Opening Brief of the United States on Appeal from United State v. Price, On Appeal from the United States District Court for the Southern District of West Virginia, No. 2:22-cr-97 (Hon. Joseph R. Goodwin), Dec. 15, 2022

INTRODUCTION

Federal law makes it unlawful to possess a firearm that has moved in interstate commerce where the firearm’s serial number is removed, obliterated, or altered. 18 U.S.C. § 922(k). The district court incorrectly found that this statute facially violates the Second Amendment under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

Firearms with obliterated serial numbers are not protected by the Second Amendment because “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” District of Columbia v. Heller, 554 U.S. 570, 625 (2008). And there is no lawful purpose for which to possess a firearm with an obliterated serial number. Moreover, § 922(K) is “consistent with the Nation’s historical tradition of firearm regulation,” Bruen, 142 S. Ct. at 2130, because it is analogous to historical laws that regulated commerce in firearms, required inspection and marking of gun barrels and gunpowder, and, most notably, prohibited altering proof marks on gun barrels.

Finally, the district court erred in striking down § 922(k) on its face because the statute is, at the very least, constitutional as applied to felons like the defendant here. This Court should reverse.