“Congress didn’t use terms like ‘true buyer’ or ‘true purchaser’ or ‘actual buyer’ because they are not concerned about the ultimate recipients of firearms or what happens to a gun after it leaves the gun store.” – Richard Deitz arguing before the Supreme Court, Supreme Court takes a shot at ‘straw’ purchases [at usatoday.com]

73 Responses to Quote of the Day: Making His Case Edition

  1. That’s been my contention for awhile. The language of the question specifically uses “the buyer”. So even if I am buying a new gun for a birthday present for my wife (who is also NOT a prohibited person & a CC holder), _I_ am “THE BUYER”.

    • Another over-educated legal shyster arguing before a bunch of political appointees and STILL they dance around the real issue: The law, as written, ipso fact, prima facie, and all that other BS Latin crap they like to sling around, is UNCONSTITUTIONAL, per the Second Amendment “…SHALL NOT BE INFRINGED!” [EMPHASIS MINE] I would BOLD it and increase the font size if I knew how to use html.

      Why in the HELL are they so damned frightened of just coming out and admitting this? It’s not like they have to cultivate any more political favors.

    • In the case of a gift, the ATF acknowledges that you are the buyer, not your wife. The same goes for raffles. The case before SCOTUS involves the buyer receiving money from the recipient, so it’s a bit more nuanced.

  2. This gave me a deep belly laugh….

    “That was the compromise — they would do something that’s utterly meaningless.”

    Because THAT’S never happened before.

  3. “Abramski didn’t violate the law because his uncle was licensed to own guns.”
    Um…you have to be licensed to own guns in PA?

    WOW the subtle spin here really illustrates the gap between the pro-freedom “Everything is legal unless specifically designated illegal” mindset and the totalitarian “Everything not specifically sanctioned is illegal” types.

    I’m pretty sure that if you tried to get USA Today to understand that being a Legal Gun Owner does not mean “has, or needs to have, a license granted by the State” their collective heads would explode.

    • most of these reporters/authors have grown up and been educated in places such as the blue northeast, where nothing is legal unless licensed by the “authority” – so yeah, they do think in those terms, and they are perfectly OK with that approach to governance.

      i.e. “nothing about licensing in the constitution – not an infringement!”

      • Uhhh, try again. Don’t lump Maine, upstate NY, Vermont, New Hampshire, and Western MA in with NYC. Painting every New Englander as a Statist is as obtuse as the Brady campaign describing MSRs.

        • Vermont is mostly blue AFAIK (weren’t they invaded by socialist-leaning types in the 70s?), although they are pretty good about firearms. I’d like to see New Hampshire and Maine join Vermont and become “constitutional carry” states … it’d be a nice “FU” to the rest of New England.

          The rest of NYS should seceed from NYC … form the state of “Hudson” (or whatever) and repeal as many stupid laws as they can. Perhaps western MA could do the same.

  4. “If the court accepts the gun lobby argument that federal law allows for straw purchases of guns, the felons, domestic abusers and the dangerously mentally ill will be able to easily circumvent the Brady background check system to obtain guns from licensed dealers”

    I’m pretty sure that law is already easily circumvented by just ignoring it and making the straw purchases anyway…

    • I believe, by definition, intentionally buying and transferring a gun to a non-prohibited person is not a straw purchase. Eitherway, the pro gun ruling would not allow straw purchases, as it is still illegal to sell/transfer a gun to a prohibited person.

        • I think counsel was also trying to make the point that the specific provision in the law that he was charged under was not created with the intention of stopping straw purchasers. Rather it was created to give law enforcement a “starting point” a trace on a firearm. They would then have to investigate by other means to further trace the firearm. Additionally, other legislation is in place at the federal level that prohibits “straw purchasers” for prohibited individuals. However the ATF decided to try and work that into the 4473 which the legislators had not intended them to do. INAL, but that was what I took from reading the oral arguments.

      • The twist in this story is that the defendant did not buy a gun and then give it to his uncle;. Rather, he used his uncle’s money to buy a gun for the uncle. Thus, as far as the ATF was concerned, the uncle was the “buyer” and defendant lied on the 4473 when he said that he was the purchaser. Defendant, a police officer, was able to purchase the gun at a significant discount that was not available to the uncle if the uncle had purchased the gun directly.

        • I should add one other relevant detail. Unlike the “usual” straw purchase, defendant didn’t just turn around and give the gun to his uncle. Rather, he did a FTF transfer in Pa. that required uncle to pass a background check. Because there was no true straw purchase, which the ATF conceded, defendant was being prosecuted SOLELY for perjury on the 4473 form.

    • “If the court accepts the gun lobby argument that federal law allows for straw purchases of guns, the felons, domestic abusers and the dangerously mentally ill will be able to easily circumvent the Brady background check system to obtain guns from licensed dealers”

      Joe, this is exactly the attitude and mindset that allows legislators and the courts, all the way up to SCOTUS, to keep shitting on the Second Amendment. The 2A very clearly states, unambiguously and in no uncertain or obscure terms, the federal government has absolutely no authority to pass ANY legislation that will, shall, can or even MIGHT infringe on the right of the people to keep and bear arms. In any other legal proceeding this entire issue would be consider MOOT an that point alone.

      Following that line of reasoning the entire concept of a government sanctioned FFL should not even exist. Add to that the FACT that every criminal who wants a gun will get a gun, by whatever means he can and at whatever the going price the market will bear. Every one of those guns, currently, began its public career going over the counter of an FFL. How in the world does allowing an unconstitutional law specifically infringing on our natural, civil and Constitutionally protected right to keep and bear arms, accomplish anything other than pissing away our liberties in the vain hope that criminals will somehow, magically, stop getting and using guns?

      Whether the Bad Guy walks into the LGS and buys retail over the counter, or clubs you and your wife to death some night and takes it from your safe, he WILL get a gun. And quite frankly, I fear a government tyranny walking all over my natural rights and ignoring the Constitution much more than I do the potential to run into a criminal with a legally purchase firearm.

  5. Congress routinely charges the Executive branch with broad mandates, leaving the details of implementation to those specific agencies. The proof? Look up how many times the word “reasonable” pops up in the statutes. We see that with health and safety laws in particular, where Congress mandates that OSHA, EPA or FDA set “reasonable” limits on pollution levels, length and frequency of worker break periods, drug testing requirements, and so forth.

    I don’t know how the text of the original background check law reads. However, it does authorize the Executive branch to carry it out, which includes form 4473. That form does indeed specify that the person at the counter attest that they are the “actual buyer”, which, as a federal regulation, carries the force of law. And here we are.

    So that’s a weak argument. A stronger argument would be to focus on Congressional intent regarding prohibited possessors; neither of whom men in this case was a prohibited possessor. Otherwise, purchasing a firearm and providing it, to anyone who in ANY way, shape or form provides something in return (even just a hug), could constitute a straw purchase. Congress never intended that. Indeed, had they intended anything so Draconian, they would have been explicit in their meaning.

    • ‘Reasonable’ has traditionally meant whatever a jury of your peers finds reasonable. Unfortunately, the bureaucrats have found a way around that barrier by making sure you are bankrupt long before your case ever sees a jury.

    • They key issue here I think is intent, which has a clear legal meaning. Straw purchasing implies that your intent was to deceive the seller or obscure the final destination of the firearm. That was not the case here. Two people, both legally able to purchase a firearm, engaged in a secondary transaction, and that’s it. If the secondary transaction had involved a prohibited person, and this fact was known to the original buyer, then this would indeed be a straw purchase, because the intent is to obscure the final destination of the firearm to facilitate a criminal act. There was no facilitation here.

      I have to say, I am often disappointed by the arguments I hear being put before the supreme court. They so often fail to use solid logic.

  6. When it comes to the constitution the justices need to examine the intent of the authors because it is very hard to change the constitution. But laws should be enforced as written. The court can simply send it back to Congress and say, ‘fix this.’ As long as felons are prohibited from possessing firearm it should be a crime to supply a felon with one, but I don’t see the harm in buying a gun for someone who isn’t prohibited. Not that minding your own business and not harming anyone else has ever kept the government off your back before.

    • It would be nice if the politicians were forced to push a bill that would make buying a gun for your mom or dad illegal. Something like that could really open up some eyes.
      “We actually WANTED to make it illegal for you to buy a gun for your mom or dad, but due to some oversight on our part we now need your vote to make it illegal to buy your mom or dad a gun. Derp!”

      • Hello! That’s exactly what they tried to pull last year in their gun control bill that flopped so hard. They were trying to outlaw the mere loan of a firearm to anyone without filing a 4473. And then they wondered why people got so pissed. What rock have you been under for the past year?

        • Wellll, I sure overlooked that little bit of history, didn’t I? On the bright side; I was right after all!

    • “Laws should be enforced as written.”

      This. Exactly this. If our elected representatives don’t possess the necessary understanding of the English language to adequately capture their intent in the text of a law that is their problem.

      • Unhappily, they keep making it OUR problem which is why they need to be reigned in. The system of checks and balances needs to get back into play.

      • I have to (grudgingly) admit that law enforcement officers really should enforce the laws as they are written. It would be extremely hazardous to give them too much lee-way in deciding on their own whether they should ignore or enforce particular laws passed to them through the legislative process. That said, if they think the laws they are being asked to enforce are unconstitutional, stupid, or illegal, they really need to go to another department or find a new line of work.

        On the other hand…It is the DUTY of each citizen to oppose unconstitutional laws to the greatest extent they can while at the same time working to have those laws repealed. IMO this includes civil disobedience in the action of simply not obeying the unconstitutional law – to the extent that you are willing or able, under the enforcement and penalty costs imposed upon you by the authorities.

  7. So, when I get a great deal on an internet gun sale, with full intention of selling it later, I’m not the “Actual Buyer?”

    • I believe that if you aren’t intending to use it yourself that would make you an unlicenced dealer. If you take it to the range once you’d be selling a used gun though.

      • So how about this…

        I find a great deal online for a gun that I have no desire to own, figuring I can make a buck.

        I buy the gun, never use it, and then immediately sell it via legitimate FFL transfer. Even with the $25 FFL fee (on my internet purchase AND my sale) I’m money ahead.

        Is that a “straw purchase”?

        • From a practical point of view, if you do that once or twice every 3 or 4 years, nobody is going to care. If you do this on a regular basis and make a nice profit, then you engaged in “unlicensed” business according to the ATF.

          There was a past article here on TTAG about a man who was simply a collector and would buy and sell at gun shows. He hardly made any money to be called a business and it would maybe pay for this table at various gun shows. The man was in his 80s I believe and retired so had a lot of time and this was his hobby. The ATF raided his home and it took his son who was a lawyer some 5yrs to clear through the mess and get his father his guns back.

          The ATF agents often have no filter for who the bad guy and who is simply doing something as a hobby. Thus, the expend countless amount of resources going after the wrong people. They have no problem busting the 80 year man but happy to let some outlaw biker gang whose main resource of employment is gun running go free to do their business.

        • The biker gang is more likely to shoot back. Their tac teams wouldn’t look cool anymore if they had dents in their armor plates….

      • According to ATF, an unlicensed dealer is someone “engaged in the business of selling firearms without an FFL.” Of course, they can make “engaged in business” mean whatever they want it to mean.

        The whole thing is silly. I know government would have us believe differently, but the “actual buyer” is the guy who actually “buys” it… regardless of whether or not he eventually (or immediately) sells it.

    • A straw purchase would be where some one gives you money to buy the gun for them, presumably because they are prohibited from doing so. You are a “straw man,” you look good and can pass the back ground checks or circumvent purchase limits.
      If you buy guns with intent to sell it, especially in quantity or a short amount of time, you are a dealer and need a license and then it’s no longer a private sale.

      • I can’t find it now (I looked a few minutes ago), but I made that statement a few months back, and several folks corrected me, some with citations. As far as obeying the law goes, the intent of the law may have been to stop prohibited persons from getting them, but the law as written makes no distinction about whether or not the second person could legally buy it themselves. If you’re buying it for someone else, with the intention of them paying you for it, it’s a straw purchase..

      • No, Matt, the PROBLEM is that these a$$hats are not willing to admit that the law itself is unconstitutional.

        The argument SHOULD be not that he did not violate the intent of the law, but that the law itself was null and void due to its infringement on his Second Amendment rights.

  8. That source article could have been written by the Bradys. Absolutely hideous. The Constitutional issue is whether the Executive branch can extend a law passed by the Legislature. I do like that someone out there in liberal land is worried about threats to those notable milestones of attacks on liberty such as the GCA. Let them squirm.

  9. The underlying, cultural “mindset” problem with this whole entire “straw purchase” argument is the assumption that ONLY government can make the decision about who “should” own a firearm (via the government run background check system, issued licenses, permits, etc).

    Hypothetical: Suppose I have a nephew that can meet all requirements to buy a firearm from a licensed dealer. He has done so. Now suppose I want to buy him a firearm for a gift.

    In essence, I “do” the background check by knowing that he has passed them. But, that’s not good enough.

    It is only deemed “good enough” if the background check is done by the government. If he legally could purchase and own the firearm on his own, what crime has truly been committed by his receiving it as a gift? Nothing has changed, except…

    The only thing different in these two situations is who controlled the purchase and the record keeping. It is purely a crime against the paperwork and that is all. We are inundated with such crimes in our daily lives and it is pure insanity.

    There is no victim here. There is, however, an underlying assumption that “We The People” cannot make good decisions and choices about transfer of ownership of firearms.

    And…NONE of this addresses the issue of stolen guns. So, who is this really meant to keep guns away from? It’s got slippery slope painted all over it, and it just seems so clear that outright banning is the ultimate goal.

  10. It’s my opinion that if the subject comes up, and both individuals involved are found to be not prohibited persons, then it should just be let go. I don’t know how you square that with “enforce the laws as written.”

    If I see a gun at a great deal that I know my buddy’s been thinking about getting, and I call him and ask if he wants it, and he says, “Buy it and I’ll pay you back,” that’s clearly against the rules as written.

    But what if I don’t bother to call him, I just buy it, knowing he’ll pay me back when I see him in a few months and give it to him? Still clearly against the rules?

    Now what if I just give it to him, and if he pays me, great, but if not, that’s fine too, because I know he’d do the same for me? Still against the rules?

    It’s all very confusing, and I think mens rea should be taken into account.

    • I strongly agree. I’ve been trying to keep abreast of this case for a while. The way this transaction was discovered was because the buyer/nephew was investigated by the feds because he was suspected of a bank robbery (as I recall, may have been a different crime). He was cleared of that completely but because of the FBI investigation, the facts – not disputed by the parties involved – ended up on the desk of a US Attorney, who then referred to ATF and pressed charges. I strongly suspect that this entire case rested on the interpretation and discretion on the part of the US Attorney involved that if the feds suspected the guy of something, he had to be guilty of something, so they were going to charge him regardless. Totally wrong. Completely stupid. But I’m sure it happens every day.

      My personal interpretation of that question on the 4473 is this: Of course I’m the actual buyer – I’m the one filling out this stupid form and paying for the gun and then leaving the store with it under my arm. Who else would I be?

      • “Of course I’m the actual buyer – I’m the one filling out this stupid form and paying for the gun and then leaving the store with it under my arm. Who else would I be?”

        Nice! Exactly right.

  11. The whole point of the law is to keep a prohibited person from using a non-prohibited person to buy a gun for them.

    But the way it’s written is, I think, intentionally ambiguous.

    That being said, our side is probably going to lose this one if this is all Richard Dietz has.

    • our side is probably going to lose this one if this is all Richard Dietz has.

      I could not disagree more. Dietz totally killed it. Besides, why would SCOTUS have taken this case if they didn’t want to reverse Abramski’s conviction?

      • I haven’t looked at the case too closely, which is why I wrote “if this is all Dietz has.” I admit my ignorance. You’re far better qualified than I.

    • “The whole point of the law is to keep a prohibited person from using a non-prohibited person to buy a gun for them.”

      The whole point of the law, Michael, is to add one more piece of unconstitutional federal legislation to the pile of government infringements on our 2A rights. The more such legislation that exists and that courts legitimize by actually hearing the case rather than throwing it out on Constitutional grounds, the stronger the government argument that “…shall not be infringed.” dos NOT mean “…shall not be regulated.”

      The entire point of the Second Amendment was that NO GOVERNMENT, even our own, can ultimately be trusted with our personal liberty. I believe the Founders’ concerns on this matter have been adequately proven by now.

  12. “The whole point of the law is to keep a prohibited person from using a non-prohibited person to buy a gun for them.”

    Right, but deeper down, it’s also that they assume we are ALL criminals that just want to circumvent the wonderful laws. They’d have their Utopia if only we did not poop on their corn flakes.

    I’ve probably just missed it, but what are the stats on the number of prohibited persons that have obtained their firearms by this method? Are there really that many law abiding gun owners / purchasers that are risking their “law abiding” status so as to become involved in violent crime in this fashion?

    This whole thing smacks of the under age kid standing in the parking lot with cash asking people to buy him beer. It’s just nuts…are people who know they are ‘prohibited’ really doing this?

    • I don’t know what the numbers are and I imagine it’s kind of hard to track. But yes, people do this. Some felons get relatives who benefit from the income of their lifestyle to buy them firearms.

      They also sometimes get gang members who aren’t felons to get their concealed weapons licenses so they can carry their guns for them.

      Where there’s a will, there’s a way.

      I agree with you, though. Ambiguously written laws are the tyrants’ best tools.

      • As he said, it’s hard to track. But anyone who’s spent any appreciable time in a gun shop near a “depressed area” has seen the couple come in, and the girl is doing the looking and talking while the guy is, to a greater or lesser degree, “directing” her attention. When I lived on the other side of town, I saw it quite regularly at the gun shop near my house.

        • So, you would testify Matt that the law doesn’t stop the purchases and when the gun is used in a crime, that is the time that the gun comes to the attention of law enforcement. For the criminal, I don’t know why a straw purchase violation would create a greater fear of prosecution than for a car jacking.

          But that’s not the point, is it.

        • And I would wager that guy, somehow ran afoul of the law and got flagged, but should not be prohibited from owning a firearm. He may not be the textbook definition of law abiding, but even using a straw man for the purchase assumes of level of legitimacy over a real criminal.

          People living in the “depressed” area who want a gun for nefarious purposes, know where to get them, and that’s not from or through an FFL, straw purchase or not.

          I wish I could find the story but years ago (90’s) maybe someone did an interview with a guy who was trying to help his community out. They were sitting in the diner in some roughneck neighborhood and were talking about gun violence and how easy it is to get a gun on the street.

          Literally he got up from the table, walked outside, and within 5 minutes was back at the table with a handgun.

          If you happen to know a drug dealer, I guarantee you can get a gun.

        • I saw an AR purchase go down like that at Academy, except the guy wasn’t even there. She’s at the store, he’s on the phone telling her what to tell the counter guy. She was literally staring at a wall of AR’s and asked “Do you sell AR-16’s [sic] here?”

          I asked the other counter guy if he was going to say anything. He replied that as long as she passed, it wasn’t his place to play ATF Agent.

  13. Actually, I suspect from working part time at a big box gun shop that prohibited persons obtain firearms often through straw purchases. I see it attempted (sometimes innocently ) at least 3-4 times a month. I can’t tell you how many times I’ve had someone get a Delay on NICS and their buddy offer to buy the gun. I’ve also had a case where someone got a denial and they came back with a buddy a few hours latter to buy, and then their father came by a day after, it does happen.

    I think were people get confused is a straw purchase is not a gift. It’s not illegal for you to purchase a gun with your own money as a gift, as long as you know your not buying for a prohibited person. But it is illegal for someone to give you the money for a purchase, in that case your not the “actual buyer”, the guy who gave you the money is, and that IS a straw purchase even if the person isn’t prohibited. This case takes it a step further, to me this isn’t a straw purchase (he didn’t lie on question A) as much as engaging on the business of firearm sales without an FFL. He was the actual buyer, but he was buying the gun for the purpose of reselling it. And in this case it was a prearranged agreement.

    Like others have posted if you do it once or twice a year turning some deal over into a profit, you can probably get away with it. But technically buying a firearm for the purpose of reselling without an FFL even for a loss is engaging in the business. This happened a lot during the recent Newtown fiasco, with people buying Carbon 15’s for $800 and trying to sell them (in some cases successfully) for $2000. I can guarantee you that the ATF watches for this kind of stuff and it is illegal.

  14. It seems like the simple fact that both men completed form 4473 invalidates the government’s concerns in this case that ‘straw purchases’ a) are used to transfer firearms to prohibited persons, or b) are used to hide the identity of the ultimate owner even if he/she isn’t prohibited, since neither of those conditions are present here.

    I can’t figure out how this even made it to the supreme court. Even with the verbal pre-arrangement, his uncle may have backed out, changed his mind, wanted a different gun, etc… so Abramski could not have truthfully answered the question in any other way at the time of his purchase.

  15. All this “prohibited person” claptrap is making me ill. The Right of the People to Keep and Bear Arms Shall Not Be Infringed.

    We need to stand firm! Shall not be infringed says shall not be infringed and means shall not be infringed. ANY infringement is unacceptable!

    Why are we letting them hook us into all that rhetoric, taking “just a little”or “common sense” steps down the slippery slope – if we give an inch, eventually they’ll take it all.

  16. The entire case comes diwn to who an “actual buyer” is. Federal statutes – 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 924(a)(1)(A) – appear to be the two big straw purchase provisions.

    18 U.S.C. § 922(a)(6) prohibits any person:

    [I]n connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition.

    18 U.S.C. § 924(a)(1)(A) imposes criminal penalties, such as fines and imprisonment, upon any person who:

    [K]nowingly makes any false statement or representation with respect to the information required by [federal firearms law] to be kept in the records of a person licensed under [federal firearms law] or in applying for any license or exemption or relief from disability under the provisions of [federal firearms law].

    That 4472 form, where you claim you’re the actual buyer, is a “written” statement covered under the first law and is also a required record under the second law. So who’s an actual buyer?

    If we distinguish between actual and straw, then an actual buyer must be someone who has a genuine stake in the overall transaction. Otherwise, they’re incidental and “straw.” So what stake does it take?

  17. I buy most of my guns online. 99% of the time I use my wifes debit card, and have the gun shipped “to” me to the FFL.
    My last two purchases the online shops sent “to” my wife. Because of this the FFL would not let me take the gun (with my wifes consent obviously) even though I was either doing the 4473 or use my CCW which negates me needing to do a 4473. Instead they absolutely mandated my wife fill out the 4473 and take ownership.
    Its absolutely ridiculous. Here in Las Vegas our background checks are $25 because they go thru our Nevada Hwy Patrol, so I had to waste $25 each transaction for my wife to fill out the 4473 when it was ultimately a firearm for me.
    The straw purchase rules are so F’ing stupid.

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