BREAKING: U.S. Supreme Court Upholds “Straw Purchaser” Law Provisions

Screen Shot 2014-06-16 at 10.13.38 AM

“A divided Supreme Court sided with gun control groups and the Obama administration Monday,” news.yahoo.com reports, “ruling that the federal ban on ‘straw’ purchases of guns can be enforced even if the ultimate buyer is legally allowed to own a gun.” Click here to read the decision. “Writing for the majority, Justice Elena [“the Heller case in settled law”] Kagan said the federal government’s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers. Those provisions would mean little, she said, if a would-be gun buyer could evade them by simply getting another person to buy the gun a fill out the paperwork. In dissent . . .

Justice Antonin Scalia said the language of the law does not support making it a crime for one lawful gun owner to buy a gun for another lawful gun owner.

The Obama administration had argued that accepting Abramski’s defense would impair the ability of law enforcement officials to trace firearms involved in crimes and keep weapons away from people who are not eligible to buy them. The administration said that even if the purchase is made on behalf of someone eligible to buy a firearm, the purpose of the law is frustrated since Congress requires the gun dealers — not purchasers — to run federal background checks on people buying guns.

So even though the original intent and language of the law are clear, the re-interpretation of the law to suit current law enforcement thinking is OK because it’s a good idea. Huh. [h/t MS]

comments

  1. avatar DJ9 says:

    Basic info page here:

    http://www.scotusblog.com/case-files/cases/abramski-v-united-states/?wpmp_switcher=desktop

    Decision written by Kagan. Quick lay summary: dealer was cheated out of the possibility to check the background of the true purchaser by the straw buyer, and the dealer’s records (4473s) are now incorrect/incomplete because the straw buyer lied on the 4473.

    1. avatar Gene says:

      Didn’t SCOTUS also rule that it would be self incrimination if no was checked?

      1. avatar DJ9 says:

        I am unaware of such a ruling, but even if that was the case, the question would be moot.

        If “No” is checked, the dealer cannot legally transfer the firearm.

        1. avatar DonS says:

          I think Gene might be referring to HAYNES v. UNITED STATES, 390 U.S. 85. 5th Amendment is a defense to a charge of failure to register an NFA item or of possessing an unregistered NFA item, if such registration would require someone to incriminate himself.

          That is, prohibited persons do not have to obey the NFA, because forced obedience would violate 5A.

          I don’t think this applies to filling out 4473, because you can avoid self-incrimination by merely dropping the pen.

        2. avatar Gene says:

          That was it, DonS. Much appreciated. In retrospect, I guess thinking about the 5th in this kind of application was silly.

  2. avatar DisThunder says:

    What a silly thing to uphold.
    Remember kids, if you’re buying a gun you might sell to somebody else, be sure to buy it for yourself, and then subsequently change your mind once you get home. Because God forbid you buy something with the intention of selling it to another responsible adult.

    1. avatar DJ9 says:

      Or at least, if you’re a (former) cop who can buy Glocks at a discount, don’t take a check from your uncle that says “for Glock 19” on the memo line, and leave the deposit receipt laying around where it can be found during a search of your premises (done for other legal reasons).

      Strange that the majority opinion didn’t mention that the “real” buyer (the uncle) did go to a dealer for the final transfer, filling out a 4473, and rendering the face-to-face-ID-at-dealer point moot.

      1. avatar M J J says:

        Wait? What? Was it the same dealer?

        1. avatar DJ9 says:

          No, I think the uncle lived in another state.

          But when the defendant takes the gun to the second dealer for the transfer to the final buyer, it sure seems like they were making more than a reasonable effort to keep everything legal as far as the transfer(s). Glock is the only one who ended up with the short end of the stick, losing out on a full-price sale vs. a discount sale to a (former) cop.

        2. avatar Ralph says:

          @DJ9, the law was broken when Abramski lied on the 4473. Once broken, it can’t be unbroken. But the fact that he tried to do things correctly is why his punishment was a $500 fine.

        3. avatar Hannibal says:

          How does it effect his ability to buy guns now that he’s been convicted of a that charge?

    2. avatar murray says:

      silly doesnt cover this IMO, not much point in you guys having a written constitution is it is amended to make life convenient for Govt.

    3. avatar Ralph says:

      “if you’re buying a gun you might sell to somebody else”

      No, that’s not correct. If you’re buying a gun you intend to sell to somebody else, you just committed a crime.

      1. avatar Henry Bowman says:

        A crime? No.

        Illegal? Apparently, yes.

        1. avatar Mr. Pierogie says:

          What’s that line from Seinfeld…

          Jerry: But isn’t that illegal?
          Cramer: No!
          Jerry: But it’s against the law?
          Cramer: Well, yeah…

      2. avatar Mark N. says:

        I’m not sure that this is quite correct either. The problem arose because the cop did not buy the gun with his own money and then sell it to his uncle, rather, his uncle sent him the money and he used uncle’s money to buy the gun, a classic straw purchase.

        1. avatar Bob says:

          Actually, it appears he bought the gun with his own money, then deposited the uncle’s check afterward. Really a murky area… It’s legal to buy a gun for resale, but not if the buyer already has given you a check for it…..

        2. avatar DonS says:

          “Really a murky area”

          When he deposited or cashed the check is irrelevant. He was in receipt of a negotiable instrument that, in the “memo” area, indicated it was in consideration of a “Glock”. He lied on 4473 right in the middle of the transaction with his uncle (where “in the middle of” means “after receiving funds, before delivering goods”). And he admitted it.

        3. avatar twency says:

          IMO “classic straw purchase” is when a non-prohibited person buys a gun with the intent of then providing it to a prohibited person. This was not a classic straw purchase.

        4. avatar DonS says:

          Then it’s a good thing that Abramski wasn’t convicted of violating any “straw purchase” laws!

        5. avatar John in Ohio says:

          @twency: I agree. If the intent of the law was to prevent prohibited persons from possession then this ruling doesn’t make sense to me. If the intent of the law was the tracking and potential registration of gun owners then the ruling appears to me as being in line with that.

      3. avatar Dr. Kenneth Noisewater says:

        So how do they know I “intend” to buy a gun for someone else? What if I just buy a gun for myself, shoot it a couple of times, change my mind, then sell it to a friend or family member because I didn’t like it?

        1. avatar DonS says:

          In this case, determining intent requires something less than a department of pre-crime. All they have to do is find a check to you from your uncle, dated at least 2 days before you go buy the gun, with something like “Glock 19” in the memo area They get another tiny clue when they discover that you immediately transferred the purchased gun to the guy who wrote the check. Finally, intent is hinted at just a little bit more when you admit at least once that you lied on 4473 and planned all along to sell the gun to your uncle.

      4. avatar Matt in FL says:

        What if I know my buddy’s in the market for a certain gun, and I happen to find one at a great price, and I buy it for him, knowing he’ll pay me back? I’m not a prohibited person, and neither is he, but he does live in a different state. Would you call that a straw purchase?

    4. avatar SD3 says:

      Agreed. What a waste of friggin’ time. No real loss though, I guess. Kagan’s entire life has basically been a waste of time. Might as well waste the rest of it on similarly useless distractions.

    5. avatar Jandrews says:

      Yeah. This is idiocy and will do nothing to make enforcement of the law more effective. If that wasn’t bad enough by itself, there’s no reason to enforce the law in the first place…We’re talking about legal gun owners buying guns which will eventually be received by other legal gun owners through legal means.

      I think this just shows the internal bias of the left leaning justices to immediately consider any gun owner a “suspect” class that law enforcement needs to watch more than others.

      1. avatar DonS says:

        We’re talking about legal gun owners illegally buying guns which will eventually be received by other legal gun owners through legal means.

        FIFY.

        1. avatar Jandrews says:

          That’s how they’d like it to be, sure….but apparently only if the intent is to transfer. What if I decide to sell a week later?

          I’d love to know how prosecutors are going to prove these thought crimes in court.

        2. avatar DonS says:

          In cases like this one, it’s pretty easy: defendant has a check made out to him, dated before defendant’s visit to the gun store, with “Glock 19” in the memo area.

  3. avatar BillF says:

    So Ralphie’s Dad could be in deep doo-doo over that evasive Red Ryder transfer.

    1. avatar Robert Farago says:

      Especially in Australia.

      1. avatar B says:

        Not even Australia. Isn’t it considered a suppressed SBR in New Jersey?

        1. avatar Jus Bill says:

          Yup. And it’s illegal in some Liberal-owned Maryland counties as well. Cuz you could shoot your eye out.

        2. avatar Mr. Pierogie says:

          Yes, BB guns are considered firearms in NJ.

    2. avatar Wendy says:

      They’ll take back that Major Award.

      1. avatar Model 31 says:

        Well it does have this thing on the stock

  4. avatar IdahoPete says:

    “Accepting his nephew’s offer,Alvarez sent Abramski a check for $400 with “Glock 19 handgun” written on the memo line. …Abramski then deposited the $400 check in his bank account, transferred the gun to Alvarez, and got back a receipt. Federal agents found that receipt while executing a search warrant at Abramski’s home after he became a suspect in a different crime.”

    Add the following statement from the Court decision: “Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself. YOU ARE ALSO THE ACTUAL TRANSFEREE/BUYER IF YOU ARE LEGITIMATELY PURCHASING THE FIREARM AS A GIFT FOR A THIRD PARTY.”

    If nothing else, the pair of them are guilty of felonious stupidity.

    1. avatar Kyle in CT says:

      If stupidity were a felony we wouldn’t have a Congress.

      1. avatar IdahoPete says:

        You forget – Congress exempts themselves from the laws they pass.

    2. avatar neiowa says:

      What kind of idiot writes anything gun related in the memo field n a check?

      Uncle thought might not get his gat from the dirtbag nephew and the check would help with a lawsuit?

      1. avatar B says:

        Someone who believes he followed the law by going through 2 different FFL’s. This is completely backwards and goes against the intent of the law. They’ve made it a crime to buy a gun to sell it, even after going through all the FFL transfer BS. Absolute madness.

      2. avatar JoelT says:

        My sister has me buy her ammo for her since she works 50+ hours a week. I wince when she cuts me the check with “ammo” in the memo line. I think I’m going to tell her not to do that anymore. I ought to mention that everyone involved is old enough to purchase said ammo, and there are no state or local laws that forbid such a transaction.

    3. avatar Ralph says:

      If nothing else, the pair of them are guilty of felonious stupidity.

      That, and felonious tightwadness. They foolishly committed a crime to save a few bucks. So Abramski ended up paying a $500 fine, which was a lot more than the amount that his uncle saved. And he very conveniently documented everything for the G.

  5. avatar M J J says:

    Hm. So if Abramski’s uncle was at the gun store with him, and filled out the 4473 – so the right person was going through the background check – and Abramski paid for the gun, would that have been legal?

    Or, if his uncle bought it from him for, say, $1, would that have been legal, too?

    1. avatar M J J says:

      In other words, was there another way for his uncle to receive the gun, legally, without Abramski going through this mess?

      1. avatar Ralph says:

        was there another way for his uncle to receive the gun, legally, without Abramski going through this mess?

        Of course. We do it all the time. The uncle would have to order the gun himself, pay for it himself and had the out of state FFL transfer it to his local FFL.

        But if he did that, he would not have received that impressive LEO discount. Do you get it? These two guys went through these shenanigans to save a hundred bucks.

    2. avatar DJ9 says:

      In the dissenting opinion, Scalia mentions that the final transfer to the uncle took place at a federally licensed gun dealership”, which means that the final purchaser (the uncle, in this case) DID fill out the 4473 form and undergo a background check as required by law.

      All this was strangely absent in the majority opinion.

      EDIT: actually, in the situation posited in your original comment, it would have appeared that the UNCLE was committing the straw purchase, and therefor it would also have been illegal under the law. Buyer has to do the paperwork, and the one that pays is the buyer; can’t have one pay and the other one do the paperwork.

      1. avatar M J J says:

        Thanks. That answers my questions.

      2. avatar BDub says:

        It would appear that the defense didn’t get that point across, or the dissenting Justices simply ignored it to make their points.

        1. avatar B says:

          “Justices” ignoring the law to give the government more power? This has never happened before. /sarc

    3. avatar DJ9 says:

      And Abramski had to do the paperwork as the buyer, because he had to show his cop-buyer’s-preference-card to the dealer to get the Glock at such a good price (Law Enforcement discount program).

      1. avatar Ralph says:

        Exactly. These two guys tried to game the system in order to save a few bucks. Their hearts were pure, but their heads were empty.

        BTW, the “pure heart and empty head” doctrine is the reason Abramski got off lightly.

  6. avatar John Phelps says:

    How’s that going to work for gifts? A father buying a firearm of some type intended to give to his children, if they are older than 18 and don’t live at home, then the father will no longer possess the firearm. Assuming they are older than 18 and have no other reason that would prevent them from owning a firearm, then the child would be the owner.

    1. avatar Wendy says:

      I’m trying to parse the majority opinion, but I have to admit it’s not making much sense. When I have some more time I’ll try again. But the way I’m reading it, gifts could be construed as a straw purchase and hence illegal…

    2. avatar DJ9 says:

      There is an exception for firearms purchased as gifts, spelled out right on the 4473.

      Not an issue.

      1. avatar Doug says:

        Really DJ9, so with the fierce pace of gun control that this administration is on is there not a thought in your mind that Holder and Obama will now use the phone & Pen and state that the Supreme Court has spoken, straw purchases are truly illegal, we take this as meaning that any transfer of a firearm will be illegal unless the transfer occurs to the original purchaser. That being said, it is now illegal to transfer firearms from the original purchaser, so that said, when any American gun owners dies his firearms will automatically become property of the government since the law states it is illegal to transfer the ownership of a firearm. Any thought that they might take it that far? I have no doubts they will try. This is Feinstines wet dream.

        1. avatar B says:

          Seems the easy way is to just not use an FFL when legal. That was their mistake. Deal in cash, face to face, leave no trail saying “I bought this gun for my uncle in exchange for this check for monies.” Glocks aren’t under the GCA for transfers, long guns are. He could have just visited his uncle for a face to face transfer. What states were involved here?

        2. avatar DJ9 says:

          Doug, I don’t think I said or indicated that, although I understand and, in many cases, share your concern(s).

          However, if there was enough of an outcry in the past to get an exemption for a very common middle-America situation immortalized on the federal purchase form, eliminating that exemption and going back in time to prosecute those folks who utilized it would almost certainly set off a firestorm that could not be ignored.

          I believe the “mighty” pen and phone are likely to be utilized only where there is ambiguity and/or confusion, and in this area, there isn’t very much wiggle room, in my opinion. Again, though, I’m not a lawyer, nor do I play one on TV, so YMMV.

        3. avatar Kyle in CT says:

          His comment was directed specifically at the way this is treated currently, not how it may be changed in the future. As stated, the purchaser is considered the “buyer” in the case of a gift as per the current 4473 form.

        4. avatar Mark N. says:

          B: It was an interstate transfer. EVERY interstate transfer of a handgun MUST be processed through an FFL under applicable federal law. There is no exception for face to face transactions.

        5. “Feinstines wet dream.”

          Thank you for that immage…now I must die

      2. avatar JoshuaS says:

        Even California exempts gifts/transfers between parent-child, grandparent-grandchild and spouses (though that is because of common property in marriage law, transmutation or whatever its called) from its universal background check.

        If they tried to spin this ruling to prevent gifts, I don’t think it will fly. Maybe it would fly if they made that push in California, I don’t know. But when they passed the UBC law it didn’t fly here, which indicates to me it won’t fly in most other states either, except New York and New Jersey.

  7. avatar Nathanael says:

    A lawyer familiar with the case told me that in his/her opinion, the lawyer arguing the case did a very poor job, and might have cost us the case. Just one opinion, but I pass it along for what it’s worth.

    1. avatar Ralph says:

      I listened to all the oral arguments (the tapes are still on SCOTUSblog if you’re interested), and I read all the legal documents as well. I thought that Abramski’s lawyer completely out-argued the feds, but they were not the arguments that I would have made.

      But keep in mind that Abramski was playing from behind. He took a conditional guilty plea at the trial level. In other words, he said that he was guilty and paid a fine, but reserved the right to appeal. Had Abramski been looking at jail time, SCOTUS may have come to a different conclusion.

  8. avatar PeterC says:

    Sounds like another law that will frequently and happily be ignored.

  9. avatar EagleScout87 says:

    So is this Open Carry Texas’ fault? I need to update my “who’s to blame for gun control” scorecard.

    1. avatar 'liljoe says:

      silly you! It’s Bush’s fault! Always and forever!

      1. avatar Ralph says:

        This is all the fault of global warming and racism.

        1. avatar B says:

          I’m starting to feel fairly racist against black robes.

    2. avatar B-Dawg says:

      It’s the fault of the people (won’t name any names) who got us into the economic recession of 2008, which led directly to the Coronation of King Zero in January 2009.
      The Republicans were given TWO chances (in 2000 and again in 2004) to take us into a new era of limited government and respect for individual liberty. Instead they screwed it up and we ended up with what looks to be a long, sorry era in which the DemoRats will have full rein to have a field day with the Second Amendment (and the other 9 Amendments when they’re done with that.)
      Who’s to blame? Maybe ourselves.

  10. avatar chris says:

    My question what’s an legitimate gift for that matter what the hell is a illegitimate gift? Are there bastard gifts running around

    1. avatar DaveL says:

      I have to wonder: if my wife buys me a firearm as a gift, is that a ‘legitimate’ gift, even though the funds she uses to buy it come from our marital common assets, where I am effectively the sole income-earner?

      1. avatar Ralph says:

        Yes. A gift is a gift. The fact that the cash is marital property strengthens the “giftness” of the deal.

    2. avatar Ralph says:

      In place of the word “legitimate,” use “real.” In other words, you aren’t allowed to fake the gift or set up some scheme to get repaid.

      An under the table payment of cash or goods would make it an “illegitimate” gift.

      1. avatar Ralph says:

        It would also be non-legitimate if either the giftor or the giftee was a disqualified person. In other words, if you buy a gun to gift it to your son who is a felon, it’s not legitimate.

      2. avatar Kyle in CT says:

        Actually, per the dissenting opinion, even if one party buys a firearm with the intent to sell it to someone else, and does so immediately, that would still not be considered a straw purchase. The issue here is that Abramski was apparently acting as an “agent” of his uncle. That is to say, he was operating under the direction of his uncle. Had he bought the gun, then spoken to his uncle afterwords to “sell” it, that argument would be moot under the Governments own admission. The issue is that there was essentially an oral contract in place at the time Abramski purchased the gun.

        The real issue is that the law itself is overly vague, and inconsistently applied. Scalia is essentially trying to insist that, if Congress wants to make something illegal, put it in black and white, and make it illegal. Instead Congress has made a law that is (perhaps intentionally) opaque, which leaves far too much open to interpretation and abuse. He has on numerous occasions chastised the government for exactly this behavior, and I’m inclined to agree. Modern law is incredibly broad, and it is outrageous to suggest that an average person should be aware of all of its vagaries. And that is exactly the problem. Its an Ayn Rand-type problem, where everybody is guilty of something, because nobody can navigate the morass of constantly-changing rules and laws.

      3. avatar Pascal says:

        While you are obviously legally correct. good Luck finding the under the table payment. There is this whole thing called an underground economy and various markets of bartering and various degrees of “Black Markets” that the governments of no country including China are able to either identify or monitor.

        Not that TV is real life, but those guys on TV Show Sons of Anarchy over the years have found plenty of interesting way to run guns. And, the ATFE barely goes after people who failed NICS checks, you think they are sitting watching straw purchases unless there is a long defined recognizable pattern?

        Criminals have been doing this for years, this 4473 rule only applies to the law abiding. Laws assume that people with respect and follow them, criminals do not bother to consult laws before doing a crime.

    3. avatar Pascal says:

      From the back of a 4473 form

      Question ll.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it “m consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANS-FEREE/BUYER of the firearm and must answer “NO” to question 11a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer “YES” to question 11 a. However, you may not transfer a firearm to any
      person you know or have reasonable cause to believe is prohibited under 18 U.S.C. 922(g), (n), or (x).
      Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

  11. avatar DaveL says:

    the federal government’s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers.

    I’m sure she included a lengthy list of crimes solved using ATF firearm traces in her opinion, right?

    Right?

    1. avatar Roscoe says:

      Yes, that IS a very tenuous justification and the majority using it reflects on their lack of real world grasp of the issues – typical of those who would ignorantly vote to justify stricter controls where the underlying statute is vague and subject to abuse in it’s application.

  12. avatar Fionn MacCumhail says:

    The truly scary part of this decision is the approval of using the background check system as a gun registry.

    The idea that allowing one legal gun owner to resell to another legal gun owner would “impair the ability of law enforcement officials to trace firearms involved in crimes…” equates to a gun registry. That is supposed to be beyond the reach of a background check law which is limited to “keep weapons away from people who are not eligible to buy them.”

    1. avatar Jim R says:

      There’s been a registry every since there was a background check. FFLs have to keep a record of every firearm transfer, which must be produced on demand at any time.

      If you’re worried about a registration system, you’re a little late.

      1. avatar Fler says:

        this++

      2. avatar B says:

        Not to mention the NICS computer system itself apparently being incapable of deleting records by design. Its never gonna go away, since no politician is gonna argue to remove a “tool of law enforcement.” Just like the NSA database, those rights waved bye bye a long time ago. Its why we have to fight gun registration, if it officially happens it will never go away without a very literal fight.

        I’m hoping its just zombies taking down the power grid, but hey I’m an optimist.

      3. avatar Mark N. says:

        It’s not “registration,” My local LGS tells me so. In California, the CADOJ does all the background checks, and keeps an (electronic and searchable) version of the DROS–but this is not “registration”, says the DOJ. (Really. I don’t know what they call it, but they say it is not “registration.”)

  13. avatar ST says:

    The job of the judiciary is to uphold the will of the government.As such, this ruling is no surprise to me. Consider that next time a concealed carry case is available for cert.

    1. avatar Peter says:

      Um no

    2. avatar B says:

      All federal judges are appointed by the executive branch, right? With a 50% chance their party controls congress. Was that how the framers planned it? Cause it sounds bat sh*t crazy. Its like expecting the current ag to prosecute the president, or irs, or dhs, or va.

      1. avatar Ralph says:

        And yet, the Court has ruled against the government many times. So maybe not so crazy, huh?

  14. avatar M J J says:

    Gotcha, DJ9. Thanks, again.

  15. avatar Jonathan - Houston says:

    Justice Anthony “Look at me! I’m an attention whore who’s made a career out of casting my vote willy nilly so my insecure, no talent butt I can be thought of as a deep thinking, inscrutable swing vote” Kennedy strikes again.

    1. avatar Ralph says:

      Yeah, Kennedy is the swing Judge who gave us Heller and McDonald. What a bad guy he is!

      1. avatar Hannibal says:

        Heller was a strange, limited, and ultimately convoluted decision just to get that vote from Kennedy…

  16. avatar Jeff says:

    The Obama administration had argued that accepting Abramski’s defense would impair the ability of law enforcement officials to trace firearms involved in crimes and keep weapons away from people who are not eligible to buy them. The administration said that even if the purchase is made on behalf of someone eligible to buy a firearm, the purpose of the law is frustrated since Congress requires the gun dealers — not purchasers — to run federal background checks on people buying guns.

    So in other words the case was not decided on its merits, but on the impact that it could have on the government’s unconstitutional firearms regulation scheme.

    Yep that just about fits in with what I expect from SCOTUS today.

    1. avatar DJ9 says:

      Well, as much as I hate to be fair when it comes to this administration, they might have a point.

      I don’t have any idea of whether or not my uncles could pass a background check. Who knows what dark and sordid deeds they may have done in the distant past (sorry, guys; I know you’re clean)?

      However, as I mentioned above, in this particular case, the final transfer of the pistol to the uncle was done at a licensed dealer (I believe in another state), so in THIS case the final buyer DID (eventually) present himself for identification and to complete the proper paperwork. Which in my non-lawyer eyes, would seem to make all this moot, but hey, that’s probably why I’m not a lawyer.

      I do know, however, that the break in the chain of custody between the first dealer transfer to Abramski, and Abramski presenting the pistol to another dealer for transfer to the uncle, would almost certainly screw-up any future reverse trace performed on this firearm by BATFE, unless Abramski told any investigating agents where the pistol went after it entered his possession (unlikely).

      Perhaps THAT is what the .GOV wants to prevent?

      And this “problem” for the .GOV will remain until they are allowed to computerize records of all previous sales to all dealers.

      1. avatar B says:

        His Uncle *DID* pass a background check. They went through 2 FFL’s, 1 for the nephew and 1 for the uncle’s state transfer. They ruled it illegal to buy a gun to sell (has anyone not bought a gun they didn’t need since it was a deal?) even if you go through an FFL. Insanity.

        1. avatar Ralph says:

          You’re missing the one point that everyone conceded, including Abramski, twice. The fact is that he lied on the 4473.

          His lawyers argued that the lie was not material because the uncle went to an FFL and completed the 4473. The Court disagreed, and held that the admitted lie was material.

          Here is the takeaway — you can’t “cure” the lie no matter what you do.

        2. avatar Mark N. says:

          No, that’s not true. Here, Abramski used his uncle’s money to buy the gun, making his uncle the actual purchaser. If nephew had bought the gun with nephew’s money, there would have been no issue. By using his uncles money, nephew became the uncle’s agent–and a straw purchaser.

  17. avatar BDub says:

    So then what is the legal amount of time after a lawful purchase before I can give or sell a gun to another individual? This doesn’t clear up dick! It just makes it more likely that the law-abiding will still run afoul of the law.

    1. avatar Ralph says:

      The timing is irrelevant. If you buy a gun with the intention of selling it to another person — a week from now or a year from now — it wasn’t a lawful purchase. You broke the law when you lied on the 4473.

      The real question is “how can the G prove that it was a straw purchase if I hold the gun for X period of time.” Well, maybe the G can’t prove it.

      Unfortunately for Abramski, he documented his straw purchase. How smart of him! The G caught him dead to rights, which is why he pleaded guilty and paid the fine.

      1. avatar Pascal says:

        @Ralph, I believe you are wrong on this point. If you buy the gun with your money you are not acting as an agent. The case revolves around the uncle fronting him the money for the purchase.

        If you go in and purchase that POS R51 and find out when you get home that over exuberance allowed you to purchase a crap gun, but you know another sucker to which to unload it, nothing stops you from turning it around and selling it as long as you follow the laws to sell it.

        1. avatar Ralph says:

          You are the “actual buyer” ONLY if you are buying the firearm for yourself or for a legitimate gift. I don’t believe that the timing of the receipt of funds (by you from the person that you bought the gun for) will decide the case. It’s evidence for sure, but the deciding factor should be whether the original purchaser intended to buy the gun for another.

          It’s now unquestionable that buying a gun for another with the other’s money is illegal. In fact, it’s one of the examples of illegal activity shown on the 4473. Buying the gun for another with your own funds, expecting to be repaid, would be a loophole big enough to drive an MRAP straight through without scraping the sides. Sorry, but I just don’t see it.

        2. avatar Anon in CT says:

          It’s a question of Intent.

          Of course, absent mind-reading, intent can be tough to prove, without some extraneous evidence, like leaving a paper trail a mile wide. Which this idiot did.

    2. avatar Bob says:

      Actually, it appears if he had not accepted the uncle’s check until after he bought the gun from the dealer, then he could lawfully “sell” the gun to his uncle. As long as a person truthfully answers the 4473 question for that point in time, then the govt has no case.

      Anyone can buy a gun intending to resell it at a later time. Don’t think the govt. can tell us how long we have to keep the gun before we sell it to someone else (yet). So, “Damn, I got buyer’s remorse and sold it to someone 5 minutes later…..”.

      1. avatar Ralph says:

        “Intending to resell” the gun and buying it for a third party are not necessarily one and the same.

        If you buy a collector gun intending to resell it sometime down the line at a profit, or maybe buy an AR during the height of the panic intending to put the gun up for sale on Auctions Are Us, that’s not buying it for a third party.

        Abramski ADMITTED that he bought the gun for a third party. It wasn’t a gift. The advance payment was proof of the accusation — proof that Abramski couldn’t and didn’t refute.

        Whether he bought the gun with his own money and flipped it, or bought it with the uncle’s money, Abramski lied on the 4473.

        However, had he been paid by the uncle after the fact, the case would have been much harder to prove.

  18. avatar Accur81 says:

    What was that about expecting SCOTUS to respect gun rights?

  19. avatar Ralph says:

    Unfortunately, Abramski lied on the 4473. Nothing that he did afterward could change that, even though he did try. Which is why Abramski’s not in prison and won’t be. Abramski entered a conditional guilty plea and paid a $500 fine. There may also be a period of probation involved.

    I read this opinion to say that:

    A purchase by one party with the intention of gifting it to another is not a straw purchase.

    A purchase by one party with the intention of selling it to another is a straw purchase. The price doesn’t matter. The timing doesn’t matter. It was a straw purchase when the buyer lied on the 4473, and that lie can’t be fixed.

    IMO, if you buy a gun for investment with your own money, intending to hold it for appreciation and sell it to some person at an unknown future date, you are okay. You didn’t lie on the 4473.

    1. avatar Jared says:

      It wasn’t a straw purchase. A straw purchase is when one person buys a firearm to give to another person who is prohibited by law from possessing a firearm.

      1. avatar DJ9 says:

        That’s the way the BATFE defined a straw purchase, up until about 1995. Then it morphed into buying a gun for ANYONE else, except for a gift. There’s a reference to this change in policy in the majority opinion, so they were aware of it, and basically said it didn’t matter.

        1. avatar Ralph says:

          Your analysis is correct. This represents a change that BATF adopted almost 20 years ago.

      2. avatar Hoystory says:

        I agree with you. Most people here agree with you. Four gun-grabbing liberals and a quasi-conservative squish don’t agree with you, so you’re wrong.

        The good news is this is fixable by legislation. The court created a law they thing Congress should’ve passed. Congress can pass one explaining exactly what they meant.

        We’ll need to wait for a Republican president, but this can be fixed.

        1. avatar Ralph says:

          It certainly can be fixed, but I don’t think it will. Rolling back a regulation is like rolling back a bridge toll. It happens so rarely that it makes the evening news.

    2. avatar DJ9 says:

      Ralph, to your last line on buying for an investment, you might be okay on the straw purchase thing, but buying, then selling guns for a profit on a repeated basis would probably get you charged with “dealing in firearms without a license” in many areas.

      1. avatar Ralph says:

        Absolutely correct, but I was addressing federal and not state law. IN MA, for example, private sellers can sell four guns a year. If they sell more, they need a license. Private buyers have no such limits.

        For all I know, state laws might even prohibit all gifts or non-family gifts. I’m not aware of any such laws, but that doesn’t mean they aren’t out there.

      2. avatar Mark N. says:

        I think you a right, and I think that if you purchase without a particular person in mind to whom you intend to transfer, you are legal, as long as you don’t sell so man as to become a dealer. There are officers in LA and Sacramento who went into the business of selling “off roster” guns to private citizens who are now facing charges for acting as illegal gun dealers. The LA cops had access to special edition Kimber “L.A. SWAT” models at a discount that they bought and resold for a large premium. while the Sacramento deputies were simply selling off roster firearms that the hoi polio cannot purchase directly, and both sets exceeded the permissible number if sales.

        1. avatar Ralph says:

          Yes to the above.

          But some collecting circles are small. If I see a 1932 Whizbang in a store and know that Joe Whizbang III is the only collector of 1932 Whizbangs and expect that he will pay a lot of money for this one, I might buy the 1932 Whizbag expecting to flip it to Joe for a bundle. And that’s legal IMO.

          But if I call Joe on the phone from the FFL before I buy the gun and Joe and I cut a deal for him to buy the gun from me, I think I just broke the law.

        2. avatar DJ9 says:

          Ralph, I suspect some federal prosecutors might say you crossed the line even before the phone call; after all, you were buying it with the express purpose of reselling it, and to a specific person, too.

  20. avatar Soccerchainsaw says:

    Further evidence (as if we really needed any) that it’s best that we take care of these issues at the ballot box and not depend on the courts to “get it right”.

  21. avatar Peter says:

    Another law unconstitutionally re-written by the Supreme Court.

    1. avatar Ralph says:

      Actually, it was rewritten by the ATF and SCOTUS went along with the program. That’s just as bad as what you said, but not the same.

      If ATF still held to its pre-1995 position, SCOTUS would have gone along with that, too.

  22. avatar ErrantVenture11 says:

    Sigh…should have been an open and shut case.

    Transferring a firearm to someone who is prohibited is already a felony. So the straw purchase section in the law really is redundant. If you transfer (via gift or sale) a firearm to a prohibited person, you’ve committed a felony. Does it really matter if you bought that gun 10 minutes ago, 10 days ago, or 10 years ago? You’ve still effectively used your status as a non-prohibited person to provide a firearm to a prohibited person.

    But alas, if we only had one more law…that’s the mindset of the people who pass this excrement.

    1. avatar Col. Angus says:

      ………”one more law” to be ignored. Just like our CinC and AG do.

      1. avatar ErrantVenture11 says:

        I know plenty of people who ignore the federal law against interstate transfers when giving guns to family members. Son is in town to visit Father, Father gives or trades a gun or two with Son, Son returns home with his dangerous, illegal firearms and murders dozens.

        Oh wait, I messed up that last part. Son returns home with his firearms and stores them, carries them, and practices with them. Nobody is hurt. Ever.

        I suppose another narrative might be that Gangsta Jerk visits Kingpin Asshat across state lines to pick up a gun, and returns to his home state where he uses that weapon in a drive-by attack against his rival Deadbeat Douchebag, injuring Douchbag but also killing Douchebag’s child and Baby Momma. In which case the federal law is pointless, because when you’ve accepted the risk of punishment inherent to murder, you probably don’t give two $hits about paperwork violations.

    2. avatar Mark N. says:

      The uncle was not a prohibited person. The transfer to the uncle took place at an FFL, and a 4473 was filled out and a background check performed.

      1. avatar Ralph says:

        Abramski admitted that he lied on his 4473. That’s the case right there.

        1. avatar uncommon_sense says:

          So the case should have been about perjury or making a false statement, not straw purchasing.

        2. avatar Ralph says:

          The only way that Abramski was allowed to buy the Glock in the first place was because he lied on the 4473. If he answered truthfully, the dealer couldn’t sell him the gun.

          Abramski actually tried to do things legally, and I give credit for it. But so did the Feds. Abramski was fined $500. You would pay more for littering.

        3. avatar DonS says:

          So the case should have been about perjury or making a false statement, not straw purchasing.

          It was.

          Abramski was convicted for knowingly making false statements “with respect to anyfact material to the lawfulness of the sale” of a gun, 18 U. S. C.§922(a)(6), and for making a false statement “with respect to the information required . . . to be kept” in the gun dealer’s records, §924(a)(1)(A). The Fourth Circuit affirmed.

          18 USC 922(a) It shall be unlawful—
          (6)for any person in 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 under the provisions of this chapter;

          He was convicted for making a false statement.

  23. avatar SdubM45 says:

    Well you can’t win em all.

  24. avatar Robert W says:

    And once again, politics wins out over the judicial system. Yay checks and balances, woo! /sarc

  25. avatar dwb says:

    For all the hand wringing, seems to me this boils down to: Don’t buy a gun for someone else and lie about it on 4473. Is that a thing people think it’s really their right to do – buy a gun for someone else and lie about it on 4473, really? And, if you do decide to buy a gun for someone else and lie about it, don’t make the governments case really easy with receipts and a $400 check with “Glock” on it dated before the original purchase. Keep in mind said receipts were discovered when they searched his house for other crimes.

    I suspect this ruling will impact the average law abiding gun owner minimally.

    1. avatar Ralph says:

      @dwb, I agree.

      Don’t lie for the other guy — even if the other guy is a good guy and all you’re trying to do is game the LEO discount.

      And if you do lie for the other guy, don’t put it in writing, admit to it at the trial level and again at two appeals.

      1. avatar Anon in CT says:

        Morally, kudos for not lying in court too. His defense was that the law is unconstitutional, not that he didn’t do it. More honorable than Mr. “No Controlling Authority” Gore.

        Still, not so bright, but then even the Nazis got convicted by their own meticulous paperwork.

  26. avatar Paco says:

    Just another “law” criminalizing legal activity. Death by a thousand cuts for the 2nd Amendment, the PTB realized long ago it was best way to disarm public over long run.

    1. avatar DonS says:

      Except Abramski was not engaged in legal activity.

      From the decision:
      Alvarez sent Abramski a check for $400 with “Glock 19 handgun” written on the memo line. Two days later,Abramski went to Town Police Supply, a federally licensed firearms dealer, to make the purchase. There, he filled out Form 4473, falsely checking “Yes” in reply to Question 11.a.—that is, asserting he was the “actual transferee/buyer” when, according to the form’s clear definition, he was not. He also signed the requisite certification, acknowledging his understanding that a false answer to Question 11.a. is a federal crime.

      It’s right there in the instructions on 4473:
      ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for he firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to question 11.a.

      I understand that answering “yes” to question 11.a. if I am not the actual buyer is a crime punishable as a felony under Federal law

      Abramski exactly fit the role of Mr. Jones in the form’s example, yet he still answered “YES”. Nothing on the form or in Federal law provides an exception for “well, I’m buying it for my uncle and he’ll pass a background check when we transfer the firearm across state lines.” Nephew is guilty of a felony.

      Nephew should’ve given the gun to Uncle as a gift. Uncle should’ve sent Nephew a $400 check with “Happy Birthday!” on the memo line.

      1. avatar NJ2AZ says:

        Agreed. I had an old job where i would occasionally get paid under the table. If my boss wrote me a personal check, he didn’t put “WAGES” on the memo line…

  27. avatar PavePusher says:

    Example #1,938,247 why we need to stop inventing crimes.

  28. avatar Fabian B. says:

    “Kagan said the federal government’s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers.”

    a.k.a. it’s about registration, nothing else.

    1. avatar Ralph says:

      Always. It’s not about background checks. It’s about registration.

  29. avatar ValleyForge77 says:

    Great, can we have the gun control mob tout this as the great success they were looking for – and then move on, get back to their lives and stop bugging us?

    Nah, didn’t think so. They have no life to get back to.

    1. avatar John in Ohio says:

      They have no life to get back to.

      Without Liberty, neither do we.

  30. avatar Bob says:

    There’s another implication to the majority opinion…. If you read between the lines, it seems to me that they’re laying the groundwork for another ruling that would effectively require every gun sale to go through a dealer – to give the opportunity to run a background check for every sale – and force a dealer record of seller and buyer. It might seem to be a stretch now, but a liberal court might well decide that the “intent” of the law was so “…the federal government’s elaborate system of background checks and record-keeping requirements help law enforcement investigate crimes by tracing guns to their buyers…”. And they’ll decide that private sales are a “loophole”. I hope I’m wrong.

  31. avatar C says:

    And this is why i wasn’t bummed when scotus declined to take any more gun cases.

  32. avatar karlb says:

    I find it humorous that any discussion took place after the first time Ralph wrote the real issue at hand: Abramski lied on the 4473; he admitted he lied; he is lucky he got a 500 dollar fine.

    1. avatar DJ9 says:

      Remember, “near the top of the page” doesn’t necessarily equate to “happened early in the conversation” (check the date/time markers), and some folks could well have been responding to specific comments above or below a spot where Ralph had made a comment (or even during the time he was responding), and therefore, would not be aware of it.

      Then there are the folks who don’t read the entire comment list at all; that’s never going to go away…

  33. avatar Mark Lloyd says:

    Personally, I don’t care. I would never buy a gun for someone else anyway. If they can’t buy a gun themselves, tough shit. If you want to give one as a gift, get them a gift certificate or something.

    1. avatar DJ9 says:

      The way a kid’s eyes light-up on Christmas morning when they first see and carefully handle that long box under the tree, watching them unwrap it and slide the gleaming .22 out of the box, showing them how to assemble it, how it works, how to load it (out by grandpa’s barn or another safe place, later that day); well, handing them a gift certificate just doesn’t produce quite the same overall effect.

    2. avatar Ralph says:

      The gift certificate idea is great for adults and especially in situations that cross state lines, but won’t work if you want to get that pink Cricket for your 15 y.o. daughter. In that case, you’re going to have to buy the gun yourself and give it to her.

      1. avatar DonS says:

        Which, of course, is just fine – it’s a gift.

        Nephew’s problem in this case is that it was, obviously, never intended as a gift. When he completed 4473, not only had he previously arranged to purchase the firearm for his uncle, but he’d also received the funds for that transfer. He lied on 4473 right in the middle of the (documented) transaction with his uncle. And then he admitted it. Oops. A change of timing and different text in the check’s memo area makes this case nowhere near the slam-dunk that it was.

  34. avatar Mediocrates says:

    all your rightz belongz to us and our justifiable needz….

  35. avatar TheBroke1 says:

    In the mean time this is where the DHS has started to roll the ball!!
    https://m.facebook.com/story.php?story_fbid=792191770812850&id=100000661026305

  36. avatar John in Ohio says:

    So even though the original intent and language of the law are clear, the re-interpretation of the law to suit current law enforcement thinking is OK because it’s a good idea.

    They have already done that with the Second Amendment which is why this case was even possible at all. If government obeyed its own limit, shall not be infringed, then this wouldn’t have been an issue. As it stands, using the unenumerated power of Judicial Review the Supreme Court can re-interpret any part of the Constitution to suit government goals. There are no real guarantees that our government will protect individual rights anymore beyond a well regulated militia. It’s the fox guarding the hen house. Eventually, the fox will be fat and the hens will be no more.

    1. avatar scott says:

      amen

  37. avatar uncommon_sense says:

    No one committed any real crime in this case because there is no victim!!!

    There is/was no victim. There is/was no conspiracy or intent to harm anyone. Rather, the defendant’s “crime” was cashing a relative’s check and purchasing something for that relative — something that is legal for both parties to purchase and own. That must never be a crime, period.

    This whole thing stinks to high heaven. What this circus demonstrates is that our ruling class has gamed our entire criminal justice system against the working class. How much longer can our nation withstand this?

  38. avatar Dave357 says:

    Was this an NRA or a SAF lawsuit? Or neither?

  39. avatar DonS says:

    “We don’t need any more gun control laws! We just need to enforce the ones we have!”

    (Existing federal law enforced, violator confesses and is convicted.)

    “Hey! What the hell is the SCOTUS doing?!!?”

  40. avatar JAS says:

    I have another take on this:

    It was the gun manufacturer’s that pushed for 11.a). That way they made sure that those that got guns at a discount (LEOs) could not resell them to the general public :). Always follow the moneh.

  41. avatar GS650G says:

    So how long do we have to own a firearm before legally selling it to someone else?

    Ms Kagen, care to elaborate?

  42. avatar Marc says:

    Not being a lawyer, but…
    Even with this decision, and the current language on the 4473, barring any state laws that differ, i don’t see anything that prohibits buying a firearm, then -even the next day- selling it (to a non-prohibited person).
    The 4473 example has the payment occurring before the sale, so that doesn’t clarify it either.
    Basically, the person purchasing is purchasing it FOR THEMSELVES, regardless of future disposition.
    Since the possible reasons for purchasing it (including eventual resale) aren’t spelled out on the form, ANY lawful purpose (including future resale) seem to me to not violate the regulation.
    The form just says you are the purchaser and it is for you. Okay, so since money is fungible, the only real problem with this case isn’t that the money was there ahead of time, it was that the money was made non-fungible by the memo line of the check?
    After all, gifts are allowed as a specific alternate purpose, so if his uncle had simply given him the money as a gift, rather than tagging it as a de facto contract to deliver something, and then later he gave his uncle the gun as a gift, both the letter and spirit of the regulation appear intact.

    Same if it was a face to face sale for the second part, which seems to conflict with the (clear as mud) majority opinion of the purpose of the law in this.

  43. avatar scott says:

    Freedom is never more than one generation away from extinction.

Write a Comment

Your email address will not be published. Required fields are marked *

button to share on facebook
button to tweet
button to share via email