Criminal – Firearm – Defaced serial number

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Where a defendant has challenged the constitutionality of a state statute making it a crime to deface a firearm’s serial number or knowingly receive a firearm with a defaced serial number, that argument lacks merit, as the statute does not violate the Second Amendment to the United States Constitution.

“Justice Gilkes has been indicted for unlawful possession of a firearm, unlawful possession of a loaded firearm, discharging a firearm within 500 feet of a building, and violating G.L.c. 269, §11C, by removing a firearm’s serial number or by knowingly receiving a firearm with a defaced serial number.

“Mr. Gilkes has moved to dismiss the last of these indictments. …

“The plain text of the Second Amendment does not cover removing a firearm’s serial number or knowingly carrying a firearm without a serial number because the statutory ban on knowingly doing so does not impair one’s ability to keep and bear arms and, in any case, firearms without serial numbers are not in common use for lawful purposes. …

“Gilkes’ constitutional challenge fails because the plain text of the Second Amendment does not cover defacing or removing a serial number from a firearm, or knowingly possessing a firearm from which the serial number has been defaced or removed. The Court reaches that conclusion for two reasons.

“First, the statute that Gilkes is challenging does not restrict one’s ability to keep and bear arms. …

“Second, the plain text of the Second Amendment does not cover the challenged statute for the additional reason that firearms without serial numbers are not in common use for lawful purposes.”

Commonwealth v. Gilkes (Lawyers Weekly No. 12-033-24) (4 pages) (Salinger, J.) (Middlesex Superior Court) (Docket No. 2181CR00484) (Aug. 21, 2024).

Click here to read the full text of the opinion.