United States v. Gomez

Opinion

24-1943-cr United States v. Gomez

United States Court of Appeals for the Second Circuit AUGUST TERM 2024 No. 24-1943-cr

UNITED STATES OF AMERICA, Appellee,

v.

STEVEN GOMEZ, Defendant,

ADAM GOMEZ Defendant-Appellant.

ARGUED: MAY 22, 2025 DECIDED: NOVEMBER 17, 2025

Before: KEARSE, JACOBS, and LOHIER, Circuit Judges.

Defendant-Appellant, Adam Gomez, appeals the judgment of the United States District Court for the Northern District of New York (Scullin, J.) entered following his guilty plea to receiving and possessing a firearm with an obliterated serial number. On appeal, Gomez challenges the constitutionality of his statute of conviction, 18 U.S.C. § 922(k), as facially unconstitutional under the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). We conclude that 18 U.S.C. § 922(k) is facially constitutional. Forbidding possession of a firearm with a removed, obliterated, or altered serial number does not infringe upon the right to bear arms because no person is thereby prevented from possessing any type of firearm, and because such a firearm is not a weapon in common use for lawful purposes. Moreover, Gomez asserts a facial challenge to § 922(k) but makes no attempt to show that it is unconstitutional as applied to anyone other than himself. Accordingly, we affirm the judgment of conviction.

AFFIRMED.

JAMES P. EGAN, Assistant Federal Public Defender, Syracuse, NY, for Defendant- Appellant.

RICHARD D. BELLISS, JOSHUA ROTHENBERG, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY, for the United States of America.

2 DENNIS JACOBS, Circuit Judge:

Defendant-Appellant, Adam Gomez, appeals the judgment of

the United States District Court for the Northern District of New York

(Scullin, J.) entered following the denial of his motion to dismiss the

indictment and his subsequent guilty plea to receiving and possessing

a firearm with an obliterated serial number. On appeal, Gomez

argues that the statute under which he was convicted, 18 U.S.C.

§ 922(k), is rendered facially unconstitutional by the Supreme Court’s

decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1

(2022).

We reject Gomez’s challenge. Section 922(k) is facially

constitutional. It provides:

It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(k). Section 922(k) does not infringe upon the right to

3 bear arms because (i) no person is thereby prevented from possessing

any type of firearm, and (ii) a firearm with a removed, obliterated, or

altered serial number is not a weapon in common use for lawful

purposes. Accordingly, we affirm the judgment of conviction.

I

“[T]he Second Amendment confer[s] an individual right to

keep and bear arms.” District of Columbia v. Heller, 554 U.S. 570, 595

(2008). However, the Second Amendment does not confer the “right

to keep and carry any weapon whatsoever in any manner whatsoever

and for whatever purpose.” Id. at 626. An “important limitation on

the right to keep and carry arms” is “that the sorts of weapons

protected were those ‘in common use at the time.’” Id. at 627

(quoting United States v. Miller, 307 U.S. 174, 179 (1939)). The right

also does not “protect those weapons not typically possessed by law-

abiding citizens for lawful purposes.” Id. at 625. “Stated

differently, the Second Amendment protects the right to keep and

bear the sorts of weapons that are in common use—a limitation that

4 is fairly supported by the historical tradition of prohibiting the

carrying of dangerous and unusual weapons.” Antonyuk v. James,

120 F.4th 941, 961 (2d Cir. 2024), cert. denied, 145 S. Ct. 1900 (2025)

(alterations adopted) (internal citation and quotations omitted).

Following Heller, this Circuit, as well as every other regional

circuit, employed a two-part test to assess Second Amendment

challenges that combined history with means-end scrutiny. E.g.,

Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 118 (2d Cir. 2020).

The Supreme Court resoundingly rejected that framework in Bruen

and set out a new “test rooted in the Second Amendment’s text, as

informed by history.” 597 U.S. at 17, 19. Bruen instructs: “[w]hen

the Second Amendment’s plain text covers an individual’s conduct,

the Constitution presumptively protects that conduct. The

government must then justify its regulation by demonstrating that it

is consistent with the Nation’s historical tradition of firearm

regulation.” Id. at 24.

Bruen considered New York State’s proper-cause requirement

5 under which, before obtaining a license to carry a firearm outside the

home for self-defense, applicants had to “demonstrate a special need

for self-protection distinguishable from that of the general

community.” Id. at 12 (internal citation and quotations omitted).

The Court struck it down, holding in two steps (i) that the plain text

of the Second Amendment protected the petitioners’ right to carry

handguns outside the home for self-defense and (ii) that New York

failed to demonstrate that the proper-cause requirement was

consistent with the Nation’s historical tradition of firearm regulation.

Id. at 32-33, 70. At the first step, the petitioners were ruled to be

“ordinary, law-abiding, adult citizens” and “part of ‘the people’

whom the Second Amendment protects.” Id. at 31-32 (quoting

Heller, 554 U.S. at 580). They wished to carry handguns, which were

also understood to be “weapons ‘in common use’ today for self-

defense.” Id. at 32 (quoting Heller, 554 U.S. at 627).

Nothing in Bruen casts doubt on the understanding of the

Second Amendment’s scope. See id. at 81 (Kavanaugh, J.,

6 concurring). Instead, Bruen clarified the bounds of the Second

Amendment as outlined in Heller. See id. at 20 (discussing the textual

elements of the Second Amendment’s “operative clause”—whereby

“the people” “keep and bear” “[a]rms”—all before moving to the

historical inquiry).

Following Bruen, we have applied its holding—that law-

abiding persons have a Second Amendment right to possess weapons

that are in common use for self-defense—to various fact patterns.

See, e.g., Antonyuk, 120 F.4th at 981 (citing Bruen, 597 U.S. at 31–32).

Gazzola v. Hochul invoked the presumptive lawfulness of “laws

imposing conditions and qualifications on the commercial sale of

arms.” 88 F.4th 186, 195 (2d Cir. 2023) (quoting Heller, 554 U.S. at

626-27), cert. denied, 144 S. Ct. 2659 (2024). However, such

“commercial regulations . . . cannot have the effect of eliminating the

ability of law-abiding, responsible citizens to acquire firearms.” Id.

at 196. The Gazzola court affirmed the district court’s denial of

preliminary injunctive relief from several New York commercial

7 regulations on firearm dealers that petitioners alleged would impose

substantial costs on firearm dealers. Id. at 197-98. Nevertheless,

the New York laws at issue were not “so restrictive that [they]

threaten[ed] a citizen’s right to acquire firearms.” Id. at 196.

“[G]un buyers have no right to have a gun store in a particular

location, nor a right to travel no more than short distances to the most

convenient gun store that provides what they deem a satisfactory

retail experience.” Id. at 197-98 (internal citation and quotations

omitted). The minimal burden imposed by those regulations was

insufficient to deprive New Yorkers of “relatively easy access to

sellers of firearms.” Id. at 198.

In Antonyuk v. James, this Court explained that the first step of

the Bruen inquiry “requires courts to consider three issues” before

undertaking a historical survey: “whether the conduct at issue is

protected, whether the weapon concerned is ‘in common use,’ and

whether the affected individuals are ‘ordinary, law-abiding, adult

citizens’ and thus ‘part of “the people” whom the Second

8 Amendment protects.’” 120 F.4th at 981 (quoting Bruen, 597 U.S. at

31-32). Because we conclude below that Gomez’s challenge fails at

the first step of the Bruen analysis, we decline to consider whether

§ 922(k) is justified by the government’s evidence of historical laws

regulating the commercial sale of firearms, gunpowder, and

dangerous weapons.

II

There is appellate jurisdiction over a judgment of conviction

pursuant to 28 U.S.C. § 1291. This Court reviews preserved

“challenges to a statute’s constitutionality de novo.” United States v.

Desposito, 704 F.3d 221, 229 (2d Cir. 2013).

Bruen and Antonyuk require us to consider whether the conduct

regulated by § 922(k) is covered by the “plain text of the [Second]

Amendment as historically understood.” Antonyuk, 120 F.4th at 968.

The answer to that question depends on how precisely to characterize

the conduct that is regulated. Gomez argues that “the conduct

regulated by Section 922(k) is the keeping of arms.” Appellant Br. at

9 9. That characterizes the regulated conduct at too high a level of

generality. Properly considered, § 922(k) regulates possession of a

firearm with an obliterated serial number.

In Bruen, the Court considered the conduct at issue as “carrying

handguns publicly for self-defense.” 597 U.S. at 32 (emphasis added).

Defining § 922(k)’s regulated conduct as mere possession is thus even

broader than Bruen’s holding that “[t]he Second Amendment’s plain

text thus presumptively guarantees petitioners . . . a right to ‘bear’

arms in public for self-defense.” Id. at 33 (emphasis added).

Similarly, Zherka v. Bondi recently held that the conduct regulated by

§ 922(g)(1)—defined as possession of a weapon by a convicted, non-

violent felon—fell within the plain text of the Second Amendment.

See 140 F.4th 68, 76-77 (2d Cir. 2025). If bare possession of a firearm

were enough to invoke the plain text of the Second Amendment,

virtually every Second Amendment challenge would elide Bruen step

one—rendering it largely superfluous.

Having determined that § 922(k) regulates the possession of a

10 firearm with an obliterated serial number, we turn to whether “the

Second Amendment’s plain text covers [that] conduct.” Antonyuk,

120 F.4th at 981 (internal citation and quotations omitted). We

conclude that it does not for two reasons: (A) the conduct at issue does

not implicate the right to armed self-defense, Bruen, 597 U.S. at 29,

and (B) the weapons at issue are not “weapons in common use today

for self-defense,” id. at 32 (internal citation and quotations omitted).

III

Self-Defense. “[I]ndividual self-defense is the central

component of the Second Amendment right.” Id. at 29 (internal

citation and quotations omitted). The constitutionality of § 922(k)

therefore depends on whether prohibiting the possession of a firearm

with a removed, obliterated, or altered serial number “burden[s] a

law-abiding citizen’s right to armed self-defense.” Id. It does not.

Section 922(k) merely regulates a nonfunctional feature: the serial

number. A functionally identical firearm remains available: Gomez,

who had not previously been convicted of a felony, see 18 U.S.C. §

11 922(g)(1), would be free to possess and carry a serialized firearm for

self-defense, and his ability to protect himself is in no way impaired

by the presence of a serial number.

Gomez argues that the availability of functionally identical

firearms is immaterial, relying on Heller’s ruling that the availability

of long guns was insufficient to allow a ban on handguns. Instead,

Gomez infers that no burden is permissible unless the government

proves that the restriction is consistent with a robust historical

tradition of firearm regulation. We are not persuaded by Gomez’s

attempt to circumvent Bruen’s first step.

As the Supreme Court explained in Heller, long guns were not

a sufficient alternative to handguns because substantial functional

differences (size, weight, and accessibility) make handguns the

superior self-defense weapon. 554 U.S. at 629 (“[T]he American

people have considered the handgun to be the quintessential self-

defense weapon.”). In Gazzola, we considered regulations on the

commercial sale of firearms that undoubtedly burdened a citizen’s

12 ability to purchase firearms, but upheld the regulations because they

did not “have the effect of eliminating the ability of law-abiding,

responsible citizens to acquire firearms.” 88 F.4th at 196.

Unlike the challenger in Heller, Gomez would be free to

purchase a functionally identical firearm that is far more common,

easier to obtain, and provides identical self-defense protection. And

like the challenged regulations in Gazzola, § 922(k) is not “so

restrictive that it threatens a citizen’s right to acquire firearms.” Id.

Some burden on the commercial sale of firearms is “presumptively

lawful” and is acceptable so long as the regulation does not

meaningfully infringe on the right to self-defense. Heller, 554 U.S. at

627 n.26.

IV

Common Use. Handguns have long been considered a

“quintessential self-defense weapon.” Id. at 629. But Heller

instructs us that “the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for lawful

13 purposes, such as short-barreled shotguns.” Id. at 625 (discussing

Miller, 307 U.S. at 179). A firearm with a removed, obliterated, or

altered serial number is not a weapon in common use for lawful

purposes. The Fourth Circuit—the only other circuit to decide a §

922(k) challenge in a published opinion post-Bruen—came to the same

conclusion. See United States v. Price, 111 F.4th 392, 397 (4th Cir. 2024)

(en banc), cert. denied, 145 S. Ct. 1891 (2025); see also United States v.

Lopez, No. 22-13036, 2024 WL 2032792, at *3 (11th Cir. May 7, 2024)

(per curiam) (rejecting a constitutional challenge to § 922(k) on plain-

error review). “[T]here is ‘no compelling reason why a law-abiding

citizen’ would use a firearm with an obliterated serial number.”

Price, 111 F.4th at 406 (quoting United States v. Marzzarella, 614 F.3d

85, 95 (3d Cir. 2010), overruled on other grounds by Bruen, 597 U.S. 1).

All available evidence reflects “that such weapons would be

preferable only to those seeking to use them for illicit activities.” Id.;

see David M. Kennedy, Anne M. Piehl & Anthony A. Braga, Youth

Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-

14 Reduction Strategy, 59 L. & Contemp. Probs. 147, 174-75 (1996)

(observing that the only reasons to obliterate a serial number are to

avoid connection with a firearm that was stolen, involved in a crime,

or gained via a straw purchase). So the burden of “conceiv[ing] of a

lawful purpose” for possessing these firearms “will almost always fall

only on those intending to engage in illicit behavior.” Marzzarella,

614 F.3d at 99. Gomez has presented no non-speculative evidence

that law-abiding citizens use firearms with obliterated serial numbers

for lawful purposes. Section 922(k), which thus regulates the

possession of “weapons not typically possessed by law-abiding

citizens for lawful purposes,” is not proscribed by the Second

Amendment. Antonyuk, 120 F.4th at 961 (internal citation and

quotations omitted).

V

Facial Challenge. Finally, Gomez’s facial challenge fails. To

mount a successful facial challenge to § 922(k), a litigant “must

establish that no set of circumstances exists under which the law

15 would be valid, or show that the law lacks a plainly legitimate

sweep.” Id. at 983 (alterations adopted) (internal citation and

quotations omitted). “Facial challenges are disfavored because they

often rest on speculation, raise the risk of premature interpretation of

statutes on the basis of factually barebones records, and threaten to

short circuit the democratic process by preventing laws embodying

the will of the people from being implemented in a manner consistent

with the Constitution.” Id. at 987 (internal quotations omitted)

(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S.

442, 450-51 (2008)). Gomez makes no attempt to show that § 922(k)

is unconstitutional as applied to conduct other than his own. For

that reason alone, his facial challenge must be dismissed.

CONCLUSION

For the foregoing reasons, we affirm the judgment of

conviction.