Would-Be Trump Assassin Charged With Possessing a Gun With a Wiped-Out Serial Number. Is That Charge Constitutional?

The investigation and case against alleged would-be Trump assassin Ryan Wesley Routh is ongoing. While information is still coming to light, we now know several important details. The FBI is treating the case as an assassination attempt. Routh apparently scouted the area and was there for 12 hours prior to being arrested. During this time, he had in his possession an AR-style rifle with a scope, two backpacks, and a GoPro.

For now, Routh has been charged with several federal gun crimes, including being a felon in possession and possessing a gun with a wiped-out serial number in violation of 18 U.S.C. § 922(k). This last detail is interesting, as there have been recent legal developments in federal courts regarding serial numbers on guns.

The Historical Precedent for Regulating Serial Numbers on Guns

The issue of the constitutionality of prohibiting possessing a gun with a wiped or obliterated serial number arose in several federal courts in 2022. This is because, as we have noted before, the Supreme Court's 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen changed how federal courts evaluate the constitutionality of gun control laws. Previous to Bruen, several jurisdictions looked at the constitutionality of gun control laws under a two-part test:

• Did the challenged law regulate activity within the scope of the Second Amendment?
• If so, courts used essentially an intermediate scrutiny or "means-end" test. How close did the law come to the core of Second Amendment rights, and what is the severity of the burden on that right?

When using this test, courts generally found that gun control laws prohibiting the possession of guns without serial numbers were a minimal burden on gun owners compared to the benefit they provide society, specifically in helping law enforcement solve crimes.

Game-Changing Bruen

Since Bruen, federal judges must only uphold gun regulations that infringe on Second Amendment rights that are “consistent with this Nation’s historical tradition of firearm regulation.”

This novel framework set off a flurry of challenges to gun control laws, sometimes leading to contradictory rulings across federal jurisdictions.

Gun control laws prohibiting possessing a gun with a removed or altered serial number was one such challenge. In U.S. v. Price (2022) a federal district judge in West Virginia held that any law prohibiting the possession of a firearm with a removed, altered, or obliterated serial number violated the Second Amendment. This is because, according to Judge Joseph Goodwin, prohibiting firearms without serial number infringed on the Second Amendment right to bear arms, and was not a mere commercial regulation, as the U.S. argued. Moving on to historical analysis, the second step in Bruen, Judge Goodwin found that there was no requirement to have serial numbers on guns when the Second Amendment was ratified in the 18th century. Instead, this only appeared in the Gun Control Act of 1968.

Fourth Circuit Overturns

The government appealed. Ultimately, the Fourth Circuit reheard the case en banc, meaning the full court decided the issue. It reversed the lower court on August 6, 2024. The Fourth Circuit restated the Bruen test as follows:

• "First, we must ask whether the Second Amendment's plain text covers the conduct at issue ..."
• "If it does ... we must ask whether the Government has justified the regulation as consistent with the 'principles that underpin' our nation's historical tradition of firearm regulation." (The court cited United States v. Rahimi to support this updated two-part test).

Unlike the district court, the Fourth Circuit held that the first step decided the case. In District of Columbia v. Heller, SCOTUS held that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” The Fourth Circuit went on to note that the plain text of the Second Amendment, when first ratified, has never conferred a right "to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Instead, the Second Amendment protects the right of Americans to own guns for lawful purposes, such as self-defense and hunting. Guns with their serial numbers erased or modified are not in common use for lawful purposes, the Fourth Circuit reasoned. In fact, the opposite is true: why would a gun owner who uses a gun for self-defense (a lawful purpose) need to erase the serial number? Generally, removing a serial number is an attempt to hide the gun's chain of custody or use in a criminal matter.

Nine judges joined the majority opinion. Four others issued a concurring opinion for the judgment, but would have used a different path to reach the result. Two judges dissented.

Could Routh Challenge His Gun Charges?

While Routh will undoubtedly find little sympathy in the criminal justice system, he could potentially challenge the charge of possessing a gun with a wiped serial number. The Fourth Circuit, which decided the Price case, does not have jurisdiction over Florida federal courts, where the alleged assassination attempt took place. And while similar arguments have not made it past some federal district courts, it is unclear how Florida federal courts and the Eleventh Circuit would approach the case.

Of course, even if Routh was successful in what would be a difficult legal challenge, it is likely that Routh will ultimately face other charges, including for terrorism. For now, however, the initial charges against Routh provide a good example of how gun control law challenges are playing out in federal courts.

Related Resources

• Biden Admin Calls on Congress to Tighten Gun Laws After Supreme Misfire on Bump Stocks (FindLaw's Federal Courts)
• Who Are 'the People' Entitled to Bear Arms Under the Second Amendment? (FindLaw's Federal Courts)
• Supreme Court Denies Challenge to Law Prohibiting Guns for People Under Restraining Orders (FindLaw's Federal Courts)