United States of America v. Jose Reyna

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 23-1231
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE R EYNA,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:21-CR-41 — Robert L. Miller, Jr., Judge.
____________________
A RGUED NOVEMBER 1, 2023 — DECIDED J ANUARY 28, 2026
____________________
Before S YKES , S T. EVE, and LEE, Circuit Judges.
S YKES , Circuit Judge. Jose Reyna pleaded guilty to
possessing a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k). Just before sentencing he
moved to dismiss the indictment, arguing that § 922(k) is an
unconstitutional infringement of his Second Amendment
right to keep and bear arms under the Supreme Court’s
decision in New York State Rifle & Pistol Ass’n v. Bruen,
597 U.S. 1 (2022).

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2 No. 23-1231
Bruen established a new standard for assessing the con-
stitutionality of restrictions on weapons-related conduct:
“When the Second Amendment’s plain text covers an indi-
vidual’s conduct, the Constitution presumptively protects
that conduct. The government must then justify its regula-
tion by demonstrating that it is consistent with the Nation’s
historical tradition of firearm regulation.” 597 U.S. at 24.
The Court issued Bruen before Reyna pleaded guilty, and
his motion was otherwise untimely under the district court’s
scheduling order. But the judge found good cause to enter-
tain the belated motion and denied it on the merits. He
rejected Reyna’s claim at Bruen’s first step, holding that the
Second Amendment’s text does not cover possession of a
deserialized firearm. Reyna asks us to reverse that decision.
We affirm the judgment, though on somewhat different
reasoning. Bruen’s first step is explicitly framed as a plain-
text inquiry. Like most other provisions in the Bill of Rights,
the Second Amendment is expressed in broad and highly
general language; we’re not confident that the text alone
resolves this case. Still, we agree that § 922(k) is not uncon-
stitutional. The Court clarified Bruen in United States v.
Rahimi, 602 U.S. 680 (2024), explaining that the new decision
method should not be misunderstood to mean that modern
regulations are invalid unless a close analogue in founding-
era legal history can be identified. Instead, “the appropriate
analysis involves considering whether the challenged regu-
lation is consistent with the principles that underpin our
regulatory tradition.” Rahimi, 602 U.S. at 692.
Under Rahimi’s refinement of Bruen, § 922(k) is a valid
firearm regulation. Although the modern requirement of
serialization lacks a precise analogue in our early history, it

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No. 23-1231 3
is loosely but relevantly similar to founding-era laws and
practices requiring firearms to be marked or stamped,
inventoried, and inspected in furtherance of military service
or militia readiness. We hold that § 922(k) is consistent with
the principles underlying this tradition.
I. Background
Reyna was arrested in the early morning hours of
February 17, 2021, during a traffic stop in South Bend,
Indiana. A police officer stopped him at around 2 a.m. for a
headlight violation and smelled marijuana in his vehicle.
Reyna did not have a driver’s license, so the officer detained
him and searched the car, recovering several bags of
marijuana, distribution quantities of methamphetamine, and
a loaded handgun with an obliterated serial number. Reyna
admitted that he was dealing drugs from his car and kept
the gun to protect his business. He also told the police that
he had scratched off the gun’s serial number and fired it on
two occasions to scare off would-be robbers.
A grand jury returned an indictment charging Reyna
with a single crime: possession of a firearm with a removed,
altered, or obliterated serial number in violation of § 922(k).
He pleaded guilty without a plea agreement. Two days
before sentencing, he moved to dismiss the indictment,
arguing that § 922(k) is an unconstitutional restriction on the
Second Amendment right to keep and bear arms. His motion
raised a facial challenge to the statute under the Supreme
Court’s decision in Bruen.
Bruen was already on the books when Reyna pleaded
guilty, and his eleventh-hour motion was untimely under
the district court’s scheduling order. See F ED. R. C RIM .

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4 No. 23-1231
P. 12(c)(1). But the judge found good cause to consider the
late motion, explaining that if the constitutional challenge
was successful, it would give Reyna a just reason to with-
draw his plea. See id. r. 12(c)(3) (providing that the court may
consider an untimely pretrial motion on a showing of good
cause); id. r. 11(d)(2)(B) (providing that a guilty plea may be
withdrawn for a fair and just reason). The government has
not challenged that procedural ruling.
The judge then denied Reyna’s motion on the merits, re-
jecting the constitutional claim at step one of the Bruen
framework. He agreed with the government’s position that
possessing a firearm with an obliterated serial number is not
covered by the plain text of the Second Amendment because
deserialized firearms are not typically used by law-abiding
citizens for lawful purposes. The judge expressly declined to
address the government’s argument at step two of Bruen that
§ 922(k) is consistent with our nation’s historical tradition of
firearm regulation.
With that, the case moved forward to sentencing, and
this appeal followed.
II. Discussion
The sole issue before us is Reyna’s Second Amendment
challenge to § 922(k). He maintains, as he did in the district
court, that the statute is unconstitutional on its face. A facial
challenge is the most difficult kind of constitutional claim to
raise successfully: to prevail Reyna must establish that “no
set of circumstances exists” under which § 922(k) is valid.
Rahimi, 602 U.S. at 693 (quoting United States v. Salerno,
481 U.S. 739, 745 (1987)). We review the constitutionality of

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No. 23-1231 5
the statute de novo. United States v. Johnson, 42 F.4th 743, 746
(7th Cir. 2022).
The Second Amendment provides: “A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.” U.S. C ONST. amend. II. In its foundational
decision in District of Columbia v. Heller, the Supreme Court
confirmed that the Amendment secures an individual right
to keep and bear arms, not merely a collective right limited
to military or militia service. 554 U.S. 570, 592–95 (2008).
“Derived from English practice and codified in the
Second Amendment, the right secures for Americans a
means of self-defense.” Rahimi, 602 U.S. at 690. Like other
individual rights, however, “the right secured by the Second
Amendment is not unlimited. From Blackstone through the
19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for
whatever purpose.” Heller, 554 U.S. at 626.
Heller did not, of course, “undertake an exhaustive his-
torical analysis” of the limits on the scope of the Second
Amendment right or the extent of the government’s authori-
ty to regulate it where it applies. Id. After examining the
Amendment’s text and history, the Court held that it codifies
a preexisting individual right not limited to militia service,
then turned to the specific law in question in the case: the
District of Columbia’s ban on the possession of handguns,
even in the home. The Court found the handgun ban incom-
patible with the original meaning of the right. Id. at 628–30.

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6 No. 23-1231
Since Heller the Supreme Court’s Second Amendment
cases have centered on the Amendment’s text and history to
resolve additional questions about the nature and scope of
the right and the constitutionality of specific restrictions on
it. See Bruen, 597 U.S. at 20–24. In Bruen the Court made this
adjudicative method exclusive, holding that the text and
history of the right—not means-end scrutiny or any form of
interest balancing—control the entire analysis in all Second
Amendment challenges to weapons-related regulations. Id.
at 22–24.
The Court framed the new standard as follows: “When
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 histori-
cal tradition of firearm regulation.” Id. at 24.
As we’ve noted, the district judge resolved Reyna’s chal-
lenge to § 922(k) at step one of the Bruen framework, accept-
ing the government’s position that the text of the Second
Amendment does not cover possession of deserialized
firearms. Reyna contests that conclusion, arguing that it
misunderstands the Court’s instructions in Bruen. And
because the judge did not address Bruen’s second step,
Reyna asks us to reverse and remand the case for the judge
to consider the government’s historical justification in the
first instance.
As expected, the government defends the judge’s deci-
sion to reject Reyna’s claim at Bruen’s first step. If we disa-
gree, however, the government argues in the alternative that
a remand is unnecessary because the parties briefed the full
Bruen inquiry below, giving us an adequate record to pro-

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No. 23-1231 7
ceed to step two. The government maintains, as it did below,
that § 922(k) is compatible with our historical tradition of
firearm regulation.
The government’s historical argument is persuasive, es-
pecially after Rahimi. We begin, however, by explaining our
hesitation that Reyna’s claim can be rejected at Bruen’s first
step based solely on the Second Amendment’s text.
A. Step One of the Bruen Framework
The government’s position at step one of Bruen rests on
an assumption that Heller conclusively marked the bounda-
ries of the Second Amendment right as a definitional matter,
limiting it to only those weapons in common use by law-
abiding, responsible citizens for lawful purposes, such as
self-defense. From this premise, the government reasons as
follows: only criminals possess firearms with obliterated
serial numbers; there is no compelling reason for law-
abiding, responsible citizens to do so; therefore, because
deserialized firearms are not in common use by law-abiding
citizens for lawful purposes, possession of a firearm with an
obliterated serial number is not covered by the text of the
Second Amendment.
The problem with this argument is its underlying as-
sumption, which reads Heller as having decided more than it
did. Heller’s references to weapons “in common use” by
“law-abiding citizens” originate in the section of the opinion
addressing the stare decisis question—that is, whether any
of the Court’s precedents foreclosed the conclusion that the
Second Amendment codifies a preexisting individual right
rather than a narrower collective right limited to militia
service. See Heller, 554 U.S. at 619–26.

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8 No. 23-1231
As relevant here, this section of Heller responds to Justice
Stevens’s dissenting view that the Court’s 70-year-old
decision in United States v. Miller, 307 U.S. 174 (1939), author-
itatively determined that the Second Amendment protects
only a collective right to possess arms in connection with
militia service. Heller, 554 U.S. at 621–25. Refuting that
reading, the Heller majority explained that Miller was a
narrow decision that did not address the nature of the right
at all. Id. at 622–24.
Miller involved a challenge to an indictment for posses-
sion of a short-barreled shotgun in violation of the National
Firearms Act. The district court had quashed the indictment,
holding that the statute violated the Second Amendment,
but the Supreme Court reversed. Miller, 307 U.S. at 177, 183.
In a short opinion, the Court focused primarily on the
connection between the right and service in the militia or
military, noting that “it is not within judicial notice that this
weapon [a short-barreled shotgun] is any part of the ordi-
nary military equipment or that its use could contribute to
the common defense.” Id. at 178. The Court held that
[i]n the absence of any evidence tending to
show that the possession or use of a [short-
barreled shotgun] at this time has some rea-
sonable relationship to the preservation or effi-
ciency of a well regulated militia, we cannot
say that the Second Amendment guarantees
the right to keep and bear such an instrument.
Id. (emphasis added).
After tracing this background, the Heller majority ex-
plained that the Court’s decision in Miller was quite limited

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No. 23-1231 9
and did not hold—indeed, “cannot possibly be read to have
held”—that the Second Amendment right is limited to
militia service. Heller, 554 U.S. at 621. Rather, “Miller stands
only for the proposition that the Second Amendment right,
whatever its nature, extends only to certain types of weap-
ons.” Id. at 623. Nor did Miller suggest that the Amendment
protects only weapons useful in military service or, con-
versely, that restrictions on the personal possession of
military weapons—machineguns, for example—might be
unconstitutional. Id. at 624–25. Instead, as the Heller majority
explained, Miller simply took note of the historical fact that
“‘ordinarily when called for [militia] service[,] [able-bodied]
men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time.’” Id.
at 624 (alterations in original) (quoting Miller, 307 U.S. at
179). Reinforcing this point, the Heller majority explained
that “[t]he traditional militia was formed from a pool of men
bringing arms in common use at the time for lawful purpos-
es like self-defense.” Id. (internal quotation marks omitted).
The Heller majority’s response to Justice Stevens contin-
ued with a litany of reasons not to overread Miller: the
government’s brief had contained only “scant discussion of
the history of the Second Amendment”; there had been no
adversarial presentation in the case—the defendants did not
file a brief or appear at oral argument—so “the Court was
presented with no counterdiscussion”; and the decision said
“[n]ot a word (not a word) about the history of the Second
Amendment.” Id. at 623–24. All this, the Heller majority
explained, made it unwise to “read Miller for more than it
said, because the case did not even purport to be a thorough
examination of the Second Amendment.” Id. at 623.

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10 No. 23-1231
After issuing these cautions and qualifications, the Heller
majority went on to offer a few observations about generali-
zations that might fairly be drawn from Miller. One such
observation was this:
We therefore read Miller to say only that the
Second Amendment does not protect those
weapons not typically possessed by law-
abiding citizens for lawful purposes, such as
short-barreled shotguns. That accords with the
historical understanding of the scope of the
right, see Part III, infra.
Id. at 625.
The cross-reference to Part III of the opinion sends the
reader to a brief discussion explaining that the Second
Amendment right has limits (like most other rights) and
mentioning a few. Id. at 626–27. This part of Heller is quite
short: just three paragraphs. The first paragraph contains a
much-scrutinized passage that has proved vexing for the
lower courts.1
1 In its brief discussion of limits on the Second Amendment right, the
Court said this:
Although we do not undertake an exhaustive historical
analysis today of the full scope of the Second Amend-
ment, nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbid-
ding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms.
District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).

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No. 23-1231 11
The second paragraph returns to Miller with this brief
comment:
We also recognize another important limitation
on the right to keep and carry arms. Miller said,
as we have explained, that the sorts of weap-
ons protected were those “in common use at
the time.” We think that limitation is fairly
supported by the historical tradition of prohib-
iting the carrying of “dangerous and unusual
weapons.”
Id. at 627 (citation omitted).
The Court’s acknowledgement that the Second Amend-
ment right is not unlimited was unsurprising and leaves
much for future consideration—a self-evident point that the
Court made explicit at the end of its opinion:
[S]ince this case represents this Court’s first in-
depth examination of the Second Amendment,
one should not expect it to clarify the entire
field … . [T]here will be time enough to ex-
pound upon the historical justifications for the
exceptions we have mentioned if and when
those exceptions come before us.
Id. at 635.
We’ve unpacked these parts of Heller to explain our un-
certainty that this case can be resolved at Bruen’s first step.
The Court’s commentary about weapons “in common use”
by “law-abiding citizens” rests on its review of precedent
(Miller), history, and tradition, and it came with significant
cautionary qualifications. The Court made clear that its
observations about the limits on the right were (1) prelimi-

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12 No. 23-1231
nary; (2) not based on a comprehensive historical analysis;
(3) subject to further exploration in future cases; and
(4) unnecessary to its holding.
Indeed, earlier in Heller, in the heart of its exploration of
the meaning of the Second Amendment right—specifically,
the meaning of the term “arms”—the Court explained that
the Amendment “extends, prima facie, to all instruments
that constitute bearable arms, even those that were not in
existence at the time of the founding.” Id. at 582. Rahimi and
Bruen repeat this point. Rahimi, 602 U.S. at 691; Bruen,
597 U.S. at 28 (explaining that “even though the Second
Amendment’s definition of ‘arms’ is fixed according to its
historical understanding, that general definition covers
modern instruments that facilitate armed self-defense”).
In short, absent further signals from the Court about the
Bruen step-one inquiry, it’s hard to say with confidence that
the conduct regulated by § 922(k) is categorically outside the
prima facie scope of the right. For these reasons, we do not
share the government’s certainty that Reyna’s challenge to
§ 922(k) can be resolved at Bruen’s first step without consult-
ing founding-era legal history.
The Bruen standard is still in its early days. It’s no sur-
prise that difficult theoretical questions remain about how to
evaluate its dual components of constitutional text and
history. For present purposes, we think it’s best to assume
that possession of a deserialized firearm is not categorically
excluded from the scope of the right and consider whether
§ 922(k) is consistent with our historical tradition of firearm
regulation. We forge ahead to that question.

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No. 23-1231 13
B. Step Two of the Bruen Framework
Bruen’s second step requires the government to demon-
strate that § 922(k) is consistent with the Nation’s historical
tradition of firearm regulation. As we’ve noted, in Rahimi the
Court clarified that the Bruen standard should not be misun-
derstood to mean that modern firearm regulations require
close founding-era comparators. 602 U.S. at 691–92. The
Court punctuated the point this way: Heller and Bruen “were
not meant to suggest a law trapped in amber.” Id. at 691.
Rather, “the appropriate analysis involves considering
whether the challenged regulation is consistent with the
principles that underpin our regulatory tradition.” Id. at 692.
The analysis examines “whether the new law is ‘relevantly
similar’ to laws that our tradition is understood to permit.”
Id. (quoting Bruen, 597 U.S. at 29).
Although systemic firearm serialization as it exists today
was not in use when the Second Amendment was ratified,
founding-era regulations established various measures to
inventory and track firearms. For example, starting in the
early seventeenth century, Virginia required plantation
commanders to take a yearly account of “arm[]s and muni-
tion.” Virginia Act of Mar. 2, 1631, Act. LVI, reprinted in
1 THE S TATUTES AT LARGE, BEING A C OLLECTION OF A LL THE
LAWS OF VIRGINIA, FROM THE F IRST S ESSION OF THE
LEGISLATURE, IN THE Y EAR 1619, at 174–75 (William Waller
Hening ed., N.Y., R. & W. & G. Bartow 1823); see Robert J.
Spitzer, Gun Law History in the United States and Second
Amendment Rights, 80 L. & C ONTEMP . PROBS . 55, 76 (2017).
Similarly, in the mid-seventeenth century, Rhode Island
required by governor’s order a lieutenant to go from house
to house “tak[ing] a precise and exact account of all the

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14 No. 23-1231
arm[]s, am[m]unition[,] and weapons … each person is
furnished with.” 2 R ECORDS OF THE C OLONY OF R HODE I SLAND
AND PROVIDENCE P LANTATIONS , IN NEW ENGLAND 196 (John
Russell Bartlett ed., Providence, R.I., A. Crawford Greene &
Brother 1857).
By the time the Second Amendment was ratified, it was
common practice for states to conduct musters to keep track
of firearms for militia purposes. See Robert H. Churchill, Gun
Regulation, the Police Power, and the Right to Keep Arms in Early
America: The Legal Context of the Second Amendment, 25 L. &
HIST. R EV. 139, 161 (2007). In the mid-eighteenth century,
South Carolina adopted a law authorizing its military offic-
ers to go door to door to view and inspect any arms and
ammunition with a penalty of three pounds for refusing
inspection or possessing noncompliant arms. An Act for the
Better Regulating the Militia of this Province, § 10 (1747),
reprinted in 9 THE S TATUTES AT LARGE OF S OUTH C AROLINA
app. at 647 (David J. McCord ed., Columbia, S.C., A.S.
Johnston 1841). New Jersey similarly required militia officers
to go door to door at militiamen’s homes three times a year
to report on the “[s]tate of [their] arms … and
[a]mmunition”; it separately required its militia to assemble
twice a year to likewise report the state of arms and ammu-
nition. An Act for the Regulating, Training, and Arraying of
the Militia, and for Providing More Effectually for the
Defence and Security of the State, ch. 242, §§ 13, 15 (1781),
reprinted in A CTS OF THE GENERAL A SSEMBLY OF THE S TATE OF
NEW-J ERSEY 169–70 (Trenton, Isaac Collins 1784).
Massachusetts similarly required an annual assembly to
“examin[e] and tak[e] an exact account of every man[’]s
arms and equipment[]” with a fine for militiamen who were

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No. 23-1231 15
absent. An Act for Regulating and Governing the Militia of
the Commonwealth of Massachusetts, ch. 14 (1793), reprinted
in A CTS AND LAWS OF THE C OMMONWEALTH OF
M ASSACHUSETTS 394–95 (Boston, Wright & Potter Printing
Co. 1895). The early Congress enacted a law requiring state
militia officers to report the “situation of the arms,
accoutrements, and ammunition of the several corps”; those
reports were collected and sent to the President of the
United States. Act of May 8, 1792, ch. 33, 1 Stat. 271, 273–74.
Meanwhile, our early regulatory tradition also required
the marking of firearms. For example, during the Revolu-
tionary War, George Washington required all military
equipment, including firearms, to be stamped with an
insignia to keep track of firearms and prevent theft.
E. WAYNE C ARP , TO S TARVE THE A RMY AT PLEASURE 67 (1984).
By the early 1800s, some states required gun barrels to be
proved and marked (and penalized obliterating the marks).
For example, an 1805 Massachusetts law established an
inspection process (called “proving”) for “all [m]usket
[b]arrels and [p]istol barrels” manufactured in the
Commonwealth and required inspectors to stamp compliant
firearms with their initials, the year of the inspection, and
the letters “P” and “M.” An Act to Provide for the Proof of
Fire Arms Manufactured Within this Commonwealth, ch. 81
(1805), reprinted in A CTS AND L AWS OF THE C OMMONWEALTH
OF M ASSACHUSETTS 111–12 (Boston, Wright & Potter Printing
Co. 1898). These markings were to be “so deeply impressed”
that they “[could] not be erased or disfigu[]red.” Id. at 112.
Anyone who manufactured or sold a firearm without having
it inspected and stamped (or “proved,” in the language of
the statute) was subject to a 10-dollar fine, and anyone who

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16 No. 23-1231
falsely forged or altered the stamp was subject to a fine of 20
to 50 dollars. Id. at 112–13.
Maine enacted a similar law in 1821, requiring “provers”
to “mark and number every barrel” in a “permanent man-
ner” and to provide a certificate attesting to the proof with
their initials and the date. 1821 Me. Laws 685. Anyone who
sold an unproved firearm was subject to a 10-dollar fine, and
anyone who falsely altered the stamp or mark on the certifi-
cate was subject to a fine of 20 to 100 dollars. Id. at 685–86.
These founding-era laws and practices show that mark-
ing, inventorying, or otherwise publicly tracking firearms is
part of our historical tradition of firearm regulation. Of
course, our modern system of firearm serialization is far
more sophisticated and comprehensive, but it fits comforta-
bly within this tradition. It follows that § 922(k), which
punishes the knowing possession of a deserialized firearm,
is likewise consistent with this tradition—in principle, if not
specifics. In Bruen’s framing, as refined by Rahimi, § 922(k) is
“relevantly similar” to founding-era regulations requiring
firearms to be inventoried, inspected, or marked to promote
militia readiness and permit public tracking of firearms.
Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).
Rahimi confirmed that a closer match to a historical pre-
cursor is not necessary. 602 U.S. at 691. The founding-era
laws establishing public inventory and inspection regimes
and rudimentary forms of firearm marking ensured that the
relevant governing authority could monitor and track
firearms within its jurisdiction, penalizing those who did not
comply. It’s true that some of the historical regulations were
linked to militia preservation and readiness. But “the Second
Amendment permits more than just those regulations iden-

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No. 23-1231 17
tical to ones that could be found in 1791. Holding otherwise
would be as mistaken as applying the protections of the
right only to muskets and sabers.” Rahimi, 602 U.S. at 691–92.
Accordingly, we hold that § 922(k) is compatible with the
Second Amendment.
In closing, we note that two of our sister circuits have
also upheld the validity of § 922(k) since Bruen, though their
reasoning differs from ours. The Second and Fourth Circuits
have rejected challenges to § 922(k) at step one of Bruen,
agreeing with the government’s position that possession of a
deserialized firearm is not covered by the Second
Amendment’s text. See United States v. Gomez, 159 F.4th 172,
177–78 (2d Cir. 2025); United States v. Price, 111 F.4th 392,
402–08 (4th Cir. 2024) (en banc). Though our analysis
diverges, our conclusion is the same.
A FFIRMED

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