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July 29, 2010

Third Circuit rejects Second Amendment attack on federal crime of possessing gun with obliterated serial number

The Third Circuit has a very detailed and interesting discussion of Heller and the Second Amendment's impact on gun possession prohibitions and regulation today in US v. Marzzarella, No. 09-3185 (3d Cir. July 29, 2010) (available here). Here is how the lengthy opinion gets started and ends:

This appeal presents a single issue, whether Defendant Michael Marzzarella’s conviction under 18 U.S.C. § 922(k) for possession of a handgun with an obliterated serial number violates his Second Amendment right to keep and bear arms.  We hold it does not and accordingly will affirm the conviction....

Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller.  Accordingly, we hesitate to say Marzzarella’s possession of an unmarked firearm in his home is unprotected conduct. But because § 922(k) would pass muster under either intermediate scrutiny or strict scrutiny, Marzzarella’s conviction must stand.

For the foregoing reasons, we will affirm the District Court’s denial of Marzzarella’s motion to dismiss the indictment and affirm his judgment of conviction and sentence [which was 9 months imprisonment].

As the opinion's penultimate paragraph suggests, the Marzzarella opinion proceeds deliberately and in so doing cover more Second Amendment ground than any other opinion I can recall from the last two years.  (I am tempted here to make a bad pun on the defendant's name by saying that the Marzzarella opinion comes with extra Heller cheese and lots of dicta toppings.) 

In short, the Third Circuit's work in Marzzarella is a must-read for anyone following the development of Second Amendment jurisprudence.  It also provides another notable data point for those hoping (or fearing) that Heller would not seriously impact the vast majority of gun control laws.

UPDATE: The Legal Intelligencer now has this report on the Marzzarella decision, which is headlined "In Wake of 'Heller,' 3rd Circuit OKs Ban on Unnumbered Guns."

July 29, 2010 at 07:34 PM | Permalink


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Freakin Judges.

The 2nd amendment prohibits govt (and pigs) from regulating guns. If you hate that then try living in gun-free Japan.

Posted by: Tory II | Jul 30, 2010 4:10:54 AM

The conviction stands but the question arises, is the punishment cruel and unusual, given the nature of the crime? Does one earn nine months in jail for removing the VIN from an auto?

Posted by: Jardinero1 | Jul 30, 2010 10:11:57 AM

guess this measn those 10's of thousands of AMERICANS with guns from the early 1900's and before that were made before the criminals took over the govt are now unconvicted CRIMINALS.

Posted by: rodsmith | Jul 30, 2010 2:25:33 PM

rodsmith: That would be a very bad guess. Guess again. Hint: 18 U.S.C. 921(a)(3) and 921(a)(16).

Posted by: Peter G | Jul 30, 2010 9:44:20 PM

why not! they don't have numbers either! why is irrelevant! our govt wants them all tracked! it's the same excuse they use every time they pass a so-called civil law retroactively applying to 100's of thousands of sex crimes!

Can't have it both ways!

Posted by: rodsmith | Jul 31, 2010 2:29:09 AM

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