The impact of Justice Clarence Thomas: Judge finds ban on guns with serial numbers removed is unconstitutional

Concealed carry

A New York federal judge temporarily blocked significant portions of the state’s new gun law in an extreme ruling attempting to apply the Supreme Court’s latest Second Amendment test.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court declared unconstitutional New York’s 110-year-old license requirement for concealed handgun carrying. The summer 2022 opinion, written by Justice Clarence Thomas, created a novel test for judges to determine if a gun control law violates the Second Amendment: the law must be grounded in “this Nation’s historical tradition of firearm regulation.”

After Bruen, New York state legislators passed a new law to replace the one thrown out by the Supreme Court. Among other provisions, the law—which took effect on September 1—replaced the old permit scheme with new or modified requirements for applicants, including an 18-hour training course, names of references, a list of social media accounts, proof of good moral character, and an in-person interview.

Six New York residents who either have a gun permit that predates Bruen or wish to obtain one sued the state as soon as the new permitting law took effect, seeking to prevent it from being enforced. All individuals are members of Gun Owners of America, a prominent competitor of the NRA.

What is a tradition

The case, Antonyuk v. Hochul, was assigned to U.S. District Judge Glenn Suddaby, a George W. Bush appointee. Suddaby’s analysis demonstrates the shallowness of thought behind the “historical tradition” standard invented in Bruen. In order for a modern gun control law to be considered part of a “tradition,” Suddaby says there must have been at least three analogous firearm laws in force in 1791 (Founding) or 1868 (Reconstruction). Why three? According to rules invented by Suddaby, one law definitely is not a tradition and two laws might “come closer to constituting a tradition, [but] they can also appear as a mere trend.” Therefore, three is the magic number.

If the government cannot prove that at least three analogous gun laws existed during or before Ulysses S. Grant’s presidency, then the gun law is unconstitutional.

Social media certainly didn’t exist prior to Ulysses S. Grant. The closest thing to social media accounts Suddaby could find that existed in the 18th century was pamphlets and newspapers. The authors of such articles were not required to disclose their pamphlets to carry guns in public; requiring a gun permit applicant to disclose social media accounts is therefore unconstitutional, the court says.

Based on the briefing so far in this action (and the briefing in Antonyuk I), the Court finds that an insufficient number of historical analogues exists requiring a list of social media accounts…For example, Defendants have adduced no historical analogues requiring persons to disclose the pseudonyms they have used while publishing political pamphlets or newspaper articles (which might be considered to be akin to requiring the disclosure of all one’s social-media accounts).

Other requirements of New York’s law likewise fell to the court’s “historical tradition” analysis. Suddaby declared that having to submit the “names and contact information for the applicant’s current spouse, or domestic partner,” and other residents of the home, is “invasive,” “onerous,” and without historical analogues. Applicants also cannot be compelled to attend an in-person meeting to obtain a gun permit because Suddaby found “only one” historical example, and it was just “a city statute, the general reliance on which the Supreme Court has expressed disapproval.”

Sensitive locations

Suddaby then moved on to decimating the new law’s concealed carry restrictions in “sensitive locations” — areas used by vulnerable people or areas of high population density. Schools and universities are permissible places to ban firearms, Suddaby found, due to “longstanding prohibitions” found in the historical record. But, New York went too far in banning guns at summer camps. “[T]he Court,” he wrote, “cannot find these historical statutes analogous to a prohibition on ‘summer camps.’” It should be noted, summer camps did not exist in the 18th century.

Subways, buses, ferries, bus terminals, and train stations now must also allow firearms. Why? Because tradition demands it. Suddaby cites numerous state laws allowing concealed carry of weapons when traveling, including an 1813 Kentucky law stating: “[A]ny person in this Commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined…”.

The New York legislature also sought to prohibit guns in theaters, stadiums, amusement parks, and establishments serving liquor. Unconstitutional, says Suddaby, because the only historical examples of firearm prohibitions where alcohol is served or at large assemblies of people are from territories in the 1800s.

For example, a historical statute exists prohibiting persons from carrying firearms in establishments where alcoholic beverages are consumed (analogous to subsection “2(o)” of Section 4 of the CCIA).36 However, setting aside the fact that Oklahoma was merely a territory in 1890 (thus depriving this statute of any more than “little weight,” pursuant to NYSRPA),37 one example does not a tradition make.

Similarly, three historical statutes exist prohibiting persons from carrying firearms in “ball rooms” or “social parties” (arguably analogous to the CCIA’s ban on guns in “amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities” as stated in subsection “2(p)” of the CCIA).38 However, even setting aside the obvious distinctions between a private dinner party and a public water park, two of the three statutes were from territories.

What about Times Square, one of the most congested places in the world? Again, tradition demands guns be permitted amidst the throngs of people in the center of America’s largest city.

Granted, one might argue that historical statutes banning the carrying of guns in “fairs or markets” are analogous to this prohibition. However, thus far, only two such statutes have been located. Setting aside the fact that the first one appears to apply only to carrying a gun offensively (“in terror of the Country”), and the fact that the second one appears to depend on royal reign, as stated before, two statues do not make a tradition.

Finally, Suddaby did away with restrictions on carrying firearms at medical facilities, libraries, public parks, public playgrounds, mental health programs, homeless shelters, and—remarkably— domestic violence shelters, the very place where victims seek refuge from abusers who may arm themselves with weapons.

New York state appealed the ruling; the Second Circuit put Suddaby’s order on hold while the court considers the appeal.

Serial numbers

A second federal judge ruled that a federal law banning the removal of serial numbers on guns violates the Second Amendment under the Supreme Court’s Bruen standard.

The opinion of West Virginia District Judge Joseph Goodwin, a Bill Clinton appointee, reads as a reluctant application of the high court’s ruling — not, as in Suddaby’s opinion, as an enthusiastic endorsement of “historical tradition” analysis. Indeed, lower courts are required to follow the Supreme Court’s directives, even when they may be incorrect or misguided.

U.S. v. Price originated from a traffic stop that uncovered a pistol with an “obliterated serial number” in the car of Randy Price. Having been previously convicted of felony involuntary manslaughter and felony aggravated robbery, Price was not permitted to own a firearm, let alone one with its serial number removed. He was indicted by a grand jury for being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and for possession of a firearm with an obliterated serial number (18 U.S.C. § 922(k)).

Price challenged the constitutionality of both laws following Bruen, forcing the government to prove (under Justice Thomas’s ruling) that felons possessing firearms and the removal of serial numbers were both illegal when the Second Amendment was ratified in 1791.

In his motion to dismiss, Mr. Price argues that the conduct prohibited by 18 U.S.C. §§ 922(g)(1) and 922(k) is protected by the plain text of the Second Amendment and was unregulated in 1791. [ECF No. 12]. Relying on the Supreme Court’s holding in Bruen, Mr. Price argues that these statutes are facially unconstitutional.

Following the Supreme Court’s framework, Judge Goodwin first asks whether the federal ban on possession of a gun with an obliterated serial number infringes on the right to self-defense. He found that it does, bringing up a hypothetical example of an otherwise law-abiding daughter who inherits a firearm without a serial number from her father:

Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government’s argument that Section 922(k) does not amount to an “infringement” on the law abiding citizen’s Second Amendment right, the practical application is that while the law-abiding citizen’s possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one’s right to possess a firearm.

Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father’s memory. As it stands, Section 922(k) also makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite the fact that she was not the person who removed the serial number.

Next, Goodwin examined whether the government could find an analogous regulation from 1791 that restricted the possession of guns with an altered serial number. It could not because serial numbers were not common until circa 1900 and not mandated by law until 1968.

Judge Goodwin expressed that he is bound by the Supreme Court’s test to find the ban on possession of firearms with removed serial numbers unconstitutional.

Prior to Bruen, courts considering the constitutionality of Section 922(k) found that the requirement that a serial number not be removed was a minimal burden on lawful gun owners compared to the value serial numbers provide to society… Certainly, the usefulness of serial numbers in solving gun crimes makes Section 922(k) desirable for our society. But the Supreme Court no longer permits such an analysis. Under Bruen, I am limited to considering whether Section 922(k) is “consistent with the Nation’s historical tradition of firearm regulation.”…

A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time. While I recognize there is an argument, not made by the Government here, that firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable, that argument is the exact type of means-end reasoning the Supreme Court has forbidden me from considering. And the founders addressed the “societal problem” of non-law-abiding citizens possessing firearms through “materially different means”—felon disarmament laws like Section 922(g)(1). Bruen, 142 S. Ct. at 2131. Under Bruen, this is “evidence that [the] modern regulation is unconstitutional.”

On the second law challenged by Price, Goodwin found that banning felons from owning firearms is constitutional.

Justice Thomas opens Bruen by expressly reaffirming the holdings of the Supreme Court’s recent Second Amendment cases, which defined the right to bear arms as belonging to “law-abiding, responsible citizens.”

In District of Columbia v. Heller, and McDonald v. Chicago, we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree . . . .

Bruen, 142 S. Ct. at 2122 (emphasis supplied) (citations omitted). Consistent with that definition, the Court cautioned in Heller that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” 554 U.S. at 626. The Court described such prohibitions as “presumptively lawful” and falling within “exceptions” to the protected right to bear arms…

I am convinced that the Supreme Court left generally undisturbed the regulatory framework that keeps firearms out of the hands of dangerous felons through its decision in Bruen by reaffirming and adhering to its reasoning in Heller and McDonald. Mr. Price essentially argues that Bruen should be taken to “cast doubt on longstanding prohibitions on the possession of firearms by felons,” which is a marked departure from McDonald and Heller that was specifically not taken by the Supreme Court in Bruen