USA v. Marzzarella
Decision Date | 29 July 2010 |
Docket Number | No. 09-3185.,09-3185. |
Citation | 614 F.3d 85 |
Parties | UNITED STATES of America v. Michael MARZZARELLA, Appellant. |
Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
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.
This appeal presents a single issue, whether DefendantMichael 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.
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).1No 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
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.3In Heller,the Supreme Court struck down several District of Columbiastatutes 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().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.
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( ).4If 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.
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.
But the right protected by the Second Amendment is not unlimited.5Id. at 2816;see alsoMcDonald v. City of Chicago,---U.S. ----, 130 S.Ct. 3020, 3047, 177 L.Ed.2d 894(2010)(plurality opinion of Alito, J.)( ).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(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 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.6Immediately 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(...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 7-day Trial
-
United States v. Alberts
...Cir. 2010), overruled on other grounds by Bruen, 597 U.S. 1)). Second, the prohibition of possessing a firearm with an obliterated serial number does not “impair the use or functioning of the weapon in any way.” (Id. at 12 (citing
Marzzarella, 614 F.3d at 94)). does not reply to these arguments. Since Bruen was decided, no circuit court has addressed whether the plain text of the Second Amendment protects the right to possess a firearm with an obliterated serial number. Federal district... -
360 Virtual Drone Servs. LLC v. Ritter
...'commercial speech' "—but that circumstance is not at issue in the case at bar. NIFLA, 585 U.S. at 768, 138 S.Ct. 2361. 5. It is not unprecedented to recognize variable intermediate scrutiny tests. In
United States v. Marzzarella, the Third Circuit stated that "[i]n the First Amendment speech context, intermediate scrutiny is articulated in several different forms." United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (collecting cases), abrogated on other grounds bytests. In United States v. Marzzarella, the Third Circuit stated that "[i]n the First Amendment speech context, intermediate scrutiny is articulated in several different forms." United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010)(collecting cases), abrogated on other grounds by N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). We recognized the same in United States v. Chester, which cited Marzzarella's(collecting cases), abrogated on other grounds by N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). We recognized the same in United States v. Chester, which cited Marzzarella's discussion of the "various forms of intermediate scrutiny." United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (citing Marzzarella, 614 F.3d at 98), abrogated on other grounds by Bruen, 597 U.S. 1, 142 S.Ct. 2111. To be sure, both... - United States v. Price
- Williams v. Garland
-
Everything Is Not Terminator Ai and Autonomous Weapons Under the Second Amendment
...question was a total ban that destroyed residents' constitutional right); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (applying intermediate scrutiny and permitting the law's restriction to survive); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (applying intermediate scrutiny to rule in the government's favor); et al.13. Heller, 554 U.S. at 599-600.14. Id. at 627.15. Id. at 625.16. United States v. Marzzarella,
614 F.3d 85, 90-91 (3d Cir.... -
Assault on the Constitution: Why the Southern District of California Got it Right
...assault weapons fall into the category of "in common use at the time"). 30. See, e.g., Kolbe, 849 F.3d at 132 ("The lower courts have grappled with Heller in a variety of Second Amendment cases.").31. United States v. Marzzarella,
614 F.3d 85, 87 (3d Cir. 2010) (upholding a conviction for "possession of a handgun with an obliterated serial number" over a Second Amendment challenge); United States v. Skoien, 614 F.3d 638, 639 (7th Cir. 2010) (en banc) (deciding(upholding the District of Columbia's assault weapons ban); id. at 1269 (Kavanaugh, J., dissenting) (finding the District of Columbia's "ban on semi-automatic rifles . . . unconstitutional under Heller"); United States v. Marzzarella, 614 F.3d 85, 87 (3d Cir. 2010) (upholding a conviction for "possession of a handgun with an obliterated serial number" over a Second Amendment challenge); Duncan, 366 F. Supp. 3d at 1142 (striking down California's ban on magazines that hold2012); Ruben & Blocher, supra note 105, at 1452.108. David B. Kopel & Joseph G.S. Greenlee, The Federal Circuits' Second Amendment Doctrines, 61 ST. LOUIS U. L.J. 193, 204 (2017); Ruben & Blocher, supra note 105, at 1452.109. United States v. Marzzarella, 614 F.3d 85, 87 (3d Cir. 2010).110. Id. at 89.111. Id. (citations omitted).112. Id. at 95.113. Id. at 96. 114. Id. at 96 n.15.115. Marzzarella, 614 F.3d at 97.116. Id. (emphasis added) (analogizing the application of scrutiny... -
1.5 The Quality Of The Guidance Provided By Heller
...1437, 1459 (2009) (“As written, the majority’s opinion in Heller is both sufficiently ambiguous and narrowly tailored for lower courts to sidestep a massive upset of federal gun control laws.”); See United States v. Marzzarella,
614 F.3d 85, 101 (3d Cir. 2010), available at https://scholar.google.com/scholar_case?case=16863015434812666842&q=United+States+v. +Marzzarella&hl=en&as_sdt=6,33 (noting that “Second Amendment doctrine remains in its nascency, and lower courts must proceed... -
The constitutionality of social cost.
...CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES 97 (1999) ("Rights are familiarly described as inviolable, preemptory, and conclusive. But these are plainly rhetorical flourishes."). (120.) United States v. Marzzarella,
614 F.3d 85, 88 n.3 (3d Cir. (121.) McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010) (plurality opinion). (122.) Id. ("It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns(1969) (per curiam) (advocacy directed at incitement to imminent violence). (325.) 315 U.S. 568, 572 (1942) (unprotected "fighting words"). (326.) 467 U.S. 649, 655 (1984) (public safety exception to Miranda). (327.) See United States v. Marzzarella, 614 F.3d 85, 89 n.4 (3rd Cir. 2010) ("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 Secondat 626. (527.) See United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc) (accepting categorical bans on disarmament for misdemeanants); see also Blocher, supra note 18, at 414. (528.) See, e.g., United States v. Marzzarella, 614 F.3d 85, 88 (3d Cir. 2010); Skoien, 614 F.3d at 639; see also Zant v. Stephens, 462 U.S. 862, 900 (1983) (Rehnquist, J., concurring in the judgment) (opining that character and propensities of the defendant...