In United States v. Gomez, __ F. 4th __, 2025 WL 3199468, an appeal of a motion to dismiss the indictment, the Second Circuit (Kearse, Jacobs, Lohier) upheld the constitutionality of 18 U.S.C. § 922(k), the federal statute forbidding possession of a firearm with a removed, obliterated, or altered serial number. The Court held that Section 922(k) does not infringe upon the right to bear arms protected by the Second Amendment. The Court reached this conclusion because the appellant had failed to present evidence that the plain text of the Second Amendment conferred a right to possession of a firearm with an obliterated serial number, and therefore the Court need not engage in the historical analysis required by New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

In its ruling, the Second Circuit’s decision placed this initial burden on the defendant, based on its prior ruling in Antonyuk v. James, 120 4th 941, 961 (2d Cir. 2024), cert. denied, 145 S. Ct. 1900 (2025), which followed Bruen in ruling that the initial step for a court is to consider whether “the Second Amendment’s plain text covers an individual’s conduct.” Antonyuk, 120 4th at 968 (quoting Bruen, 597 U.S. at 24). While Bruen also held that the government was required to justify any regulation of the right to bear arms, and do so “consistent with this Nation’s historical tradition[,]” the government is only required to make this showing when the first step leads the court to conclude that the Constitution presumptively protects the prohibited conduct. Id.

Bruen introduced substantial uncertainty into the area of criminal firearms regulation and has called into question the constitutionality of many of the penal statutes that prohibit the possession and use of firearms in certain situations. It is fortunate that, even as novel as Bruen was, it does allow courts to first inquire as to whether there is a Second Amendment right implicated by the penal statute. Only once such a right is implicated does the state have the burden of conducting historical research and presenting it to the court to defend the statute. Here, the panel found it unnecessary to proceed to the second step of the Bruen analysis given the nature of the right asserted.

Background

Defendant-Appellant Adam Gomez was indicted for receiving and possessing a firearm with an obliterated serial number pursuant to Section 922(k).[1] Gomez, 2025 WL 3199468, at *1. He moved to dismiss the indictment on the grounds that Section 922(k) violated the Second Amendment pursuant to Bruen. Id. After his motion was denied, Gomez entered a guilty plea. Id. Gomez appealed the denial of his motion to dismiss.

The Second Circuit’s Ruling

Following the prior Second Circuit ruling in Antonyuk, the Court explained that the first step of a Second Amendment challenge requires determining “whether the conduct regulated … is covered by the ‘plain text of the [Second] Amendment as historically understood.” Id. at *2. This first step “‘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 Amendment protects.’” Id. at *2 (quoting Antonyuk v. James, 120 F. 4th 941, 961 (2d Cir. 2024)). If not, “the Second Amendment’s plain text” does not “cover[]” the conduct identified, and the Court need not “consider whether [the statute] is justified by the government’s evidence of historical laws[.]” Id.

Gomez argued that the relevant conduct was “the keeping of arms,” but the Court stated this “characterizes the regulated conduct at too high a level of generality”; the relevant question is whether the plain text of the Second Amendment guarantees a right to “possession of a firearm with an obliterated serial number.” Id. (emphasis in original). “We conclude that it does not for two reasons: (A) [possessing a firearm with an obliterated serial number] does not implicate the right to armed self-defense, and (B) [firearms with obliterated serial numbers] are not weapons in common use today for self-defense[.]” Id. at *3.

On the first point, the Court stated that “individual self-defense is the central component of the Second Amendment right,” so “[t]he constitutionality of § 922(k) therefore depends on whether [the prohibition] … burdens a law-abiding citizen’s right to armed self-defense.” Id. (emphasis in original) (quoting Bruen, 597 U.S. at 29). Since a firearm’s serial number is “nonfunctional,” Section 922(k) is not “so restrictive that it threatens a citizen’s right to acquire firearms,” and “[s]ome 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.” Id. (emphasis in original).

On the second point, the Court held that “[a] firearm with a removed, obliterated, or altered serial number is not a weapon in common use for lawful purposes,” and “there is no compelling reason why a law-abiding citizen would use a firearm with an obliterated serial number.” Id. at *4. Because the appellant “presented no non-speculative evidence that law-abiding citizens use firearms with obliterated serial numbers for lawful purposes,” Section 922(k) did not regulate conduct protected by the Second Amendment. Id. Therefore, there was no need to reach the second step of the analysis and determine whether there is evidence of historical laws similar to the prohibition in Section 922(k).

Discussion

In Bruen, the Supreme Court held that any conduct covered by the Second Amendment’s “plain text” was “presumptively protect[ed]” by the Constitution. Bruen, 597 U.S. at 17. Accordingly, when a law seeks to regulate “the right of the people to keep and bear Arms,” it is the state’s burden to justify the specific regulation at issue based on historical tradition. Id.

Bruen left many open issues to be decided by the federal courts. Here, the Second Circuit’s analysis in Gomez required Gomez first to show that the precise conduct at issue fell within the Second Amendment’s plain text. Gomez argued that the Second Amendment’s plain text references a general right to bear arms, but the Circuit held, relying on the Supreme Court’s prior decision in District of Columbia v. Heller, 554 U.S. 570, 595 (2008), that the Second Amendment did not confer the “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller explained that the Second Amendment only protects “the sorts of weapons . . . ‘in common use at the time.’” Id. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). Accordingly, the Court rejected Gomez’s argument that the Second Amendment literally protected “the keeping of arms” of any type, concluding that his characterization of Section 922(k) operated “at too high a level of generality.” 2025 WL 3199468, at *2.

Instead, the Court looked at a lower level of generality and relied on the fact that the Second Amendment’s plain text did not refer to a right to bear arms with obliterated serial numbers. The Court concluded that the Second Amendment provided no “presumptive[] protect[ion]” for Gomez’s conduct. There was no need, therefore, to get to the next step of conducting Bruen’s historical analysis. By defining the conduct at issue commensurate with the regulation—not the bearing of arms generally referenced by the Second Amendment, but the possession specifically of handguns with obliterated serial numbers—the Court created a framework under which some regulations of firearms will fall outside the scope of the constitutional right. The Supreme Court often considers the specificity of the right when determining if some activity is protected by the Bill of Rights. See, e.g., Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (holding that the Court will “refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified”).

In analyzing whether the Second Amendment included a right to possess firearms with obliterated serial numbers, the Court suggested two theories that would show Section 922(k) regulated conduct within the Second Amendment. Both theories required Gomez to connect Section 922(k) to the possession of firearms for self-defense: either to test whether the statute infringed on his “right to armed self-defense,” or that the arms regulated by Section 922(k) “are not weapons in common use today for self-defense[.]” Id. at *3 (emphasis added). Gomez’s challenge failed because he could not establish either. Under the Court’s ruling, any regulation which does not limit an individual’s ability to defend himself therefore does not implicate Bruen’s second step, and the Court need not analyze whether analogous regulations existed in the 18th century.

Self-defense was central to Bruen because it was explicitly at issue in the regulatory framework challenged in that case, pursuant to which New York law required license applicants seeking a permit to carry weapons for self-defense “demonstrate a special need for self-protection distinguishable from that of the general community.” Bruen, 597 U.S. at 12 (emphasis added). Gomez appears to conclude that Bruen’s emphasis on self-defense was not necessitated by its facts, but rather defined the scope of the Second Amendment’s text. Since one need not possess a firearm with an obliterated serial number (as prohibited by Section 922(k)) for self-defense, the law does not impinge on the constitutional protection for firearms in the Second Amendment. The Supreme Court has not fully resolved the extent to which self-defense rights are central to the Second Amendment. Compare District of Columbia v. Heller, 554 U.S. 570 (2008) (which addressed Washington, D.C.’s prohibition on possession of handguns in the home) with Bruen, 597 U.S. at 17-18 (holding that an individual’s conduct is outside of the Second Amendment’s “unqualified command” only if “a firearm regulation is consistent with this Nation’s historical tradition”). But in any event where the regulation addressed a gun tailored for use in criminal conduct through the obliteration of serial numbers, a feature not needed for any lawful purpose, the Court’s analysis did not depend on resolving this open issue.

Did Gomez Give Insufficient Weight To Historical Tradition?

Gomez, relying on Heller, argued that Section 922(k) nonetheless implicated his Second Amendment rights by limiting his choice of firearm. In Heller, the Supreme Court rejected Washington, D.C.’s argument that a prohibition on handguns did not infringe upon an individual’s right to self-defense because other weapons, such as long arms, remained available. 554 U.S. at 629-30. By analogy, Gomez suggested, Section 922(k) similarly infringed on his Second Amendment rights even if he could defend himself with other, legal weapons.

Not so, according to the Court: Heller held that regulation of “the superior self-defense weapon,” the handgun, implicated the Second Amendment’s protection, because the Second Amendment protects the right to self-defense. 2025 WL 3199468, at *3. Per Gomez, where the regulation affects inferior (or “functionally identical”) self-defense weapons, but leaves intact the individual’s right to bear handguns, it “does not meaningfully infringe on the right to self-defense,” and thus falls outside the Second Amendment’s protection.  Id. (emphasis in original). By raising this question at Bruen’s first step, the Gomez Court did not need to examine the historical tradition of regulation of firearm serial numbers.

Gomez’s second theory—that the Second Amendment protects a right to “weapons in common use today for self-defense”—similarly failed to establish that Section 922(k) implicated the Second Amendment. In Bruen, the Supreme Court reasoned that “[w]hatever the likelihood that handguns were considered ‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’ for self-defense today.” Id. at 32. The Second Circuit similarly concluded that firearms with obliterated serial numbers are unnecessary to and not in common use for self-defense today, and therefore unprotected by the Second Amendment. That conclusion inherently relied on the lengthy modern history of the prohibition on the possession of such firearms, which has been in place for many decades. See Pub. L. No. 75-785, § 2(i), 52 Stat. 1250, 1251 (1938) (Section 922(k)’s first precursor statute).

These questions—whether 922(k) “meaningfully” infringes on Second Amendment rights, and whether it impacted access to “weapons in common use today for self-defense”—were each redolent of the Second Circuit’s pre-Bruen standard, which applied “means-end scrutiny.” Id. at *1. But Bruen “resoundingly rejected that framework.” Id.; see also Bruen, 597 U.S. at 18 (stating that “the severity of the law's burden” on the Second Amendment right is irrelevant to the constitutional analysis). Bruen itself, however, also required lower courts address the question of whether the Second Amendment protected an individual right before turning to consider historical limitations on the right to bear arms. 597 U.S. at 24. Lower courts were left with little guidance on how to answer that question: does the Second Amendment’s text protect only the right to self-defense, as Gomez suggests? Are there other rights, beyond self-defense, inherent to the Second Amendment? Or do individuals have a right to bear all arms they could legally possess during the Founding era, requiring historical analysis at Bruen’s first step, as well—a position that Bruen did not adopt? Courts, and defendants, have been left guessing. Here, without the Second Amendment being implicated, the government did not need to prove that the regulation had historical analogues.

Conclusion

Ultimately, Gomez’s definition of the right at issue at a lower level of specificity—does the Second Amendment protect the right to carry weapons with obliterated serial numbers—allowed the re-entry of questions, such as how “meaningfully” the regulation imposes on the Second Amendment, which recall pre-Bruen means-end scrutiny. And for understandable reasons: as the Court noted, “there is ‘no compelling reason why a law-abiding citizen’ would use a firearm with an obliterated serial number,” and “[a]ll available evidence reflects that such weapons would be preferable only to those seeking to use them for illicit activities.” 2025 WL 3199468, at *4 (internal quotation marks omitted). The fact that a firearm with an obliterated serial number has been illegal for many years seems relevant to the Second Amendment analysis, even where that “tradition” does not extend all the way to the Founding. One can scarcely recall a time when the obliteration of serial numbers was permitted; the purpose of the serial numbers is to serve as an aid to law enforcement’s work in preventing and punishing the commission of crime. And while these issues appear to run contrary to Bruen’s originalist logic, they find support in Bruen’s text, as illustrated throughout Gomez. In this manner, the Second Circuit’s ruling continues to highlight the conflicts that lower courts have struggled to resolve since Bruen.

Bruen has been roundly criticized by scholars and observers, with one calling it the “most dangerous” Second Amendment “ruling in the nation’s history.” See Michael Waldman, “The Most Dangerous Gun Ruling in History, at the Worst Possible Time,” Washington Post (Jun. 22, 2022). In particular, the originalist test “requires original historical research into somewhat obscure statutory and common law authority from the eighteenth century by attorneys with no background or expertise in such research.” United States v. Nutter, 624 F. Supp. 3d 636, 640 n.6 (S.D. W. Va. 2022); see also Saul Cornell, “Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions,” SCOTUSBLOG (Jun. 27, 2022) (“Thomas has taken law-office history to a new low, even for the Supreme Court, a body whose special brand of ‘law chambers history’ has prompted multiple critiques and been a source of amusement for generations of scholars and court watchers.”). Courts, particularly district courts, have similarly raised concerns about Bruen’s analysis since the case was decided. See, e.g., Clara Fong et al., “Judges Find Supreme Court’s Bruen Test Unworkable,” Brennan Center for Justice (Jun. 23, 2023); see also Kelsey Reichman, “Disarray in lower courts after Supreme Court’s 2nd Amendment shake-up,” Courthouse News (Feb. 3, 2023) (quoting one law professor as observing that “it’s fair to say that the lower court case law on the Second Amendment is a mess right now”). 

Gomez can be seen as avoiding the unworkable search for historical analogues by focusing on the first part of the Bruen analysis. Owing to a recognition of the broad potential impact of Bruen, the Supreme Court similarly appeared to back away from Bruen in Rahimi v. United States, 602 U.S. 680 (2024), a case that upheld the constitutionality of a federal statute that made it a crime for those who were the subject of orders of protection to possess firearms. Rahimi suggests that the uncertainty surrounding the Second Amendment is unlikely to be resolved soon, and Gomez is unlikely to be the last word in this area in the Second Circuit.

When conducting Second Amendment analyses, much will turn on the level of generality used to define the constitutional right that is protected by the Second Amendment. In other words, whether Bruen is about the right to bear arms generally (a right that the Supreme Court has held is protected by the Second Amendment) or a right defined by the exact terms of the regulation challenged (regarding which the Second Amendment is likely silent) will make a big difference in assessing the underlying constitutional law issues.

In short, if Bruen requires analysis of historical precedent for any regulation of the “right to bear arms,” its result may be the invalidation of regulations and criminal laws that courts would have considered necessary and well-tailored under the old means-end test. But Gomez stands for the conclusion that Bruen should not invalidate laws that can be read to regulate narrower behavior than that referenced by the Second Amendment’s text. Gomez thus held that, while there is a right to bear arms necessary for lawful self-defense, that right does not encompass possession of a firearm with an obliterated serial number. We can expect that such difficult questions, requiring courts to choose between conflicting legal doctrines, will continue to require resolution by the Second Circuit and the Supreme Court post-Bruen.