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View Full Version : 3rd Circuit Court of Appeals? My new friends.


Lulfas
07-30-2010, 3:12 PM
I misread the ruling, it doesn't feel necessarily good or bad. Leaving the link up so people can leave their own opinions one way or another.

http://www.law.com/jsp/article.jsp?id=1202464062676

thayne
07-30-2010, 3:20 PM
This isnt good:

looked to First Amendment law in deciding that the federal ban on guns with obliterated serial numbers should be subjected to "intermediate scrutiny."

Although this may mitigate it:

Scirica concluded that 922(k) should be evaluated under intermediate scrutiny because the burden it imposes does not severely limit the possession of firearms.

Crom
07-30-2010, 3:42 PM
...the 3rd U.S. Circuit Court of Appeals has refused to strike down a federal law that bans possession of guns with obliterated serial numbers. I don't see this as a problem. The court is simply saying that it is okay for the government to keep a federal law which states that citizens must not possess a gun with an obliterated serial number.

Since only criminals obliterate their serials, this should not affect law abiding citizens.

NightOwl
07-30-2010, 3:54 PM
Intermediate scrutiny sounds bad to me, I'd say it's an overall negative ruling based on that alone.

bwiese
07-30-2010, 4:10 PM
Certain rules are easy to live by/with and don't appreciably interfere w/a true full RKBA.

The 2nd likely allows commercial controls on markings of guns (and even registration). We don't really need to waste time fighting some of these trivialities - they really don't advance us.

Let's fix CCW, let's get rid of AW bans, let's fix 922(r) and 'sporting purposes', let's allow interstate purchases not be restricted by your home state, let's stop ammo bans, etc.

If you want an unmarked gun, it's always possible to build one yourself :)

Joe
07-30-2010, 4:13 PM
Certain rules are easy to live by/with and don't appreciably interfere w/a true full RKBA.

The 2nd likely allows commercial controls on markings of guns (and even registration). We don't really need to waste time fighting some of these trivialities - they really don't advance us.

Let's fix CCW, let's get rid of AW bans, let's fix 922(r) and 'sporting purposes', let's allow interstate purchases not be restricted by your home state, let's stop ammo bans, etc.

If you want an unmarked gun, it's always possible to build one yourself :)

Completely agree

thayne
07-30-2010, 4:15 PM
Certain rules are easy to live by/with and don't appreciably interfere w/a true full RKBA.

The 2nd likely allows commercial controls on markings of guns (and even registration). We don't really need to waste time fighting some of these trivialities - they really don't advance us.

Let's fix CCW, let's get rid of AW bans, let's fix 922(r) and 'sporting purposes', let's allow interstate purchases not be restricted by your home state, let's stop ammo bans, etc.

If you want an unmarked gun, it's always possible to build one yourself :)

I dont care about unmarked guns. What I dont like is how they came up with "Intermediate Scrutiny"

NightOwl
07-30-2010, 4:29 PM
Exactly. I hope the case is pursued further simply because of the intermediate scrutiny, hopefully getting that changed to strict.

Seems to me that early rulings on scrutiny could have a significant and lasting effect on further case law, and letting intermediate stand at this point in the game could have far reaching effects on the larger issues.

hoffmang
07-30-2010, 7:41 PM
I dont care about unmarked guns. What I dont like is how they came up with "Intermediate Scrutiny"

Intermediate scrutiny was used here because the issue didn't interfere with the core of the right. What they're saying is that, if it did interfere with the core of the right, it would be strict scrutiny.

-Gene

thayne
07-30-2010, 7:52 PM
Intermediate scrutiny was used here because the issue didn't interfere with the core of the right. What they're saying is that, if it did interfere with the core of the right, it would be strict scrutiny.

-Gene

Thats kinda how I took it, but wasnt sure as IANAL LOL

GuyW
07-30-2010, 8:00 PM
Unless crap like this serial number requirement is squashed, the anti's will demand that a 3 page safety guide be engraved on every gun....gee, too bad your handgun has to weigh 7 lbs, but not to worry, your RKBA hasn't been infringed....

.

hoffmang
07-30-2010, 8:48 PM
Unless crap like this serial number requirement is squashed, the anti's will demand that a 3 page safety guide be engraved on every gun....gee, too bad your handgun has to weigh 7 lbs, but not to worry, your RKBA hasn't been infringed....

.

And that would then infringe on the right. Requiring guns to have serial numbers is inexpensive for manufacturers and easy for all chains in the flow of commerce to not remove. The kind of thing you're talking about or things like microstamping are not easy and therefor would probably fail even the intermediate scrutiny test.

-Gene

ZombieTactics
07-30-2010, 9:07 PM
Serial numbers are common on all sorts of consumer goods for all sorts of reasons. Chief among them are inventory control, warranty validation, quality control measurements and the like. It's also one of the few ways you could identify a stolen gun as "yours" and get it back in case it's recovered. It's illegal to deface serial numbers on anything in many jurisdictions, not just guns.

I would hazard a guess that most manufacturers would choose to continue to engrave serial numbers whether or not it's a legal requirement for these kinds of reasons.

The central question is whether it actually infringes upon RKBA. My opinion is that it does not.

Connor P Price
07-30-2010, 9:15 PM
I like my serial numbers. God forbid one of my guns is ever stolen, the serial number could identify it as mine so I could get it back.

ke6guj
07-30-2010, 10:56 PM
I would hazard a guess that most manufacturers would choose to continue to engrave serial numbers whether or not it's a legal requirement for these kinds of reasons.
.expecially since we know that many/most manufacturers serialized their firearms when there was no legal requirement that they do so. Serial numbers weren't required until 1968.

Mulay El Raisuli
07-31-2010, 7:42 AM
The real danger is one I've mentioned before. That there are people (some of them less-than-sterling characters) who will challenge their convictions using Heller/McDonald.

True, this Decision isn't too terribly bad, but it's not all that good either. What if the next felon to try establishes truly bad precedent? You know, like Yarboro (SP?) did? Its all well & good to write up a well crafted civil case for presentation to the courts. But a guy appealing a criminal conviction is always going to have priority. IOW, he'll get there first.

The only way to short-circuit those felons to for us to pick someone that we don't object to too much & defend him. His lack of 'objectionability' can be because he was wrongly accused, or because he was convicted under bad circumstances, or even because he's just what he can get. But pick someone we should.

Or someone will be picked for us.


The Raisuli

morfeeis
07-31-2010, 8:06 AM
I don't see this as a problem. The court is simply saying that it is okay for the government to keep a federal law which states that citizens must not possess a gun with an obliterated serial number.

Since only criminals obliterate their serials, this should not affect law abiding citizens.
+1

i dont see how this is a bad thing.........

snobord99
07-31-2010, 9:33 AM
And that would then infringe on the right. Requiring guns to have serial numbers is inexpensive for manufacturers and easy for all chains in the flow of commerce to not remove. The kind of thing you're talking about or things like microstamping are not easy and therefor would probably fail even the intermediate scrutiny test.

-Gene

Gene, can you please expand on this? I don't really see how hard something is to carry out would affect whether the law is substantially related to an important governmental purpose. Not saying I think it is or isn't an important governmental purpose, I just don't see how microstamping being difficult to actually do would affect whether the law would pass intermediate scrutiny.

Window_Seat
07-31-2010, 10:51 AM
I wouldn't have a problem with serial numbers on FAs, but they have, and will continue to become a precursor to a system of full registration & ultimately, confiscation.

'Scuse me for being in BR mode, but remember that every once in a while, my scanner comes alive with "Unit '____', your subject comes back clear & valid, (or whatever) with a 10-72 registered to either him or that residence".

I am of the understanding that LEOs are trained to consider a person who has a FA as being a "THREAT", no matter how law abiding that person is.

To have a bomb, you need a fuse. The serial number is the fuse, and the registration system is the bomb. The fuse gets lit, and the bomb goes off in your face.

To remove the threat of the bomb, you must locate the fuse and make sure it's not lit, and then you disarm the bomb in it's entirety.

Probably a bad analogy, but I do the best I could. :eek:

Erik.

hoffmang
07-31-2010, 3:36 PM
Gene, can you please expand on this? I don't really see how hard something is to carry out would affect whether the law is substantially related to an important governmental purpose. Not saying I think it is or isn't an important governmental purpose, I just don't see how microstamping being difficult to actually do would affect whether the law would pass intermediate scrutiny.

Putting a serial number on a firearm was something many manufacturers were doing even before it was mandated. It's extremely inexpensive and trivial for even home manufacturers to act upon (though they aren't required to in that one instance.) Microstamping fails almost every one of these points and would severely curtail the availability of new firearms while significantly increasing their prices.

-Gene

Apocalypsenerd
07-31-2010, 3:41 PM
Mandatory registration and record keeping must be fought with every legal remedy in the book. It will lead to confiscation at some point.

NightOwl
07-31-2010, 4:37 PM
Putting a serial number on a firearm was something many manufacturers were doing even before it was mandated. It's extremely inexpensive and trivial for even home manufacturers to act upon (though they aren't required to in that one instance.) Microstamping fails almost every one of these points and would severely curtail the availability of new firearms while significantly increasing their prices.

-Gene

You make a good point for there to be a serial number required for public, and maybe even private, sale of a firearm. However, I can't think of anything else I own where I'm prohibited by law from removing a serial number once I've purchased it.

If I own it, it's mine, thus I can do what I like with it (within reason). If I can't treat my property how I choose...is it really mine, or just on permanant loan to me? If I buy a tv, I can promptly smash it as soon as I get home. If I buy a bed, I can cut it to shreds when I get home. If I buy a car, I can take a sledge to it and break every part as soon as I get home. If I buy a gun...I can't damage the serial number? One of these things is not like the others...

kf6tac
07-31-2010, 4:51 PM
If I buy a car, I can take a sledge to it and break every part as soon as I get home. If I buy a gun...I can't damage the serial number? One of these things is not like the others...

Your car analogy isn't quite right. You can completely destroy the car, just as you can completely destroy your gun.

You cannot, in CA, remove the VIN from your car but still have the car in working order, just as you cannot destroy the serial number of your gun but still have your gun in working order:

California Vehicle Code 10751. (a) No person shall knowingly buy, sell, offer for sale, receive, or have in his or her possession, any vehicle, or component part thereof, from which any serial or identification number, including, but not limited to, any number used for registration purposes, that is affixed by the manufacturer to the vehicle or component part, in whatever manner deemed proper by the manufacturer, has been removed, defaced, altered, or destroyed, unless the vehicle or component part has attached thereto an identification number assigned or approved by the department in lieu of the manufacturer's number..

NightOwl
07-31-2010, 4:57 PM
Well, even so, you get my point.

(PS, how many of you have replaced your radiator hoses and still have the paper tag on it?)

ke6guj
07-31-2010, 7:12 PM
You make a good point for there to be a serial number required for public, and maybe even private, sale of a firearm. However, I can't think of anything else I own where I'm prohibited by law from removing a serial number once I've purchased it.

If I own it, it's mine, thus I can do what I like with it (within reason). If I can't treat my property how I choose...is it really mine, or just on permanant loan to me? If I buy a tv, I can promptly smash it as soon as I get home. If I buy a bed, I can cut it to shreds when I get home. If I buy a car, I can take a sledge to it and break every part as soon as I get home. If I buy a gun...I can't damage the serial number? One of these things is not like the others...

nope, you are prohibited from possessing personal property, such as TVs, radios, watches (this would make many grey-market watches that have the serial number removed illegal), tools, etc, that has had the serial number removed, defaced, covered, etc.

537e. (a)Any person who knowingly buys, sells, receives, disposes of, conceals, or has in his or her possession any personal property from which the manufacturer's serial number, identification number, electronic serial number, or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed, is guilty of a public offense, punishable as follows:

(1)If the value of the property does not exceed four hundred dollars ($400), by imprisonment in a county jail not exceeding six months.

(2)If the value of the property exceeds four hundred dollars ($400), by imprisonment in a county jail not exceeding one year.

(3)If the property is an integrated computer chip or panel of a value of four hundred dollars ($400) or more, by imprisonment in the state prison for 16 months, or 2 or 3 years or by imprisonment in a county jail not exceeding one year.

For purposes of this subdivision, "personal property" includes, but is not limited to, the following:

(1)Any television, radio, recorder, phonograph, telephone, piano, or any other musical instrument or sound equipment.

(2)Any washing machine, sewing machine, vacuum cleaner, or other household appliance or furnishings.

(3)Any typewriter, adding machine, dictaphone, or any other office equipment or furnishings.

(4)Any computer, printed circuit, integrated chip or panel, or other part of a computer.

(5)Any tool or similar device, including any technical or scientific equipment.

(6)Any bicycle, exercise equipment, or any other entertainment or recreational equipment.

(7)Any electrical or mechanical equipment, contrivance, material, or piece of apparatus or equipment.

(8)Any clock, watch, watch case, or watch movement.

(9)Any vehicle or vessel, or any component part thereof.

(b)When property described in subdivision (a) comes into the custody of a peace officer it shall become subject to the provision of Chapter 12 (commencing with Section 1407) of Title 10 of Part 2, relating to the disposal of stolen or embezzled property. Property subject to this section shall be considered stolen or embezzled property for the purposes of that chapter, and prior to being disposed of, shall have an identification mark imbedded or engraved in, or permanently affixed to it.

(c)This section does not apply to those cases or instances where any of the changes or alterations enumerated in subdivision (a) have been customarily made or done as an established practice in the ordinary and regular conduct of business, by the original manufacturer, or by his or her duly appointed direct representative, or under specific authorization from the original manufacturer.

dantodd
07-31-2010, 7:12 PM
Mandatory registration and record keeping must be fought with every legal remedy in the book. It will lead to confiscation at some point.

so are you suggesting that rather than working toward shall-issue ccw or destroying the awb or the roster CGF should be focusing on registration? Gotta say, I'm glad CGF has the leadership it does.

Apocalypsenerd
07-31-2010, 8:49 PM
so are you suggesting that rather than working toward shall-issue ccw or destroying the awb or the roster CGF should be focusing on registration? Gotta say, I'm glad CGF has the leadership it does.

No, I'm suggesting that, historically, registration precedes confiscation and murder of unarmed civilians by autocratic governments. It is not something we should just accept as part of the political game.

Shall issue and getting rid of the AWB are both things I look forward too.

I do think I am entitled to speak my mind about issues that could become very serious down the line. Your obvious attempt at an insult aside, I will continue to do so.

wildhawker
08-01-2010, 12:12 AM
Registration does not itself guarantee confiscation, but lack of access and opportunity to exercise the rights guaranteed by the Second Amendment to our Constitution ensures an imbalance of power not favoring the People.

The reality is that some registration schema will likely be found constitutional at some point in our future; there is some compelling precedent which would support some form of registration surrounding our militia duties.

In the final analysis, having the best armed and trained civilian population guarantees that we will have a higher probability of success in defending our lives and those of others, the very essence of the right we fight so hard to protect and advance. More guns and a strong, free culture is the recourse our Founders and the advocates of reconstruction envisioned we maintain as the remedy to our common concerns, whether from a sole attacker in the grocery store parking lot or repelling foreign invaders, and everything in between.

Apocalypsenerd
08-01-2010, 1:19 AM
[QUOTE=wildhawker;4709144]Registration does not itself guarantee confiscation, but lack of access and opportunity to exercise the rights guaranteed by the Second Amendment to our Constitution ensures an imbalance of power not favoring the People.QUOTE]

I agree with your statement of lack of access.

However, historically speaking, you'd be hard pressed to find any nation that required registered weapons and then did not confiscate them. While I do not believe this is imminent, for the long-run preservation of rights, registration will need to be fought.

While the winds have shifted in our favor, it would be prudent to place a barrier between politicians and registration. I admit that without winning a considerable victory in Congress, I am unsure of how to do it.

press1280
08-01-2010, 3:00 PM
Aside from the serial number issue, the rest of the decision was good, especially because it's NJ's circuit. The ruling made quite clear several times that Heller/McDonald must be thoroughly examined for issues not decided in those cases and looked to the 1A as a guidepost.
It'll be much more difficult for a NJ judge to simply use the "only in the home," argument to uphold their San Francisco like carry permit policies.

hoffmang
08-01-2010, 3:28 PM
Registration is probably constitutional but a bad public policy. As we secure the right to arms, registration will fall out of fashion as confiscation loses feasibility.

-Gene

Apocalypsenerd
08-01-2010, 3:46 PM
Registration is probably constitutional but a bad public policy. As we secure the right to arms, registration will fall out of fashion as confiscation loses feasibility.

-Gene

One can hope that registering 100 million firearms would be too costly for the government to attempt to implement. Even more so if we win more battles and more guns enter the public arena. Discarding the registration apparatus as a side effect of current/future victories would be an excellent outcome.

Wherryj
08-02-2010, 9:27 AM
I don't see this as a problem. The court is simply saying that it is okay for the government to keep a federal law which states that citizens must not possess a gun with an obliterated serial number.

Since only criminals obliterate their serials, this should not affect law abiding citizens.

Other than the "stepping stone" sort of precedent, I am also not seeing a real problem with that.

Who would obliterate the serial number? I have a feeling that doing so just MIGHT lessen the resale value, even if it was legal to do so.

Imagine the discription: "Brand new Python, In box with all papers. Never fired, but barrel has been vandalized and the serial number removed."