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The right protected by the Second Amendment is not unlimited. It does not extend to all types of weapons, only to those typically possessed by law-abiding citizens for lawful purposes.
The Pennsylvania State Police were notified by a confidential informant that defendant Michael Marzzarella was involved in the sale of stolen handguns. The confidential informant then arranged a purchase of handguns from the defendant. Subsequently, State Trooper Robert Toski, operating in an undercover capacity, accompanied the informant to Marzzarella’s home, where Toski purchased a .25 caliber Titan pistol with a partially obliterated serial number for $ 200. Marzzarella again sold Toski a second firearm and informed him that its serial number could be similarly obliterated. Marzzarella was indicted for possession of a firearm with an obliterated serial number, in violation of § 922(k). 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, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The District Court denied the motion, holding the Second Amendment did not protect a right to own handguns with obliterated serial numbers and that § 922(k) did not meaningfully burden the "core" right recognized in Heller--the right to possess firearms for defense of hearth and home. 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 appealed.
Did § 922(k), as applied, violate defendant’s Second Amendment right to keep and bear arms?
The court affirmed the denial of defendant's motion to dismiss the indictment and affirmed his judgment of conviction and sentence. The court first pointed out that the Second Amendment protected law-abiding citizens’ rights to possess non-dangerous weapons, but that the right was not unlimited. The court assumed that defendant’s Second Amendment rights were burdened and looked to First Amendment jurisprudence to determine that intermediate scrutiny was the appropriate standard of constitutional review because the burden imposed did not severely limit firearms possession, but rather regulated the manner in which persons could lawfully exercise Second Amendment rights. The law plainly served a law enforcement interest in enabling a substantial and important interest in weapons tracing via serial numbers. Further, § 922(k) reached only conduct creating a substantial risk of rendering a firearm untraceable and did not limit possession of any class of firearms. Moreover, there was no apparent lawful purpose for an unmarked firearm. Thus, § 922(k) passed muster under intermediate scrutiny. However, the court found that it would pass muster under strict scrutiny as well, as the interest was compelling, and the provision was narrowly tailored to serve it.