For decades, federal law has forbidden gun owners from scratching out the serial numbers that manufacturers are legally required to place on firearms. The reason is obvious: These serial numbers help state and federal law enforcement trace guns that are used in crimes and identify suspected shooters. Indeed, the only apparent reason anyone would remove a serial number is to avoid becoming a suspect after their gun is used illegally. On Wednesday, however, a federal judge ruled that the law prohibiting alteration of serial numbers violates the Second Amendment. Why? Because serial numbers were virtually nonexistent when the amendment was ratified in 1791, so the government has no power to mandate them today.
This decision in United States v. Price by U.S. District Judge Joseph R. Goodwin, a Bill Clinton appointee, may sound shocking. But it is a perfectly plausible application of the Supreme Court’s June ruling in New York State Rifle & Pistol Association v. Bruen. In that case, Justice Clarence Thomas declared all gun restrictions presumptively unconstitutional if they infringe on “the individual right to armed self-defense.” (The Constitution says nothing about “self-defense,” but Thomas gleaned this right from its penumbra.) A gun restriction may only survive legal scrutiny, the justice declared, if it had an “analogue” in 1791, when the Second Amendment was ratified, or 1868, when it was imposed on the states. The burden falls on the government to prove the existence of a historical analogue.
Thomas’ test has already wreaked havoc in the lower courts. One judge has struck down a Texas law that prohibits 18 to 20-year-olds from carrying a handgun outside the home. People under 21 are significantly more likely to commit gun homicides—but in Bruen, Thomas announced that courts may never consider the real-world, life-saving impact of gun safety laws when gauging their constitutionality. A different Texas judge invalidated a federal law barring individuals from purchasing a handgun while they’re under indictment, even for a violent felony offense. Just last week, another judge struck down New York’s ban on concealed carry in airports, train stations, domestic violence shelters, summer camps, the subway, and other “sensitive locations.” Now Goodwin, who sits in West Virginia, has joined the chorus of lower court judges who feel that Bruen obliges them to strike down longstanding, widely accepted firearm laws.
Read Uncle Thomas’ logic at Slate
