Nonfunctional Serialization Requirements and “Common Use”: The Second Circuit Upholds 18 U.S.C. § 922(k) Under Bruen in United States v. Gomez

Introduction

In United States v. Gomez, No. 24-1943-cr (2d Cir. Nov. 17, 2025), a panel of the U.S. Court of Appeals for the Second Circuit (Judges Kearse, Jacobs, and Lohier; opinion by Judge Jacobs) affirmed a conviction under 18 U.S.C. § 922(k), which criminalizes receiving or possessing a firearm with the manufacturer’s or importer’s serial number removed, obliterated, or altered. Adam Gomez mounted a facial Second Amendment challenge to § 922(k), arguing that the statute is unconstitutional under the Supreme Court’s test in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

The Second Circuit rejected that challenge and held that § 922(k) is facially constitutional. Central to the court’s analysis were two step-one conclusions under Bruen’s framework: (1) prohibiting the possession of a firearm with a defaced serial number does not burden the core right of armed self-defense because a functionally identical serialized firearm remains available; and (2) a “firearm with an obliterated serial number” is not a weapon “in common use” for lawful purposes. Because the case failed at Bruen’s textual step, the court declined to conduct a historical-tradition analysis. The court also emphasized that Gomez brought only a facial challenge and made no effort to show unconstitutionality in all or even many applications.

Summary of the Opinion

The court framed the regulated conduct precisely as “possession of a firearm with an obliterated serial number,” rejecting Gomez’s broader characterization as the general “keeping of arms.”
Under Bruen’s step one (textual coverage), the court held the Second Amendment does not cover this conduct because:
- It does not burden the right to armed self-defense—serialized firearms are functionally identical and readily available to law-abiding citizens; and
- Firearms with obliterated serial numbers are not “weapons in common use for lawful purposes.”
Because the challenge fails at step one, the court did not reach step two (historical tradition), notwithstanding government evidence of historical regulations.
The court aligned with the Fourth Circuit’s en banc decision in United States v. Price, 111 F.4th 392 (4th Cir. 2024), and noted similar reasoning on plain-error review in the Eleventh Circuit’s United States v. Lopez (May 7, 2024).
The court reaffirmed that some burdens on commercial aspects of firearms are presumptively lawful so long as they do not eliminate the ability of law-abiding citizens to acquire arms (citing Heller and the Second Circuit’s Gazzola v. Hochul).
The facial challenge independently failed for lack of proof that § 922(k) is invalid in all or nearly all applications, or that it lacks a plainly legitimate sweep.
The judgment of conviction was affirmed.

Analysis

Precedents Cited and Their Influence

District of Columbia v. Heller, 554 U.S. 570 (2008): Established the individual right to keep and bear arms for self-defense, emphasizing that the Second Amendment protects weapons “in common use” and does not extend to “dangerous and unusual” weapons. Heller also recognized the presumptive lawfulness of certain regulations, including conditions on commercial sales. In Gomez, Heller’s twin concepts—self-defense centrality and common-use limitation—anchor the court’s conclusion that § 922(k) does not burden the right and addresses non-protected weapons categories.
United States v. Miller, 307 U.S. 174 (1939): Provided the historical underpinning for “common use,” adopted in Heller, that the right protects arms in common lawful use and historically permitted restrictions on dangerous and unusual arms. Gomez uses Miller (via Heller) to frame the “common use” inquiry.
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022): Replaced means-ends scrutiny with a two-step historical test: (1) whether the Second Amendment’s plain text covers the conduct; and if so, (2) whether the government demonstrates consistency with the Nation’s historical tradition of firearm regulation. Gomez is a step-one decision: the court held the plain text does not cover possession of a defaced-serial-number firearm.
Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), cert. denied, 145 S. Ct. 1900 (2025): Clarified in the Second Circuit that step one asks whether (i) the conduct is protected, (ii) the weapon is in common use, and (iii) the affected individuals are ordinary, law-abiding adults. Gomez applies Antonyuk’s structure and resolves the case at step one.
Gazzola v. Hochul, 88 F.4th 186 (2d Cir. 2023), cert. denied, 144 S. Ct. 2659 (2024): Upheld various state commercial regulations on firearm dealers because they did not effectively deny law-abiding citizens the ability to acquire firearms. Gomez uses Gazzola (and Heller’s footnote recognizing “presumptively lawful” commercial regulations) to explain that not every burden impairs the core right, particularly where access to functionally identical arms is unaffected.
United States v. Price, 111 F.4th 392 (4th Cir. 2024) (en banc), cert. denied, 145 S. Ct. 1891 (2025): The only other published circuit decision squarely upholding § 922(k) after Bruen; concluded that defaced-serial-number firearms are not in common lawful use and that there is no compelling lawful reason to possess them. Gomez explicitly aligns with Price.
United States v. Lopez, No. 22-13036, 2024 WL 2032792 (11th Cir. May 7, 2024) (per curiam): On plain-error review, rejected a § 922(k) challenge; Gomez notes this supportive authority.
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), overruled on other grounds by Bruen: Although its two-step scrutiny approach no longer controls, its substantive observation—that law-abiding citizens have no compelling reason to prefer defaced-serial-number guns—features in Price and is echoed in Gomez.
Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025): Addressed § 922(g)(1) post-Bruen. In Gomez, the court cites Zherka to caution against characterizing regulated conduct at an overly general level (“bare possession”), which would short-circuit step one.
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008): Articulates the stringent standard and institutional concerns for facial challenges. Gomez applies this to dispose of the facial challenge independently of the Bruen analysis.

Legal Reasoning

1) Precisely Framing the Regulated Conduct

The court begins by identifying the conduct regulated by § 922(k) not as the general “keeping of arms,” but as the “possession of a firearm with an obliterated serial number.” This precision matters. If courts accepted “bare possession” as the conduct, nearly every gun regulation would pass step one automatically, making step one superfluous. By tying the analysis to the specific attribute that triggers the prohibition—serial-number obliteration—the court sets a methodological marker for future Bruen step-one inquiries: define the conduct with fidelity to the statute’s specific proscription.

2) No Burden on the Core Right of Armed Self-Defense

Step one asks whether the law burdens conduct covered by the Second Amendment’s text as historically understood, with individual self-defense as the core. The court holds it does not. Section 922(k) regulates a nonfunctional characteristic of a firearm—the presence of a legible serial number. Because serialized firearms remain available and are functionally identical for defensive use, the law does not impair the ability of law-abiding citizens to defend themselves. The court distinguishes Heller’s rejection of a handgun ban on the ground that, unlike long guns, serialized and unserialized (or defaced-serial) versions of the same handgun are functionally indistinguishable for self-defense. This reasoning parallels Gazzola’s acceptance of some commercial burdens so long as access to firearms suitable for self-defense remains intact.

3) Not “Weapons in Common Use” for Lawful Purposes

The court also concludes that a “firearm with an obliterated serial number” is not a weapon “in common use” for lawful purposes, another step-one screen. Citing Price and Marzzarella, the court emphasizes that law-abiding citizens lack a legitimate reason to prefer defaced-serial-number firearms; such weapons are typically associated with illicit activity because obliteration hampers tracing. The court supports this inference with criminological literature on why serial numbers are defaced (to hide thefts, straw purchases, or prior criminal use). As a result, § 922(k) regulates a category of weapons that are not typically possessed by law-abiding citizens for lawful purposes.

4) No Need to Reach Historical Tradition (Bruen Step Two)

Having held that the conduct is not covered by the Second Amendment’s plain text, the court does not proceed to the historical-analogue phase. In doing so, Gomez underscores that Bruen’s step one can be dispositive: courts need not reach history if the text does not cover the conduct. The opinion notes that the government had proffered historical analogues concerning commercial regulation of firearms, gunpowder, and dangerous weapons, but the court found them unnecessary to decide the case.

5) Facial Challenge Fails on Independent Grounds

Even if the substantive Second Amendment analysis were not dispositive, the court explains that Gomez’s facial challenge fails for a separate reason: he did not attempt to show the statute’s invalidity in all or virtually all applications, or that it lacks a plainly legitimate sweep. Citing Washington State Grange and Antonyuk, the court reiterates that facial challenges are disfavored, especially in contexts where the factual record is thin and the challenged law regulates a broad range of conduct. That omission by Gomez independently warrants affirmance.

Impact

A) Immediate Practical Consequences

Federal prosecutions under § 922(k) in the Second Circuit (New York, Connecticut, Vermont) are secure against facial Bruen challenges grounded in “keeping or bearing arms” arguments. Prosecutors can lean on Gomez and Price to defend § 922(k) across multiple circuits.
State laws that prohibit possession of “defaced” or “obliterated serial number” firearms are bolstered by Gomez’s nonfunctional-feature and non–common-use logic. Although not binding on state courts outside the Second Circuit, the reasoning is persuasive and tracks a growing post-Bruen consensus.

B) Methodological Significance Under Bruen

Conduct Characterization: Gomez emphasizes careful, statute-specific conduct framing. Litigants should expect courts to reject generic formulations like “keeping arms” and instead to analyze the precise regulated feature or status.
Step One as a Gatekeeper: The decision confirms that step one can end the analysis. Courts may never reach history if the conduct (as precisely defined) does not implicate self-defense or involve weapons in common lawful use.
Functional vs. Nonfunctional Features: By treating serial numbers as a nonfunctional attribute and stressing the ready availability of functionally identical arms for self-defense, Gomez offers a framework likely to influence challenges to other marking or recordkeeping regulations that do not affect a firearm’s defensive utility.

C) Beyond § 922(k): Serialization, “Ghost Guns,” and Related Policies

Serialization Mandates: Gomez’s core premise—that nonfunctional identification marks do not burden the right of self-defense—will likely be invoked to defend serialization and tracing requirements in both federal and state schemes.
Distinction from “Ghost Guns”: Section 922(k) targets firearms that originally bore serial numbers but were later defaced. It does not reach firearms that never had serial numbers (e.g., certain pre-1968 firearms or some home-built “ghost guns,” depending on governing statutes or rules). Gomez does not resolve the constitutionality of regulations specifically targeting unserialized firearms that never bore numbers, although its reasoning about nonfunctional features and access to functionally identical serialized firearms may be cited in those debates.
Limits: Gomez does not greenlight all firearm feature regulations. Measures that alter a firearm’s functionality, accuracy, portability, or suitability for self-defense (e.g., categorical bans on handguns or magazines if necessary to functional operation) would face different analysis, as Heller itself shows. The court’s nonfunctional/functional distinction is thus consequential but not boundless.

D) Future Litigation Posture

Defense Strategy: Post-Gomez, defendants raising Second Amendment challenges to § 922(k) will likely pivot to as-applied challenges (e.g., unusual factual settings where traceability has no plausible public-safety payoff and no illicit intent is present), though success will be difficult given the court’s common-use and self-defense holdings.
Government Strategy: The government can argue that Gomez and Price establish that laws aimed at traceability and identification, which leave defensive utility untouched and do not restrict access to common firearms, fall outside the Second Amendment’s text. If courts nevertheless reach step two, the government can marshal historical analogues involving identification, registration, or commercial conditions—though Gomez shows these may often be unnecessary where step one resolves the case.

Complex Concepts Simplified

Bruen’s Two-Step Test:
- Step One (Text): Does the Second Amendment’s “plain text” cover the regulated conduct as historically understood? Courts ask whether the law burdens armed self-defense and concerns weapons in common lawful use, applied to ordinary, law-abiding adults.
- Step Two (History): If yes, the government must show the regulation fits within the Nation’s historical tradition of firearm regulation.
“Common Use” and “Dangerous and Unusual”: Heller teaches that the Amendment protects weapons “in common use” for lawful purposes, while “dangerous and unusual” weapons fall outside protection. Gomez treats “firearms with obliterated serial numbers” as not commonly possessed by law-abiding citizens for lawful purposes.
Functional vs. Nonfunctional Features: A “functional” feature affects how the firearm works (e.g., caliber, barrel length, magazine capacity), whereas a “nonfunctional” feature like a serial number is an identification mark. Gomez holds that regulating a nonfunctional attribute does not impair self-defense because the same firearm with a serial number works identically.
Facial vs. As-Applied Challenges:
- Facial Challenge: Argues a law is invalid in all or nearly all applications, or lacks a plainly legitimate sweep. Disfavored because it risks sweeping away valid applications without a developed record.
- As-Applied Challenge: Argues a law is unconstitutional as applied to a challenger’s specific circumstances. Gomez brought only a facial challenge and lost, partly for failing to show universal invalidity.
Serialized vs. Unserialized vs. Defaced:
- Serialized Firearm: Manufacturer/importer applied a serial number (e.g., after the 1968 Gun Control Act generally required it).
- Unserialized Firearm: Never had a serial number (e.g., certain antiques or some home-built firearms, depending on applicable law). Section 922(k) does not address these directly.
- Defaced/Obliterated: Originally had a serial number, which was removed or altered; this is the conduct § 922(k) targets.

Conclusion

United States v. Gomez sets a clear Second Circuit precedent: 18 U.S.C. § 922(k) is facially constitutional under Bruen. The decision supplies three durable principles. First, courts must define the regulated conduct with specificity; characterizing every case as “keeping arms” would collapse step one. Second, regulations of nonfunctional identification features that leave access to functionally identical arms intact do not burden the core right of armed self-defense. Third, firearms with obliterated serial numbers are not “weapons in common use” for lawful purposes; their possession typically signals illicit aims rather than lawful defense.

Doctrinally, Gomez reinforces step one as a meaningful screen under Bruen, aligning with the Fourth Circuit’s en banc ruling in Price and supporting state and federal traceability regimes. Practically, it narrows the pathway for successful Second Amendment attacks on serialization and defacement prohibitions and encourages litigants to sharpen the definition of conduct and weapon categories in future cases. In the broader post-Bruen landscape, Gomez is a significant waypoint: it confirms that the Second Amendment’s protection is robust but not indifferent to nonfunctional regulatory measures that leave the defensive utility of common arms fully intact.