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A TALE OF TWO (UN)SERIAL NUMBERS

By Stephen P. Halbrook
Attorney at Law, Fairfax, VA

J. David Truby asks, “Where’s Walsh?” (SAR, January 2003) While his whereabouts may be unknown, he does live in the annals of legal history. Specifically, United States v. Donald J. Walsh, Jr. & Interrand Corp., 791 F.2d 811 (10th Cir. 1986), upheld convictions for possession of two silencers without serial numbers.

It seems that Walsh was traveling on Western Airlines from Washington, D.C., to a defense conference in Las Vegas, Nevada. He checked a rifle case (declared as a firearm) and a briefcase with no outside ID. The briefcase was found that evening by an airline representative at Salt Lake City as unclaimed baggage, was opened, and found to contain a firearms license, firearm registration forms, 2 HK pistols, and five suppressors, two of which were unserialized.

The next day, BATF was called and seized the items. Walsh telephoned the BATF agent from Las Vegas and explained that he had not had a chance to serialize the suppressors and planned to do so upon his arrival in Las Vegas with the tools he brought with him. BATF was not understanding, and Walsh was prosecuted and convicted.

The U.S. Court of Appeals upheld Walsh’s convictions. It held that BATF needed no warrant to open the case, because the airlines had already opened it and private parties are not subject to the Fourth Amendment. It rejected the argument that a manufacturer could possess an unserialized firearm after manufacture but before the close of the next business day, by regulation the deadline for reporting it to BATF, and held that “a manufacturer must place a serial number on a firearm prior to or immediately upon completion of the firearm.”

26 U.S.C. § 5842(a) requires that a manufacturer identify each firearm with a serial number, but it does not give a specific deadline. Section 5842(b) provides: “Any person who possesses a firearm, other than a destructive device, which does not bear the serial number and other information required by subsection (a) of this section shall identify the firearm with a serial number assigned by the Secretary and any other information the Secretary may by regulations prescribe.” The court rejected Walsh’s argument that “that the law afforded him a reasonable period of time to obtain a serial number” under this provision.

In this and in other cases, the courts have simply nullified § 5842(b), which at the very least should give some leeway to a firearm in the process of manufacture by an otherwise compliant licensed manufacturer. Ironically, between the passage of the 1986 machinegun ban and its effective date, BATF suddenly proclaimed it fraudulent to report a firearm as being manufactured too early in the production process (although it never said one could not put a number on any piece of metal). Normally, BATF has people prosecuted for reporting manufacture too late. Perhaps all of the trouble in this case could have been avoided, as “Walsh testified that the average time it took him to stamp a firearm with a serial number was ten or fifteen minutes.”

And what about such decisions that duties imposed by the Gun Control Act must be performed immediately and not later? After the Brady Act required that records of approved transfers under the National Instant Background Check System (NICS) records must be destroyed, Attorney General Janet Reno declared that she had a “reasonable” time to destroy the records, which she decided was six months. In challenging this interpretation, one of the cases this author cited was Walsh: what’s good for the goose is good for the gander. Two Clinton appointees (against a strong dissent) held that Reno could wait as long as she damned well pleased to destroy the records. The case is NRA v. Reno, 216 F.3d 122 (D.C. Cir. 2000).

It seems that laws are made to be obeyed by the people, not by the government.


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