What if it's not a lie? (courtesy myfoxphoenix.com)

CHARLESTON, West Virginia –-(Ammoland.com)- West Virginia Attorney General Patrick Morrisey announced that West Virginia and 25 other states and one territory have filed an amicus, or friend of the court, brief with the U.S. Supreme Court opposing a federal government attempt to prosecute legal gun owners who wish to sell a weapon to another person who can legally own and purchase firearms. “Our Office is proud to lead a bipartisan group of 27 states and territories in this brief to oppose the U.S. Department of Justice’s attempt to unilaterally create a federal restriction on firearm sales between law-abiding citizens,” Attorney General Morrisey said. “We believe that every legal gun owner in this state and nation should be interested in the outcome of this case.” The case . . .

Abramski v. United States of America, challenges whether federal law prohibits citizens who legally buy a firearm from a licensed dealer with the intention of then selling that gun to another private citizen who also may legally own and purchase firearms.

The Obama administration argues that the citizen who buys and then sells the gun is acting as a “straw purchaser,” which they claim is illegal under several federal statutes.

The States, however, argue that Congress has never passed a federal law that prohibits such purchases. At most, the laws relied on by the United States prohibit private citizens from selling guns to people who are prohibited from owning firearms, such as minors, convicted felons, or people who have been diagnosed as having mental illnesses. It is up to the States and their citizens to decide whether to implement additional regulations on private gun sales.

West Virginia is joined in this brief by attorneys general representing Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Guam, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming.

“This case is important to West Virginia citizens who wish to practice their Second Amendment rights and sell firearms to other legal West Virginia gun owners,” Morrisey said. “The State of West Virginia does not discourage private gun sales, but the Department of Justice wants to ensnare innocent West Virginian gun owners in a web of criminal laws if they try to sell their guns. This federal overreach is a blatant attempt to overstep state regulations and Congress in order to steer more gun sales to federally licensed dealers, who then make federal records of every transaction.”

The states’ amicus brief is in support of a former Roanoke, Va., police officer, Bruce Abramski, who purchased a gun in 2009 using a law enforcement discount and sold it to his elderly uncle, who lived in Pennsylvania. Both Abramski and his uncle could legally own firearms and made the transaction in accordance with Pennsylvania gun laws, including a background check of the purchaser. However, federal authorities prosecuted Abramski on the grounds that he made false statements on the gun purchase form.

In January 2013, the U.S. Court of Appeals for the Fourth Circuit upheld Abramski’s conviction, saying that such “straw purchases” are illegal under federal law. In October, the Supreme Court agreed to review the conviction.

“Our Office is very concerned about the federal government’s targeting of law-abiding gun buyers,” Morrisey said. “The federal government is attempting to circumvent Congress and set aside state regulations that don’t prevent private gun sales, and instead make sure there is a federal record of every gun bought or sold in the United States. While no one wants guns to end up in the hands of a potential or real criminal, the administration’s interpretation oversteps the law and could make criminals out of innocent citizens.”

Oral arguments are scheduled for Jan. 22, 2014, with a decision to come by the end of the court’s session in June.

To read the amicus brief, go to http://www.wvago.gov/pdf/12-1493tsacWestVirginia%20Abramski%20V%20US.pdf

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63 Responses to 28 States Fight ATF “Straw Purchase” Law

  1. Hope springs eternal, but they seem to be asking for a massive injection of common sense into gun laws and the way they are enforced, and I think that may be too much to ask.

    • I take his threats personally and I think other people do the same to the point where if they ran into this weasel they may feel that their life is in danger and act accordingly and take him out before he has a chance to follow through with his threats, There is NO question but what he is the ENEMY and should be watched very closely.

  2. I’m ashamed Pennsylvania is not on the list of states filing the brief. Must be because of our liberal Attorney General.

  3. Ya DJ9 that is too much to ask cause they are not common sense they are Constitutionally Illegal.Common sense to people with zero gun sense or experience.
    Maybe if the anti crowd would take time to learn about guns,which would require”common sense” ,they would have a clue ,ah but alas they have zero “common sense” and refuse instead choosing to stay uninformed and ignorant to ACTUAL FACTS not trumped up BS they made up! Like their 90 % bull crap ,completely fabricated.
    Take some time and read The Bill of Rights, The 2nd Amendment and The Constitution,while you are at it,look up The Firearms Owners Protection Act,Artice 18 ,Chapter 926a.I know too much trouble,so let’s just bitch about guns instead.Ya that makes more “common sense”.

  4. So when grandpa buys a gun for his grandson with the intension of giving it to him, that would be a straw purchase with intent to sell to a minor. If he waits till he’s old enough, that would still be a straw purchase since he didn’t intend to keep the gun for himself.

    What about my wife’s anniversary gift? My whole family is screwed.

    • I was wondering about that too. The gift thing. I have bought guns as gifts for my nephew, my ex, and my sister-in-law. So technically, I committed a crime?

    • It’s not a straw purchase if given with no compensation (i.e. a “gift”). That’s not what happened here… though that’s what he SHOULD have done.

      • Yup. “Get gramps, here’s a gun. Happy un-birthday, give my regards to Alice and the hatter.”

        “Hey thanks. By the way, here’s that $200 I owe you.”

    • Here’s the catch, gifts are specifically exempted by the ATF, but the moment the second person pays for any of it, that’s what they’re calling a straw purchase.

    • Couple of years ago, Dad wanted to get Mom a cheap 380 for Christmas.
      When he broached the idea to her, she gave it an emphatic no. When he wanted me to go to the gun store with him, she took me aside and said “no pistol for me”.

      When we got to the store, he was insistent on forcing a cheap 380 on her, I think it was a Hi-Point. When the guy at the counter found out it was a gift, he said “I can’t participate in a straw purchase now that you’ve told me the gun isn’t for you”. I went along with it, but couldn’t help wondering if the salesman was that ignorant, or if the management was that afraid of getting set up by the ATF (Reese style), or if he overheard me reminding Dad that Mom didn’t want a pistol.

      If Dad had been successful in buying Mom a pistol when she didn’t want it, she’d still be refusing to defend herself. Instead, after thinking about it for a couple more years, she asked him to take her pistol shopping this year and now owns a Ruger LCP.

    • Which, not what. Or even who. But not what.

      And I don’t think this is telling at all. California, e.g., filed an amicus brief all by itself (separate from the state under Texas that did so) in support of McDonald. Must be that California is very supportive of gun rights, right?

      Who knows why this or that AG or governor supports this or that policy.

      • Jerry Brown was the AG who wrote the amicus brief for California. He is not fully within the pro-2A camp, but has vetoed the most egregious of the bills passed by the legislature. The current AG, Kamala Harris, is solidly anti. She also has aspirations for the governor’s office, sad to say.

  5. As interpreted any gun you buy on a 4473 must remain with you forever. Yeah that’s not right nor the intent but we’ll use it to intimidate harrass and prosecute.

    • No, at the moment the gun is transferred the answer must be yes, it is for the person filling out the 4473 paper work.
      Subsequent transfers must not be made to earn an income or as a regular course as a business. To purchase and sell is fine, but the ATF decides when too much selling is illegal. There are no bright line rules.
      State laws may vary.

      • Curious – what about collector/investors – i.e. I buy this rifle believing that it will appreciate in value over the next 5 to 10 years. Even on the day I bought it, I fully intend to sell it one day, but not for a goodly while.

  6. Vioshi and Sean, why do you include your gifting? The way I read this is that straw purchases are for those who purchase with the intent to resell to another individual who is legal to buy the gun. I didn’t see anything that was posted that would prohibit an outright gift.

    • Straw purchases do not have to involve selling. Transferring. A straw purchase is buying a gun with the intent to transfer it to an individual who could not legally acquire it themselves.

      If my buddy in Virginia finds a handgun that I want for a ridiculous discount, it is not a straw purchase if he buys it for me, provided that he transfers it to me through an FFL here in Florida. If I’m in Virginia, where I cannot buy a handgun because I’m not a resident, and I say “Buy me that gun” and he does, and then hands it to me (with or without cash in exchange) once we get outside the store, that is a straw purchase, because he purchased it with the intent to transfer it to someone who could not legally purchase it.

      I’m honestly not sure how gifts work. If he decided, unbeknownst to me, to buy a handgun for me for Christmas, in Virginia (c’mon, Mike, hook me up), and then brings it with him when he drives down here for Christmas, I’m pretty sure it still needs to go through an FFL here to be legal, because otherwise it’s a transfer across state lines. Someone correct me if I’m wrong.

      • No, it’s not just about transfer. In fact if you look at the instructions on the form that he supposedly lied on, you’ll see that it states that gifting a weapon (no compensation) is fine and the person handing cash to the shop is the actual buyer (and can mark “yes” on that box). The problem is when you say you are the actual buyer but then accept some form of compensation (presumably within an undetermined amount of time?). They need quite a paper trail to actually prosecute, and they probably had it because they were searching for information regarding the bank robbery in this case.

        • The cop’s problem in this case is that his uncle sent him the money with which to buy the gun That is the easy answer. However, there have been arrests in LA and Sacramento of cops who are using their discounts to not only flip guns, but to flip “off roster” firearms to non-LEOs.. [technically, a sale LEO to a citizen in a PTP transfer is legal for off-roster guns, but the government wants to shut down this pipeline.]

        • But if you bought it and then handed it to a disqualified individual, wouldn’t you still be breaking the law, because you didn’t buy it for you?

          Hmm… the 4473 does say “on behalf of another person,” it doesn’t make any distinction about qualifiers or not. So it’s worded such that any later sale could be construed as a violation. It comes down to intent, I suppose, and intent is difficult to prove. The guy in the case listed in the post above bought it with the intent to resell, so he’s in violation. But he’s in violation of a stupid rule, because clearly the intent of a rule like that is to stop the transfer to a disqualified individual.

          Christ, what a mess.

        • Unless somebody (foolishly) admitted to such facts, by what means other than circumstantial could it be proven that the money deposited into the nephew’s account and received from the uncle was in fact intended for the purchase of the pistol?

          Beside the point, really, the whole business strikes me as a bogus attempt to prevent private sales of firearms when no such law exists on the books. The problem with writing laws and/or regulations is that some slick lawyer somewhere will figure out a way to subvert the intent. This is why a contract for a simple business transaction always contains 2 extra pages of legal mumbo jumbo unrelated to the actual deal.

          Look what they have managed to do to the Constitution.

        • Well, I believe in this particular case the dumbass uncle wrote “GLOCK” in the memo line of the check he sent Abramski. So not so circumstantial. But your point stands, if he had paid in cash, and they had kept their mouths shut about it, there wouldn’t be enough evidence to prosecute.

      • “Transferring. A straw purchase is buying a gun with the intent to transfer it to an individual who could not legally acquire it themselves.”

        No. Straw purchase is when the person filling out the 4473 is not the actual transferee.

        The ATF has made exceptions for gifts. That exception could be rescinded at a whim.

        • This is the correct formulation. The form–not the law mind you, but the form you sign under penalty of perjury, asks if you are the intended transferee of the gun. If you say yes, but are not the actual purchaser, it is a straw purchase–or just plain perjury, no matter what the law says. And of course the ATF refuses to change the form, creating a trap for the unwary.

      • It can get confusing taking into account gifts and state lines.

        Let’s say I want to purchase my 82 year old disabled widowed mother a handgun for personal protection as a Christmas gift being she lives alone in a neighborhood that’s not what it ounce was 40 years ago when the home was purchased. We don’t reside in the same state and I purchase the handgun in my home state and take it across state lines to give it to her as a gift.
        Is that legal or would the transfer have to be done via an FFL being it is a gift and crosses state lines?

        Now add this into the mix. I have two siblings that agreed to share the cost of the purchase of the handgun and ammo equally so it’s a gift from all of us instead of just me alone and I receive equal compensation from both my siblings.
        Am I or are we breaking any state or federal laws or not?
        I would really like to know because this is not a hypothetical situation.

        • Illegal interstate transfer. You could, according to the ATF, buy the gun in your state and take it to an ffl near your mom so the 4472 could be filled out for the transfer.
          Or, you could ship it to a ffl where your mom resides using a common carrier and follow the common carriers rules, which probably means next day air.

        • Naughty. I figure since you’re like the anti-Santa, that your requirements are the inverse of his.

  7. Perhaps a retired LEO will do us all a favor by reversing an idiotic precedent. The fact that the transfer of a firearm between to law abiding individuals becomes a crime is idiotic. Gun grabbers love this stuff. Oops your a criminal – can’t have a gun now because you didn’t intend to keep it forever. Ridiculous.

  8. WOW, I didn’t even know there was an issue with this, I could have been screwed and tattooed with my gun flipping this passed year!!

  9. I don’t support the concept of straw purchasing one bit, but did anyone else notice it’s ok for them (“gunwalking” Fast and Furious) and not for us?

    Hmmmm….

  10. Well did he “lie” on the paper work? If he did, as stupid as it is, it’s his fault due to ignorance. You CAN buy for someone else as long as the purchaser indicates that it is a gift. Either way it is as far from a straw purchase as the typical ar-15 is from a machine gun. Simply put, it is NOT one.

    It doesn’t change how silly it is to have to declare the purpose of purchase.

    • There is no where on the 4473 form to “indicate” if the firearm is to be gifted.
      The question is a simple yes/no, which basically asks if the gun is for the person filling out the form.

  11. I love seeing Idaho on that list. Good for them.

    Maybe .gov should do something useful like, say, fix their POS healthcare website, end the war on drugs, and end their silly anti-gun crusade that will amount to nothing.

    • Me, too. It’s nice to know who your friends are and who’s down for the struggle. In our case, TX AG Greg Abbott is also running for Governor, so this case could get even more publicity here in Texas.

      Have to admit, I’m perplexed by this case. It just strikes me as so much chicken s$%! nonsense, since neither man is a prohibited possessor. It seems like they’re prosecuting over a poorly worded form, as opposed to an actual crime. I could see the logic, not agree with it, but at least see it, if they were going after him as an unlicensed dealer. Money is changing hands, albeit at no profit, but it does at least superficially resemble a commercial transaction.

      Maybe they could go after him as for fraud, as the terms of the discount program probably stipulate that firearms purchased under it are not intended for resale. I know that factory direct purchases under NRA Instructor discount programs are made on the honor system that they are genuinely for training purposes and not intended for resale.

      Even such circumstances are a stretch and gross waste of resources. Have we run out of real criminals to prosecute?

  12. “…While no one wants guns to end up in the hands of a potential or real criminal, ”

    So the ‘potential’ of crime is now enough to get the Law involved?

    • It is with regard to “drunk driving” and “possession w/ intent to sell”, so why not with guns? Pre-crime is already a reality. Thought crime is coming soon to a theater (of operations) near you.

  13. who purchased a gun in 2009 using a law enforcement discount and sold it to his elderly uncle

    No, he did not “sell it to his uncle.” If Abramski bought the gun with his own money and gave it or sold it to his uncle through an FFL (or two, as he did in this case), the G would have no case. Instead, the uncle gave the money to Abramski who then bought a gun for his uncle.

    What Abramski did by using money from a third party to buy a gun for the same third party was a classic straw purchase. EXCEPT — and this is the heart of Abramski’s defense — both Abramski and the uncle were fully qualified purchasers under federal and state law and both cleared background checks at their respective FFLs.

    The G insists that lying in Abramski’s response to question 11a on the 4473 — which Abramski certainly did — is a crime in and of itself. I think that position is idiotic since the purpose of the 4473 is to clear purchasers and provide a record for government gun confiscation. Both of those ends were met in this case, since both Abramski’s purchase and the subsequent sale from Abramski to his uncle were done at FFLs with full recordkeeping.

    However, two courts have already disagreed with me and there’s a good chance that a third will follow suit.

  14. If they are determined to go after people that lie on 4473s, what about using the resources to prosecute people that lie on 4473 about being eligible to purchase? These people are almost never prosecuted, and that would seem to be a bigger issue in a sane world.

  15. One of these states that filed the petition against the federal law, Kansas, just had a KKK member buy a gun through a straw dealer (a friend went through the background check for him) and he used that gun to kill 3 people at a Jewish Community Center. The straw buyer thought this man was legally able to buy guns and had no idea of his criminal intent with them. I don’t give a shit about you people losing your right to “buy gifts for each other.” I care about lives lost. Stop being dumbasses and go buy the gun legally for yourself.

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