Summary
The United States Court of Appeals for the Second Circuit affirmed Adam Gomez’s judgment of conviction under 18 U.S.C. § 922(k) for receiving and possessing a firearm with an obliterated serial number. The court held that § 922(k) is facially constitutional under the Second Amendment because it does not prevent possession of functionally available firearms and firearms with obliterated serial numbers are not commonly possessed for lawful purposes. The court also concluded that Gomez’s facial challenge failed because he did not show that the statute was unconstitutional under any other circumstances.
Topics
Practice areas
Questions Presented
- Whether 18 U.S.C. § 922(k), which prohibits possessing or receiving a firearm with a removed, obliterated, or altered serial number, is facially unconstitutional under the Second Amendment after Bruen.
- Whether Gomez established the requirements for a facial constitutional challenge to § 922(k).
Holdings
- Section 922(k) is facially constitutional because it regulates possession of a firearm with an obliterated serial number, conduct that is not covered by the Second Amendment's plain text as historically understood.
- Gomez's facial challenge failed because he made no attempt to show that § 922(k) is unconstitutional as applied to conduct other than his own.
Key quotations
“Section 922(k) does not infringe upon the right to bear arms because (i) no person is thereby prevented from possessing any type of firearm, and (ii) a firearm with a removed, obliterated, or altered serial number is not a weapon in common use for lawful purposes.” (at 3)
“Properly considered, § 922(k) regulates possession of a firearm with an obliterated serial number.” (at 10)
“Gomez makes no attempt to show that § 922(k) is unconstitutional as applied to conduct other than his own.” (at 15)
Factual background
Gomez was charged with receiving and possessing a firearm whose manufacturer's or importer's serial number had been removed, obliterated, or altered, in violation of 18 U.S.C. § 922(k). He had not previously been convicted of a felony and argued that § 922(k) facially violated the Second Amendment after Bruen. The court concluded that possession of a firearm with an obliterated serial number does not implicate the protected right to armed self-defense and that such firearms are not in common use for lawful purposes.
Procedural history
The Northern District of New York denied Gomez's motion to dismiss the indictment. Gomez then pleaded guilty to receiving and possessing a firearm with an obliterated serial number. He appealed the resulting judgment of conviction to the Second Circuit, which affirmed.