2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2010

USA v. Michael Marzzarella

Precedential or Non-Precedential: Precedential

Docket No. 09-3185

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"USA v. Michael Marzzarella" (2010). 2010 Decisions. Paper 819.

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 The Honorable Joseph H. Rodriguez, United States District *

Judge for the District of New Jersey, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3185

UNITED STATES OF AMERICA

v.

MICHAEL MARZZARELLA,

Appellant

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Criminal No. 07-cr-0024

Honorable Sean J. McLaughlin

Argued February 22, 2010

Before: SCIRICA and CHAGARES, Circuit Judges,

and RODRIGUEZ , District Judge.

*
2

(Filed: July 29, 2010)

THOMAS W. PATTON, ESQUIRE (ARGUED)

Office of Federal Public Defender

1111 Renaissance Centre

1001 State Street

Erie, Pennsylvania 16501

Attorney for Appellant

LAURA S. IRWIN, ESQUIRE (ARGUED)

ROBERT L. EBERHARDT, ESQUIRE

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

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.
 Section 922(k) provides: 1

It shall be unlawful for any person knowingly to

transport, ship, or receive, 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 or

receive 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.

3

I.

In April 2006, the Pennsylvania State Police were

notified by a confidential informant that Marzzarella was

involved in the sale of stolen handguns. On April 25, the

confidential informant arranged a purchase of handguns from

Marzzarella. The next day, State Trooper Robert Toski,

operating in an undercover capacity, accompanied the informant

to Marzzarella’s home in Meadville, Pennsylvania, where Toski

purchased a .25 caliber Titan pistol with a partially obliterated

serial number for $200. On May 16, Marzzarella sold Toski a

second firearm and informed him that its serial number could be

similarly obliterated.

On June 12, 2007, Marzzarella was indicted for

possession of a firearm with an obliterated serial number, in

violation of § 922(k). No charges were brought for the sale of 1
We recognize the words “removed,” “obliterated,” and “altered”

may denote distinct actions. See United States v. Carter, 421

F.3d 909, 912–13 (9th Cir. 2005) (detailing the difference in the

ordinary meanings of “obliterated” and “altered” in U.S.S.G. §

2K2.1(b)(4)). Because the disposition of this case does not turn

on their distinctions, we use these terms, as well as the term

“unmarked,” interchangeably.

4

the Titan pistol or the sale or possession of the second firearm.

Marzzarella moved to dismiss the indictment, arguing § 922(k),

as applied, violated his Second Amendment right to keep and

bear arms, as recognized by the Supreme Court in District of

Columbia v. Heller, 128 S. Ct. 2783 (2008). The District Court

denied the motion, holding 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. Moreover, it held that because § 922(k) is

designed to regulate the commercial sale of firearms and to

prevent possession by a class of presumptively dangerous

individuals, it is analogous to several longstanding limitations

on the right to bear arms identified as presumptively valid in

Heller. Finally, the District Court held that even if

Marzzarella’s possession of the Titan pistol was protected by the

Second Amendment, § 922(k) would pass muster under

intermediate scrutiny as a constitutionally permissible regulation

of Second Amendment rights.
 The District Court had jurisdiction over Marzzarella’s 2

indictment under 18 U.S.C. § 3231. We have jurisdiction over

the appeal pursuant to 28 U.S.C. § 1291. We exercise plenary

review of a constitutional challenge to the application of a

statute. United States v. Fullmer, 584 F.3d 132, 151 (3d Cir.

2009).

 The Supreme Court recently issued its decision in McDonald 3

v. City of Chicago, 130 S. Ct. 3020 (2010). McDonald dealt

primarily with the incorporation of the Second Amendment

against the states, id. at 3050 (plurality opinion of Alito, J.), and

does not alter our analysis of the scope of the right to bear arms.

5

After the denial of the motion to dismiss the indictment,

Marzzarella entered a conditional guilty plea, reserving the right

to appeal the constitutionality of § 922(k). The District Court

sentenced him to nine months imprisonment. Marzzarella now

appeals.2

II.

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State, the right

of the people to keep and bear Arms, shall not be infringed.”

U.S. Const. amend. II. To determine whether § 922(k)

impermissibly burdens Marzzarella’s Second Amendment

rights, we begin with Heller.

3
6

In Heller, the Supreme Court struck down several District

of Columbia statutes prohibiting the possession of handguns and

requiring lawfully owned firearms to be kept inoperable. 128 S.

Ct. at 2817–18. The Court concluded the Second Amendment

“confer[s] an individual right to keep and bear arms,” id. at

2799, at least for the core purpose of allowing law-abiding

citizens to “use arms in defense of hearth and home,” id. at

2821. Although the Court declined to fully define the scope of

the right to possess firearms, it did caution that the right is not

absolute. Id. at 2816–17 (“Like most rights, the right secured by

the Second Amendment is not unlimited. . . . [N]othing in our

opinion should be taken to cast doubt on longstanding

prohibitions on the possession of firearms . . . .”). But because

the District of Columbia’s laws prevented persons from

possessing firearms even for self-defense in the home, they were

unconstitutional under any form of means-end scrutiny

applicable to assess the validity of limitations on constitutional

rights. Id. at 2817–18 (“Under any of the standards of scrutiny

that we have applied to enumerated constitutional rights . . . [the

statutes] would fail constitutional muster.” (citation and footnote

omitted)).

As we read Heller, it suggests a two-pronged approach to

Second Amendment challenges. First, we ask whether the

challenged law imposes a burden on conduct falling within the

scope of the Second Amendment’s guarantee. Cf. United States

v. Stevens, 533 F.3d 218, 233 (3d Cir. 2008), aff’d 130 S. Ct.

1577 (recognizing the preliminary issue in a First Amendment
 Because Heller is the first Supreme Court case addressing 4

the scope of the individual right to bear arms, we look to other

constitutional areas for guidance in evaluating Second

Amendment challenges. We think the First Amendment is the

natural choice. Heller itself repeatedly invokes the First

Amendment in establishing principles governing the Second

Amendment. See, e.g., 128 S. Ct. at 2791–92 (“Just as the First

Amendment protects modern forms of communications . . . the

Second Amendment extends . . . to all instruments that

constitute bearable arms, even those that were not in existence

at the time of the founding.” (citation omitted)); id. at 2799 (“Of

course the right [to bear arms] was not unlimited, just as the

First Amendment’s right of free speech was not.” (citation

omitted)); id. at 2821 (“The First Amendment contains the

freedom-of-speech guarantee that the people ratified, which

included exceptions . . . but not for the expression of extremely

unpopular and wrong-headed views. The Second Amendment

is no different. Like the First, it is the very product of an

interest-balancing by the people . . . .”). We think this implies

the structure of First Amendment doctrine should inform our

analysis of the Second Amendment.

7

challenge is whether the speech at issue is protected or

unprotected). If it does not, our inquiry is complete. If it does, 4

we evaluate the law under some form of means-end scrutiny. If

the law passes muster under that standard, it is constitutional.

If it fails, it is invalid.
8

A.

Our threshold inquiry, then, is whether § 922(k) regulates

conduct that falls within the scope of the Second Amendment.

In other words, we must determine whether the possession of an

unmarked firearm in the home is protected by the right to bear

arms. In defining the Second Amendment, the Supreme Court

began by analyzing the text of the “operative clause,” which

provides that “the right of the people to keep and bear Arms,

shall not be infringed.” Heller, 128 S. Ct. at 2789–90. Because

“[c]onstitutional rights are enshrined with the scope they were

understood to have when the people adopted them,” id. at 2821,

the Court interpreted the text in light of its meaning at the time

of ratification, id. at 2797–99. It concluded that the Second

Amendment codified a pre-existing “individual right to possess

and carry weapons in case of confrontation.” Id. at 2797. The

“prefatory clause”—providing “[a] well regulated Militia being

necessary to the security of a Free State”—explains only the

purpose for codification, viz., preventing the disbandment of the

militia by the federal government. Id. at 2801. It says nothing

about the content of the right to bear arms and does not mean the

right was protected solely to preserve the militia. Id. “[M]ost

[Americans] undoubtedly thought it even more important for

self-defense and hunting,” and the interest in self-defense “was

the central component of the right itself.” Id.
 There is some dispute over whether the language from 5

Heller limiting the scope of the Second Amendment is dicta.

Compare United States v. Scroggins, 599 F.3d 433, 451 (5th Cir.

2010) (characterizing this language as dicta), petition for cert.

filed, (U.S. June 1, 2010) (09-11204), and United States v.

McCane, 573 F.3d 1037, 1047 (10th Cir. 2009) (Tymkovich, J.,

dissenting) (same), cert. denied, 130 S. Ct. 1686 (2010) with

United States v. Rozier, 598 F.3d 768, 771 n.6 (11th Cir. 2010)

(stating this language is not dicta), cert. denied, 78 U.S.L.W.

3714 (U.S. June 7, 2010), and United States v. Vongxay, 594

F.3d 1111, 1115 (9th Cir. 2010) (same). But even if dicta, it is

Supreme Court dicta, and, as such, requires serious

consideration. See Heleva v. Brooks, 581 F.3d 187, 188 n.1 (3d

Cir. 2009) (“[W]e do not view [Supreme Court] dicta lightly.”

(alterations in original) (internal quotation marks omitted)); see

also Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006)

(“[T]here is dicta and then there is dicta, and then there is

Supreme Court dicta.”). Several other courts of appeals have

followed this dicta. See, e.g., United States v. Skoien, No. 08-

3770, 2010 WL 2735747, at *3 (July 13, 2010 7th Cir.) (en

banc); United States v. White, 593 F.3d 1199, 1205–06 (11th

Cir. 2010) (extending it to cover a ban on possession by

domestic violence offenders); United States v. Rene E., 583 F.3d

8, 12 (1st Cir. 2009) (finding the prohibition of juvenile

possession of firearms was consistent with the approach of

9

But the right protected by the Second Amendment is not

unlimited. Id. at 2816; see also McDonald v. City of Chicago,

5
Heller’s dicta), cert. denied, 130 S. Ct. 1109 (2010); McCane,

573 F.3d at 1047 (relying solely on this dicta to conclude a ban

on possession of firearms by felons did not offend the Second

Amendment); United States v. Anderson, 559 F.3d 348, 352 (5th

Cir. 2009), cert. denied, 129 S. Ct. 2814 (2009); United States

v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008) (upholding a

ban on machine guns), cert. denied, 129 S. Ct. 1369 (2009).

Moreover, the Court itself reaffirmed the presence of these

limitations in McDonald. 130 S.Ct. at 3047 (plurality opinion

of Alito, J.).

10

130 S. Ct. 3020, 3047 (2010) (plurality opinion of Alito, J.)

(reiterating the limited nature of the right to bear arms). First,

it does not extend to all types of weapons, only to those typically

possessed by law-abiding citizens for lawful purposes. Id. at

2815–16 (interpreting United States v. Miller, 307 U.S. 174

(1939)). In Miller, the Supreme Court reversed the dismissal of

an indictment of two men for transporting an unregistered shortbarreled shotgun in interstate commerce, in violation of then 26

U.S.C. § 1332(c) and (d). 307 U.S. at 175. The Court held the

shotgun was unprotected by the Second Amendment. Id. at 178.

In Heller, the Court explained that “Miller stands only for the

proposition that the Second Amendment right, whatever its

nature, extends only to certain types of weapons,” 128 S. Ct. at

2814—those commonly owned by law-abiding citizens, id. at

2815–16. This proposition reflected a “historical tradition of

prohibiting the carrying of ‘dangerous and unusual weapons.’”

Id. at 2817. Accordingly, the right to bear arms, as codified in
11

the Second Amendment, affords no protection to “weapons not

typically possessed by law-abiding citizens for lawful purposes.”

 Id. at 2815–16. 

Moreover, the Court identified several other valid

limitations on the right similarly derived from historical

prohibitions. Id. at 2816–17.

Although we do not undertake an exhaustive

historical analysis today of the full scope of the

Second Amendment, nothing in our opinion

should be taken to cast doubt on longstanding

prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as

schools and government buildings, or laws

imposing conditions and qualifications on the

commercial sale of arms.

Id. The Court explained that this list of “presumptively lawful

regulatory measures” was merely exemplary and not exhaustive.

Id. at 2817 n.26.

We recognize the phrase “presumptively lawful” could

have different meanings under newly enunciated Second

Amendment doctrine. On the one hand, this language could be

read to suggest the identified restrictions are presumptively

lawful because they regulate conduct outside the scope of the

Second Amendment. On the other hand, it may suggest the

restrictions are presumptively lawful because they pass muster
 See Joseph Blocher, Categoricalism and Balancing in First 6

and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 413

(2009) (“Heller categorically excludes certain types of ‘people’

and ‘Arms’ from Second Amendment coverage, denying them

any constitutional protection whatsoever.”). 

12

under any standard of scrutiny. Both readings are reasonable

interpretations, but we think the better reading, based on the text

and the structure of Heller, is the former—in other words, that

these longstanding limitations are exceptions to the right to bear

arms. Immediately following the above-quoted passage, the 6

Court discussed“another important limitation” on the Second

Amendment—restrictions on the types of weapons individuals

may possess. Heller, 128 S. Ct. at 2817. The Court made clear

that restrictions on the possession of dangerous and unusual

weapons are not constitutionally suspect because these weapons

are outside the ambit of the amendment. Id. at 2815–16 (“[T]he

Second Amendment does not protect those weapons not

typically possessed by law-abiding citizens for lawful purposes

. . . .”). By equating the list of presumptively lawful regulations

with restrictions on dangerous and unusual weapons, we believe

the Court intended to treat them equivalently—as exceptions to

the Second Amendment guarantee.

This reading is also consistent with the historical

approach Heller used to define the scope of the right. If the

Second Amendment codified a pre-existing right to bear arms,

id. at 2797, it codified the pre-ratification understanding of that
 See Blocher, supra note 5, at 414 (reading this language to 7

stand for the proposition that “felons and the mentally ill,

however defined, are excluded entirely from Second

Amendment coverage”).

Commercial regulations on the sale of firearms do not fall 8

outside the scope of the Second Amendment under this reading.

Heller endorsed “laws imposing conditions and qualifications on

the commercial sale of firearms.” 128 S. Ct. at 2817. In order

to uphold the constitutionality of a law imposing a condition on

the commercial sale of firearms, a court necessarily must

examine the nature and extent of the imposed condition. If there

13

right, id. at 2821 (“Constitutional rights are enshrined with the

scope they were understood to have when the people adopted

them . . . .”). Therefore, if the right to bear arms as commonly

understood at the time of ratification did not bar restrictions on

possession by felons or the mentally ill, it follows that by

constitutionalizing this understanding, the Second Amendment

carved out these limitations from the right. Moreover, the

specific language chosen by the Court refers to “prohibitions”

on the possession of firearms by felons and the mentally ill. Id.

at 2816–17. The endorsement of prohibitions as opposed to

regulations, whose validity would turn on the presence or

absence of certain circumstances, suggests felons and the

mentally ill are disqualified from exercising their Second

Amendment rights. The same is true for “laws forbidding the 7

carrying of firearms in sensitive places.” Heller, 128 S. Ct. at 8
were somehow a categorical exception for these restrictions, it

would follow that there would be no constitutional defect in

prohibiting the commercial sale of firearms. Such a result

would be untenable under Heller.

 McDonald concerns primarily the incorporation of the 9

Second Amendment; its discussion of the scope of the right to

bear arms is coextensive with Heller’s.

 By “non-dangerous weapons,” we refer to weapons that do 10

not trigger Miller’s exception for dangerous and unusual

weapons.

14

2817. 

Accordingly, Heller delineates some of the boundaries of

the Second Amendment right to bear arms. At its core, the 9

Second Amendment protects the right of law-abiding citizens to

possess non-dangerous weapons for self-defense in the home. 10

Id. at 2821 (“[W]hatever else [the Second Amendment] leaves

to future evaluation, it surely elevates above all other interests

the right of law-abiding, responsible citizens to use arms in

defense of hearth and home.”). And certainly, to some degree,

it must protect the right of law-abiding citizens to possess

firearms for other, as-yet-undefined, lawful purposes. See, e.g.,

id. at 2801 (discussing hunting’s importance to the preratification conception of the right); id. (discussing the right to

bear arms as a bulwark against potential governmental

oppression). The right is not unlimited, however, as the Second
15

Amendment affords no protection for the possession of

dangerous and unusual weapons, possession by felons and the

mentally ill, and the carrying of weapons in certain sensitive

places. Id. at 2816–17. 

But Heller did not purport to fully define all the contours

of the Second Amendment, id. at 2816 (“[W]e do not undertake

an exhaustive historical analysis today of the full scope of the

Second Amendment . . . .”), and accordingly, much of the scope

of the right remains unsettled. While the Second Amendment

clearly protects possession for certain lawful purposes, it is not

the case that all possession for these purposes is protected

conduct. For example, although the Second Amendment

protects the individual right to possess firearms for defense of

hearth and home, Heller suggests, and many of our sister circuits

have held, a felony conviction disqualifies an individual from

asserting that interest. See 128 S. Ct. at 2816–17; United States

v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010) (“We find 18

U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses

a firearm purely for self-defense.”), cert. denied, 78 U.S.L.W.

3714 (U.S. June 7, 2010); see also United States v. Vongxay,

594 F.3d 1111, 1118 (9th Cir. 2010); United States v. Anderson,

559 F.3d 348, 352 (5th Cir. 2009), cert. denied, 129 S. Ct. 2814

(2009). This is so, even if a felon arguably possesses just as

strong an interest in defending himself and his home as any lawabiding individual. 

Moreover, Heller’s list of presumptively lawful

regulations is not exhaustive, 128 S. Ct. at 2817 n.26, and
16

accordingly, the Second Amendment appears to leave intact

additional classes of restrictions. But the approach for

identifying these additional restrictions is also unsettled.

Heller’s identified exceptions all derived from historical

regulations, but it is not clear that pre-ratification presence is the

only avenue to a categorical exception. For example, does 18

U.S.C. § 922(g)(3)’s prohibition of possession by substance

abusers violate the Second Amendment because no restrictions

on possession by substance abusers existed at the time of

ratification? Or is it valid because it presumably serves the

same purpose as restrictions on possession by

felons—preventing possession by presumptively dangerous

individuals? See Scarborough v. United States, 431 U.S. 563,

572 (1977) (“[By prohibiting possession by felons,] Congress

sought to rule broadly—to keep guns out of the hands of those

who have demonstrated that they may not be trusted to possess

a firearm without becoming a threat to society.” (internal

quotation marks omitted)); United States v. Cheeseman, 600

F.3d 270, 280 (3d Cir. 2010) (noting, in a criminal forfeiture

action, that congressional intent in passing § 922(g)(3) was “to

keep firearms out of the possession of drug abusers, a dangerous

class of individuals”), petition for cert. filed, 78 U.S.L.W. 3731

(U.S. June 1, 2010) (No. 09-1470). Therefore, prudence

counsels caution when extending these recognized exceptions to

novel regulations unmentioned by Heller. Cf. Stevens, 533 F.3d

at 225 (counseling restraint when extending the logic of

categorical exceptions for unprotected speech to new types of

speech). 
17

Section 922(k)’s prohibition of the possession of firearms

with “removed, obliterated, or altered” serial numbers is one of

those regulations unmentioned by Heller. Marzzarella argues §

922(k) is unconstitutional because the Second Amendment

categorically protects the right to possess unmarked firearms.

Heller defined the Second Amendment by looking to what the

right meant at the time of ratification. 128 S. Ct. at 2798–99.

Because the Second Amendment protects weapons “of the kind

in common use at the time,” id. at 2815 (quoting Miller, 307

U.S. at 179), it must, says Marzzarella, protect firearms in

common use at the time of ratification. He alleges that firearms

in common use in 1791 did not possess serial numbers.

Accordingly, he contends the Second Amendment must protect

firearms without serial numbers.

We are not persuaded by Marzzarella’s historical

syllogism. His argument rests on the conception of unmarked

firearms as a constitutionally recognized class of firearms, in

much the same way handguns constitute a class of firearms.

That premise is unavailing. Heller cautions against using such

a historically fact-bound approach when defining the types of

weapons within the scope of the right. 128 S. Ct. at 2791

(“Some have made the argument, bordering on the frivolous,

that only those arms in existence in the 18th century are

protected by the Second Amendment. We do not interpret

constitutional rights that way.”). Moreover, Marzzarella himself

asserts that serial numbers on firearms did not exist at the time
 Marzzarella does not cite to any source for this assertion, 11

but it appears that serial numbers arose only with the advent of

mass production of firearms. See Thomas Henshaw, The

History of Winchester Firearms 1866–1992, at ix (6th ed. 1993)

(listing the first recorded serial number on a Winchester firearm

as appearing in 1866); National Park Service, U.S. Department

of the Interior, Springfield Armory National Historic

S i te— M 1 8 6 5 – 8 8 ri f l es,

http://www.nps.gov/spar/historyculture/m1865-88-rifles.htm

(last visited July 8, 2010) (stating that no serial numbers

appeared on Springfield Armory weapons until 1868). 

18

of ratification. Accordingly, they would not be within the 11

contemplation of the pre-existing right codified by the Second

Amendment. It would make little sense to categorically protect

a class of weapons bearing a certain characteristic when, at the

time of ratification, citizens had no concept of that characteristic

or how it fit within the right to bear arms.

Furthermore, it also would make little sense to

categorically protect a class of weapons bearing a certain

characteristic wholly unrelated to their utility. Heller

distinguished handguns from other classes of firearms, such as

long guns, by looking to their functionality. Id. at 2818 (citing

handguns’ ease in storage, access, and use in case of

confrontation). But unmarked firearms are functionally no

different from marked firearms. The mere fact that some

firearms possess a nonfunctional characteristic should not create
 The Government argues Marzzarella did not possess the 12

firearm for self-defense purposes because he intended to sell it

to Toski. But the Government elected to indict Marzzarella only

for possession of the handgun, not the sale. If he possessed the

pistol for self-defense purposes, its subsequent sale would not

somehow retroactively eliminate that interest.

19

a categorically protected class of firearms on the basis of that

characteristic. 

Although there is no categorical protection for unmarked

firearms, Marzzarella’s conduct may still fall within the Second

Amendment because his possession of the Titan pistol in his

home implicates his interest in the defense of hearth and

home—the core protection of the Second Amendment. While

the burden on his ability to defend himself is not as heavy as the

one involved in Heller, infringements on protected rights can be,

depending on the facts, as constitutionally suspect as outright

bans. See United States v. Playboy Entm’t Group, Inc., 529 U.S.

803, 812 (2000) (“It is of no moment that the statute does not

impose a complete prohibition. The distinction between laws

burdening and laws banning speech is but a matter of degree.”).

Marzzarella contends that by preventing him from possessing

this particular handgun in his home, § 922(k) unconstitutionally

limited his ability to defend himself.12

We are skeptical of Marzzarella’s argument that

possession in the home is conclusive proof that § 922(k)

regulates protected conduct. Because the presence of a serial
20

number does not impair the use or functioning of a weapon in

any way, the burden on Marzzarella’s ability to defend himself

is arguably de minimis. Section 922(k) did not bar Marzzarella

from possessing any otherwise lawful marked firearm for the

purpose of self-defense, and a person is just as capable of

defending himself with a marked firearm as with an unmarked

firearm. With or without a serial number, a pistol is still a

pistol. Furthermore, it cannot be the case that possession of a

firearm in the home for self-defense is a protected form of

possession under all circumstances. By this rationale, any type

of firearm possessed in the home would be protected merely

because it could be used for self-defense. Possession of

machine guns or short-barreled shotguns—or any other

dangerous and unusual weapon—so long as they were kept in

the home, would then fall within the Second Amendment. But

the Supreme Court has made clear the Second Amendment does

not protect those types of weapons. See Miller, 307 U.S. at 178

(holding that short-barreled shotguns are unprotected); see also

United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008)

(“Machine guns are not in common use by law-abiding citizens

for lawful purposes and therefore fall within the category of

dangerous and unusual weapons that the government can

prohibit for individual use.”), cert. denied, 129 S. Ct. 1369

(2009). 

It is arguably possible to extend the exception for

dangerous and unusual weapons to cover unmarked firearms.

“[T]he Second Amendment does not protect those weapons not
21

typically possessed by law-abiding citizens for lawful purposes

. . . .” Heller, 128 S. Ct. at 2815–16. The District Court could

not identify, and Marzzarella does not assert, any lawful purpose

served by obliterating a serial number on a firearm. Because a

firearm with a serial number is equally effective as a firearm

without one, there would appear to be no compelling reason why

a law-abiding citizen would prefer an unmarked firearm. These

weapons would then have value primarily for persons seeking to

use them for illicit purposes. See United States v. Carter, 421

F.3d 909, 910 (9th Cir. 2005) (noting that unmarked firearms

have a “greater flexibility to be utilized in illicit activities”

(alteration and internal quotation marks omitted)); cf. United

States v. Tagg, 572 F.3d 1320, 1326 (11th Cir. 2009) (finding no

Second Amendment protection for pipe bombs because they

could not be used for legitimate lawful purposes); State v.

Chandler, 5 La. Ann. 489, 489–90 (1850) (holding concealed

weapons could be prohibited because of their tendency to be

used in violent crimes on unsuspecting victims). Nevertheless,

a handgun with an obliterated serial number seems distinct from

a weapon like a short-barreled shotgun. While a short-barreled

shotgun is dangerous and unusual in that its concealability

fosters its use in illicit activity, it is also dangerous and unusual

because of its heightened capability to cause damage. See

United States v. Amos, 501 F.3d 524, 532 (6th Cir. 2007)

(McKeague, J., dissenting) (“With itsshorter barrel, a sawed-off

shotgun can be concealed under a large shirt or coat. It is the

combination of low, somewhat indiscriminate accuracy, large

destructive power, and the ability to conceal that makes a
22

sawed-off shotgun useful for only violence against another

person . . . .”); see also United States v. Upton, 512 F.3d 394,

404 (7th Cir. 2008) (likening sawed-off shotguns to “other

dangerous weapons like bazookas, mortars, pipe bombs, and

machine guns”). An unmarked firearm, on the other hand, is no

more damaging than a marked firearm.

Accordingly, while the Government argues that § 922(k)

does not impair any Second Amendment rights, we cannot be

certain that the possession of unmarked firearms in the home is

excluded from the right to bear arms. Because we conclude §

922(k) would pass constitutional muster even if it burdens

protected conduct, we need not decide whether Marzzarella’s

right to bear arms was infringed.

B.

Assuming § 922(k) burdens Marzzarella’s Second

Amendment rights, we evaluate the law under the appropriate

standard of constitutional scrutiny. Heller did not prescribe the

standard applicable to the District of Columbia’s handgun ban.

128 S. Ct. at 2817–18. Instead, it held that “[u]nder any of the

standards of scrutiny that we have applied to enumerated

constitutional rights [the ban] . . . would fail constitutional

muster.” Id. (footnote omitted).
 A rational basis test presumes the law is valid and asks only 13

whether the statute is rationally related to a legitimate state

interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

440 (1985).

 Strict scrutiny asks whether the law is narrowly tailored to 14

serve a compelling government interest. Playboy Entm’t Group,

529 U.S. at 813.

23

The Government argues a rational basis test should 13

apply to § 922(k), but Heller rejects that standard for laws

burdening Second Amendment rights. Id. at 2816 n.27. The

Court noted that even a law as burdensome as the District of

Columbia’s handgun ban would be constitutional under a

rational basis test. Id. The fact that the ban was struck down,

therefore, indicates some form of heightened scrutiny must have

applied. Moreover, “[i]f all that was required to overcome the

right to keep and bear arms was a rational basis, the Second

Amendment would be redundant with the separate constitutional

prohibitions on irrational laws, and would have no effect.” Id.

Marzzarella, on the other hand, contends we must apply

strict scrutiny because the right to bear arms is an enumerated 14

fundamental constitutional right. See McDonald, 130 S. Ct. at

3050 (plurality opinion of Alito, J.). Whether or not strict

scrutiny may apply to particular Second Amendment challenges,

it is not the case that it must be applied to all Second

Amendment challenges. Strict scrutiny does not apply
 While we recognize the First Amendment is a useful tool in 15

interpreting the Second Amendment, we are also cognizant that

the precise standards of scrutiny and how they apply may differ

under the Second Amendment.

24

automatically any time an enumerated right is involved. We do

not treat First Amendment challenges that way. Strict scrutiny 15

is triggered by content-based restrictions on speech in a public

forum, see Pleasant Grove City v. Summum, 129 S. Ct. 1125,

1132 (2009), but content-neutral time, place, and manner

restrictions in a public forum trigger a form of intermediate

scrutiny, see Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (upholding such restrictions if they “are justified without

reference to the content of the regulated speech, . . . they are

narrowly tailored to serve a significant governmental interest,

and . . . they leave open ample alternative channels for

communication of the information.” (quoting Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288, 293 (1984))).

Regulations on nonmisleading commercial speech trigger

another form of intermediate scrutiny, see Cent. Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566

(1980) (requiring the regulation to directly advance a substantial

governmental interest and not be more burdensome than

necessary to serve that interest), whereas disclosure

requirements for commercial speech trigger a rational basis test,

see Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U.S. 626, 651 (1985) (“We do not suggest

that disclosure requirements do not implicate the advertiser’s
25

First Amendment rights at all. . . . But we hold that an

advertiser’s rights are adequately protected as long as disclosure

requirements are reasonably related to the State’s interest in

preventing deception of consumers.”). In sum, the right to free

speech, an undeniably enumerated fundamental right, see W. Va.

State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943), is

susceptible to several standards of scrutiny, depending upon the

type of law challenged and the type of speech at issue. We see

no reason why the Second Amendment would be any different.

If the Second Amendment can trigger more than one

particular standard of scrutiny, § 922(k) should merit a less

stringent standard than the one that would have applied to the

District of Columbia’s handgun ban. While it is not free from

doubt, we think this means that § 922(k) should be evaluated

under intermediate scrutiny. The burden imposed by the law

does not severely limit the possession of firearms. The District

of Columbia’s handgun ban is an example of a law at the far end

of the spectrum of infringement on protected Second

Amendment rights. Heller, 128 S. Ct. at 2818 (“Few laws in the

history of our Nation have come close to the severe restriction

of the District’s handgun ban.”). It did not just regulate

possession of handguns; it prohibited it, even for the stated

fundamental interest protected by the right—the defense of

hearth and home. Id. But § 922(k) does not come close to this

level of infringement. It leaves a person free to possess any

otherwise lawful firearm he chooses—so long as it bears its

original serial number. 
26

Furthermore, the legislative intent behind § 922(k) was

not to limit the ability of persons to possess any class of

firearms. While the intent of the District of Columbia’s ban was

to prevent the possession of handguns, § 922(k) permits

possession of all otherwise lawful firearms. As Congress

indicated with respect to the Omnibus Crime Control and Safe

Streets Act of 1968—which included § 922(k)’s predecessor:

It is not the purpose of the title to place any undue

or unnecessary restrictions or burdens on

responsible, law-abiding citizens with respect to

the acquisition, possession, transporting, or use of

firearms appropriate to . . . personal protection, or

any other lawful activity. The title is not intended

to discourage or eliminate the private ownership

of such firearms by law-abiding citizens for

lawful purposes . . . .

S. Rep. 90-1097, at 28 (1968), reprinted in 1968 U.S.C.C.A.N.

2112, 2114. Section 922(k) is designed to prohibit possession

of only unmarked firearms, while leaving the possession of

marked firearms untouched. 

Because § 922(k) was neither designed to nor has the

effect of prohibiting the possession of any class of firearms, it

is more accurately characterized as a regulation of the manner

in which persons may lawfully exercise their Second

Amendment rights. The distinction between limitations on the

exercise of protected conduct and regulation of the form in
27

which that conduct occurs also appears in the First Amendment

context. Discrimination against particular messages in a public

forum is subject to the most exacting scrutiny. See Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). Regulations

of the manner in which that speech takes place, however,

receive intermediate scrutiny, under the time, place, and manner

doctrine. See Ward, 491 U.S. at 791. Accordingly, we think

§ 922(k) also should merit intermediate, rather than strict,

scrutiny.

In the First Amendment speech context, intermediate

scrutiny is articulated in several different forms. See Turner

Broad. Sys., 512 U.S. at 662 (requiring the regulation serve “an

important or substantial” interest and not “burden substantially

more speech than is necessary” to further that interest (internal

quotation marks omitted)); Bd. of Trs. of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 480 (1989) (requiring a “substantial”

governmental goal and a “reasonable fit” between the regulation

and that objective); Ward, 491 U.S. at 791 (applying the time,

place, and manner standard which asks whether the regulation

is narrowly tailored to serve a significant governmental interest

and leaves open ample alternative channels of communication);

Cent. Hudson, 447 U.S. at 566 (requiring the regulation directly

advance a substantial interest and be no more extensive than

necessary to serve the interest). Although these standards differ

in precise terminology, they essentially share the same

substantive requirements. They all require the asserted

governmental end to be more than just legitimate, either
 This restriction was originally enacted by the Federal 16

Firearms Act of 1938, Pub. L. No. 75-785, 52 Stat. 1250, 1251.

28

“significant,” “substantial,” or “important.” See, e.g., Turner

Broad Sys., 512 U.S. at 662; Ward, 491 U.S. at 791. They

generally require the fit between the challenged regulation and

the asserted objective be reasonable, not perfect. See, e.g.,

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001); Fox,

492 U.S. at 480. The regulation need not be the least restrictive

means of serving the interest, see, e.g., Turner Broad. Sys., 512

U.S. at 662; Ward, 491 U.S. at 798, but may not burden more

speech than is reasonably necessary, see, e.g., Turner Broad.

Sys., 512 U.S. at 662; Ward, 491 U.S. at 800.

Those requirements are met here. First, we think it plain

that § 922(k) serves a law enforcement interest in enabling the

tracing of weapons via their serial numbers. Section 922(k) was

enacted by the Gun Control Act of 1968, Pub. L. No. 90-618, 82

Stat. 1213, 1221. The objective of this Act was “to keep 16

firearms away from the persons Congress classified as

potentially irresponsible and dangerous.” Barrett v. United

States, 423 U.S. 212, 218 (1976). The goal of § 922(k), in

particular, is to assist law enforcement by making it possible to

use the serial number of a firearm recovered in a crime to trace

and identify its owner and source. See United States v. Adams,

305 F.3d 30, 34 (1st Cir. 2002) (“[A]nyone can see what

Congress was getting at in the statute. . . . [T]he statute aims to

punish one who possesses a firearm whose principal means of
29

tracing origin and transfers in ownership—its serial

number—has been deleted or made appreciably more difficult

to make out.”); United States v. Mobley, 956 F.2d 450, 454 (3d

Cir. 1992) (“It is no secret that a chain of custody for a firearm

greatly assists in the difficult process of solving crimes. When

a firearm is stolen, determining this chain is difficult and when

serial numbers are obliterated, it is virtually impossible.”).

Firearms without serial numbers are of particular value to those

engaged in illicit activity because the absence of serial numbers

helps shield recovered firearms and their possessors from

identification. See Carter, 421 F.3d at 910. Their prevalence,

therefore, makes it more difficult for law enforcement to gather

information on firearms recovered in crimes. Accordingly,

preserving the ability of law enforcement to conduct serial

number tracing—effectuated by limiting the availability of

untraceable firearms—constitutes a substantial or important

interest.

Section 922(k) also fits reasonably with that interest in

that it reaches only conduct creating a substantial risk of

rendering a firearm untraceable. Because unmarked weapons

are functionally no different from marked weapons, § 922(k)

does not limit the possession of any class of firearms.

Moreover, because we, like the District Court, cannot conceive

of a lawful purpose for which a person would prefer an

unmarked firearm, the burden will almost always fall only on

those intending to engage in illicit behavior. Regulating the

possession of unmarked firearms—and no other
30

firearms—therefore fits closely with the interest in ensuring the

traceability of weapons. Accordingly, § 922(k) passes muster

under intermediate scrutiny.

Although we apply intermediate scrutiny, we conclude

that even if strict scrutiny were to apply to § 922(k), the statute

still would pass muster. For a law to pass muster under strict

scrutiny, it must be “narrowly tailored to serve a compelling

state interest.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449,

465 (2007). We presume the law is invalid, and the government

bears the burden of rebutting that presumption. Playboy Entm’t

Group, 529 U.S. at 817. 

While First Amendment jurisprudence has articulated a

comprehensive doctrine around what can and cannot be a

compelling interest for restrictions on speech, see, e.g., Eugene

Volokh, Freedom of Speech, Permissible Tailoring and

Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417, 2419–21

(1996), Second Amendment jurisprudence is not yet so

developed. As we discussed above,serial number tracing serves

a governmental interest in enabling law enforcement to gather

vital information from recovered firearms. Because it assists

law enforcement in this manner, we find its preservation is not

only a substantial but a compelling interest. See United States

v. Salerno, 481 U.S. 739, 749 (1987) (holding that the

government interest in preventing crime is compelling).

Marzzarella would have us conclude that serial number

tracing is not a genuine compelling interest because current
 See Department of the Treasury, Bureau of Alcohol, 17

Tobacco & Firearms, Following the Gun: Enforcing Federal

Laws Against Firearms Traffickers x (2000), available at

http://www.mayorsagainstillegalguns.org/downloads/pdf/Foll

owing_the_Gun%202000.pdf. Although the ATF report

Following the Gun does not appear in the record, Marzzarella

cites to it in his opening brief. We consider its use

unobjectionable.

 See id. at 17 (referring to firearms sold secondhand as 18

“untraceable”). 

31

federal law does not mandate an intensive enough registration

and tracing system to always provide a picture of the entire

chain of custody of a recovered firearm. If a regulation fails to

cover a substantial amount of conduct implicating the asserted

compelling interest, its underinclusiveness can be evidence that

the interest is not significant enough to justify the regulation.

See Carey v. Brown, 447 U.S. 455, 465 (1980); see also Fla.

Star v. B.J.F., 491 U.S. 524, 541–42 (1989) (Scalia, J.,

concurring) (“[A] law cannot be regarded as protecting an

interest of the highest order . . . when it leaves appreciable

damage to that supposedly vital interest unprohibited.” (citation

and internal quotations marks omitted)). As Marzzarella points

out, firearms are normally traceable only to the first retail

purchaser. Because private sellers are not required to record 17

their sales, firearms sold secondhand generally cannot be

tracked by serial number. Moreover, even federally licensed 18
 See Following the Gun, supra note 17, at 44 (“[T]racing 19

was used as an investigative tool to gain information on

recovered crime guns in 60 percent of the investigations . . . .”).

 The reporting of trace data by the ATF has been partially 20

restricted by the Tiahrt Amendments to federal appropriations

bills, Pub. L. No. 111-8, 123 Stat. 524, 575 (2009) (codified as

Note to 18 U.S.C. § 923). Currently, the restriction prevents the

ATF from publicly disclosing trace data, and precludes the data

32

dealers, who must record their sales, are only required to keep

these records for twenty years, not in perpetuity. 27 C.F.R. §

478.129(e). The absence of a more comprehensive recordation

scheme means the serial number tracing of a recovered firearm

generally does not permit law enforcement agencies to follow

the firearm through every transfer from the initial retail sale to

the end user. Marzzarella argues this renders § 922(k) fatally

underinclusive.

We see no reason to view serial number tracing so

narrowly. The direct tracing of the chain of custody of firearms

involved in crimes is one useful means by which serial numbers

assist law enforcement. But serial number tracing also 19

provides agencies with vital criminology statistics—including

a detailed picture of the geographical source areas for firearms

trafficking and “time-to-crime” statistics which measure the

time between a firearm’s initial retail sale and its recovery in a

crime —as well as allowing for the identification of individual 20
from being disclosed or used in any civil action. Id. It does not

restrict the reporting of this data to law enforcement agencies.

Id.

 See Following the Gun, supra note 17, at 41–44. 

21

33

dealers involved in the trafficking of firearms and the matching

of ballistics data with recovered firearms. Section 922(k), 21

therefore, “demonstrate[s] [Congress’s] commitment to

advancing” the compelling interest of preserving serial number

tracing. Fla. Star, 491 U.S. at 540.

Section 922(k) must also be narrowly tailored to serve

that interest. Narrow tailoring requires that the regulation

actually advance the compelling interest it is designed to serve.

See Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214,

226 (1989). The law must be the least-restrictive method of

serving that interest, and the burdening of a significant amount

of protected conduct not implicating the interest is evidence the

regulation is insufficiently tailored. See Ashcroft v. ACLU, 542

U.S. 656, 666 (2004). Section 922(k) restricts possession only

of weapons which have been made less susceptible to tracing.

Because it does not limit the possession of any otherwise lawful

firearm, it does not burden more possession than necessary to

protect the interest in serial number tracing.

Marzzarella argues § 922(k) is overinclusive and,

therefore, fails narrow tailoring. Because in certain cases—such

as Marzzarella’s—it is possible through laboratory procedures
 We have our doubts about the administrability of such a 22

standard. For starters, how much effort by law enforcement

agencies would be required before courts could determine the

serial number was unreadable? Moreover, the standard would

provide uneven deterrence because persons would be unaware

at the time of commission whether their conduct would lead to

criminal liability or not. Section 922(k), read in this manner,

would likely be difficult to apply.

34

to discern the original serial number of a firearm despite efforts

to remove, obliterate, or alter it, he contends § 922(k) goes

further than is required. Presumably, Marzzarella believes the

overinclusiveness could be cured by applying § 922(k) only

where, upon recovery of the firearm and subsequent laboratory

testing, the serial number still cannot be read. But we do not 22

think the fact that, in some cases, ex post circumstances can

allow for the deciphering of a serial number renders § 922(k)

insufficiently tailored. The statute protects the compelling

interest of tracing firearms by discouraging the possession and

use of firearms that are harder or impossible to trace. It does

this by criminalizing the possession of firearms which have been

altered to make them harder or impossible to trace. That these

actions sometimes fail does not make the statute any less

properly designed to remedy the problem of untraceable

firearms. Accordingly, we find § 922(k) is narrowly tailored.

III.

Second Amendment doctrine remains in its nascency, and
35

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.