United States v. Marzzarella

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.

*
The Honorable Joseph H. Rodriguez, United States District
Judge for the District of New Jersey, sitting by designation.
 (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.

2
 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).1 No charges were brought for the sale of

1
Section 922(k) provides:
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
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.

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
 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

2
The District Court had jurisdiction over Marzzarella’s
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).
3
The Supreme Court recently issued its decision in McDonald
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
 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

6
challenge is whether the speech at issue is protected or
unprotected).4 If it does not, our inquiry is complete. If it does,
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.

4
Because Heller is the first Supreme Court case addressing
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
 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.

8
 But the right protected by the Second Amendment is not
unlimited.5 Id. at 2816; see also McDonald v. City of Chicago,

5
There is some dispute over whether the language from
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
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 short-
barreled 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

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
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

11
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.6 Immediately following the above-quoted passage, the
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

6
See Joseph Blocher, Categoricalism and Balancing in First
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
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.7 The same is true for “laws forbidding the
carrying of firearms in sensitive places.” 8 Heller, 128 S. Ct. at

7
See Blocher, supra note 5, at 414 (reading this language to
stand for the proposition that “felons and the mentally ill,
however defined, are excluded entirely from Second
Amendment coverage”).
8
Commercial regulations on the sale of firearms do not fall
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
2817.

Accordingly, Heller delineates some of the boundaries of
the Second Amendment right to bear arms.9 At its core, the
Second Amendment protects the right of law-abiding citizens to
possess non-dangerous10 weapons for self-defense in the home.
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 pre-
ratification 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

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.
9
McDonald concerns primarily the incorporation of the
Second Amendment; its discussion of the scope of the right to
bear arms is coextensive with Heller’s.
10
By “non-dangerous weapons,” we refer to weapons that do
not trigger Miller’s exception for dangerous and unusual
weapons.

14
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 law-
abiding individual.

Moreover, Heller’s list of presumptively lawful
regulations is not exhaustive, 128 S. Ct. at 2817 n.26, and

15
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).

16
 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

17
of ratification.11 Accordingly, they would not be within the
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

11
Marzzarella does not cite to any source for this assertion,
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 t e — M 1 8 6 5 – 8 8 r i f l e s ,
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
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

12
The Government argues Marzzarella did not possess the
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
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

20
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 its shorter 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

21
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).

22
 The Government argues a rational basis test13 should
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 scrutiny14 because the right to bear arms is an enumerated
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

13
A rational basis test presumes the law is valid and asks only
whether the statute is rationally related to a legitimate state
interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
440 (1985).
14
Strict scrutiny asks whether the law is narrowly tailored to
serve a compelling government interest. Playboy Entm’t Group,
529 U.S. at 813.

23
automatically any time an enumerated right is involved. We do
not treat First Amendment challenges that way.15 Strict scrutiny
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

15
While we recognize the First Amendment is a useful tool in
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
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.

25
 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

26
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

27
“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, 1221.16 The objective of this Act was “to keep
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

16
This restriction was originally enacted by the Federal
Firearms Act of 1938, Pub. L. No. 75-785, 52 Stat. 1250, 1251.

28
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

29
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

30
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.17 Because private sellers are not required to record
their sales, firearms sold secondhand generally cannot be
tracked by serial number. 18 Moreover, even federally licensed

17
See Department of the Treasury, Bureau of Alcohol,
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.
18
See id. at 17 (referring to firearms sold secondhand as
“untraceable”).

31
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.19 But serial number tracing also
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 20 —as well as allowing for the identification of individual

19
See Following the Gun, supra note 17, at 44 (“[T]racing
was used as an investigative tool to gain information on
recovered crime guns in 60 percent of the investigations . . . .”).
20
The reporting of trace data by the ATF has been partially
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 involved in the trafficking of firearms and the matching
of ballistics data with recovered firearms. 21 Section 922(k),
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

from being disclosed or used in any civil action. Id. It does not
restrict the reporting of this data to law enforcement agencies.
Id.
21
See Following the Gun, supra note 17, at 41–44.

33
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.22 But we do not
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

22
We have our doubts about the administrability of such a
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
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.

35