Skip to comments.Clutching frantically to 'Heller,' 3rd Circuit OKs Ban on Unnumbered Guns
Posted on 07/30/2010 8:50:32 PM PDT by Rabin
"In an important Second Amendment decision that charts a course for evaluating the validity of gun laws now that the U.S. Supreme Court has declared the right to be an individual one, the 3rd U.S. Circuit Court of Appeals has refused to strike down a federal law that bans possession of guns with obliterated serial numbers McLaughlin held that the Second Amendment does not protect a right to own handguns with obliterated serial numbers and that 922(k) does not meaningfully burden the "core" right recognized in Heller -- the right to possess firearms for defense of hearth and home."
See also (The Legal Intelligencer, http://www.law.com/jsp/pa/this_week.jsp)
(Excerpt) Read more at law.com ...
Lets say that your guns are stolen, and then recovered with the serial numbers removed. In this case, there is no doubt that they are yours, because they all have custom made stocks by you, you have pictures, and the thieves were caught with only these guns, and video was taken at your residence of the thieves removing them.
Is it right that these guns are now illegal, and cannot be given back to their rightful owner?
I keep and bear arms...all of which have serial numbers. In what sense, then, does requiring serial numbers infringe on “the right of the people to keep and bear Arms”?
And Congress does have the right to regulate commerce between states. Some states have considered (passed?) laws affecting handguns made and sold in one state...although the ease with which they could be sold out of state might still put it under Congress’s Constitutional authority.
It’s just another arm of the unconstitutional Wickard wickedness. If you have and keep the gun in your state, its constitutional participation in interstate commerce has ended. A state could constitutionally have something to say about the gun so long as it does not prohibit you from keeping one; but the US government can only get involved with that through unconstitutional action.
I suppose they expect you to sue the thieves, as though they had destroyed the weapons.
Not if you make your own.
Would you be okay if it was a federal felony (this case is about a federal felony) to deface the serial number on your stereo?
Where, you ask, is the federal power to felonize the stereo defacing? Commerce clause, goes the argument.
Back to the car example, it is a federal crime to alter, obliterate, etc. vehicle VIN numbers too.
In United States v. Miller, 307 U.S. 174, the Supreme Court ... held the shotgun was unprotected by the Second Amendment. Id. at 178.
"Absent evidence we cannot say" is converted into, "we have the evidence, and we say."
Why should the public accept binding decisions from a court that is defective?
18 USC 922(k) forbids receiving or possessing. Doing so is a felony. Possess one gun with an altered or obliterated serial number, and you are barred for life from possession of a firearm.
In contrast, the federal VIN defacing law, 18 USC 2321, include the element of intent to sell, and the VIN alteration crime depends on (requires) a corresponding violation of 18 USC 511, which covers the act of VIN alteration.
Also in contrast, even if the vehicle is forfeit (See 18 USC 512), mere possession is not a strict liability felony, as it is for firearms.
You are just digging yourself a bigger hole. Under your proposition states would be able to outlaw all gun ownership.
If the gun is made in your state, you may have an argument, although the reality is that the Courts have already ruled you do not.
Once guns are made in one state and sold in another, you have no argument. Congress can regulate how a gun made in one state is tracked and sold in another, and that is IAW the Constitution.
Almost true but not quite. You can make your own firearm from scratch (or at least the receiver, which otherwise would be the serialized part) and you don't have to give it a serial number. BATFE encourages you to, so you can "identify it if it's ever stolen", but it's not a legal requirement.
I'm going to try my hand at telling the Wickard case in a soundbite form.
The court found that Farmer Filburn had a complete right to plant excess. He could feed it to his livestock without penalty. In order to avoid the penalty under the law, Farmer Filburn would only have to feed the harvest to his livestock before threshing it, that is, before removing the grain from the chaff.
"Feeding before threshing" has exactly the same impact on interstate commerce as "feeding after threshing."
I haven't figured out a good soundbite to describe the legal nonsense that follows, to this day, a decision that let Farmer Filburn affect interstate commerce with no interference from the government, as long as he didn't thresh the excess of his harvest.
And we’ve all been getting thrashed by WvF ever since!
Actually, no. Even if you roll back interstate commerce "jurisprudence" to pre-Wickard days, when some actual interstate commerce would be a prerequisite for regulation, you're STILL not done. The commerce clause wasn't intended to enable general regulation of interstate commerce (even REAL interstate commerce), but to prevent protectionism by states against goods manufactured in other states, etc., and a few other small concerns, and that was about it.
The requirement that long guns must be serially numbered came in with the 1968 gun control act, passeed after the murder of former president John F. Kennedy and modelled after the German Weapons Law of March 18, 1938, drafted and passed by the then-ruling German National Socialist Party, usually known by as the Nazi Party, the shorthand abbreviation they were tagged with by their Communist adversaries.
Until the 1969 act became law, inexpensive shotguns and .22 rifles generally weren't serial numbered, though most handguns were. But the Democrats in congress in the 1960s wanted to know where even the kids' .22 rifles and single-shot rabbit guns were.
Just like the Nazis did.
If the gun is your property then you should be able to deface it any way you want. Even small infringements are still intollerable.
“I dont have a problem with this. We have a right to bear arms, but nothing says those arms must be allowed to have no serial number. I own a number of guns, and all of them have serial numbers. It isnt a big deal.”
I understand what you are saying, but do you think you should be charged with a felony if you chose to remove the serial number of one of your guns? You own them so who is to say you can’t? Does it hurt anyone?
Laws against obliterated S/N’s are malum prohibitum. They serve no purpose that isn’t accomplished through existing laws. It’s already illegal to possess stolen property.
I agree about the law’s usefulness. However, I don’t see a lot of harm, and would much rather see money and effort spent trying to make it easier for a citizen to own arms in all 50 states. I think Constitutional Carry is just that - a logical interpretation of the Constitution that should be binding everywhere in the USA.
How about GPS safety-locking chips... so that they won’t work in, say, Washington DC?
Actually I am comfortable with the line of reasoning. Try and buy a B-61 on the private market. Look, I agree that serial numbers are indeed innocuous in and of themselves, even valuable when dealing with situations like theft. The problem is the the logic used to require them can easily be extended to require other modifications/conditions that render a firearm unusable for all practical purposes even though it may still be technically functional. Make no mistake that this is one direction we will be heading after the Heller decision.
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