Industry News: V18N6
By Robert M. Hausman
Supreme Court Affirms Curb on Buying Guns for Third Party
The U.S. Supreme Court has ruled that federal law does not allow a person to buy a gun for someone else - even if both are legally eligible to own firearms. The 5-4 ruling on so-called straw purchasing came down in the case of Bruce James Abramski, Jr., who bought a Glock 19 handgun in Collinsville, Va., in 2009 and later transferred it to his uncle in Easton, Pa.
Federal officials brought charges against Abramski because he assured the Virginia dealer he was the actual buyer of the weapon, even though he had already agreed to buy the gun for his uncle.
The high court ruled that the federal background check law does apply to Abramski, rejecting Abramski’s argument that since both he and his uncle were legally allowed to own guns, the law shouldn’t have applied to him.
“We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw,” the court ruled.
Writing for the majority, Justice Elena 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 and fill out the paperwork. Kagan’s opinion was joined by Justice Anthony Kennedy, who is often considered the court’s swing vote, as well as liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
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. He was joined by the court’s other conservatives – Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
Abramski had been convicted for knowingly making false statements “with respect to any fact 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 court reasoned since the dealer could not have lawfully sold the gun had it known that Abramski was not the true buyer, the misstatement (by Abramski) was material to the lawfulness of the sale.
The question to be resolved in this case, was whether, as the ATF declares in Form 4473’s certification, those statutory provisions criminalize a false answer to Question 11. a. – that is, a customer’s statement that he is the “actual transferee/buyer,” purchasing a firearm for himself, when in fact he is a straw purchaser, buying the gun on someone else’s behalf.
The petitioner was Bruce Abramski, a former police officer who offered to buy a Glock 19 handgun for his uncle, Angel Alvarez. (Abramski thought he could get the gun at a discount by showing his old police identification, though the government contends that since he had been fired from his job two years earlier, he was no longer authorized to use that ID.)
Accepting his nephew’s offer, Alvarez sent Abramski a check for $400 with “Glock 19 handgun” written on the memo line. Two days later, Abramski went to a dealer to make the purchase. On the Form 4473 he falsely checked “Yes” in reply to Question 11.a. asserting he was the actual “transferee/buyer” when, according to the form’s clear definition, he was not. He also signed the certification acknowledging his understanding that a false answer to Question 11.a. is a federal crime. After clearing the background check, the dealer sold him the Glock. 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. A grand jury later indicted Abramski.
Abramski then moved to dismiss the charges by arguing that his misrepresentation on Question 11.a. was not “material to the lawfulness of the sale” under §922(a)(6) because Alvarez was legally eligible to own a gun. And he claimed that the false statement did not violate §924(a)(1)(A) because a buyer’s response to Question 11.a. is not “required ...to be kept in the records” of a gun dealer. The District Court denied those motions. Abramski then entered a conditional guilty plea, reserving his right to challenge the rulings. He was sentenced to five years probation.
The Court of Appeals for the Fourth Circuit affirmed the conviction. But it also noted that of the three courts to have addressed the issue, one agreed with Abramski that a misrepresentation on Question 11.a. is immaterial if “the true purchaser (here Alvarez) can lawfully purchase a firearm directly.” The U.S. Supreme Court decided to review the case principally to resolve the Circuit split about §922(a)(6).
The Supreme Court looked at Abramski’s original claim, that a false answer to Question 11.a. is immaterial if the true buyer is legally eligible to purchase a firearm. (The National Rifle Association and a group of 26 states joined Abramski as amici in making this argument).
Additionally, Abramski made a new and more ambitious argument, which he concedes no court has previously accepted – in that, he alleges that a false response to Question 11.a. is never material to a gun sale’s legality, whether or not the actual buyer is eligible to own a gun. (The NRA and the 26 states did not join Abramski on this argument).
On his first point, Abramski argued that the dealer could have sold him the gun even if he had truthfully answered Question 11.a. by disclosing that he was a straw buyer, because all federal firearms law cares about is whether the individual standing at the dealer’s counter meets the requirements to buy a gun. This argument is based on the federal regulation of licensed dealers’ transactions with “persons” or “transferees,” without specifically referencing straw purchasers. Dealers are prohibited, for example, from selling firearms to persons in certain categories, such as felons, the mentally ill, drug addicts, etc. Abramski thus argued that since Congress (when drafting the regulations) did not make mention of “straw purchasers” or “actual buyers,” it “is not illegal to buy a gun for someone else.”
In its opinion the court declared that Abramski’s reading would undermine and virtually repeal the federal gun law’s core provisions. Thus criminals could employ strawmen with impunity. The record-keeping provisions as well would serve little purpose if they did not reveal the real buyers’ of firearms.
The court also found that by concealing that Alvarez was the actual buyer, Abramski prevented the dealer from transacting with Alvarez face-to-face and thwarted application of the federal firearm’s law requirements. Alvarez however underwent a background check with a dealer in his home state.
Abramski noted that until 1995, the ATF took the view that a straw purchaser’s misrepresentation counted as material only if the true buyer could not legally possess a gun. The majority of the court disregarded this point, noting that only the voice of Congress mattered and nothing Congress did has supported Abramski’s view that straw purchasing for a non-prohibited person was legal.
In the dissent, Justice Scalia joined with chief justice Roberts, and justices Thomas and Alito to note that under §922(a)(6), it is a crime to make a “false...statement” to a licensed gun dealer about a “fact material to the lawfulness of” a firearms sale. While Abramski made a false statement when he claimed to be the gun’s “actual transferee/buyer” as Form 4473 defined that term, that false statement was not “material to the lawfulness of the sale” since the truth – that Abramski was buying the gun for his uncle with his uncle’s money – would not have made the sale unlawful.
The dissenters also wrote that no provision of the Gun Control Act prohibits a person who is eligible to possess firearms from buying a gun for another person who is eligible to possess firearms, even at the other’s request and with the other’s money.
The justices found the government’s contention that Abramski’s false statement was material to the lawfulness of the sale depends on a strained interpretation of provisions that mention the “person” to whom a dealer “sells” a gun. The government contended that Abramski’s uncle was the person the dealer sold the gun to and that Abramski prevented the dealer from running the background check on the real buyer, checking his ID, etc., though this was later done.
The dissenters found that the uncle was not the person who bought the gun, but that it was Abramski who fulfilled all federal requirements albeit providing a false answer to question 11.a. They note that a vendor sells an item of merchandise to the person who physically appears in his store, selects the item, pays for it, and takes possession.
The dissenters also rejected the heart of the majority’s argument in its claim that unless Abramski’s uncle is deemed the “person” to whom the gun was “sold,” and that the Gun Control Act’s identification, background-check and recordkeeping requirements would be “rendered meaningless” as an overstatement. They opined that the purpose of crime prevention might be served more effectively if the requirements at issue looked past the “man at the counter” to the person “getting the gun,” to ensure he is eligible to possess firearms.
The dissenting justices also listed scenarios in which the government regards the man at the counter as the “person” to whom the dealer “sells” the gun:
Guns Intended as Gifts. In the government’s view, an individual who buys a gun “with the intent of making a gift of the firearm to another person” is the gun’s “True Purchaser.” (ATF Federal Firearms Regulations Reference Guide 165 (2005). The government’s position makes no exception for situations where the gift is specifically requested by the recipient. So long as no money changes hands, and no agency relationship is formed, between gifter and giftee, the Act is concerned only with the man at the counter.
Guns Intended for Resale. Introducing money into the equation does not automatically change the outcome. The government admits that the man at the counter is the true purchaser even if he immediately sells the gun to someone else. And it appears the government’s position would be the same even if the man at the counter purchased the gun with the intent to sell it to a particular third party, so long as the two did not enter into a common – law agency relationship.
Guns Intended as Raffle Prizes. The government considers the man at the counter the true purchaser even if he is buying the gun “for the purpose of raffling it at an event” in which case he can provide his own information on Form 4473 and “transfer the firearm to the raffle winner without a Form 4473 being completed or a background check being conducted” on the winner. 2005 ATF Guide 195.
The government concession that the statute is operating appropriately in each of those scenarios should cause the majority to reevaluate its assumptions about the type and degree of regulation that the statute regards as ‘meaningful,’ the dissent stated.
What the just-listed scenarios described show is that the statute typically is concerned only with the man at the counter, even where that man is in a practical sense a “conduit” who will promptly transfer the gun to someone else, wrote the dissent.
Noting that compromises had to be made in the Gun Control Act’s provisions to enable it to pass, the dissenters surmised “perhaps those whose votes were needed for passage of the statute wanted a lawful purchaser to be able to use an agent.”
The dissent next turned its attention to ATF, noting that for decades, “even ATF itself did not read the statute to criminalize conduct like Abramski’s. After Congress passed the Act in 1968, ATF’s initial position was that the Act did not prohibit the sale of a gun to an eligible buyer acting on behalf of a third party (even an ineligible one). (See Hearings Before the Subcommittee To Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., pt. 1, 118 (1975).
“A few years later, ATF modified its position and asserted that the Act did not “prohibit a dealer from making a sale to a person who is actually purchasing the firearm for another person” unless the other person was “prohibited from receiving or possessing a firearm,” in which case the dealer could be guilty of “unlawfully aiding the prohibited person’s own violation.” (ATF Industry Circular 79-10 1979, in (Your Guide to) Federal Firearms Regulation 1988-89 (1988) p. 78. The agency appears not to have adopted its current position until the early 1990’s. See U.S. v. Polk, 118 F. 3d 286, 295, n.7 (CA5 1997).“
Thus, the ATF read and interpreted the Gun Control Act in a manner consistent with Abramski’s argument for a period of about 25 years, it was noted. “It is especially contrary to sound practice to give this criminal statute a meaning that the government itself rejected for years,” wrote the dissenters.
On another point, the dissenters note that the list of information required to be kept in a dealer’s records does not include whether the transferee is buying the gun for an eligible third party. The majority argued that since federal regulations requires dealers to retain Form 4473’s, any false answer on that form, even one that is not enumerated in the regulations (such as Question 11.a.) “pertains to information a dealer is statutorily required to maintain.”
Thus in the majority’s view, if the bureaucrats responsible for creating Form 4473 decided to ask the buyer’s favorite color, a false response would be a federal crime!
The statute punishes misstatements “with respect to information required to be kept,” not with respect to “information contained in forms required to be kept.” Because neither the Act nor any regulation requires a dealer to keep a record of whether a customer is purchasing a gun for himself or for an eligible third party, that question had no place on Form 4473-any more than would the question whether the customer was purchasing the gun as a gift for a particular individual and, if so, who that individual was, the dissenters note.
Note on Abramski Case
Though not mentioned in the preceding article, the Abramski case originated when Abramski bought a handgun in Virginia, in 2009 on behalf of his uncle using his uncle’s money and later transferred it to him in Pennsylvania through a firearms retailer after a background check of the uncle. Thus, Abramski did not just “give” the gun to his uncle, but sent it to a dealer in the uncle’s home state where it was transferred by the dealer after a background check.
SHOT Show to be at Sands Through 2020
NSSF and Sands Expo and Convention Center have extended their agreement so that the SHOT Show will be presented at the Sands Expo through 2020.
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He may be reached at: FirearmsB@aol.com.
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