From U.S. v. Price, decided yesterday by Judge Joseph R. Goodwin (S.D. W. Va.):
Section 922(k) states, in pertinent part,
It shall be unlawful for any person knowingly to transport … in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or 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….
18 U.S.C. § 922(k).
The threshold question [under Bruen] is whether Section 922(k) prohibits conduct that is protected by the plain text of the Second Amendment. The Government argues that it does not because the requirement that firearms bear serial numbers is, in its view, a "commercial regulation" that does not "infringe" on one's right to keep and bear arms. The Government's argument relies mainly on its contention that no relevant Supreme Court precedent casts "doubt on laws imposing conditions and qualifications on the commercial sale of arms." In his concurring opinion in Bruen, Justice Kavanaugh explained that the Court did not intend "to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms." This idea is rooted in Heller and McDonald—precedent that Bruen reaffirmed—which also left commercial regulations untouched. This makes sense because commercial regulations that apply only to manufacturers and sellers do not implicate an individual's right of possession.
Importantly though, the statute at issue here is not a commercial regulation. Rather, 18 U.S.C. § 923(i) is the commercial regulation that requires manufacturers to place serial numbers on firearms: "Licensed importers and manufacturers shall identify by means of a serial number engraved or cast on the receiver or frame of the weapon … each firearm imported or manufactured by such importer or manufacturer." Other commercial regulations may well require that any firearm sale only involve firearms bearing a manufacturer's serial number. Section 922(k) goes farther. It criminalizes the mere possession of a firearm after a serial number is removed, obliterated, or altered in any way, whether or not the firearm is then placed into commerce.
