614 F.3d 85 (3rd Cir. 2010), 09-3185, United States v. Marzzarella

Docket Nº:09-3185.
Citation:614 F.3d 85
Opinion Judge:SCIRICA, Circuit Judge.
Party Name:UNITED STATES of America v. Michael MARZZARELLA, Appellant.
Attorney:Thomas W. Patton, Esquire (Argued), Office of Federal Public Defender, Erie, PA, for Appellant. Laura S. Irwin, Esquire (Argued), Robert L. Eberhardt, Esquire, Office of the United States Attorney, Pittsburgh, PA, for Appellee.
Judge Panel:Before SCIRICA and CHAGARES, Circuit Judges, and RODRIGUEZ [*]District Judge.
Case Date:July 29, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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614 F.3d 85 (3rd Cir. 2010)

UNITED STATES of America

v.

Michael MARZZARELLA, Appellant.

No. 09-3185.

United States Court of Appeals, Third Circuit.

July 29, 2010

Argued Feb. 22, 2010.

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Thomas W. Patton, Esquire (Argued), Office of Federal Public Defender, Erie, PA, for Appellant.

Laura S. Irwin, Esquire (Argued), Robert L. Eberhardt, Esquire, Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before SCIRICA and CHAGARES, Circuit Judges, and RODRIGUEZ [*]District Judge.

OPINION

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.

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

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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 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, __ U.S. __, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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.

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

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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 __ U.S. __, 130 S.Ct. 1577, 176 L.Ed.2d 435 (recognizing the preliminary issue in a First Amendment 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.

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

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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.

But the right protected by the Second Amendment is not unlimited. 5 Id. at 2816; see also McDonald v. City of Chicago, __ U.S. __, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894 (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, 59 S.Ct. 816, 83 L.Ed. 1206 (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, 59 S.Ct. 816. The Court held the shotgun was unprotected by the Second Amendment. Id. at 178, 59 S.Ct. 816. 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

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codified in 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 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...

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