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United States v. Marzzarella

January 14, 2009


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.


Defendant is charged in a one-count indictment with knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).*fn1 The government alleges that, in April of 2006, officers of the Pennsylvania State Police received information from a confidential informant that the Defendant was involved in gun trafficking in and around Meadville, Pennsylvania and that the Defendant possessed a firearm with an obliterated serial number. According to the government, an undercover Pennsylvania State Trooper accompanied the confidential informant to the Defendant's apartment on April 26, 2006, where the Defendant sold the undercover officer a .25 caliber titan pistol with a partially obliterated serial number. It is alleged that this same undercover officer purchased a second firearm from the Defendant on May 16, 2006, at which time the Defendant informed the officer that the serial number on the second firearm could be obliterated in a similar fashion.

Defendant now moves this Court to dismiss the Indictment on the ground that the charge against him infringes his Second Amendment rights. For the reasons set forth below, Defendant's motion will be denied.


The Second Amendment to the United States Constitution 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.


In District of Columbia v. Heller, - U.S. -, 128 S.Ct. 2783 (2008), the Supreme Court clarified that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia. In Heller, the Court struck down a District of Columbia law which essentially banned handgun possession and required that other types of firearms (such as long guns) be rendered inoperable for immediate use within the home. The challenged law, as described by the Supreme Court: generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001).

Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods.

See §§ 22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.[ ] 128 S.Ct. at 2788 (footnote omitted). The Court ruled that these provisions violated the Second Amendment as applied to the Respondent, a D.C. special police officer who wished to keep an operable firearm in his home for purposes of self-defense.

Based on Heller, Defendant argues that 18 U.S.C. § 922(k), as applied to his case, is unconstitutional. He asserts that, under Heller, "[t]he core right of the Second Amendment is the private possession of firearms for use in defense of hearth and home" and "[t]he only limitations on the right to keep and bear arms identified by the Court were those limitations in effect at the time of the enactment of the Second Amendment." (Def.'s Mot. to Dismiss Indictment [60] at p. 4.) Because serial numbers had not yet come into use at the time of the Second Amendment's enactment, there were no laws extant in 1787 requiring serial markings on firearms. Defendant thus theorizes that:

[s]ince possession of a handgun with an obliterated serial number was not proscribed under the common law, and therefore not an exception to the right to keep and bear arms codified by the Second Amendment, § 922(k), as applied to this case, purports to outlaw the otherwise lawful possession of a handgun by a citizen in his home.

(Id. at p. 7.)

Defendant further theorizes that the right to possess an unmarked handgun is a fundamental constitutional right, such that any government regulation burdening the right must be subjected to strict scrutiny. In Defendant's view, § 922(k) cannot meet the demands of strict scrutiny and, thus, he concludes, the indictment charging him under that statute must be dismissed.

Since the Supreme Court issued its opinion in Heller nearly seven months ago, numerous defendants prosecuted under the federal firearms laws have challenged their criminal proceedings on Second Amendment grounds. Notably, Defendant cites no case in which § 922(k) -- or any other subsection of § 922, for that matter -- has been found invalid. On the contrary, it appears that every court which has considered a Second Amendment challenge to 18 U.S.C. § 922, post-Heller, has upheld the statute as constitutional. See, e.g., United States v. Frazier, No. 07-6135, 2008 WL 4949153 (6th Cir. Nov. 19, 2008) (Second Amendment challenge to § 922(g)(1)); U.S. v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008) (§ 922(o)); United States v. Gilbert, No. 07-30153, 2008 WL 2740453, at *2 (9th Cir. July 15, 2008) (explaining that Heller did not undermine the restrictions contained in 18 U.S.C. §§ 922(g)(1) and 922(o)); United States v. Chafin, Criminal Action No. 2:08-00129, 2008 WL 4951028 (S.D. W. Va. Nov. 18, 2008) (rejecting challenge to §§ 922(d)(3) and (g)(3)); United States v. Luedtke, No. 08-CR-189, 2008 WL 4951139, at *4-6 (E.D. Wis. Nov. 18, 2008) (§ 922(g)(8)); United States v. Borgo, No. 1:08CR81, 2008 WL 4631422, at *2 (W.D.N.C. Oct. 17, 2008) (§ 922(g)(1)); United States v. Li, No. 08-CR-212, 2008 WL 4610318, at *6 (E.D. Wis. Oct. 15, 2008) (§ 922(g)(9)); United States v. Chester, Criminal Action No. 2:08-00105, 2008 WL 4534210, at *2 (S.D. W. Va. Oct. 7, 2008) (§ 922(g)(9)); United States v. Erwin, No. 1:07-CR-556 (LEK), 2008 WL 4534058 (N.D.N.Y. Oct. 6, 2008) (§ 922(g)(8)); United States v. Yancey, No. 08-cr-103-bbc, 2008 WL 4534201 (W.D. Wis. Oct. 3, 2008) (§ 922(g)(3)); U.S. v. Whisnant, No. 3:07-CR-32, 2008 WL 4500118, at *1 (E.D. Tenn. Sept. 30, 2008) (§ 922(g)(1)); United States v. Solis-Gonzalez, No. 3:08-CR-145-MR-DCK-1, 2008 WL 4539663 (W.D.N.C. Sept. 26, 2008) (§ 922(g)(5)); LaRoche v. United States, Nos. CV 407-054, CR 402-234, 2008 WL 4222081, at *2 (S.D. Ga. Sept. 15, 2008) (§ 922(j)) (challenge brought under 28 U.S.C. § 2255); United States v. Knight, 574 F. Supp. 2d 224, 226 (D. Me. Sept. 4, 2008) (§ 922(g)(8)); United States v. Skoien, No. 08-cr-12-bbc, 2008 WL 4682598, at *1 (W.D. Wis. Aug. 27, 2008) (§ 922(g)(9)); United States v. Loveland, No. 1:08CR54, 2008 WL 3925271, at *2 (W.D.N.C. Aug. 21, 2008) (§ 922(g)(1)); United States v. Booker, 570 F. Supp. 2d 161, 162-65 (D. Me. 2008) (§ 922(g)(9)); United States v. Bledsoe, Criminal No. SA-08-CR-13(2)-XR, 2008 WL 3538717 (W.D. Tex. Aug. 8, 2008) (§ 922(a)(6)); United States v. White, Criminal No. 07-00361-WS, 2008 WL 3211298, at *1 (S.D. Ala. Aug. 6, 2008) (§ 922(g)(9)); United States v. Robinson, 2008 WL 2937742, *2 (E.D. Wis. July 23, 2008) (§ 922(g)(1)); United States v. Walters, 2008 WL 2740398, *1 (D.V.I. July 15, 2008) (§ 922(q)(2)(A)); United States v. Lewis, Criminal No. 2008-21, 2008 WL 2625633 (D.V.I. July 3, 2008) (§ 922(k)).

I likewise conclude that nothing in Heller invalidates the specific provision of § 922 that is being challenged in this case. Fundamentally, Heller must be viewed in its proper perspective and distinguished from the case before me.

It must be noted at the outset that the regulations which Heller struck down were far broader in scope than the restriction imposed by ยง 922(k). As described by the Heller Court, the D.C. law "totally ban[ned] handgun possession in the home" and "also require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable." 128 S.Ct. at 2817. The Court noted that "[f]ew laws in the history of our Nation have come close to the severe restriction of the District's hand-gun ban." Id. at 2818. The law amounted, in the Court's words, "to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for [the] lawful purpose" of self-defense, id. at 2817 -- a right which the Court considered "inherent" and "central" to the Second Amendment's protection. Id. Moreover, the prohibition extended to the home, where, the Court observed, "the need for defense of self, family, and property is most ...

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