinion.

ARGUED: William Andrew Glaser, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William S. Thompson, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellant. Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellee. Janet Carter, William J. Taylor, Jr., EVERYTOWN LAW, New York, New York, for Amicus Everytown for Gun Safety. Shira Lauren Feldman, BRADY, Washington, D.C.; Ciara Wren Malone, MARCH FOR OUR LIVES, New York, New York; John Graubert, Sarah Suwanda, Kendall T. Burchard, Washington, D.C., Priya Sundaresan Leeds, COVINGTON & BURLING LLP, San Francisco, California, for Amici Brady and March for Our Lives. Karl A. Racine, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Arjun P. Ogale, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Washington, D.C., for Amicus District of Columbia. Rob Bonta, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, Sacramento, California, for Amicus State of California. William Tong, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Anne E. Lopez, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF HAWAII, Honolulu, for Amicus State of Hawaii. Kwame Raoul, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS, Chicago, Illinois, for Amicus State of Illinois. Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of Maryland. Dana Nessel, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Edward E. Manibusan, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF THE

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NORTHERN MARIANA ISLANDS, Saipan, Northern Mariana Islands, for Amicus Commonwealth of the Northern Mariana Islands. Hector Balderas, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW MEXICO, Santa Fe, New Mexico, for Amicus State of New Mexico. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Amicus State of North Carolina. Philip J. Weiser, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF COLORADO, Denver, Colorado, for Amicus State of Colorado. Kathleen Jennings, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF DELAWARE, Wilmington, Delaware, for Amicus State of Delaware. Lawrence G. Wasden, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF IDAHO, Boise, Idaho, for Amicus State of Idaho. Aaron M. Frey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MAINE, Augusta, Maine, for Amicus State of Maine. Maura Healey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts. Keith Ellison, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MINNESOTA, St. Paul, Minnesota, for Amicus State of Minnesota. Matthew J. Platkin, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, Trenton, New Jersey, for Amicus State of New Jersey. Letitia James, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, New York, New York, for Amicus State of New York. Dave Yost, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio. Ellen F. Rosenblum, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon, for Amicus State of Oregon. Peter F. Neronha, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF RHODE ISLAND, Providence, Rhode Island, for Amicus State of Rhode Island. Josh Shapiro, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF PENNSYLVANIA, Harrisburg, Pennsylvania, for Amicus Commonwealth of Pennsylvania. Robert W. Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington, for Amicus State of Washington.

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WYNN, Circuit Judge:

Randy Price was charged in a two-count indictment with possession of a firearm

with an obliterated serial number, in violation of

(k), and possession of a

firearm by a felon, in violation of

(g)(1). After the Supreme Court’s

decision in New York State Rifle & Pistol Association v. Bruen,

(2022), Price

moved to dismiss the indictment in its entirety, arguing that both statutes were facially

unconstitutional. The district court denied his motion to dismiss as to the count charging

him with a violation of § 922(g)(1) but granted it as to the count charging him with a

violation of § 922(k), finding that the analysis required under Bruen rendered § 922(k) an

impermissible restriction on the Second Amendment right to keep and bear arms. The

Government appealed the dismissal.

This appeal thus presents us with a single question: Is § 922(k), which bans the

possession of a firearm with a removed, obliterated, or altered serial number, facially

unconstitutional in light of the framework Bruen requires us to apply to Second

Amendment challenges? We conclude that the conduct regulated by § 922(k) does not fall

within the scope of the right enshrined in the Second Amendment because a firearm with

a removed, obliterated, or altered serial number is not a weapon in common use for lawful

purposes. Accordingly, we reverse the dismissal of the § 922(k) count in Price’s indictment

and remand for further proceedings.

I.

On May 3, 2022, Price was charged in a two-count indictment with possession of a

firearm with an obliterated serial number, in violation of

(k), and

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possession of a firearm by a felon, in violation of

(g)(1), after police

recovered a handgun with an obliterated serial number from his vehicle during a traffic

stop. Price filed a motion to dismiss the indictment against him, arguing that both

provisions of § 922 with which he was charged were unconstitutional following the

Supreme Court’s decision in Bruen. The Government opposed the motion.

The district court granted in part and denied in part Price’s motion. It held that Bruen

did not render § 922(g)(1)’s ban on possession of firearms by felons unconstitutional and

denied the motion as to that count of the indictment. However, because it concluded that

the conduct prohibited by § 922(k) was protected by the Second Amendment and because

it could not find a historical tradition of firearm regulation consistent with § 922(k), it

granted the motion to dismiss the count charging Price with a violation of § 922(k). This

appeal by the Government followed.

II.

We have jurisdiction over this interlocutory appeal pursuant to

,

which provides in relevant part that the Government may appeal from an “order of a district

court dismissing an indictment . . . as to any one or more counts.”

; see

United States v. Wills,

(4th Cir. 2000) (exercising jurisdiction pursuant

to § 3731 where one count of a two-count indictment was dismissed); United States v.

Oakar,

(D.C. Cir. 1997) (similar).

We review a district court’s decision to grant a motion to dismiss an indictment de

novo. United States v. Wass,

(4th Cir. 2020)

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III.

Section 922(k) provides, in relevant part, that “[i]t shall be unlawful for any person

knowingly . . . to possess . . . any firearm which has had the importer’s or manufacturer’s

serial number removed, obliterated, or altered and has, at any time, been shipped or

transported in interstate or foreign commerce.”1

(k). Price argues that

enforcement of this provision violates the Second Amendment. We disagree. To explain

why, we begin by establishing the framework under which we analyze Second Amendment

challenges.

Following the Supreme Court’s decision in District of Columbia v. Heller,

(2008)—which held that the Second Amendment confers an individual right to possess

and carry weapons for self-defense—courts throughout the country, including the Fourth

Circuit, routinely applied a two-step framework to analyze challenges alleging

infringement of that individual right. Bruen,

.

At step one of the post-Heller framework, courts analyzed whether the challenged

law regulated activity that fell within the scope of the Second Amendment right to bear

arms as “originally understood.”

at 18 (quoting Kanter v. Barr,

(7th

Cir. 2019)); see United States v. Chester,

, 680–81 (4th Cir. 2010), abrogated

by Bruen,

. If a court concluded that the activity fell within that scope, then at

1 Firearms were not required to be manufactured with serial numbers until 1968. See Gun Control Act of 1968,

102, 201,

, 1223, 1230. Thus, an individual in possession of a pre-1968 firearm that never bore a serial number is not in violation of § 922(k).

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step two, it analyzed “how close the law [came] to the core of the Second Amendment right

and the severity of the law’s burden on that right.” Bruen,

(quoting Kanter,

); see Chester,

.

In Bruen, the Supreme Court rejected courts’ post-Heller, two-step framework as

involving “one step too many.” Bruen,

. Although the Court held that step

one of that framework was “broadly consistent with Heller, which demands a test rooted

in the Second Amendment’s text, as informed by history,” it rejected the means-end

approach of step two.

Instead of applying means-end scrutiny to determine whether a

challenged regulation passes constitutional muster, Bruen set forth a new framework under

which courts must now analyze Second Amendment challenges: “When the Second

Amendment’s plain text covers an individual’s conduct, the Constitution presumptively

protects that conduct. The government must then justify its regulation by demonstrating

that it is consistent with the Nation’s historical tradition of firearm regulation.”

.

More recently, in United States v. Rahimi, the Supreme Court further clarified that “the

appropriate analysis involves considering whether the challenged regulation is consistent

with the principles that underpin our regulatory tradition.” United States v. Rahimi,

, 1898 (2024).

Bruen thus establishes a new “two-step evaluation.”

(Jackson, J.,

concurring); accord

at 1932–33 (Thomas, J., dissenting). First, we must ask whether

the Second Amendment’s plain text covers the conduct at issue. If not, that ends the

inquiry: the Second Amendment does not apply. Cf. Bevis v. City of Naperville,

(7th Cir. 2023) (noting that its conclusion that the arms at issue were not

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protected by the Second Amendment was sufficient to resolve the constitutional question

but nonetheless continuing to the second step of the analysis), cert denied sub nom. Harrel

v. Raoul, No. 23-877,

(U.S. July 2, 2024). But if it does, then, second,

we must ask whether the Government has justified the regulation as consistent with the

“principles that underpin” our nation’s historical tradition of firearm regulation. Rahimi,

144 S. Ct. at 1898. Because we conclude below that Price’s challenge falters at step one,

we need only address what is required at that phase of the analysis.

Price argues that our inquiry at step one is extremely narrow: that, at least in this

case, the only relevant question is whether the regulation criminalizes “keep[ing] and

bear[ing]” any “Arms.” U.S. Const. amend. II. But that argument does not accord with the

text of the Second Amendment, nor with the analysis put forth in Heller, Bruen, and

Rahimi.

The Second Amendment provides that “[a] well regulated Militia, being necessary

to the security of a free State, the right of the people to keep and bear Arms, shall not be

infringed.” Id. The phrase “keep and bear Arms” cannot be divorced from the text that

immediately precedes it—“the right of the people.” This right of the people, as Heller made

clear, is to be interpreted based on the scope of the historical right “inherited from our

English ancestors.” Heller, 554 U.S. at 599–601 (quoting Robertson v. Baldwin,

(1897)). And Heller further cautioned that, “[l]ike most rights, the right secured

by the Second Amendment is not unlimited. From Blackstone through the 19th-century

cases, commentators and courts routinely explained that the right was not a right to keep

and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

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Id. at 626; e.g., id. at 620 (noting that in 1875 the Court described the “right protected by

the Second Amendment as ‘bearing arms for a lawful purpose’” (quoting United States v.

Cruikshank,

(1875)));

at 626–27 (noting that “nothing in [its] opinion

should be taken to cast doubt on 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”); accord Rahimi, 144 S. Ct. at 1897 (“At the founding,

the bearing of arms was subject to regulations ranging from rules about firearm storage to

restrictions on gun use by drunken New Year’s Eve revelers. Some jurisdictions banned

the carrying of ‘dangerous and unusual weapons.’ Others forbade carrying concealed

firearms.” (citations omitted)).

Most relevant here, Heller concluded that “the Second Amendment does not protect

those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller,

. That is, the Court recognized that an “important limitation on the right to

keep and carry arms” existed regarding the “sorts of weapons protected.”

.

Drawing on its opinion in United States v. Miller,

(1939), the Court

recognized that a limitation on the types of weapons protected was supported by the

“historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Heller,

(cleaned up).

In Miller, the Supreme Court considered whether a federal ban on the possession or

use of a shotgun with a barrel of less than eighteen inches violated the Second Amendment.

Miller,

. The Court concluded that “[i]n the absence of any evidence”

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showing that a short-barreled shotgun had any “reasonable relationship to the preservation

or efficiency of a well regulated militia,” it “[could ]not say that the Second Amendment

guarantees the right to keep and bear such an instrument.”

And it further concluded that

“[c]ertainly it is not within judicial notice that this weapon is any part of the ordinary

military equipment or that its use could contribute to the common defense.”

Considering this language, the Heller Court concluded that Miller’s holding was

based on a conclusion that “the type of weapon at issue was not eligible for Second

Amendment protection” and that Miller thus stood “for the proposition that the Second

Amendment right . . . extends only to certain types of weapons.” Heller, 554 U.S. at 622–

23. However, it noted that Miller lacked a detailed analysis of the precise types of weapons

to which the Second Amendment extends.

at 623–24. The Court thus undertook that

analysis itself.

at 624–26.

First, the Court acknowledged that Miller’s reference to “ordinary military

equipment” might be read as an indication that the Second Amendment protects “only those

weapons useful in warfare.”

at 624 (quoting Miller,

). But it flatly

rejected such a reading, noting that it would render the National Firearms Act’s restrictions

on machineguns, which were certainly useful in warfare, seemingly unconstitutional.

Instead, the Heller Court concluded that Miller’s reference to ordinary military equipment

could only be properly understood in tandem with the language that followed: “[O]rdinarily

when called for [militia] service [able-bodied] men were expected to appear bearing arms

supplied by themselves and of the kind in common use at the time.”

(quoting Miller,

).

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Thus, the Court reasoned that Miller’s reference to ordinary military equipment was

best understood as meaning that the Second Amendment extends only to weapons useful

to a Founding-era militia—“arms in common use at the time for lawful purposes like self-

defense.”2

(cleaned up). So, Miller stood for the proposition “that the Second

Amendment does not protect those weapons not typically possessed by law-abiding

citizens for lawful purposes, such as short-barreled shotguns”—a proposition Heller

adopted as “accord[ing] with the historical understanding of the scope of the [Second

Amendment] right.” Id. at 625.

Nothing in Bruen abrogated Heller’s extensive discussion of the contours of the

scope of the right enshrined in the Second Amendment. In fact, Bruen confirmed that the

limitations on the Second Amendment right identified by Heller are inherent in the

meaning of “the right of the people” and should be addressed at the first step of its new

framework.

Again, Bruen’s first step requires us to evaluate whether “the Second Amendment’s

plain text covers an individual’s conduct.” Bruen,

. The Bruen Court asked

three questions to resolve this inquiry: (1) whether the petitioners were “part of the people

2 The Heller Court acknowledged one criticism of this reading of Miller, noting that “[i]t may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.” Heller,

. But the Court rejected this criticism as undermining its reading of the scope of the Second Amendment right, noting that while “[i]t may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society . . . [,] the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

at 627–28.

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whom the Second Amendment protects”; (2) whether the weapons regulated by the

challenged regulation were “in common use” for a lawful purpose, in that case, “self-

defense”; and (3) whether the Second Amendment protected the petitioners’ “proposed

course of conduct.”

at 31–32 (cleaned up).

The Court in Bruen focused on the third of these inquiries, and for good reason—

there was no dispute in that case that the petitioners, “two ordinary, law-abiding, adult

citizens,” were among the people protected by the Second Amendment, and neither party

disputed that the weapons regulated by the challenged regulation—handguns—were in

common use for self-defense.

But by engaging in these inquiries at step one, Bruen

made clear that the limitations on the scope of the Second Amendment right identified in

Heller are inherent in the text of the amendment. Cf. United States v. Avila,

, 1143 n.1 (D. Colo. 2023) (“Each of these questions address interpretive issues

relating to different ‘textual elements’—‘the people,’ ‘Arms,’ and ‘keep and bear,’

respectively—of what the Supreme Court calls the Second Amendment’s ‘operative

clause.’” (quoting Bruen, 597 U.S. at 31–32)); Rahimi, 144 S. Ct. at 1923 (Kavanaugh, J.,

concurring) (noting that Heller “indicated that . . . the Second Amendment attaches only to

weapons ‘in common use’”).

We thus reject Price’s argument that we are barred from considering the historical

limitations on the scope of the right at step one of the framework set forth in Bruen. A plain

reading of Heller and Bruen leads us to the opposite conclusion: we can only properly apply

step one of the Bruen framework by looking to the historical scope of the Second

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Amendment right.3 Id. at 1897 (majority opinion) (citing historical limitations on the “right

secured by the Second Amendment,” and noting that “[i]n Heller, our inquiry into the

3 Our second colleague in dissent and two of our concurring colleagues would consider the historical limits on the Second Amendment right only at Bruen’s second step. See Second Dissenting Op. at 64–67; First Concurring Op. at 28; Third Concurring Op. at 40. Two of these separate opinions quote the Heller Court’s statement that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Heller,

. But, in context, this statement was meant only to reject the “bordering on . . . frivolous” argument that “only those arms in existence in the 18th century are protected by the Second Amendment.” Id.; see also Rahimi, 144 S. Ct. at 1898 (noting that it would be “mistaken” to “apply[] the protections of the right only to muskets and sabers”). This statement was not meant to define “Arms,” as used in the Second Amendment, as any weapon that one might conceivably pick up and carry. Instead, the meaning of “Arms” within the Second Amendment can only be defined by reference to history; here, the historical context of the “traditional militia.” Heller,

.

Our third concurring colleague takes a different path to reach this conclusion, noting that because the Bruen Court “invoked the common-use concept as it scoured a historical record” at step two, the common-use limitation is confined to step two. Third Concurring Op. at 45. But the Bruen Court only referenced the common-use limitation at its second step as it was rejecting the respondents’ argument that seventeenth-century restrictions on handgun possession—laws that were likely permissible because handguns were, at the time, not in common use—were sufficiently analogous to the challenged law at issue in that case. Bruen,

. In rejecting the relevance of such laws, it noted that such laws only emphasized the point it “already acknowledged in Heller”: “the Second Amendment protects only the carrying of weapons that are those ‘in common use at the time.’”

(emphasis added). Accordingly, the Court was not relegating the common-use limitation to step two, it was merely noting that historical laws supported the inherent limitations on the right it had already recognized: the Second Amendment does not merely permit regulation of some weapons, it “does not protect” weapons “not typically possessed by law-abiding citizens for lawful purposes” at all. Heller,

.

Because defining the word “Arms” within its historical context leads us to conclude that some weapons are excluded from Second Amendment protection entirely, and because, as discussed below, the weapons regulated by § 922(k) are so excluded, we need not perform the lengthy step-two analysis undertaken by the Bruen Court. Such analysis is necessary only if the Second Amendment “presumptively guarantees” the right to engage in the conduct regulated by a challenged law. Bruen,

. Once conduct is

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scope of the right began with ‘constitutional text and history’” (first quoting Heller,

, and then quoting Bruen,

)); accord id. at 1912 (Kavanaugh, J.,

concurring) (explaining how history should be used to interpret “vague constitutional

text”).

IV.

Having explained the inquiry required by Bruen’s first step, we now turn to applying

it in the present case. Because it is outcome determinative here, we focus our analysis on

Bruen’s second step-one inquiry: whether the weapons regulated by § 922(k) are in

common use for a lawful purpose.4

presumptively protected, a law is constitutional only if it has a “relevantly similar” “historical analogue.” Rahimi, 144 S. Ct. at 1901–02 (quoting Bruen, 597 U.S. at 29–30). But where, as here, a weapon falls outside the plain text of the Second Amendment, there is no such presumption of protection and we thus need not parse every arguably similar historical regulation.

In focusing on this inquiry, we do not mean to imply that Price’s possession of a 4

firearm with an obliterated serial number would otherwise fall within the scope of the right protected by the Second Amendment. We recognize that, as a convicted felon, Price is likely not one of the “law-abiding” citizens the Bruen Court easily concluded were among “‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 31–32. But we are also cognizant that there remain open questions at both the first and second steps of the Bruen analysis: whether a person with a felony conviction (or a particular kind of felony conviction, like a conviction for a violent crime) may be included within “the people” for purposes of the Second Amendment; and if so, whether they can nevertheless be disarmed consistent with the nation’s historical tradition of firearm regulation. The answers to these questions post-Bruen are the subject of disagreement among the circuits and will require further analysis post-Rahimi. Compare Range v. Att’y Gen.,

(3d Cir. 2023) (en banc) (concluding that an individual with a nonviolent felony conviction remained within “the people” and could not be disarmed consistent with the historical tradition of firearm regulation), vacated sub nom. Garland v. Range, No. 23-374,

(U.S. July 2, 2024), and United States v. Duarte,

(9th Cir.) (same), reh’g en banc granted, _ F. 4th _,

(9th Cir. July 17, 2024), with Vincent

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v. Garland,

, 1202 (10th Cir. 2023) (concluding that Bruen did not abrogate the Tenth Circuit’s precedent that the felon-in-possession ban was presumptively lawful and rejecting the need for individual, as-applied inquiries for nonviolent felons), vacated, No. 23-683,

(U.S. July 2, 2024), and United States v. Jackson,

(8th Cir. 2023) (concluding that historical disarmament of dangerous people supported the felon-in-possession ban and rejecting the need for “an individualized determination of dangerousness as to each person in a class of prohibited persons”), vacated, No. 23-6170,

(U.S. July 2, 2024).

And while this Court recently determined that the federal felon-in-possession ban,

(g)(1), is facially constitutional because it has a “plainly legitimate sweep,” United States v. Canada,

(4th Cir. 2024) (quoting Wash. State Grange v. Wash. State Republican Party,

(2008)), we declined to opine on the open questions regarding as-applied challenges and nonviolent felons. Because the answers to these questions do not affect the outcome here, we similarly leave them for another day.

Our second concurring colleague, however, faults us for failing to decide that Price falls within § 922(g)(1)’s plainly legitimate sweep and, having so concluded, for failing to base our holding on the notion that “if [Price] can be constitutionally prohibited from possessing any firearm without running afoul of the Second Amendment, then he can surely be constitutionally prohibited from possessing a discrete subset of firearms— namely, firearms with obliterated serial numbers—without running afoul of it too.” Second Concurring Op. at 37. Our colleague frames this as the simpler path, but we disagree. Were we to take the path our colleague urges, we would be deciding only the question of whether a law banning felons from possessing firearms with obliterated serial numbers is constitutional. For the reasons stated in Canada, such a law targeting felons would have a “plainly legitimate sweep.” But that is not the law Congress enacted via § 922(k). Instead, § 922(k) bans all individuals from possessing firearms with obliterated serial numbers. And—understanding that § 922(k) is not limited to felons—both the parties and the district court have addressed whether § 922(k) is facially constitutional. Thus, our second concurring colleague would have us ignore the question that is squarely presented in this case and instead cast about for an alternate theory that would leave the district courts with no more guidance than Canada already provides.

Our colleague’s suggested path is problematic for another reason. Price was also charged with a violation of § 922(g)(1). Were we to conclude that only the version of § 922(k) as rewritten by our colleague is constitutional, we would be imposing double criminal liability on Price for a single reason—as a person with felony status, he possessed a single firearm. In other words, § 922(g)(1) would essentially become a lesser-included offense of § 922(k), raising Blockburger questions. See Blockburger v. United States,

(1932) (“[W]here the same act or transaction constitutes a violation of two

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We know from Supreme Court precedent that short-barreled shotguns and

machineguns are not in common use for a lawful purpose but handguns—“the

quintessential self-defense weapon”—are. Heller,

; see

(discussing Miller,

). Still, the Supreme Court has not elucidated a precise

test for determining whether a regulated arm is in common use for a lawful purpose. And

we are the first circuit court to resolve the constitutionality of § 922(k) after Bruen.5

distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”). The path we take to uphold § 922(k) avoids these uncharted, and unbriefed, waters. 5 In unpublished opinions, the Sixth and Eleventh Circuits have considered challenges to defendants’ convictions for violating § 922(k) but, reviewing only for plain error, have concluded the statute was not “clearly unconstitutional under current law.” United States v. Ramadan, No. 22-1243,

, at *3 (6th Cir. Oct. 12, 2023); see United States v. Lopez, No. 22-13036,

(11th Cir. May 7, 2024) (same). Numerous district courts have also considered this question post-Bruen. All but the district court below have concluded that § 922(k) is constitutional. See United States v. Reyna, No. 3:21-CR-41 RLM-MGG,

(N.D. Ind. Dec. 15, 2022) (finding that the conduct regulated by § 922(k) is not within the scope of the Second Amendment because firearms with obliterated serial numbers are not in common use for a lawful purpose); United States v. Avila,

(D. Colo. 2023) (same); United States v. Holton,

(N.D. Tex. 2022) (finding that the conduct regulated by § 922(k) is not within the scope of the Second Amendment and that, even if it was, the statute is consistent with the Nation’s historical tradition of firearm regulation); United States v. Tita, No. RDB-21-0334,

(D. Md. Dec. 22, 2022) (same); United States v. Serrano,

(S.D. Cal. 2023) (same); United States v. Bradley, No. 2:22-cr-00098,

(S.D. W. Va. Mar. 23, 2023) (same); United States v. Walter, No. 3:20-cr-0039,

(D.V.I. Apr. 20, 2023) (same); United States v. Trujillo,

(D.N.M. 2023) (same); United States v. Patton, No. 4:21CR3084,

(D. Neb. Sept. 26, 2023) (same); United States v. Dangleben, No. 3:23-MJ-0044,

(D.V.I. Oct. 3, 2023) (same); United States v. Dixson, No. S2-4:21CR0054 AGF (JSD),

(E.D. Mo. Oct. 26, 2023) (same); United States v. Sing-Ledezma, _ F. Supp. 3d _,

(W.D. Tex. Dec. 11, 2023) (same); United States v. Alberts, No. CR

16 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 17 of 84

In 2010—before Bruen—the Third Circuit analyzed how Miller and Heller applied

to firearms with obliterated serial numbers.6 United States v. Marzzarella,

(3d

Cir. 2010), abrogated by Bruen,

, as recognized in Range v. Att’y Gen.,

(3d Cir. 2023) (en banc), vacated sub nom. Garland v. Range, No. 23-374,

(U.S. July 2, 2024). In relevant part, the Third Circuit analyzed whether a

firearm with an obliterated serial number is a dangerous and unusual weapon by comparing

it to the short-barreled shotgun at issue in Miller. The court observed that “[t]he District

Court could not identify, and [the defendant] does not assert, any lawful purpose served by

obliterating a serial number on a firearm.”

. It further noted that there was “no

compelling reason why a law-abiding citizen would prefer an unmarked firearm” because

23-131-BLG-SPW,

(D. Mont. Apr. 5, 2024) (same); United States v. Ortiz, No. 3:22-cr-0020,

(D.V.I. Apr. 10, 2024) (same); United States v. Brabham, No. 1:21-CR-342,

(M.D. Pa. June 24, 2024) (same); United States v. Banks, No. CR 24-25,

(E.D. Pa. June 21, 2024) (finding that it is likely that the conduct regulated by § 922(k) is not within the scope of the plain text of the Second Amendment but that even if it was, it was consistent with the Nation’s historical tradition of firearm regulation); United States v. Sharkey,

(S.D. Iowa 2023) (finding that § 922(k) is consistent with the Nation’s historical tradition of firearm regulation without analyzing whether it regulates conduct covered by the Second Amendment’s text); United States v. Barnes, No. CR 23-12,

(D. Del. July 8, 2024) (same); United States v. Cherry, No. 19-122-1,

(E.D. Pa. Jan. 24, 2024) (considering § 922(k)’s constitutionality in the context of a

motion and concluding § 922(k) is consistent with the Nation’s historical tradition of firearms regulation). 6 Section 922(k) also criminalizes possession of a firearm with a “removed” or “altered” serial number, but we focus here on firearms with obliterated serial numbers because that is how the indictment described the firearm found in Price’s vehicle.

17 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 18 of 84

unmarked firearms have value “primarily for persons seeking to use them for illicit

purposes.” Id. We find these aspects of its opinion persuasive.

That said, the Third Circuit was not convinced that firearms with obliterated serial

numbers were entirely analogous to the prototypical example of an unprotected weapon—

the short-barreled shotgun—because, it reasoned, “[w]hile a short-barreled shotgun is

dangerous and unusual in that its concealability fosters its use in illicit activity, it is also

dangerous and unusual because of its heightened capability to cause damage.” Id.

(emphasis added). By contrast, while arms with obliterated serial numbers were dangerous

because of their likelihood to be used illicitly, they were nonetheless “no more damaging

than a marked firearm” when used. Id. For that reason, the Third Circuit court moved to

the second step of the pre-Bruen analysis, assuming without deciding that § 922(k) placed

some burden on an individual’s Second Amendment right. Id.

Price would have us reach the same impasse as the Third Circuit: that while arms

with obliterated serial numbers are preferable to criminals because of their concealability,

they are functionally no different from serialized arms. And Price argues that, to the extent

any bearable arms are excepted from the Second Amendment’s protection, such exception

applies only to weapons that are exceptionally dangerous because of their function. So, in

his view, any arguable exception to the Second Amendment is based solely on

dangerousness of function and thus does not apply to the arms regulated by § 922(k).

We reject Price’s view of the scope of the Second Amendment. To the extent the

court in Marzzarella was unable to conclude that firearms with obliterated serial numbers

were categorically unprotected, that was because it misread Heller as directing courts to

18 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 19 of 84

look only to a weapon’s dangerousness, rather than also to whether it is commonly used

for a lawful purpose.

We focus our analysis as to whether a weapon is protected on whether it is in

common use for a lawful purpose, not solely on its functionality.7 Under this test, if we

conclude that a weapon is not in common use for a lawful purpose, it can be permissibly

excluded from the Second Amendment’s protection based on the tradition of regulating

“dangerous and unusual” arms. Heller,

; cf. United States v. Fincher,

(8th Cir. 2008) (applying Heller and concluding that “[m]achine guns are

not in common use by law-abiding citizens for lawful purposes and therefore fall within

the category of dangerous and unusual weapons that the government can prohibit for

7 Our second colleague in dissent disagrees, arguing that functionality is the only relevant metric and that “whether a gun has or lacks a serial number does not change how the gun operates as a weapon so that it is more effective for one purpose or another.” Second Dissenting Op. at 72–73. While we agree that whether a firearm bears a serial number does not change its rate of fire, for example, we cannot agree that firearms with obliterated serial numbers are no more effective “for one purpose or another.” As the second dissent admits, firearms without serial numbers are more effective if one’s purpose is to not have the government track their firearm. Id. at 78. Thus, because a weapon’s nonfunctional characteristics can nevertheless impact the purposes for which it is used, such characteristics are relevant to our analysis.

For a similar reason, we disagree with our first colleague in dissent who, like us, locates the common-use inquiry at Bruen’s step one. See First Dissenting Op. at 56. Contrary to our colleague’s characterization, it is not our view that “any change to a firearm,” id. at 57, would exclude it from the scope of “Arms” to which the Second Amendment applies. Only changes that produce a weapon that is no longer in common use for a lawful purpose are relevant. For example, if a red or green firearm is no more likely to be used in crimes than a black or grey one, such a weapon would still qualify as a constitutionally protected Arm. But here, where the modification to the firearm makes it more useful in crime, such modification is relevant to our analysis.

19 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 20 of 84

individual use”). In other words, while historical tradition regarding the regulation of

dangerous weapons supports a limitation on the scope of the Second Amendment right, a

weapon must be in common use for a lawful purpose to be protected by that right.

Thus, the Supreme Court has directed us to determine whether a weapon’s common

purpose is a lawful one—such as self-defense—or one that would be unlawful for ordinary

citizens to engage in—such as concealing the commission of crimes, as with short-barreled

shotguns, or waging war, as with machineguns. This is an inquiry that courts are equipped

to apply consistently. For example, if available, courts can look to statistics regarding

weapons commonly used in crimes versus weapons commonly chosen by law-abiding

citizens for self-defense. And courts can also, as the Supreme Court did in Heller, apply

common sense and consider whether there are any reasons a law-abiding citizen would

want to use a particular weapon for a lawful purpose. See Heller,

(“There

are many reasons that a citizen may prefer a handgun for home defense: It is easier to store

in a location that is readily accessible in an emergency; it cannot easily be redirected or

wrestled away by an attacker; it is easier to use for those without the upper-body strength

to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand

dials the police.”). If no common-sense reasons exist for a law-abiding citizen to prefer a

particular type of weapon for a lawful purpose like self-defense, and no evidence suggests

that law-abiding citizens nonetheless commonly choose the weapon for lawful uses, then

courts can conclude that the weapon is not in common use for lawful purposes.

Of course, a weapon’s dangerousness is not unrelated to whether it is in common

use for a lawful purpose. The powerful and unpredictable nature of a sawed-off shotgun

20 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 21 of 84

contributes to why it would be an unlikely choice for a law-abiding citizen to use for self-

defense, and the lethality of a machinegun has led the Supreme Court to conclude that such

weapons are best suited for war, not self-defense. As Judge Wilkinson’s good opinion in

Bianchi v. Brown makes clear, a weapon being extraordinarily dangerous is certainly a

relevant factor when evaluating whether that weapon is protected by the Second

Amendment. Bianchi v. Brown, No. 21-1255, slip op. at 21–22 (4th Cir. Aug. 6, 2024)

(discussing the weapons the Supreme Court has determined fall beyond the Second

Amendment’s scope and noting that that “[w]hat brings [them] together, and what separates

them from the handgun, is their ability to inflict damage on a scale or in a manner

disproportionate to the end of personal protection. As such, they are weapons most suitable

for criminal or military use”). But we reject dangerousness of functionality as the sole

determinative factor. Put another way, in our view, the Third Circuit in Marzzarella failed

to reach a firm conclusion on whether firearms with obliterated serial numbers are

categorically excluded from the Second Amendment’s scope because of its mistaken belief

that it needed to conclude both that a firearm with an obliterated serial number was not in

common lawful use and that it was functionally more dangerous than other weapons. While

the second conclusion is relevant, only the first conclusion is required.

The question before us is thus whether firearms with obliterated serial numbers are

in common use for lawful purposes. On that point, we agree with the Third Circuit that

there is “no compelling reason why a law-abiding citizen” would use a firearm with an

obliterated serial number and that such weapons would be preferable only to those seeking

21 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 22 of 84

to use them for illicit activities. Marzzarella,

. This is the same common-

sense reasoning applied by the Supreme Court in Heller.

Further, there is no evidence before us that law-abiding citizens nonetheless choose

these weapons for lawful purposes like self-defense.8 In fact, the opposite appears to be

true—firearms with obliterated serial numbers are not common at all. A 2023 report from

the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) noted that less than three percent

of the firearms submitted by law enforcement agencies to the ATF for tracing between

2017 and 2021 had an obliterated serial number. Bureau of Alcohol, Tobacco, & Firearms,

U.S. Dep’t of Just., National Firearms Commerce and Trafficking Assessment (NFCTA):

Crime Gun Intelligence and Analysis Volume Two pt. 3, at 5 (2024),

https://www.atf.gov/firearms/docs/report/nfcta-volume-ii-part-iii-crime-guns-recovered-

8 We recognize that Heller can be read as suggesting that self-defense is not the only lawful purpose for which an individual might want to keep and bear a firearm. Cf. Heller,

(noting both “self-defense” and “hunting” as reasons Founding-era Americans likely valued the right to keep and bear arms). But Bruen emphasized that “individual self-defense ‘is the central component’ of the Second Amendment right.” Bruen,

(quoting McDonald v. City of Chicago,

(2010)). Thus, it is not clear what weight we give a weapon’s potential to be used for non-self- defense, but still lawful, purposes. Cf. Bevis,

(“Both Supreme Court decisions and historical sources indicate that the Arms the Second Amendment is talking about are weapons in common use for self-defense. That is not to say that there are no other lawful uses for weapons—sporting uses, collection, and competitions come to mind as examples. But the constitutional protection exists to protect the individual right to self- defense, and so that will be our focus.”). But because there is no evidence before us that firearms with obliterated serial numbers are useful for any lawful purpose, self-defense or otherwise, we decline to speculate whether a weapon not in common use for self-defense but in common use for other purposes might still be protected by the Second Amendment.

22 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 23 of 84

and-traced-us/download [https://perma.cc/7LTX-ZDVG].9 Of course, this statistic relates

only to those firearms seized by law enforcement agencies. But if firearms with obliterated

serial numbers are not even in common use for criminal purposes—the only scenario in

which we can conceive a reason to prefer such weapons10—then we think it fair to conclude

that such arms are not in common use for lawful purposes. Thus, we conclude that

§ 922(k)’s regulation of such arms does not implicate the Second Amendment.

We find the hypothetical example offered by the district court to conclude otherwise

to be unpersuasive. The district court evoked a hypothetical “law-abiding citizen” who

legally purchases a firearm bearing a serial number and then removes the serial number

with “no ill intent.” United States v. Price,

, 460 (S.D.W. Va. 2022).

When this hypothetical law-abiding citizen dies, he leaves his gun collection to his

similarly law-abiding daughter, who—aware that the firearm has an obliterated serial

number11—displays it in her father’s memory.

The district court concluded that both its

9 “[W]e may take judicial notice of governmental reports.” United States v. Doe,

, 147 n.6 (4th Cir. 2020) (citing United States v. Cecil,

(4th Cir. 1988)). 10 The second dissent characterizes us as ignoring the “customs of the American people” in favor of the “speculations of federal judges.” Second Dissenting Op. at 78. Had there been evidence presented in this litigation that it is customary for law-abiding individuals to prefer firearms with obliterated serial numbers, we would, of course, factor such evidence into our analysis. But neither the second dissent nor Price have been able to offer any such evidence. 11 The district court’s hypothetical requires that the citizen’s daughter knew the firearm she inherited had an obliterated serial number, as an individual must know of the alteration to be convicted of a violation of § 922(k). See United States v. Haywood,

(3d Cir. 2004) (collecting cases); United States v. Santiago,

USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 24 of 84

hypothetical law-abiding citizen and the citizen’s daughter would be in violation of

§ 922(k) despite engaging in conduct “squarely within the Second Amendment’s plain

text.” Id. So, the court reasoned, § 922(k) prohibits conduct protected by the Second

Amendment, failing the first step of the Bruen analysis.

In so concluding, the district court noted that “while the law-abiding citizen’s

possession of the firearm was originally legal, it became illegal only because the serial

number was removed,” thus infringing on the citizen’s right to possess a firearm. Id. But

the illegal conduct is not the possession of the firearm qua firearm: it is the possession of

a firearm with an obliterated serial number. Firearms that are originally lawfully purchased

are not somehow imbued with constitutional coverage no matter what happens after they

leave the dealer. Regardless of any originally lawful nature, a shotgun becomes contraband

once its barrel is modified to be less than eighteen inches. The fact that such contraband

was created using an originally lawful item is irrelevant.

Another hypothetical example further illustrates this point. Imagine a handgun—the

admittedly quintessential self-defense weapon—has been modified such that the grip is

made of illegally imported ivory. To accept Price’s view of § 922(k)—that an otherwise

847, 851 (4th Cir. 2009) (per curiam) (“To establish a violation of § 922(k), the Government must prove, beyond a reasonable doubt, that [the defendant]: (1) knowingly possessed the firearm, and (2) had knowledge that the serial number of the possessed firearm had been removed, obliterated, or altered.”).

24 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 25 of 84

constitutional12 restriction on the obliteration of a serial number becomes unconstitutional

when applied to a firearm—we would also have to accept that the Government’s ability to

regulate this illegally imported ivory was voided once that ivory was attached to a firearm.

We do not believe Bruen compels such a startling result. Just like an obliterated serial

number, a grip made of illegally imported ivory bears no relationship to the lawful use of

the weapon, would be unquestionably unlawful in other contexts, and produces a weapon

that is not in common use for a lawful purpose. The Government does not lose its ability

to regulate ivory, or a serial number, merely because it is affixed to a firearm.

The district court’s hypothetical is also flawed for another reason: it hinges on the

notion that the law-abiding citizen removed the serial number with no ill intent. The district

court apparently did not consider what legitimate motivation it imagines the law-abiding

citizen had for removing the serial number, but even if we could dream up such a peculiar

scenario, our conclusion would not change. Heller and Bruen direct us to analyze not only

whether a weapon might have some conceivable lawful use, but also whether such use is

common. Cf. United States v. Reyna, No. 3:21-CR-41 RLM-MGG,

, at

*5 (N.D. Ind. Dec. 15, 2022) (“That a law-abiding citizen could use a gun with an

obliterated serial number for lawful self-defense isn’t evidence that guns with obliterated

serial numbers are typically used by law-abiding citizens for lawful self-defense.”

(emphasis added)). And here, because we cannot fathom any common-sense reason for a

12 Price does not raise a First Amendment challenge to § 922(k) or otherwise contend that laws prohibiting the obliteration or alteration of serial numbers on objects other than firearms are unconstitutional.

25 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 26 of 84

law-abiding citizen to want to use a firearm with an obliterated serial number for self-

defense, and there is no evidence before us that they are nonetheless commonly lawfully

used, we conclude that firearms with obliterated serial numbers are not in common use for

a lawful purpose and they therefore fall outside the scope of the Second Amendment’s

protection.

V.

The Supreme Court has made clear that while the Second Amendment protects an

individual right to keep and bear arms, certain arms fall outside the scope of that protection.

To determine whether a regulated arm is protected by the Second Amendment, we must

first ask whether it is in common use for a lawful purpose. Because we conclude that

firearms with obliterated serial numbers are not, we conclude they fall outside of the scope

of the Second Amendment’s protection. Thus, § 922(k)’s regulation of such arms does not

violate the Second Amendment. We therefore reverse the decision of the district court and

remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

26 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 27 of 84

NIEMEYER, Circuit Judge, concurring in the judgment:

The defendant, who was charged with violating

(k), challenges the

constitutionality of that provision under the Second Amendment.

The focus of the provision — the element that distinguishes it from other § 922

offenses — is the possession of a firearm that has had its “serial number removed,

obliterated, or altered.” Otherwise, as far as § 922(k) is concerned, a person can keep and

bear a firearm. As the majority opinion explains, “the illegal conduct is not the possession

of the firearm qua firearm: it is the possession of a firearm with an obliterated serial

number.” Ante at 24. I thus question whether the provision even implicates the Second

Amendment. It does not prohibit generally the possession or carrying of firearms for self-

defense. Rather, it effectively aims at preventing the removal and obliteration of serial

numbers on firearms, the presence of which furthers important law enforcement interests.

And as the majority opinion rightly observes, no “lawful purpose [can be] served by

obliterating a serial number on a firearm.” Ante at 17 (quoting United States v.

Marzzarella,

(3d Cir. 2010), abrogated on other grounds by New York

State Rifle & Pistol Ass’n v. Bruen,

(2022); see also ante at 21. Such a statute

is hardly different from a hypothetical one that might prohibit possessing a firearm without

having in the home a means to store it safely, which too would not prohibit the possession

or carrying of a firearm. As such, it is far from clear that the prohibited conduct even

implicates the right to keep and bear arms.

27 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 28 of 84

Nonetheless, even subjecting § 922(k) to the analysis required by Bruen leads

inevitably to the conclusion that the statute does not violate the Second Amendment. As

the majority holds,

[B]ecause we cannot fathom any common-sense reason for a law-abiding citizen to want to use a firearm with an obliterated serial number for self- defense, and there is no evidence before us that they are nonetheless commonly lawfully used, we conclude that firearms with obliterated serial numbers are not in common use for a lawful purpose and they therefore fall outside the scope of the Second Amendment’s protection. . . . Thus, § 922(k)’s regulation of such arms does not violate the Second Amendment.

Ante at 25–26. I agree with this holding. In reaching it, however, the majority employs an

analysis that unnecessarily moves the historical component of the Bruen test into its first

step, contrary to what Bruen instructs.

In Bruen, the Court held that a New York law governing the process to obtain a

license to carry a handgun in public was unconstitutional because the law conditioned the

license’s issuance on the applicant’s demonstrating that he or she had some “special

need” that justified carrying a handgun beyond a general interest in self-defense. 597 U.S.

at 11–13, 38. Without demonstrating that special need, a citizen in New York could not

carry a handgun in public for self-defense. In holding New York’s law unconstitutional,

the Bruen Court began by articulating the applicable test for analyzing a government

regulation under the Second Amendment. It stated:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.

28 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 29 of 84

Id. at 24 (emphasis added) (cleaned up). The Court thus adopted a two-step text-and-

history test for determining whether a regulation violates the Second Amendment.

Explaining the test, the Bruen Court noted that at the first step, a court must focus

on the conduct of the person mounting a Second Amendment challenge and determine

whether it is covered by the text of the Amendment — “the right of the people to keep and

bear Arms.”

(quoting U.S. Const. amend. II). As to the plain meaning of

that text, the Court stated that the right to “bear” arms describes “the right to wear, bear, or

carry upon the person or in the clothing or in a pocket, for the purpose of being armed and

ready . . . in . . . case of conflict with another person.”

(cleaned up). And it stated that

“arms” refers to “all instruments that constitute bearable arms, even those that were not in

existence at the time of the founding.”

(cleaned up). The conduct of possessing

or carrying a bearable firearm therefore is presumptively protected by the Second

Amendment. That is only the first part of the analysis, however, because, as the Court

stressed, the scope of the right protected by the Amendment is “not unlimited.”

(cleaned up). Thus, when the individual’s proposed course of conduct is protected by the

Amendment’s plain text, the burden shifts to the government to justify its regulation of

that conduct by showing the regulation’s consistency with historical tradition. It is this

“historical tradition that delimits the outer bounds of the right.”

.

After the Court established and explained the two-step analysis for application of

the Second Amendment, it then turned to the New York law and, focusing on the conduct

regulated, it readily concluded that the “textual” step of the test was satisfied, stating, “The

Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash

29 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 30 of 84

a right to ‘bear’ arms in public for self-defense.” Bruen,

. But that was just

the first step in determining the scope of the “right” protected. The second step required

New York to demonstrate that there was a historical tradition that justified its requiring a

license applicant to demonstrate a special need to carry a handgun beyond the needs of

ordinary self-defense. On that step, the Court concluded that New York had shown no

“historical tradition limiting public carry only to those . . . who demonstrate a special need.”

. Accordingly, the Court held, after completing the second step, that the New York

licensing law was unconstitutional.

Were this not clear enough, the Supreme Court again in United States v. Rahimi,

(2024), reiterated its text-history two-step analysis, distinguishing between

conduct, which the text addresses, and the regulation, which history must justify and on

which the government has the burden. Explaining Bruen, the Rahimi Court stated, “We

also clarified that when the Government regulates arms-bearing conduct, . . . it bears the

burden to ‘justify its regulation.’” Slip Op. at 6–7 (emphasis added) (quoting Bruen,

). And, as Rahimi repeated, the way the government carries this burden is by

showing that the “challenged regulation fits within” “our ‘historical tradition of firearm

regulation.’”

at 6 (quoting Bruen,

).

The majority nonetheless loads its historical analysis — from which it determines

that because firearms with obliterated serial numbers are “not in common use for a lawful

purpose,” they fall outside the scope of the Second Amendment right — into step one of

Bruen, contrary to Bruen’s test, as reaffirmed in Rahimi. In rationalizing its position, the

majority states that at step one, three questions must be answered, one of which is “whether

30 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 31 of 84

the weapons regulated by the challenged regulation were ‘in common use’ for a lawful

purpose.” Ante at 12. It then reasons that “[a] plain reading of Heller and Bruen leads us

to the . . . conclusion [that] we can only properly apply step one of the Bruen framework

by looking to the historical scope of the Second Amendment right.” Ante at 12–13 (latter

emphasis added). Finally, the majority points to the historical tradition, already recognized

by the Supreme Court, of governments’ restricting weapons that are not “in common use

for a lawful purpose.” As it states, the “historical tradition regarding the regulation of

dangerous weapons supports a limitation on the scope of the Second Amendment right,”

namely that “a weapon must be in common use for a lawful purpose to be protected by that

right,” a conclusion the majority reaches at step one. Ante at 19 (first emphasis added).

In short, while the majority recognizes that historical tradition is the means by which

to assess whether § 922(k) is constitutional, it treats that historical analysis as a component

of the first step, despite Bruen and Rahimi’s clear statements that historical analysis falls

in step two. In particular, after reviewing the historical tradition of government regulation

of firearms and other weapons at some length, the Bruen Court concluded, “Drawing from

this historical tradition, we explained [in Heller] that the Second Amendment protects only

the carrying of weapons that are those ‘in common use at the time,’ as opposed to those

that ‘are highly unusual in society at large.’” Id. at 47 (emphasis added) (cleaned up). This

is the same conclusion reached by the majority, but unlike the Supreme Court’s approach,

the majority applied it as part of step one. In short, defining the limits on the right protected

by the Second Amendment by looking to the historical tradition is the entire function of

step two of the Bruen test, a step committed to the government to satisfy.

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Respectfully, I conclude that the majority’s shift of the historical tradition to step

one is simply wrong.

Nonetheless, I believe that the majority reaches the right conclusion — that a

“firearm with a removed, obliterated, or altered serial number is not a weapon in common

use for lawful purposes” and thus falls outside “the scope of the right enshrined in the

Second Amendment.” Ante at 4. As Bruen pointed out, Heller made clear that the Second

Amendment protects “only the carrying of weapons that are those ‘in common use at the

time’ as opposed to those that ‘are highly unusual in society at large.’”

(quoting District of Columbia v. Heller,

(2008)). Based on the publicly

available statistics, combined with common sense, the majority was right to conclude that

firearms that have had their serial numbers obliterated are rare because the reason people

tamper with firearm serial numbers is to make it harder for law enforcement officers to

trace their use in criminal activity. Thus, I agree that the weapons regulated by § 922(k)

are “not typically possessed by law-abiding citizens for lawful purposes.” Heller,

.

Accordingly, I concur in the judgment.

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AGEE, Circuit Judge, concurring in the judgment:

I agree with the majority in that it reverses the district court’s order dismissing

Price’s § 922(k) charge. However, I reach that result by a different path. In my view, Price’s

facial challenge to § 922(k) can be, and should be, resolved on a far simpler basis: because

Price is a convicted violent felon who may not possess any firearm, § 922(k) is not

unconstitutional as applied to him. As that fact alone dooms Price’s facial challenge, I

concur only in the judgment.

To mount a successful facial challenge to a law passed by Congress and signed by

the president, “the challenger must establish that no set of circumstances exists under which

the Act would be valid.” United States v. Salerno,

(1987). That is to say,

the challenger must demonstrate that the law “is unconstitutional in all its applications.”

Bucklew v. Precythe,

(2019) (emphasis added). As the Supreme Court

has observed, this is a difficult standard to meet. See Salerno,

; see also

United States v. Rahimi, 602 U.S. --- (2024), slip op. at 8 (applying this standard to a

Second Amendment facial challenge to § 922(g)(8)). And Price has not met it here because

he cannot demonstrate that § 922(k) is unconstitutional as applied to him. See, e.g., Ulster

Cnty. v. Allen,

, 154–55 (1979) (“As a general rule, if there is no constitutional

defect in the application of the statute to a [party], he does not have standing to argue that

it would be unconstitutional if applied to third parties[.]”).

Price is a convicted felon, and a violent felon at that. He has convictions for

involuntary manslaughter, aggravated robbery, attempted felonious assault, and domestic

violence, among others. As a result of those convictions, § 922(g)(1) prohibits him from

33 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 34 of 84

possessing any firearm, whether the serial number has been obliterated or not. Thus, so

long as that categorical ban is lawful—at least as applied to him—then Price’s facial

challenge to a narrower prohibition necessarily fails.

There can be no serious dispute that § 922(g)(1)’s categorical prohibition on firearm

possession is constitutional as applied to Price. That fact forecloses his defense of Second

Amendment protection to being prosecuted under § 922(k).

At the outset, the Supreme Court has emphasized that the Second Amendment

protects “the right of law-abiding, responsible citizens” to keep and bear arms for self-

defense. N.Y. State Rifle & Pistol Assoc., Inc. v. Bruen,

(2022) (emphasis

added) (quoting District of Columbia v. Heller,

(2008)). It has also been

careful not to “cast doubt” on the legality of “longstanding prohibitions on the possession

of firearms by felons,” which the Court expressly identified as “presumptively lawful

regulatory measures.” Heller,

, 627 n.26; accord McDonald v. City of

Chicago,

(2010) (plurality opinion); Bruen,

(Alito, J.,

concurring);

(Kavanaugh, J., joined by Roberts, C.J., concurring). In fact, the

Court just reaffirmed this point in United States v. Rahimi, 602 U.S. ---, (2024), providing

that “Heller never established a categorical rule that the Constitution prohibits regulations

that forbid firearm possession in the home.”

(slip op. at 15). And that Heller actually

“stated that many such prohibitions, like those on the possession of firearms by ‘felons and

the mentally ill,’ are’ presumptively lawful.’”

To be sure, following Bruen and its clarified two-part test focusing on the Second

Amendment’s text and historical tradition, some of our sister circuits have held that

34 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 35 of 84

§ 922(g)(1)’s categorical ban is unconstitutional as applied to certain nonviolent felons.

E.g., United States v. Duarte,

, 676–77 (9th Cir. 2024) (holding that the

government failed to “prove that it is consistent with this Nation’s historical tradition of

firearm regulation for Congress to ban permanently, by making it a felony, a non-violent

offender like Duarte from possessing a firearm even after he has already served his terms

of incarceration” (emphasis added) (cleaned up)), vacated and reh’g granted by --- F.4th

---,

, at *1 (9th Cir. July 17, 2024); Range v. Att’y Gen.,

,

103–06 (3d Cir. 2023) (en banc) (holding the same with respect to a defendant who had

been previously convicted only of “making a false statement to obtain food stamps”); cf.

Kanter v. Barr,

(7th Cir. 2019) (Barrett, J., dissenting) (“Founding-era

legislatures did not strip felons of the right to bear arms simply because of their status as

felons.”). But see Vincent v. Garland,

, 1199–1202 (10th Cir. 2023) (rejecting

a nonviolent felon’s as-applied challenge to § 922(g)(1) post-Bruen); United States v.

Jackson,

, 505–06 (8th Cir. 2023) (same).

But no federal court has accepted the extraordinary claim that § 922(g)(1) is facially

unconstitutional—that is, unconstitutional in all its applications.1

And for good reason. As multiple jurists and historians have chronicled, there is a

robust historical tradition in this country of prohibiting certain individuals deemed to be

1 Our own Court just recently rejected such a claim. United States v. Canada,

(4th Cir. 2024) (“Section 922(g)(1) is facially constitutional because it has a plainly legitimate sweep and may constitutionally be applied in at least some set of circumstances.” (cleaned up)).

35 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 36 of 84

dangerous from possessing a firearm. See, e.g., United States v. Perez-Garcia,

(9th Cir. 2024) (“[T]he Anglo-American right to keep and bear arms for self-

defense has always coexisted with legislative authority to disarm groups or individuals

whose possession of firearms would pose an unusual danger, beyond the ordinary citizen,

to themselves or others.” (emphasis added)); Duarte,

, at *15–18, *20

(discussing various founding-era laws disarming certain groups of people, such as British

loyalists, based on a perceived threat of violence or rebellion); Kanter,

(Barrett, J., dissenting) (“The historical evidence . . . [shows] that the legislature may

disarm those who have demonstrated a proclivity for violence or whose possession of guns

would otherwise threaten the public safety. . . . [F]ounding-era legislatures categorically

disarmed groups whom they judged to be a threat to the public safety.” (emphases added));

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from

Possessing Arms,

, 265 (2020) (“Like the English, and out of similar

concerns of violent insurrections, the colonists disarmed those who might rebel against

them. . . . [T]he justification was always that those being disarmed were dangerous.”

(emphasis added)).

The upshot of all this is that even if § 922(g)(1) is unconstitutional as applied to

certain, nonviolent felons—and that issue is far from settled—it assuredly is not

unconstitutional as applied to Price, an indisputably recidivist violent felon.

36 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 37 of 84

That being so, Price cannot succeed in bringing a facial challenge to § 922(k).2 For

if he can be constitutionally prohibited from possessing any firearm without running afoul

of the Second Amendment, then he can surely be prohibited from possessing a discrete

subset of firearms—namely, firearms with obliterated serial numbers—without running

afoul of it too.

For this reason, I would not reach the weighty and difficult issues the majority

reaches—and decides—today. It is not necessary to do so to resolve this case. And as the

Chief Justice has exhorted, “If it is not necessary to decide more to dispose of a case, then

it is necessary not to decide more.” Dobbs v. Jackson Women’s Health Org.,

(2022) (Roberts, C.J., concurring). In deciding more than is necessary to resolve the

challenge made here, the majority offers an advisory opinion. And that course runs head-

long into Article III’s limits on the federal courts’ powers, United Public Workers of

America (C.I.O.) v. Mitchell,

(1947), as well as the “fundamental principle

of judicial restraint that courts should neither anticipate a question of constitutional law in

advance of the necessity of deciding it nor formulate a rule of constitutional law broader

than is required by the precise facts to which it is to be applied.” Wash. State Grange v.

Wash. State Republican Party,

(2008) (cleaned up). I would instead

reverse the district court’s dismissal of the § 922(k) count on the clear ground that Price

2 Price could certainly challenge as a factual matter whether he possessed a firearm, or if he did, whether the serial number of the gun in question was obliterated. These are elements of the § 922(k) crime that the government was required to prove. But Price has not contested either requirement as a factual matter.

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has failed to carry his heavy burden of demonstrating that the statute “is unconstitutional

in all its applications.” Bucklew,

.3 Respectfully, therefore, I concur only in

the judgment.

3 The majority wrongly concludes this approach is “problematic” because of Double Jeopardy concerns. Ante at 15. That is simply incorrect. The approach taken here does not rewrite or otherwise change the elements needed for a conviction under either statute. Under both the majority’s reading and my own, § 922(g)(1) prohibits an individual from being a felon in possession of a firearm, while § 922(k) prohibits an individual from being in possession of a firearm with an obliterated serial number. Because both offenses require proof of an element that the other does not, no violation of the Double Jeopardy Clause has occurred when a defendant is convicted of both offenses. See Blockburger v. United States,

(1932).

To illustrate, being a felon in possession of a firearm is not an element of a § 922(k) offense. All proof of felon status establishes is that the felon defendant’s Second Amendment facial challenge fails as a defense to his prosecution under § 922(k). And, obviously, the Government must prove beyond a reasonable doubt as an element of the § 922(k) charge that the firearm’s serial number is obliterated. That clearly is not an element of a § 922(g)(1) charge.

All that this concurrence does is follow the separate principle of standing to bring a facial challenge—observing that a criminal defendant cannot challenge the constitutionality of a statute if the statute has had no “adverse impact on his own rights,” based on arguments that the statute may infringe on the constitutional rights of “third parties in hypothetical situations.” Ulster Cnty., 442 U.S. at 154–55. And on that point, the Supreme Court has issued clear guidance: if the alleged constitutional defect does not arise with respect to Price, then he lacks standing to bring a facial challenge on behalf of other potential criminal defendants.

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QUATTLEBAUM, Circuit Judge, with whom Judge RUSHING joins, concurring in

judgment:

When it comes to determining whether regulations violate the Second Amendment,

New York Rifle & Pistol Association v. Bruen presents both a test and a puzzle.

(2022). The test allocates burdens across two steps. If the Second Amendment’s “plain

text” covers the individual’s conduct, the amendment “presumptively protects that

conduct.”

. And if so, “[t]he government must then justify its regulation by

demonstrating that it is consistent with the Nation’s historical tradition of firearm

regulation.”

. The puzzle is ascertaining where the amendment’s limits—

acknowledged in Bruen and before—fit into Bruen’s two steps.

The limit central to this appeal is common use. The sorts of weapons that the Second

Amendment protects are those “in common use at the time.”

at 21 (quoting District of

Columbia v. Heller,

(2008)). That is, “the Second Amendment does not

protect those weapons not typically possessed by law-abiding citizens for lawful purposes.”

Heller,

. But, while this limit to the Second Amendment is clear, the puzzle

we face is whether to consider it at Bruen’s first or second step.

This methodological point matters. Bruen seems to burden different parties on each

of its two steps. Bruen does not specify who bears the burden on the plain text step but

confirms that if the plain text does cover the conduct of the person challenging the law, the

government “must then justify its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” 597 U.S. at 24. This sequencing

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suggests the burden shifts, from the challenger on the first step to the government on the

second. In some cases, the burden makes all the difference.

In this case, the majority analyzes common use at Bruen’s plain text step, while

Judge Richardson in dissent and Judge Niemeyer in concurrence reason that common use

falls under Bruen’s historical tradition step. Our sister circuits have also splintered on the

issue.1 In my view, common use comes into play on step two. Even so, I would reverse the

district court’s decision holding

(k) unconstitutional because I believe the

government has satisfied its burden of establishing that weapons with obliterated serial

numbers are not “‘in common use’ today for self-defense” or other lawful purposes.

at

32 (quoting Heller,

).

I.

Before articulating or applying rules on common use, we must first solve Bruen’s

puzzle. Does common use fit into Bruen’s first step as a matter of plain text or into Bruen’s

1 Compare Antonyuk v. Chiumento,

, 312 (2d Cir. 2023) (step one), vacated sub nom. Antonyuk v. James, No. 23-910,

(U.S. July 2, 2024); United States v. Rahimi,

(5th Cir. 2023) (step one), rev’d,

(2024), and United States v. Alaniz,

(9th Cir. 2023) (step one), with Teter v. Lopez,

, 949–50 (9th Cir. 2023) (step two), reh’g en banc granted, vacated,

(9th Cir. 2024) (mem.). See also Bevis v. City of Naperville,

(7th Cir. 2023) (“There is no consensus on whether the common-use issue belongs at Bruen step one or Bruen step two.”).

40 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 41 of 84

second step as a matter of historical tradition? To answer this question, we must understand

what “plain text” encompasses.

On one theory, “plain text” implies a limited inquiry on Bruen’s first step into

definitional sources, saving historical sources for an ultimate determination on the second

step. Id. at 24. Since common use limits the types of weapons protected, the critical word

is “Arms.” So, this reading would direct us to ascertain the semantic meaning of “Arms”

on Bruen’s first step by referring to founding-era dictionaries defining “Arms.” And if this

reading is correct, our work at step one is easy. Heller already explained that eighteenth-

century dictionaries defined “Arms” as “weapons of offence, or armour of defence” or “any

thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at

or strike another.”

. Nothing in those definitions limits “Arms” to those in

common use for lawful purposes. Thus, Bruen’s first step leaves no room for common use

if plain text is defined only by dictionaries and other lexical sources that inform semantic

meaning.

But Bruen is not so simple. Bruen alternatively could be read to suggest plain text

is based on more than lexical sources. For starters, Bruen relied heavily on Heller, and

Heller demonstrated that history informs the entire Second Amendment analysis, including

the textual analysis. As Bruen recognized, history permeated every part of

Heller,“[w]hether it came to defining the character of the right (individual or militia

dependent), suggesting the outer limits of the right, or assessing the constitutionality of a

particular regulation.” Bruen,

. When Heller addressed the scope of the

Second Amendment, Heller did not rely only on lexicon. Instead, it privileged historical

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sources of all sorts. To be sure, the Court’s interpretation of the word “Arms” leaned most

heavily on eighteenth-century dictionaries. See Heller,

. But when

interpreting “keep and bear,” the Court referred not only to those dictionaries but also to

other founding-era sources, like treatises and state constitutions.

at 582–84. After

stringing together these “textual elements,” Heller declared that they codified a preexisting

individual right to possess and carry weapons in case of confrontation, and the Court used

history dating back to late seventeenth-century England to confirm its reading of the words.

at 592–95. The Court also surveyed “analogous arms-bearing rights in state

constitutions” and history from the drafting of the amendment through the end of the

nineteenth century.

at 600–19. In short, Heller’s reliance on varied historical sources

and Bruen’s reliance on Heller suggest that Bruen did not contemplate limiting its textual

step to lexical sources.

Rather, history has some role to play on both of Bruen’s steps. On the first step,

history “elucidates how contemporaries understood the text—for example, the meaning of

the phrase ‘bear Arms.’” United States v. Rahimi,

, 1925 (2024) (Barrett,

J., concurring) (quoting Heller, 554 U.S. at 582–92). On the second step, history “also

plays the more complicated role of determining the scope of the pre-existing right that the

people enshrined in our fundamental law.”

Justice Barrett has called this latter use of

history “original contours” history, in that “[i]t looks at historical gun regulations to

identify the contours of the right.”

Like Justice Barrett, I believe that Bruen’s first step

saves room for more than founding-era dictionaries, allowing courts to refer to historical

sources to interpret the Second Amendment’s text, just as the Supreme Court did in Heller.

42 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 43 of 84

As already discussed, lexicon would not limit “Arms” to weapons in common use, but

going beyond lexical sources to interpret the Second Amendment’s plain text opens the

possibility of considering common use on Bruen’s first step.

Nevertheless, further digging unearths additional puzzle pieces that confirm

common use falls under step two. In Bruen, the Supreme Court described common use as

“fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and

unusual weapons.’”

at 21 (quoting Heller,

). “Drawing from this

historical tradition,” the Court explained, “the Second Amendment protects only the

carrying of weapons that are those ‘in common use at the time,’ as opposed to those that

‘are highly unusual in society at large.’”

at 47 (quoting Heller,

) (internal

citations omitted); see also id. at 28 (“Much like we use history to determine which modern

‘arms’ are protected by the Second Amendment, so too does history guide our

consideration of modern regulations that were unimaginable at the founding.”). As such,

weapons in common use for lawful purposes and “dangerous and unusual weapons” are

opposite sides of the same coin. Given that linkage, since the regulation of “dangerous and

unusual weapons” is a step two question—and no one questions that—it follows that

common use is too.

Also supporting this conclusion is Heller’s description of other historically

grounded limitations of the Second Amendment. Just before discussing common use,

Heller mentioned other historically grounded limiting principles. Without purporting to

undertake “an exhaustive historical analysis . . . of the full scope of the Second

Amendment,” Heller listed several examples of “presumptively lawful regulatory

43 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 44 of 84

measures” including “longstanding prohibitions on the possession of firearms by felons

and the mentally ill.”2 554 U.S. at 626–27 & n.6. Heller characterized those longstanding

regulations as “presumptively lawful,” not conclusively lawful. Id. Bruen’s first step

presumptively protects conduct covered by the Second Amendment’s plain text. See

597 U.S. at 24. But, if the plain text does not cover conduct, the Second Amendment does

not protect it, full stop. So, if felons and the mentally ill are not among “the people” as a

matter of plain text, then “longstanding prohibitions on the possession of firearms by felons

and the mentally ill” would be conclusively consistent with the Second Amendment. But

Heller didn’t say that. It said such limitations are only presumptively consistent with the

Second Amendment. Heller, 554 U.S. at 626–27 & n.6. To generate a presumption of

constitutionality, as opposed to a conclusion of constitutionality, historically justified

limiting principles must be left to Bruen’s second step. And, since common use is also a

historically justified limiting principle, it is also the stuff of step two.

To be fair, the conclusion that common use falls under Bruen’s second step must be

squared with how Bruen applied the common-use principle to a New York licensing regime

for the concealed carry of a handgun. Bruen discussed common use in the step one, plain

text portion of the opinion. There, the Court stated that handguns are “weapons ‘in common

2 As another example, Heller also referred to “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Heller, 554 U.S. at 626–27 & n.6. Bruen used such sensitive-place regulations to exemplify the analogical approach it envisioned for determining when a historical tradition is relevantly similar to a modern regulation. Bruen, 597 U.S. at 30–31. Thus, Bruen implies that sensitive-place regulations are justified by historical tradition at step two, not by plain text at step one.

44 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 45 of 84

use’ today for self-defense.” Id. at 32 (quoting Heller,

). Why? Candidly, I

have no compelling explanation. One possibility might be, as the plaintiffs suggested at

oral argument, that the Court referred to this concept just to clear the deck of an undisputed

point at the outset regardless of whether it belonged in step one or step two. Under that

reading, the reference to common use occurred before the Court did any real step one work.

And since common use was not an issue with which the Court was grappling in Bruen, we

should not place undue weight on the location of that discussion. Another possibility might

be that, although the plain definition of “Arms” encompasses more than weapons in

common use, weapons in common use are necessarily “Arms.” By this understanding, the

Court may have referred to common use simply to note that, if there was no question as to

this narrower concept, there certainly could be no dispute that the conduct at issue was

covered by the Second Amendment’s broader plain text.

Whatever reason common use appeared in Bruen’s step one discussion, Bruen also

discussed common use in its step two analysis. There, Bruen invoked the common-use

concept as it scoured a historical record spanning medieval England to the early twentieth

century. It referred to common use to explain why historical laws prohibiting the carrying

of weapons then considered dangerous and unusual could not justify current laws

restricting the carrying of the same weapons today when they are no longer dangerous and

unusual. See id. at 47. If Bruen’s discussion of common use at step one means that issue

must be assessed there, why engage with the issue at step two?

In recent weeks, the Supreme Court has provided another piece to Bruen’s puzzle.

In United States v. Rahimi,

(2024), the Court applied the Bruen test to hold

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that “[a]n individual found by a court to pose a credible threat to the physical safety of

another may be temporarily disarmed consistent with the Second Amendment.”

.

The Court reasoned that such bans fit within our nation’s historical tradition of “preventing

individuals who threaten physical harm to others from misusing firearms.”

at 1896–97.

Without pausing to discuss the Second Amendment’s plain text, the Rahimi majority used

historical tradition to “delineate the contours of the right,”

, and in articulating

Bruen’s test, it referred only to the second step, see

(“In Bruen, we explained

that when a firearm regulation is challenged under the Second Amendment, the

Government must show that the restriction ‘is consistent with the Nation’s historical

tradition of firearm regulation.” (quoting Bruen,

)); see also id. at 1898 (“As

we explained in Bruen, the appropriate analysis involves considering whether the

challenged regulation is consistent with the principles that underpin our regulatory

tradition.”). Though they joined the majority, several Justices emphasized in separate

writings that limits on the right to bear arms stem from historical tradition, not the

amendment’s broad text. See id. at 1912–13 (Kavanaugh, J., concurring) (endorsing the

use of history “to determine exceptions to broadly worded constitutional rights”); id. at

1925 (Barrett, J., concurring) (asserting that the Court uses history to identify the “original

contours” of the right to bear arms). Thus, although it did not take up the common use

question, Rahimi signals, if not confirms, that many of the various principles that limit the

Second Amendment’s scope stem from historical tradition rather than the amendment’s

plain text.

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In the end, perhaps not all the puzzle pieces are in place. But enough are. Common

use—one of the limits on the Second Amendment that the Supreme Court has repeatedly

recognized—flows from Bruen’s historical tradition second step.

II.

Since common use is a step two question, the government bears the burden of

showing that

(k) is “consistent with the Nation’s historical tradition of

firearm regulation.” Bruen,

. To do so, the government can and did invoke

the historical tradition of regulating dangerous and unusual weapons, which the Supreme

Court has repeatedly recognized “fairly support[s]” regulations of weapons not commonly

used for lawful purposes.

at 21 (quoting Heller,

); see also Heller,

. Since Bruen and Heller have already derived this limiting principle

from historical tradition, the government does not need to replicate the Court’s historical

spadework. See Rahimi, at 1898 (“The law must comport with the principles underlying

the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” (emphasis

added) (quoting Bruen,

)). Rather, it need only demonstrate that the historical

principle—here, common use—supports § 922(k). Section 922(k) prohibits the possession

of firearms with removed, obliterated or altered serial numbers.3 The critical question, then,

is whether the government has carried its burden of establishing that those weapons are not

commonly used for lawful purposes.

3 Like the majority, I focus on firearms with obliterated serial numbers.

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If common use hinges on hard data alone, the answer is likely no. The government

offers no compelling statistics that show how frequently people use guns with obliterated

serial numbers for lawful purposes like self-defense. Instead, the government relies on

statistics indicating the low frequency with which such guns are used or suspected of being

used in crimes and submitted for tracing to the Bureau of Alcohol, Tobacco and Firearms.

If guns with obliterated serial numbers are rarely used for unlawful purposes, the

government argues, they cannot be commonly used for lawful purposes. From an empirical

standpoint, that seems like a stretch to me. I am hard-pressed to see how the data support

any conclusions as to the use of such guns for lawful purposes. But, does common use turn

on statistical proof?

To be sure, of the various limiting principles that the Court has distilled from

historical tradition, common use could, in many cases, be proved or disproved with

statistics on the frequency with which a weapon is used. And doing so grounds the decision

in a more objective, predictable analytical framework.4

4 But to the extent we rely on numbers, methodological questions complicate the task of calculating both a numerator and a denominator. For instance, when do we assess usage—when the challenged regulation is promulgated, when the challenge is made, when the court decides it? Where do we look—at the state from which the challenge originates, across the entire country? Do we focus on gunowners, the adult population, the entire population? And then, even after setting the appropriate parameters, how much usage does it take to make usage “common”? Other cases will require courts to answer these questions. But no matter the answers, for the reasons that follow, it is clear that firearms with obliterated serial numbers are not commonly used for lawful purposes. That conclusion is all it takes to resolve this appeal, and I would save these questions for another day.

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But the Supreme Court has never said statistical proof is required. In fact, it has said

little about how to assess common use. In describing its second step, Bruen says only that

the government must demonstrate that the regulation is consistent with historical tradition.

See 597 U.S. at 17 (“[T]he government must demonstrate that the regulation is consistent

with this Nation’s historical tradition of firearm regulation.”); id. at 19 (“[T]he government

must affirmatively prove that its firearms regulation is part of the historical tradition that

delimits the outer bounds of the right to keep and bear arms.”); id. at 24 (“The government

must then justify its regulation by demonstrating that it is consistent with the Nation’s

historical tradition of firearm regulation.”).

After restating its test, Bruen analogized the government’s step two burden to its

burden in defending laws against First Amendment challenges. To carry the burden of

showing that “expressive conduct falls outside of the category of protected speech,” “the

government must generally point to historical evidence about the reach of the First

Amendment’s protections.” Id. at 24–25 (citing United States v. Stevens,

,

468–71 (2010)). In Stevens, the Court reiterated several “historical and traditional

categor[ies]” of speech “long familiar to the bar”—including obscenity, defamation, fraud,

incitement, and speech integral to criminal conduct—that do not receive full First

Amendment protection. 559 U.S. at 468–69. While doctrine has developed a set of

elements for each of these traditional categories, it has not limited the government to data

alone to carry its burden of establishing that one of these categories encompasses the

expressive conduct at issue.

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Returning to the Second Amendment, Bruen did not resort to statistical evidence to

establish that handguns are “in ‘common use’ for self-defense today.” Instead, it quoted

Heller’s observation that handguns are “the quintessential self-defense weapon.” Bruen,

(quoting Heller,

). For its part, Heller did not support its

statement of empirical fact with data either. Rather, Heller posited:

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

. Elsewhere, Heller wrote that handguns are “the most preferred firearm in

the nation to ‘keep’ and use for protection of one’s home and family.”

at 628–29

(quoting Parker v. District of Columbia,

(D.C. Cir. 2007)).5 These

comments seem at least partly rooted in what the Court deemed obvious rather than in data.

Following the Supreme Court’s lead, I see no reason courts cannot determine absent data

whether guns with obliterated serial numbers are in common use for lawful purposes. To

me, at least here, logic and common sense are appropriate to consider in assessing whether

the government has met its burden.

5 Unlike the Supreme Court, the D.C. Circuit cited a journal article with survey data to support its empirical assertion. See Parker,

(citing Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun,

, 182–83 (1995)). But Heller cited Parker not the underlying data. That indirect use of data does not suggest that Heller requires us to disregard logic and common sense, especially considering Heller directly deployed both.

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Reliance on more malleable tools, I confess, leaves me a bit queasy. Straying from

more concrete evidence might tempt judges to dress their preferred outcomes as flowing

from logic or common sense. Both, like beauty, may naturally lie in the eye of the beholder.

For two reasons, however, those concerns do not sway me here. One, as already discussed,

Heller and Bruen show us that logic and common sense are appropriate to consider when

determining common use. Two, statistics seem particularly inconclusive, and perhaps even

unhelpful, in this particular case. To explain, it is unsurprising that the parties produced

limited data. After all, can we expect folks voluntarily to disclose that they use outlawed

guns? The answer seems to be no, making statistics—aside from those seized in criminal

investigations—hard to harvest. So, in this case, I would look beyond statistics to evaluate

common use.

Doing so, the government asserts that the predominant reason to possess a gun with

an obliterated serial number, as opposed to one with an intact serial number, is to evade

law enforcement. After all, as the parties agree, the presence or absence of a serial number

has no effect on how a gun functions. “Because a firearm with a serial number is equally

as effective as a firearm without one, there would appear to be no compelling reason why

a law-abiding citizen would prefer an unmarked firearm. The weapons would then have

value primarily for persons seeking to use them for illicit purposes.” United States v.

Marzzarella,

(3d Cir. 2010) (affirming constitutionality § 922(k) during

the interregnum of Heller and Bruen).

In response, Price posits that a person “might possess an unserialized firearm

because they received it as a gift” or “for other “innocuous reasons.” Resp. Br. at 9. The

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dissent adds that a gun owner might wish to avoid Big Brother’s watchful eye, even if not

to conceal criminal activity. These are fair points, I suppose. But those possibilities do not

overcome the government’s more persuasive logic. Crediting that logic, the Third Circuit

before Bruen and a burgeoning brigade of district courts after Bruen have all proven unable

to “conceive of a lawful purpose for which a person would prefer an unmarked firearm.”

Marzzarella,

; see also United States v. Reyna, No. 3:21-cr-41,

, at *5 (N.D. Ind. Dec. 15, 2022); United States v. Avila,

,

1143–44 (D. Colo. 2023); United States v. Serrano,

, 1211 (S.D. Cal.

2023); United States v. Trujillo,

, 1241 (D.N.M. 2023); United States

v. Walter, No. 3:20-cr-39,

, at *5 (D.V.I. Apr. 20, 2023); United States

v. Dangleben, No. 3:23-mj-44,

, at *7 (D.V.I. Oct. 3, 2023); United

States v. Dixson, No. 4:21-cr-54,

, at *3 (E.D. Mo. Oct. 26, 2023);

United States v. Sing-Ledezma, --- F. Supp. 3d ---,

, at *3–4 (W.D. Tex.

Dec. 11, 2023); United States v. Alberts, No. CR 23-131,

, at *4 (D.

Mont. Apr. 5, 2024).

What’s more, guns with obliterated serial numbers have long been regulated. Since

1938, federal law has made it unlawful for anyone “to transport, ship, or knowingly receive

in interstate or foreign commerce any firearm from which the manufacturer’s serial number

has been removed, obliterated or altered.” Federal Firearms Act of 1938, Pub. L. No. 75-

785, § 2(i),

, 1251. Then, in 1968, Congress began to require serial numbers

on all guns manufactured in or imported to the United States. Gun Control Act of 1968,

,

, 232. Eventually, in 1990, Congress prohibited

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possession of guns with removed, obliterated, or altered serial numbers. Crime Control Act

of 1990,

(b),

, 4856. Besides those federal laws,

forty-one states have outlawed either obliterating serial numbers, possessing guns with an

obliterated serial number or both. See Brief of the District of Columbia, the States of

California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Maine, Maryland,

Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North

Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, and Washington, and the

Commonwealth of the Northern Mariana Islands as Amici Curiae in Support of Appellants,

United States v. Price (No. 22-4609). Considering federal and state governments have long

cracked down on the trafficking of guns with obliterated serial numbers, it is hard to

imagine that such guns are even commonly available to law-abiding Americans, let alone

commonly used for lawful purposes.

Wrapping up, I conclude that the government has “justif[ied] its regulation by

demonstrating that it is consistent with the Nation’s historical tradition of firearm

regulation.” Bruen,

. It has demonstrated that guns with obliterated serial

numbers are not “‘in common use’ today for self-defense” or other lawful purposes.

, 32 (quoting Heller,

).

III.

For the reasons explained above, not those of the majority, I concur in the majority’s

conclusion that the district court’s decision as to § 922(k) should be reversed and the case

remanded.

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GREGORY, Circuit Judge, dissenting:

Today, our Court holds that some weapons that are indisputably commonly owned

for lawful purposes—handguns, rifles, and shotguns—are not covered under the Second

Amendment. In coming to that conclusion, the majority: (1) labels firearms with removed,

altered, or obliterated serial numbers as a type of weapon; (2) concludes that type of weapon

is not in common use for a lawful purpose; and (3) excludes those weapons from Second

Amendment protection based solely on the Amendment’s plain text under step one of the

framework set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

(2022).

But nothing in the Second Amendment’s text or in the Supreme Court’s precedent supports

the majority’s approach to the analysis required at step one under Bruen.

Nevertheless, our Court has decided that

(k) is constitutional

because the majority cannot fathom why a person would own a firearm with an imperfect

serial number for any non-criminal purpose. But “[a] constitutional guarantee subject to

future judges’ assessments of [what is fathomable] is no constitutional guarantee at all.”

Bruen,

. For fathomability, like beauty, is often in the eye of the beholder.

Regrettably, not only does today’s decision depart from the analytical framework set forth

in Bruen, it also could have a disparate impact that may not be apparent.

I.

The flaws in the majority’s analysis begin with its focus on the prohibition identified

in § 922(k) as opposed to the Second Amendment right. According to the majority, this

case can be resolved at step one of the Bruen analysis because the only question before us

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is “whether firearms with obliterated serial numbers are in common use for lawful

purposes.” Majority Op. 21. In framing the question in that way, the majority implies that

firearms with removed, altered, or obliterated serial numbers are themselves a “type of

weapon” based solely on that characteristic. From there, the majority purports to determine

the constitutionality of § 922(k) by assessing whether this “new type of weapon” is

protected by the Second Amendment. Against that backdrop, the majority points to the

lack of evidence that such weapons are commonly owned and their potential use for

criminality to conclude that the weapons are not in common use for lawful purposes.

Although the majority’s approach is not identical to means-end scrutiny, it

nonetheless improperly subjects the Second Amendment right to a type of case-by-case

inquiry. Notably, the Supreme Court has rejected that approach and admonished the

judiciary for deferring to the legislature’s interest balancing in the context of the Second

Amendment right. Bruen,

(“But while that judicial deference to legislative

interest balancing is understandable—and, elsewhere, appropriate—it is not deference that

the Constitution demands here”). According to the Supreme Court “[t]he very enumeration

of the right takes out of the hands of government—even the Third Branch of Government—

the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

District of Columbia v. Heller,

(2008) (emphasis in original). It follows

that the judiciary cannot assess Second Amendment challenges with reference to its own

view of how citizens should exercise their right to bear arms. This is particularly so when

determining whether the presumption of constitutional protection applies at step one.

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Instead, the court’s role at step one is limited to determining whether the Second

Amendment generally protects the people, the type of weapon, and the proposed course of

conduct that § 922(k) covers. That is evinced by the Supreme Court’s limited undertaking

during its own analysis in Bruen. At step one of its Bruen analysis, the Supreme Court

determined that the Second Amendment generally protected carrying handguns publicly

for self-defense. Bruen,

. It reached that conclusion without referencing any

particular handgun or considering any specific characteristics.

The Supreme Court’s decision to conduct a general inquiry in that portion of the

opinion suggests the following. First, the Second Amendment’s protection presumptively

applies at step one if the challenged statute covers people, arms, and conduct generally

covered under the Constitution. Second, in determining whether a weapon is an “arm,”

courts must determine whether the type of weapon is commonly used for lawful purposes.

at 32–33. Third, “type of weapon” is understood in its ordinary sense—handguns, rifles,

and shotguns, for example. A serial number is therefore not relevant to the Bruen step one

analysis because it does not alter a firearm’s type or common use for a lawful purpose. But

the majority claims that it does. According to the majority, removing a serial number from

a weapon or adding illegal contraband to it “produces a weapon that is not in common use

for a lawful purpose.” Majority Op. at 24–25. I disagree.

As a threshold matter, the Bruen step one inquiry into “types of weapons” is general

and therefore does not concern a specific firearm. In other words, a court need not

determine whether firearms with any unique characteristic—a particular grip, sight, or

stock, for example—are in common use in order for the firearm to be presumptively

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protected under the Second Amendment. As long as the weapon is of a type in common

use (a handgun or rifle, for example) the presumption applies.

Section 922(k) applies to all firearms with removed, altered, or obliterated serial

numbers. Given its broad reach, it necessarily bans at least some handguns, rifles, and

shotguns—types of firearms that we know are in common use for lawful purposes. That fact

alone is sufficient for the Second Amendment’s protection to presumptively apply at step one

in this case. Indeed, the statute even bans firearms with serial numbers that were removed or

altered simply by wear and tear, although they were perfectly serialized when purchased. In

this way, the statute risks criminalizing the mere passage of time and general use.

Moreover, under the majority’s reasoning, any change to a firearm, no matter how

minor, would produce a new type of weapon. But the notion that any change to an object

produces an entirely new object is simply false. Just as docking a dog’s tail does not alter

the breed of dog, or trimming a tree does not produce a new genus of tree, the removal of

a serial number does not transform a handgun or rifle into a new type of weapon under the

Bruen step one analysis. Absent any enhancing accessories or functional modifications, a

Glock 19 handgun, is a Glock 19 handgun, whether it is shiny or dull, red or green,

serialized or not. Categorically banning firearms that are otherwise presumptively

protected under the Second Amendment based solely on the condition of their serial

number is as logical as concluding that a Schnauzer is not a canine simply because its tail

is docked. The only way to make that conclusion tenable is to define canine with reference

solely to the condition of a tail.

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That is what our Court has chosen to do. In defining the type of weapon at issue as

firearms with removed, altered, or obliterated serial numbers, the majority commits an error

that dooms its common use analysis from the very start. That initial error is only

compounded by the majority’s later determination that firearms with removed, altered, or

obliterated serial numbers are useful only for criminal purposes. According to the majority,

“if firearms with obliterated serial numbers are not even in common use for criminal

purposes—the only scenario in which we can conceive a reason to prefer such weapons—

then we think it fair to conclude that such arms are not in common use for lawful purposes.”

Majority Op. at 23. Not so.

While we do not have data regarding lawful use of firearms without serial numbers,

it is well known that certain types of firearms are in common use today. For example,

handguns and rifles, two types of weapons banned under § 922(k), are undoubtedly in

common use for self-defense, home defense, hunting, and other lawful purposes. Given

that reality, whether specific handguns and rifles—those with removed, altered, or

obliterated serial numbers—are in common use is of no moment at step one.

What’s more, even weapons useful for criminal purposes are presumptively

protected at step one if they are in common use for lawful purposes. Handguns, for example,

are used in the majority of mass shootings, murders, and suicides in our nation each year.

But, because handguns are the type of weapon many Americans choose for self-defense,

they are presumptively protected under the Second Amendment. See Bruen,

(stating that handguns are “in fact, ‘the quintessential self-defense weapon’” and

“indisputably in ‘common use’ for self-defense today”). It follows then that any weapon of

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a type in common use for lawful purposes is presumptively protected at step one irrespective

of whether the condition of its serial number makes it useful in committing crimes.

That being the case, there is no basis to support the conclusion that all firearms with

removed, altered, or obliterated serial numbers are excluded from the right to keep and bear

arms based on the Second Amendment’s plain text. However, given the error the majority

committed at the outset—defining the type of weapon at issue based on § 922(k)’s

prohibition—nothing could have saved its step one analysis. Unfortunately, our Court’s

determination that certain firearms in common use fall outside of the Constitution’s

protection may have a disparate impact on males of color.

II.

The unintended consequences of our Court’s decision in this case add weight to the

albatross of mass incarceration that burdens our nation. African Americans and Hispanic

Americans make up most of the population in many of the communities designated as high

crime areas. See David A. Harris, Factors for Reasonable Suspicion: When Black and

Poor Means Stopped and Frisked,

, 677–78 (1994). Although presence in

a high crime area alone is insufficient to justify a Terry stop, presence combined with

another factor, such as “nervous, evasive behavior” or flight (even if unprovoked),

constitutes reasonable suspicion sufficient to render the stop constitutional. Illinois v.

Wardlow,

(2000).

Notably, for some, avoidance of police may evince an act of self-preservation.

Indeed, as Justice Stevens put it:

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Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.”

(Stevens, J. concurring). That reality may explain why over 60% of the people

stopped and searched in New York City each year from 2003 until 2023 were innocent,

and why Black and Latinx people consistently represented over 50% and 25% of the people

stopped, respectively. See Stop-and-Frisk Data, New York Civil Liberties Union (Mar.

14, 2019), https://www.nyclu.org/en/stop-and-frisk-data [https://perma.cc/5HYB-5N9H].

What’s more, if convicted of a firearms offense, minority male offenders are more

likely to receive a sentence that includes a term of imprisonment as opposed to probation.

According to a study conducted last year by the United States Sentencing Commission, Black

and Hispanic males convicted of firearms offenses are 40.4% and 29.8%, respectively, less

likely to receive a probationary sentence compared to White males. See 2023 Demographic

Differences in Federal Sentencing, U.S. Sent’g Comm’n, at 29. Additionally, when sentenced

for firearms offenses, Black and Hispanic males receive terms of imprisonment that are 2%

and 1.4%, respectively, longer than sentences given to White males. Id. at 29.

One can deduce from the aforementioned statistics that Black and Hispanic males

may be disproportionately impacted by § 922(k), as they are more likely to reside in

communities designated as high crime areas and therefore have more frequent negative

police encounters. And that potential disparate impact is made worse by U.S.S.G.

§ 2K2.1(b)(4)(B), which provides for a four-level enhancement when sentencing a

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defendant convicted of a firearm offense other than § 922(k) if the firearm had an altered

or obliterated serial number.

I use a hypothetical offender convicted of a firearm offense under

(a)–(p) who has no more than one prior criminal conviction to illustrate the effect of

the enhancement. The United States Sentencing Guidelines suggest a sentencing range of

less than a year on the low end (10–16 months) for our hypothetical offender. However, if

the firearm has an altered or obliterated serial number, the four-level enhancement increases

the minimum recommended sentence to just under two years in prison (21–27 months). If

the prior conviction was a felony, a sentence at the low end of the range would require the

offender to serve a few months more than a year (15–21 months) at minimum. The minimum

recommended term of imprisonment increases by a year (27–33 months) if the serial number

on the firearm is not intact. If the offender’s prior felony conviction was for a crime of

violence or a controlled substance offense, the guidelines advise a minimum sentence of

nearly three years (33–41 months) but increases to over four years (52–63 months) with the

four-level enhancement. In each scenario, the offender’s sentencing range increases simply

because the firearm he possessed had an altered or obliterated serial number.

At bottom, mass incarceration is exacerbated by the way communities are policed,

conduct is prosecuted, and convictions are punished. We may not know if those who most

commonly possess firearms with removed, altered, or obliterated serial numbers are law-

abiding citizens or not. But we do know that males of color bear the brunt of § 922

punishments. And our decision today will likely further that injustice. Respectfully, I must

dissent.

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RICHARDSON, Circuit Judge, dissenting:

This case should be an easy win for Randy Price. The Government wants to punish

him for conduct that falls within the plain text of the Second Amendment. So the

Government must demonstrate that its regulation—18 U.S.C. § 922(k)—can be justified

by our Nation’s historical tradition of firearm regulation. United States v. Rahimi,

, 1898 (2024) (“[W]hen the Government regulates arms bearing conduct, as when

the Government regulates other constitutional rights, it bears the burden to justify its

regulation.” (quotation omitted)). Rather than doing so, however, the Government offers

blanket assertions backed by scant evidence and then cobbles together an amalgam of

unrelated historical regulations that bear no relevant similarity to the law at issue. That

should resolve it: The Government has not carried its burden, so the Government loses.

Rather than holding the Government to its burden, today’s decision loosens the rules

in the Government’s favor. Adopting a limitation that appears nowhere in the Second

Amendment’s plain text, the majority requires Price to prove that unmarked firearms are

in common use for lawful purposes. It then dismisses Price’s challenge by speculating

about why a law-abiding citizen would prefer an unmarked firearm and drawing illogical

inferences. This is not how Second Amendment challenges are supposed to proceed. I

thus respectfully dissent.

I. Section 922(k) regulates conduct that falls within the plain text of the Second Amendment.

The Second Amendment provides: “A well regulated Militia, being necessary to

the security of a free State, the right of the people to keep and bear Arms, shall not be

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infringed.” U.S. Const. amend. II. In New York State Rifle & Pistol Ass’n v. Bruen,

(2022), the Supreme Court established a two-step framework for assessing Second

Amendment challenges. Price asserts a facial challenge,1 so Bruen’s first step requires him

to show that § 922(k)2 regulates conduct protected by the Second Amendment’s plain text.

Id. at 17, 24; Rahimi, 144 S. Ct. at 1907 (Gorsuch, J., concurring); id. at 1932–33 (Thomas,

J., dissenting). Our inquiry therefore includes three discrete questions: (1) does § 922(k)

apply to “the people”?; (2) is a firearm with an obliterated serial number an “Arm”?; and

(3) is possession of such a firearm an act of “keep[ing]” or “bear[ing]” arms? Bruen, 597

U.S. at 31–32; see also Bianchi v. Brown, No. 21-1255, slip op. at 116 (4th Cir. Aug. 6,

2024) (Richardson, J., dissenting).

The answer to each inquiry is yes, so § 922(k) is presumptively invalid under the

Second Amendment. The Government does not dispute that the statute applies to the “the

people.”3 District of Columbia v. Heller,

(2008); see also Bianchi, slip

op. at 116–17 (Richardson, J., dissenting). Nor does it contest that possessing a firearm is

conduct protected by the Second Amendment. See Rahimi, 144 S. Ct. at 1897–99; Heller,

1 A plaintiff prevails on a facial challenge if he “establish[es] that no set of circumstances exists under which the [challenged statute] would be valid.” United States v. Salerno,

(1987). 2 Section 922(k) makes it “unlawful for any person knowingly . . . to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” 3 The Government concedes that Price is part of “the people,” at least for purposes of this appeal. 63 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 64 of 84

. What it contests is that a firearm with a removed, obliterated, or altered

serial number is an “Arm” within the plain meaning of that term. But in District of

Columbia v. Heller, the Supreme Court explained that the term “Arms” “extends, prima

facie, to all instruments that constitute bearable arms, even those that were not in existence

at the time of the founding.”

. A firearm, at risk of stating the obvious, is

a bearable arm. See Rahimi, 144 S. Ct. at 1897–99 (implicitly determining that § 922(g)(8),

which prohibits certain individuals from “possess[ing] . . . any firearm,” falls within the

plain text of the Amendment); see also id. at 1933 (Thomas, J., dissenting) (“It is

undisputed that § 922(g)(8) targets conduct encompassed by the Second Amendment’s

plain text.”). And whatever effect the lack of a serial number has on the statute’s

constitutionality, it does not transform a firearm into something else. Number or no

number, a firearm is still a “weapon[] of offense” that can be worn for “defence . . . or

use[d] in wrath to cast at or strike another.” Heller,

(first quoting 1 Samuel

Johnson, Dictionary of the English Language 106 (4th ed 1773); and then quoting 1

Timothy Cunningham, A New and Complete Law Dictionary (1771)). So § 922(k)

regulates “Arm[s]” within the plain meaning of the Second Amendment.

The majority does not consider, let alone mention, any of these textual prerequisites.

Instead, it contends that Price must prove at Bruen’s first step that firearms with obliterated

serial numbers are in common use for lawful purposes. Majority Op. at 8–14. In defense

of this atextual notion, the majority observes that the Second Amendment’s text includes,

among other things, the phrase “the right of the people.” Id. at 8. It also notes that Heller

found that the right of the people must be interpreted based on its historic scope. Id. (citing

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Heller, 554 U.S. at 599–601). And when interpreting United States v. Miller,

(1939), Heller stated that the “historical understanding of the scope of the right” did not

extend to weapons “not typically possessed by law-abiding citizens for lawful purposes.”

at 11 (quoting Heller, 554 U.S. at 624–25). From this, the majority concludes that

weapons not in common use for lawful purposes fall outside the plain meaning of the words

“right of the people,” and therefore that any challenger must prove his weapon is in

common use before we even proceed to Bruen’s second step.

at 12–14.

I have already explained elsewhere why Heller requires the government to prove

that a weapon is both dangerous and unusual at Bruen’s second step. Bianchi, slip op. at

121–22 (Richardson, J., dissenting). Here, I will add that the majority, like the majority in

Bianchi v. Brown, No. 21-1255, misunderstands the relationship between the Second

Amendment’s plain text and our Nation’s historical tradition of firearm regulation. Put

simply: Both of Bruen’s steps—text and historical tradition—are used to determine the

original scope of the preexisting right. Compare Bruen, 597 U.S. at 24 (explaining that

when an individual’s conduct falls within the plain text of the Amendment, we presume it

falls within the right), with id. at 31 (using “historical analysis” to identify the “scope” of

the Second Amendment right (citation omitted)); see also Bianchi, slip op. at 123–24

(Richardson, J., dissenting). Sometimes, we know a person’s conduct is unprotected

because it isn’t even covered by the text. Other times, an individual’s conduct does fall

within the plain text, but the government nonetheless proves “that its firearm regulation is

part of the historical tradition that delimits the outer bounds of the right to keep and bear

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arms.” Bruen,

(emphasis added). In both instances, we have determined

that the regulation is consistent with the original scope of the right.

With respect to dangerous and unusual weapons, Bruen explained that Heller

derived this limit by “rel[ying] on the historical understanding of the Amendment to

demark the limits on the exercise of that right.”

. So while dangerous and unusual

weapons are not within the scope of the Second Amendment, it is because history and

tradition show that the government can permissibly ban them, not because they fall outside

the Amendment’s plain text. The majority therefore errs in requiring Price to prove that

his weapon is in common use at the plain-text stage.

The Supreme Court’s recent decision in United States v. Rahimi shows how

untenable the majority’s position is. Whereas the majority holds that “the limitations on

the Second Amendment right . . . are inherent in the meaning of ‘the right of the people’

and should be addressed at [Bruen’s] first step,” Majority Op. at 11, the Court in Rahimi

explicitly stated that the government bears the burden to justify its law any time it

“regulates arms-bearing conduct,” Rahimi, 144 S. Ct. at 1897. In other words, the burden

flips to the government—and we transition to Bruen’s second step—as soon as the

challenger establishes that the regulation covers “arms-bearing conduct.”4 And notably,

4 This explains why the Government’s alternative step-one argument fails from the jump. The Government argues that even if § 922(k) covers protected conduct, it does not “infringe” the Second Amendment right because it allegedly imposes a marginal, at most, burden on a person’s ability to defend himself. See Opening Br. at 18–20. Several district courts have upheld § 922(k) on this basis. See, e.g., United States v. Holton,

, 710–11 (N.D. Tex. 2022); United States v. Serrano,

, 1210– 11 (S.D. Cal. 2023). But as Rahimi shows, Bruen’s first step does not inquire into the

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the Court didn’t limit “arms-bearing conduct” to “conduct that historically fell within the

traditional scope of the right to keep and bear arms.” Instead, historical limitations on the

scope of the right are relevant to establish whether the government is permitted to regulate

the “arms-bearing conduct” in the manner it does—the step-two inquiry.

This is supported by what the Court actually did in Rahimi. There, the Court

concluded that “[a]n individual found by a court to pose a credible threat to the physical

safety of another may be temporarily disarmed consistent with the Second Amendment.”

. Put differently, the Court found that the right to keep and bear arms guaranteed

by the Second Amendment has a limitation that applies, at least temporarily, when a

dangerous person poses a credible threat of future violence. But although the Court was

addressing a historical limitation outlining one facet of the “scope of the Second

Amendment,”

(quoting Bruen,

), it didn’t couch that analysis in a step-

one interpretation of the word “right” or “people.” Instead, the Court upheld the law in

question because “[o]ur tradition of firearm regulation allows the Government” to regulate

in the way it had. Id. at 1902. And it did so by finding that the law at issue there had

historical analogues for both its “why” and “how.” Id. at 1903. Those are quintessential

step-two questions. Id.; see also Bruen,

.

magnitude of injury inflicted by a firearm regulation. Rather, the question is simply whether a law regulates arms-bearing conduct, which § 922(k) does. 67 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 68 of 84

II. The Government has failed to show that § 922(k) is consistent with our Nation’s historical tradition of firearm regulation.

Since § 922(k) regulates protected conduct, the Government must prove that it is

consistent with our Nation’s historical tradition of firearm regulation. Bruen,

; Rahimi, 144 S. Ct. at 1897–98. This requires the Government to reason by analogy

and establish that § 922(k) is “relevantly similar” to past laws in our regulatory tradition.

Bruen,

. The central considerations in this inquiry are “how” and “why” a

law burdens the Second Amendment right.

In other words, whether past and present

regulations “impose a comparable burden” and “whether that burden is comparably

justified” are the central considerations for analogical reasoning.

Our ultimate

objective is to determine “whether the challenged regulation is consistent with the

principles that underpin our regulatory tradition.” Rahimi, 144 S. Ct. at 1898; Bianchi, slip

op. at 123–24 (Richardson, J., dissenting).

The Government offers two buckets of historical analogues to justify § 922(k).

First, the Government argues that § 922(k) is analogous to the historical tradition of

regulating dangerous and unusual weapons. Second, the Government argues that § 922(k)

is analogous to an assortment of inspection and marking statutes and commercial

regulations stretching from the colonial to Antebellum periods. The Government claims

that these regulations, considered individually or collectively, establish § 922(k)’s

constitutionality.

As I explain below, I disagree. The tradition of regulating dangerous and unusual

weapons distinguished between classes or types of weapons based on their functional

68 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 69 of 84

characteristics. But serial numbers are ubiquitous features that have no bearing on a

weapon’s functionality. So firearms that lack them do not compose a separate class of

arms that are dangerous and unusual. Additionally, the Government’s analogy fails

because the Government did not offer reliable evidence that firearms without a serial

number are dangerous and unusual.

Nor do the Government’s remaining analogues establish § 922(k)’s historical

pedigree. The Government first offers several laws that required inspection and marking

of firearms and gunpowder, but these laws targeted meaningfully distinct problems from

those addressed by § 922(k). It then puts forth a series of restrictions on firearm and

gunpowder trade, yet it offers no evidence that these laws burdened any member of the

political community’s right to keep or bear arms, and the historic justification for these

laws is even more far afield from that of the previous ones. While relevantly similar

analogues might exist, the Government has not furnished any here. So I conclude that the

Government has not carried its burden of proof at Bruen’s second step. See Bruen,

n.6 (“Courts are . . . entitled to decide a case based on the historical record

compiled by the parties.”).

A. The Government has not shown that § 922(k) is analogous to historic laws regulating dangerous and unusual weapons.

The Government’s primary argument is that § 922(k) is analogous to historical laws

regulating dangerous and unusual weapons. According to the Government, firearms with

removed, obliterated, or altered serial numbers have no lawful utility and are only used by

those intending to engage in unlawful activity. Nor are these arms typically possessed by

69 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 70 of 84

law-abiding citizens for lawful purposes. So the Government asserts that § 922(k) bans

arms that fall under the tradition of regulating dangerous and unusual weapons.

I agree that history and tradition demonstrate that the government may regulate or

ban dangerous and unusual weapons. See Bianchi, slip op. at 121–46 (Richardson, J.,

dissenting). But § 922(k) is not relevantly analogous to this tradition. The tradition stands

for the principle that the government can ban the possession or carry of classes of weapons

with certain shared functional characteristics if that class of weapons is dangerous and

unusual. It does not stand for the principle that the government can ban the possession or

carry of all weapons that have or don’t have certain nonfunctional characteristics, even if

weapons with those characteristics are unusual. We can see this by working through the

relevant precedent and history in reverse-chronological order.

Each time the Supreme Court has discussed or applied this tradition, it has

considered whether the banned weapons as a “class” or “type” are dangerous and unusual.

See Miller,

(“kind” of weapon); Heller,

(“class of arms”);

at 622–23 (“type of weapon”); Caetano v. Massachusetts,

(2016)

(Alito, J., concurring) (“the Second Amendment . . . protects such weapons as a class”);

Bruen,

(“class of firearms”). And in each case, the class of weapons in

question was defined by physical characteristics that impacted the gun’s functioning. See

Miller,

(analyzing the National Firearms Act’s ban on possession of

“shotgun[s] having a barrel or barrels of less than 18 inches in length”); Heller,

(analyzing

(12), 7-2502.01(a), 7-2502.02(a)(4) (2001),

which banned the possession of “pistols,” defined as “any firearm originally designed to

70 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 71 of 84

be fired by use of a single hand or with a barrel less than 12 inches in length”); Bruen,

(analyzing a New York statute that required a license to carry any “pistol or

revolver”); Caetano,

n.1 (Alito, J., concurring) (analyzing a Massachusetts

statute that banned any “portable device or weapon from which an electrical current,

impulse, wave or beam may be directed, which current, impulse, wave or beam is designed

to incapacitate temporarily, injure or kill”); see also Heller v. District of Columbia (Heller

II),

, 1286 n.10 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (analyzing a

District of Columbia statute that “bans semi-automatic rifles by listing specific guns that

. . . share the characteristics of being a long gun and firing in a semi-automatic manner, and

typically have features such as protruding pistol grips”). The Court then asked whether the

class of weapons—i.e., weapons with the defined functional characteristics—was

dangerous and unusual. See Miller,

; Heller, 554 U.S. at 628–29; Bruen,

; Caetano,

(Alito, J. concurring); see also Heller II, 670 F.3d

at 1286–87 (Kavanaugh, J., dissenting). Thus, the Court has always assessed whether the

banned weapons were dangerous and unusual on a class-wide level, and the Court has

always considered classes that were defined by shared functional characteristics.

This makes sense when you look at the tradition the Court is drawing upon. The

relevant nineteenth-century cases that undergird the dangerous-and-unusual tradition also

addressed statutes that prohibited the possession or carry of classes of weapons defined by

functional—not nonfunctional—characteristics. See Aymette v. State,

, 155 (1840) (prohibiting the concealed carry of “any bowie-knife, or Arkansas

toothpick, or other knife or weapon that shall in form and shape resemble” such weapon

71 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 72 of 84

(emphasis added)); Fife v. State,

(1876) (prohibiting “any pistol of any

kind whatever” and defining pistol as “a small fire-arm . . . intended to be fired from one

hand”); State v. Workman,

(1891) (prohibiting concealed carry of

pistols); State v. Duke,

(1875) (prohibiting the carry of “any pistol, dirk,

dagger, slung-shot, sword-cane, spear, brass knuckles, [or] bowie knife,” which the court

analyzed as applied to a pistol). These cases then determined whether the proscribed class

of weapons was dangerous and unusual by assessing whether that class of weapons was

particularly useful for unlawful purposes (dangerous) and whether it was uncommon for

lawful purposes (unusual). See Aymette, 21 Tenn. at 158; Fife,

; Workman,

; Duke,

; see also Bianchi, slip op. at 141–43 (Richardson,

J., dissenting).

Putting this all together, we see that history and tradition permit the government to

ban the possession or carry of certain classes of weapon, as defined by their shared

functional features, if those classes are dangerous and unusual. But § 922(k) does not ban

the possession of a class of firearms that share certain functional characteristics. Rather, it

bans the possession of all firearms that share a nonfunctional characteristic—having a

removed, altered, or obliterated serial number. Serial numbers are ubiquitous and appear

on modern firearms of all shapes and sizes. And whether a gun has or lacks a serial number

does not change how the gun operates as a weapon so that it is more effective for one

72 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 73 of 84

purpose or another.5 Instead, it’s more like asking whether tan-colored guns are protected

by the Second Amendment because black guns are more common. We might think that

there are other reasons why the government can regulate firearm color, but it wouldn’t be

because the change in color changes the nature of the weapon. So too for guns with

removed, obliterated, or altered serial numbers. While other historical traditions may

justify § 922(k), the tradition of regulating dangerous and unusual weapons doesn’t.

But even if a firearm’s functionality does not define this tradition, there’s a second

reason why § 922(k) is not analogous to the regulation of dangerous and unusual weapons.

Bruen places the burden of proving that a regulation resembles history and tradition on the

government—the entity restricting liberty protected by the Second Amendment. Bruen,

597 U.S. at 17, 19; see also Rahimi, 144 S. Ct. at 1897. But the Government has made a

minimal effort, at best, to show that firearms with removed, obliterated, or altered serial

numbers are either dangerous or unusual, let alone both. Indeed, it devoted only a single

paragraph of its opening brief—spanning less than a page—to this question. And what

evidence the Government has offered is outdated, unreliable, and arguably contradictory.

Simply put, the Government has not carried its burden of proof.

5 Other courts that otherwise reach a different outcome than I do nonetheless agree with me on this point. See Holton, 639 F. Supp. 3d at 712 (“[T]he presence of a serial number does not impair the use or functioning of a weapon in any way.” (quoting United States v. Marzzarella,

(3d Cir. 2010)); United States v. Reyna, No. 3:21- CR-41,

, at *5 (N.D. Ind. Dec. 15, 2022) (finding that “the § 922(k) prohibition applies to a class of guns defined solely by a nonfunctional characteristic”); Serrano, 651 F. Supp. 3d at 1210. 73 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 74 of 84

Start with the Government’s first piece of evidence. In its panel briefing, the

Government’s only evidence6 that § 922(k) prohibits dangerous and unusual weapons was

a 1996 law review article which claimed that “[t]here are fundamentally only three reasons

to obliterate a serial number: to avoid being tied to a burglary through possession of a

firearm whose serial number has been reported to police; to avoid being connected to a

crime gun one has purchased legally; and to avoid being identified through [ATF] records

as the straw seller, or buyer, of a gun with paperwork on it.” David M. Kennedy, Anne M.

Piehl & Anthony A. Braga, Youth Violence in Boston: Gun Markets, Serious Youth

Offenders, and a Use-Reduction Strategy, 59 L. & Contemp. Probs. 147, 174–75 (1996).

But it’s hard to discern how relevant this article is to present circumstances. The study

examined usage patterns for Boston youth over five years in the 1990s. Id. at 171. It is

thus (1) almost three decades old and (2) based on a small subset of young lawbreakers (3)

within a single city.7 And after being confronted with the study’s other conclusions at oral

6 The Government also noted the Third Circuit’s statement in United States v. Marzzarella that “there would appear to be no compelling reason why a law-abiding citizen would prefer an unmarked firearm.”

. The majority likewise uses this quotation to its advantage. With respect for our sister circuit, it cited no evidence for this proposition. And the Government cannot meet its burden by citing an unsubstantiated quote from another court. It must establish facts. 7 Even if this study were probative, its findings are not as clear-cut as the Government presents. For example, the study found that within the pool of studied firearms, those used for substantive crimes were 50% less likely to have an obliterated serial number than those associated with mere possession offenses. Kennedy, Piehl & Braga, supra, at 196. Based on this data point, the authors concluded that more serious offenders likely prefer old or stolen guns over those with obliterated serial numbers, while less serious offenders likely acquire arms with obliterated serial numbers for “something other than serious criminal intent,” such as fear of violence or self-defense. Id. at 175–76.

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argument, the Government submitted a Rule 28(j) letter claiming that we cannot

extrapolate from some of the study’s findings to the larger gun-owning population. See

ECF No. 84, at 1–2 (“statistics about the subset cannot be extrapolated to the larger gun-

owning public”).

The majority instead finds solace in the Government’s second piece of evidence. In

its supplemental en banc briefing, the Government cited a recently created ATF report

showing that, between 2017 and 2021, 2.5% of firearms submitted for tracing that could

not be traced to a purchaser had partial, incomplete, or obliterated serial numbers. Bureau

of Alcohol, Tobacco, Firearms & Explosives, U.S. Dep’t of Just., National Firearms

Commerce and Trafficking Assessment (NFCTA): Crime Gun Intelligence and Analysis,

pt. 3, at 5 (2024). The majority takes this statistic and runs with it. It first relies on it to

conclude that firearms with removed, obliterated, or altered serial numbers are not even in

common use for criminal purposes. Majority Op. at 22–23. It then speculates from this

that such arms must not be in common use for lawful purposes, either. Id. at 23. Basically,

the majority posits that, because even criminals aren’t commonly using guns with

obliterated serial numbers, law-abiding citizens also must not be using them.

This is a remarkable leap in logic. The majority might be correct that arms with

removed, obliterated, or altered serial numbers are not commonly used by criminals. But

how can we infer from this fact that such weapons are not in common use for lawful

purposes? One might naturally assume that law-abiding and law-breaking citizens have

This finding seemingly undercuts any claim that firearms without serial numbers are particularly useful for criminal activity. 75 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 76 of 84

different needs and own guns for different reasons. I simply do not understand how we

could equate the two when determining whether a particular firearm is commonly used.8

Furthermore, if arms with removed, obliterated, or altered serial numbers really

aren’t commonly used by criminals, as the majority seems to think, then doesn’t this

undercut the idea that such arms are “dangerous,” as that term was historically understood?

Our historical tradition allows the government to ban classes of weapons—defined by

shared functional characteristics—if they are particularly useful for unlawful activity

(dangerous) and uncommon for lawful purposes (unusual). Bianchi, slip op. at 145–46

(Richardson, J., dissenting). When nineteenth-century courts considered whether a class

of weapons was dangerous, an important consideration was whether that class was

commonly used by criminals and lawbreakers. See, e.g., Aymette, 21 Tenn. at 158

(describing such weapons as those “usually employed in private broils, and which are

efficient only in the hands of the robber and the assassin”); English v. State,

(1871) (describing such weapons as “those which are employed in quarrels and broils,

and fights between maddened individuals”); Workman,

(describing such

weapons as those “usually employed in brawls, street fights, duels, and affrays, and are

8 Even if this statistic supported the asserted claim, any such support is undermined by the report’s questionable history. At argument, the Government was asked about inconsistencies or errors in the ATF’s report that called its validity into question. See Oral Arg. at 1:06:30–1:08:55. After Government counsel discussed the “apparent discrepancy” with the ATF, see ECF No. 84, the ATF rescinded and reissued the report with different numbers, see ECF No. 86. In a Rule 28(j) letter, Government counsel now claims that the report is accurate.

We sometimes permit a party, like the Government, to rely on its own reports to support its position. But I would do so only when the report is both reliable and actually supports the asserted claim. 76 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 77 of 84

only habitually carried by bullies, blackguards, and desperadoes”). Yet arms lacking serial

numbers are functionally no different than arms that have them. And apparently, according

to the majority, they are not even commonly used by criminals. If that’s right, then they

cannot be dangerous and unusual weapons that fall outside the scope of the Second

Amendment.9

The majority ultimately relies on its self-supported conviction that no law-abiding

citizen would prefer an unmarked firearm for lawful purposes. The majority interprets

Heller to require us to query whether “common-sense reasons exist for a law-abiding

citizen to prefer a particular type of weapon for a lawful purpose like self-defense.”

Majority Op. at 20. But Heller established no such thing. Rather, the Court examined the

practices of the American people and identified the weapons they commonly own for

lawful purposes.10 And though it mentioned several reasons why “the American people”

9 Of course, the majority does not think that a weapon must be dangerous to be banned, so long as it is unusual. See Majority Op. at 18–21. But I have already explained why this proposition is false and misreads Heller, Bruen, and our historical tradition. See Bianchi, slip op. at 121–46 (Richardson, J., dissenting). 10 It is true the Heller did not explicitly rely on statistics or otherwise cite evidence to support its statement that handguns are “overwhelmingly chosen by American society for th[e] lawful purpose” of self-defense.

. But that is because neither party in that case contested that handguns are in common use for lawful purposes. See Brief of Respondent at 46, Heller,

(No. 07-290); Reply Brief of Petitioner at 20–22, Heller,

(contesting the common-use inquiry generally, but not the idea that handguns are in common use). Moreover, the briefing in Heller was replete with empirical evidence for the widespread ownership of and lawful uses for handguns. See, e.g., Amicus Brief of the National Rifle Association and the NRA Civil Rights Defense Fund at 26, Heller,

(estimating that private citizens lawfully owned 60–65 million handguns at that time); see generally Amicus Brief of International Law Enforcement Educators and Trainers Association et al., Heller,

(citing empirical studies

77 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 78 of 84

may prefer handguns for self-defense, it clarified that “[w]hatever the reason,” the fact of

common usage for lawful purposes was enough to make the District of Columbia’s

handgun ban constitutional.

. Heller thus grounded the scope of the Second

Amendment in the customs of the American people, not the speculations of federal judges.

Bianchi, slip op. at 158 (Richardson, J., dissenting).

In the end, I do not know whether or why law-abiding citizens might prefer firearms

with removed, obliterated, or altered serial numbers. Don’t get me wrong, I could take the

majority’s tactic and surmise reasons. Maybe some people inherit these weapons from

relatives and choose to keep them because of their sentimental value.11 Or maybe some

have no intent to use the firearm to break the law but are still uncomfortable with the

government potentially tracking their purchases. After all, many law-abiding citizens

prefer to use encrypted messaging platforms and disable location tracking on their cell

phones for similar reasons. See United States v. Chatrie, No. 22-4489,

,

at *43–44 (4th Cir. July 9, 2024) (Wynn, J., dissenting). But whatever the answer is to this

for widespread handgun use for self-defense); see also Heller, 554 U.S. at 700–01 (Breyer, J., dissenting) (summarizing some of this evidence). Here, by contrast, the extent of and purposes behind ownership of firearms with removed, obliterated, or altered serial numbers are “certainly . . . not within judicial notice,” Miller,

, so the Government must produce objective evidence that such weapons are not commonly held for lawful purposes, see Caetano,

(Alito, J., concurring); N.Y. State Rifle & Pistol Ass’n, Inc., v. Cuomo,

(2d Cir. 2015) (explaining that the common-use inquiry is an “objective and largely statistical” one that considers “subjective motives” of actual gun owners); Duncan v. Becerra,

(9th Cir. 2020) (same); Hollis v. Lynch,

(5th Cir. 2016) (same). 11 Even if a relative obliterated the serial number with ill intent, that would not necessarily mean that the person who ends up possessing it does so with ill intent. But see Majority Op. at 23–25. 78 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 79 of 84

question, the burden is not on me or Price to provide it. It is the Government’s burden,

which it must carry by offering something more than mere conjecture. If that’s too tall a

task for the Government, then maybe it confirms that the tradition of regulating dangerous

and unusual weapons was never the right analogue for § 922(k) in the first place.12

B. The Government’s other historic regulations are not analogous to § 922(k).

Besides the tradition of regulating dangerous and unusual weapons, the Government

also points to an assortment of inspection and marking laws and commercial restrictions

from before and after the Founding. But none of these regulations justify § 922(k).

The Government’s best historical evidence is early state regulations requiring the

inspection and marking of gunpowder and firearm barrels. Between 1776 and 1820, five

states required gunpowder to be inspected and marked for quality and prohibited the sale

of unmarked powder.13 One state went a step further and prohibited anyone from

12 The majority’s ivory-grip hypothetical only underscores this point. The majority may be right that the government can punish individuals for having illegally imported ivory, even if they attach it to a weapon. But surely the majority does not think this is because ivory-plated arms are dangerous and unusual. Rather, we would assess such a restriction by considering, for example, the government’s authority to regulate contraband and asking whether that authority historically extended to contraband attached to a weapon. 13 Act of Oct. 4, 1776, ch. VI, §§ 1, 3, 1776–1777 N.J. Acts 6, 6–7; An Act for the Inspection of Gunpowder, Manufactured Within this State, in 8 Records of the State of Rhode Island and Providence Plantations in New England 18, 18–19 (1863); Act of Apr. 18, 1795, ch. MDCCCXLVI, § 107, in 3 Laws of the Commonwealth of Pennsylvania, From the Fourteenth Day of October, One Thousand Seven Hundred 240, 243 (1810); Act of Mar. 1, 1809, ch. 52, §§ 3, 6, in 2 The General Laws of Massachusetts, From the Adoption of the Constitution to February, 1822, at 198, 199 (1823); Act of June 21, 1820, ch. II, §§ 3–6, in The Laws of the State of New-Hampshire; with the Constitutions of the United States and of the State Prefixed 276, 277–78 (1830). 79 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 80 of 84

“fraudulently alter[ing] or defac[ing] any mark” placed by an inspector.14 Similarly, two

states in the early nineteenth century required inspectors to proof and mark firearm barrels

and prohibited the sale of unmarked weapons.15 Both also prohibited anyone from altering

the marks once in place.16

To the Government’s credit, these laws arguably imposed a “comparable burden”

on the right to keep and bear arms as § 922(k) does. Bruen,

. Like § 922(k),

they required firearms and gunpowder to display a government-imposed mark that

conveyed certain information. Of course, only three of them explicitly forbade the

alteration of these marks. And unlike § 922(k), none of them prohibited the mere

possession of unmarked firearms and gunpowder. Still, I grant that these laws and § 922(k)

may share similar-enough burdens.

Even so, these regulations were not “comparably justified” to § 922(k). Id. at 39.

As the Government notes, § 922(k) exists to help law enforcement recover stolen firearms

and trace firearms that have been used in crimes. Opening Br. at 27; see also Omnibus

Crime Control and Safe Streets Act of 1968,

Stat. 197, 197 (“To

assist State and local governments in reducing the incidence of crime, to increase the

effectiveness, fairness, and coordination of law enforcement and criminal justice systems

14 Act of Mar. 1, 1809, supra, § 6, at 199–200. 15 Act of Mar. 8, 1805, §§ 1, 3, in 3 The Laws of the Commonwealth of Massachusetts, From November 28, 1770 to February 18, 1807, at 259, 259–60 (1807); Act of Mar. 10, 1821, ch. CLXII, §§ 1, 3, in 2 Laws of the State of Maine; to Which Are Prefixed the Constitution of the U. States and of Said State 685, 685 (1821). 16 Act of Mar. 8, 1805, supra, § 4, at 261; Act of Mar. 10, 1821, supra, § 4, at 686. 80 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 81 of 84

at all levels of government, and for other purposes.”). But the historic gunpowder- and

firearm-marking laws were enacted for product-quality purposes: They ensured that

weapons were effective and did not jeopardize public safety when deployed. For instance,

the Pennsylvania statute explained that gunpowder inspection and marking was necessary

because some powder was of “inferior qualit[y]” and “its defects [were] not discovered

until brought into actual use.” Act of Apr. 18, 1795, supra, at 240. Similarly, the

Massachusetts law explained that barrel proofing and marking were required because

otherwise “many [firearms] may be introduced into use which are unsafe, and thereby the

lives of the citizens be exposed.” Act of Mar. 8, 1805, supra, at 259. So these regulations

did not “impos[e] similar restrictions for similar reasons” as § 922(k) does and are thus not

relevantly similar to it. Rahimi, 144 S. Ct. at 1898.

It is no answer to say that these laws and § 922(k) are analogous because they all

promote public safety. Basically every firearm regulation aims to reduce the risk of danger

to the public in one form or another. If this were the proper level of generality at which to

assess a law’s justification, then every modern restriction would share a comparable

justification with every past one. But we know this is not how the Supreme Court has

conducted its analysis. Instead, the Court has focused on more refined government

justifications, such as targeting dangerous and unusual weapons, Heller,

,

limiting the right to those with a special need, Bruen,

, or temporarily

disarming individuals who threaten physical harm to others, Rahimi, 144 S. Ct. at 1903.

And it has simultaneously warned against defining a regulation’s justification so broadly

as to eviscerate its historic roots. Bruen, 597 U.S. at 30–31 (explaining that historic

81 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 82 of 84

“sensitive places” regulations do not justify declaring whole cities gun-free zones); cf.

Rahimi, 144 S. Ct. at 1903 (rejecting the argument that historic surety and affray laws

support disarming those who are not “responsible”). Thus, when reasoning by analogy,

our task is to zero in on the particular “problems” a law addresses and determine whether

historic regulations addressed analogous problems in an analogous manner. Rahimi, 144

S. Ct. at 1898. Here, the justification for historic inspection and marking laws—ensuring

firearm effectiveness and safety—is not relevantly similar to the justification for

§ 922(k)—solving crime.

Besides inspection and marking laws, the Government also analogizes § 922(k) to

various colonial regulations on the sale of firearms and gunpowder. Before Independence,

several colonies prohibited anyone from selling or providing firearms or ammunition to

Native Americans.17 Similarly, two colonies prohibited the exportation of gunpowder

outside their jurisdictions without a license, while one state prohibited the selling of

17 1 Records of the Governor and Company of the Massachusetts Bay in New England 196, 196 (1853); An Act Concerning Trade with the Indians (1650), in 1 Proceedings and Acts of the General Assembly of Maryland, January 1637/8–September 1664, at 307, 307 (William Hand Browne ed., 1883); Acts of Assembly, Mar. 1657–8, Act XVII, in 1 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, From the First Session of the Legislature, in the Year 1619, at 441, 441 (1823); 1 The Public Records of the Colony of Connecticut, Prior to the Union with New Haven Colony, May, 1665, at 49, 182 (J. Hammond Trumbull ed., 1850); Act of Oct. 22, 1763, ch. DVI, § 1, in 6 Statutes at Large of Pennsylvania from 1682 to 1801, at 319, 319– 20 (1899). The Government also claims that Connecticut banned residents from selling firearms outside the colony. But it is unclear whether this restriction was one and the same with Connecticut’s prohibition on selling arms to Native Americans or whether this was a separate and broader prohibition. See 1 The Public Records of the Colony of Connecticut, supra, at 138–39, 145–46. And even if the Government were correct, this is the only regulation of its kind that the Government cites. 82 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 83 of 84

gunpowder in a major town without a license.18 The Government argues that these

regulations are analogous to § 922(k) because they imposed de minimis burdens on the

right to self-defense and were designed to keep weapons out of dangerous hands.

Contrary to the Government’s claims, these statutes are not analogous to § 922(k).

The Government offers no evidence that these laws burdened the ability of any member of

the political community19 to keep or bear arms. So even if § 922(k) only imposes a minimal

burden, these laws still are not analogous because they imposed no burden at all.

Furthermore, like the inspection and marking statutes, they did not share a similar

justification to § 922(k): The government’s interest in solving crimes is not relevantly

similar to the government’s interests in keeping arms away from dangerous people outside

18 Powder § 2 (1645), in The Colonial Laws of Massachusetts Reprinted From the Edition of 1672, at 125, 126 (1887) (prohibiting the transportation of gunpowder outside the colony without a license); An Act for Encouraging the Manufactures of Salt Petre and Gun Powder (1775), in 15 The Public Records of the Colony of Connecticut, supra, at 191 (prohibiting the exportation of gunpowder outside the colony without a license); An Act Regulating the Storage, Safe Keeping, and Transportation of Gunpowder in the Town of Providence (1821), in The Charter and Ordinances of the City of Providence, with the General Assembly Relating to the City 47, 48 (1845) (prohibiting the sale of gunpowder within the town of Providence without a license). 19 Native Americans were not considered a part of the political community—or in other words, were not a part of the “the people”—at the Founding. See Angela R. Riley, Indians and Guns,

, 1685–98 (2012); see also United States v. Carpio- Leon,

, 978 n.* (4th Cir. 2012). Similarly, restrictions on exporting gunpowder ensured that gunpowder would not leave the political community and go somewhere else. The only law that potentially burdened the rights of members of the political community was the city of Providence’s prohibition on selling gunpowder without a license. But though this law burdened the ability to sell gunpowder, the Government provides no evidence that requiring sellers to acquire licenses burdened anyone’s ability to acquire gunpowder. And insofar as this law did burden the Second Amendment right, it is an outlier among the Government’s other evidence. Bruen,

(doubting that three colonial regulations, let alone one, could establish a historical tradition). 83 USCA4 Appeal: 22-4609 Doc: 88 Filed: 08/06/2024 Pg: 84 of 84

the polity or ensuring safe transport of highly flammable gunpowder. So these laws and

§ 922(k) are analogous in neither their “how” nor their “why.”20

* * *

Section 922(k) seems like a sensible policy. But Bruen did not instruct us to decide

cases based on good vibes. It placed the burden on the government to prove that a

challenged regulation has a historical pedigree. Rather than carrying this burden, the

Government offers halfhearted and surface-level arguments with the expectation that we

will squint and say: “Well, good enough.” We should expect more from the government,

especially when constitutional liberties are at stake. I thus respectfully dissent.

20 Judge Agee would decide this case (presumably at step two) by holding that Price cannot facially challenge § 922(k) because he is a violent felon. See Concurring Op. at 4 (Agee, J., concurring). But whether the Second Amendment allows the government to permanently prohibit felons, or at least violent felons, from possessing arms is a complex textual and historical question that should be resolved in a different case. In our only post- Bruen decision on this case, the panel majority declined to engage in a text-and-history analysis of this question. See United States v. Canada,

, 258–59 (4th Cir. 2024). And the Government has not briefed this issue in this appeal. So I would not reach this complicated question today. 84