Is it legal to possess a gun with no serial number in Minnesota? Our focus here will be on homemade firearms under Minnesota law. But we’ll touch on a few other privately made firearm (ghost gun) topics in passing.
Historically most guns have not had serial numbers. And today large numbers of gun in common use and possession have no serial number.
And it has not been a crime to possess a firearm without a serial number, as a general matter.
Minnesota Statute §609.667: Serial Number
Recently, some prosecutors have been charging people with a felony crime under Minn. Stat. §609.667 Felony Possess Firearm Without Serial Number:
Minnesota Statutes §609.667 FIREARMS; REMOVAL OR ALTERATION OF SERIAL NUMBER.
“Whoever commits any of the following acts may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both:
(1) obliterates, removes, changes, or alters the serial number or other identification of a firearm;
(2) receives or possesses a firearm, the serial number or other identification of which has been obliterated, removed, changed, or altered; or
(3) receives or possesses a firearm that is not identified by a serial number.
As used in this section, “serial number or other identification” means the serial number and other information required under United States Code, title 26, section 5842, for the identification of firearms.“
The first two subsections of the statute aim at conduct seen with stolen firearms. This conduct could be evidence of a stolen firearm.
The third subsection is confusing, including to some trained lawyers working as prosecutors in Minnesota. At first glance, subsection 3 appears to make possession of a gun without a serial number (“ghost gun”) a crime. But, constitutional principles of due process and basic fairness require that the law must provide fair notice.
This law is incomprehensible to most readers, and fails that test; making it appear unconstitutional on due process grounds, for vagueness.
But let’s move past that for now, and chase down the legal breadcrumbs deeply embedded in the statute.
Incorporated Federal Statutory Definition: NFA “Firearms”
The statute mentions “a firearm that is not identified by a serial number.”
Then it goes on to say “As used in this section, ‘serial number or other identification’ means the serial number and other information required under United States Code, title 26, section 5842, for the identification of firearms.”
When we look at 26 United States Code 5842 it says:
United States Code, title 26, section 5842
(a) Identification of firearms other than destructive devices
Each manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured, imported, or made by a serial number
The term “firearm” as used in Title 26 of the United States Code has a specific statutory definition. This is because the statute says that it does.
26 U.S. Code § 5845 – Definitions
For the purpose of this chapter [Title 26] —
(a) Firearm
“The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.
(e) Any other weapon
The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
The definition of “firearm” in Title 26 of the United States Code, describes what we commonly call NFA weapons. These are firearms subject to the National Firearms Act of 1934; such as machine guns, short barreled rifles, etc.
This is the definition that Minnesota Statutes §609.667 incorporates. So, the only “firearms” that statute attempts to criminalize are NFA firearms (not any privately made firearm or “ghost gun”).
Therefore, almost everyone facing this charge should ask a judge to dismiss (unless an NFA firearm.)
Second Amendment protection
Does the Second Amendment of the United States Constitution provide legal protection from criminal prosecution relating to firearm serial numbers? At this point we should note some of the types of serial number cases protected:
- obliterate, remove or alter serial number or other identification of a firearm
- no serial number ever on firearm
The Second Amendment to the United States Constitution states:
“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.”
We believe that that the plain text of the Second Amendment protects the conduct prohibited by Minn. Stat. §609.667, and that conduct was unregulated in 1791. And, we believe, under the U.S. Supreme Court’s holding in New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (US 2022), this statute is facially unconstitutional.
Historical analysis of Serial Numbers on Guns
Laws did not require serial numbers for firearms manufactured and imported until the Gun Control Act of 1968. But even in 1968 the law did not prohibit mere possession of a firearm with an altered serial number. Then in 1990, the Congress amended 18 U.S.C. §922 , in the 1990 Crime Control Act, to insert:
“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.”
But no similar requirement existed in 1791. At that time, people did not require or commonly use serial numbers on guns.
The U.S. Supreme Court has yet to decide the conflict in the federal appellate circuit courts. Therefore, we don’t know for sure how the U.S. Supreme Court will decide this question.
So, a defendant may wish to raise this issue in defense. But a prudent person would avoid the risk of prosecution, while it still exists.
Implications of a Gun Without a Serial Number
A person may reduce risk of criminal prosecution by staying away from possession of a firearm with no serial number. But what about people who possess privately made firearms? They might avoid police trouble under Minnesota Statute §609.667 (3) by placing a serial number on the firearm. This is not a “ghost gun.” Privately made firearms are a proud tradition of our people and our nation since its founding.
Additional Defenses: serial number cases
Other defenses can mean the accused is not-guilty. For example, a person is not-guilty of a crime requiring knowing possession of a gun, without evidence proving knowing possession.
Question?
Have a question about a Minnesota serial number gun charge? Call Attorney Thomas Gallagher at 612 333-1500 for some help.