Whether its purpose is to shine a light on the untenability of the Supreme Court’s Bruen decision or it’s just another example of district court judges trying their best to apply the Supreme Court’s rejection of the means-end test when it comes to Second Amendment gun cases, Judge Joseph Goodwin was left in the odd position of having to address whether 18 U.S.C. § 922(k) is constitutional. As Mark Joseph Stern points out at Slate, this has become something of a cottage industry for district judges.

Thomas’ test has already wreaked havoc in the lower courts. One judge has struck down a Texas law that prohibits 18 to 20-year-olds from carrying a handgun outside the home. People under 21 are significantly more likely to commit gun homicides—but in Bruen, Thomas announced that courts may never consider the real-world, life-saving impact of gun safety laws when gauging their constitutionality. A different Texas judge invalidated a federal law barring individuals from purchasing a handgun while they’re under indictment, even for a violent felony offense. Just last week, another judge struck down New York’s ban on concealed carry in airports, train stations, domestic violence shelters, summer camps, the subway, and other “sensitive locations.” Now Goodwin, who sits in West Virginia, has joined the chorus of lower court judges who feel that Bruen obliges them to strike down longstanding, widely accepted firearm laws.

Whether you favor the outcome or not, and in many instances the outcomes reflect a dismantling of restrictions on guns that have been in place for generations and taken for granted as acceptable policy. But the issue before Judge Goodwin, raised in a case of a felon in possession of a handgun with an obliterated serial number, put the issue directly to the question of whether, under Bruen’s test, this criminal statute was unconstitutional. Judge Goodwin held that it was.

Assume, for example, that a law-abiding citizen purchases a firearm from a sporting goods store. At the time of the sale, that firearm complies with the commercial regulation that it bear a serial number. The law-abiding citizen takes the firearm home and removes the serial number. He has no ill intent and never takes any otherwise unlawful action with the firearm. Contrary to the Government’s argument that Section 922(k) does not amount to an “infringement” on the lawabiding citizen’s Second Amendment right, the practical application is that while the law-abiding citizen’s possession of the firearm was originally legal, it became illegal only because the serial number was removed. He could be prosecuted federally for his possession of it. That is the definition of an infringement on one’s right to possess a firearm.

Why would a law-abiding citizen go to the effort of removing a serial number? Beats me. People are strange.

Now, assume that the law-abiding citizen dies and leaves his gun collection to his law-abiding daughter. The daughter takes the firearms, the one with the removed serial number among them, to her home and displays them in her father’s memory. As it stands, Section 922(k) also makes her possession of the firearm illegal, despite the fact that it was legally purchased by her father and despite the fact that she was not the person who removed the serial number. These scenarios make clear that Section 922(k) is far more than the mere commercial regulation the Government claims it to be. Rather, it is a blatant prohibition on possession. The conduct prohibited by Section 922(k) falls squarely within the Second Amendment’s plain text.

The point isn’t that the hypo might be a bit out of the ordinary, but that it’s not beyond the logical extreme, making it a reasonable test. It could happen, as Judy Tenuta would say. The reasons for having serial numbers on guns are fairly clear, as they allow a gun used in a crime to be traced back to its last known purchaser, which assists police in solving crimes on occasion. On the other hand, they present almost no burden to the law-abiding gun owner. So serving a valuable and legitimate governmental purpose and imposing little burden on  the rights of the citizen, why wouldn’t this law be totally fine?

Having found that Section 922(k) does implicate conduct that is protected by the Second Amendment, the statute is presumptively unconstitutional unless the Government can show that “it is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct. at 2130. This analysis is constrained by the Supreme Court’s definition of “historical tradition” as the time of the founding and ratification of the Second Amendment in 1791. According to Bruen, “[h]istorical evidence that long predates [the ratification] . . . may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years.”

As Judge Goodwin goes on to find, there were no serial numbers on muskets. Indeed, serial numbers weren’t in wide use until 1968, and didn’t become a crime to possess a gun without a serial number until 1990. But can this be shoehorned into the safety valve of statutory fixes for “unprecedented” problems that the founders never anticipated at the time of passage?

Given this history, the “societal problem[s]” addressed by Section 922(k) appear to be crime, including crime involving stolen firearms, and assisting law enforcement in solving crime. It is difficult to imagine that this societal problem did not exist at the founding. While firearms then were not the same as firearms today, there certainly were gun crimes that might have been more easily investigated if firearms had to be identifiable by a serial number or other mark. The Government has presented no evidence, and the court is not aware of any, that any such requirement existed in 1791.

Much as many will applaud the stripping of restrictions from gun ownership and possession as an unwarranted infringement of their right to keep and bear arms, it’s critical to bear in mind that it’s not just the good guys (like you, natch) who are being freed of these restrictions, but the bad dudes who use guns to do grave harm to other people. Focusing solely on whether the outcome is what you would prefer for yourself misses the point that the same rationale is going to have an impact on guns in the hands of others for heinous purposes as well.