SCOTUS Swings Against Gun Owners
It seems the most powerful justice on the Supreme Court of the United States today isn't Chief Justice John Roberts, it's Justice Anthony Kennedy. With Kennedy's vote in hand, Justices Sandra Sotomeyer, Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan issued a majority opinion that the federal ban on gun purchases for another person - even if that person is legally allowed to own a gun - is illegal.
The 5-4 ruling went against a former Virginia police officer who bought a pistol with the intention of transferring it to a relative in Pennsylvania. That relative was not prohibited from purchasing a handgun. The decision to make the purchase, it seems, was based on the fact the now-straw purchaser Bruce James Abramski, Jr. bought a Glock 19 handgun in Collinsville, Virginia using a police discount.
Later, he transferred that pistol to his uncle in Easton, Pennsylvania. In the Virginia purchase, Abramski signed the Form 4473 saying that he was the "actual buyer" of the gun, despite the fact he was actually buying the gun for his uncle using his police discount
When Abramski was arrested for something entirely different, officials then charged him with making false statements about the purchase of the gun.
The federal district rejected his argument that he was not a straw purchaser because his uncle was eligible to buy firearms. The Fourth U.S. Circuit Court of Appeals then affirmed that decision and the case was appealed to the SCOTUS. Now, it seems, that decision is firmly on the side of the administration and contrary to the position taken by the NRA and others.
THe NRA and other pro-gun groups had argued that the government wrongly interpreted the law and had, in fact, improperly expanded the scope of gun regulations. Their position is that the goal of the 4473 was simple: to prevent guns from falling into the hands of convicted felons and others barred from owning firearms, not to prevent transferral of firearms between citizens with no disqualification from gun ownership.
Twenty-six states also submitted briefs supporting that position. Nine states and the District of Columbia filed briefs supporting the administration position.
The minority dissent, written by Justice Antonin Scalia, argues 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. Chief Justice Roberts, and Justices Samuel Alito and Clarence Thomas joined that position.
In contrast, the administration argued that accepting Adamski's defense would impair law enforcement officials trying to trace firearms involved in crimes while keeping them away from ineligible potential purchasers.
It seems Justice Kennedy agreed with that position.
As the "swing" voter, Kennedy is the one person it appears can take the Court in the direction he feels it should go. With the remainder of the Justices divided evenly across liberal/conservative tendencies, Kennedy's particular disposition on an issue seems to be the one with the potential to most frequently commit what should be a crime, but isn't: legislating from the bench.
The announcement of the ruling [June 16] is already being trumpeted as a "sign of a change of opinion in America" regarding the rights of gun by anti-gun groups. As you can imagine, pro-gun groups aren't happy with the ruling, calling it everything from wrong-headed to a major setback for legal firearms owners.
In examiner.com, gun rights reporter Dave Workman quotes constitutional scholar and Second Amendment expert Nelson Lund of the George Mason School of Law: "Five members of the Supreme Court have decided to make it a federal crime for a lawful gun owner to buy a firearm for another lawful gun owner. No federal statute says any such thing."
"The Justices are once again legislating from the bench, which violates the Constitution, and enacting a retroactive criminal law, whiich is even worse."
Source: www.examiner.com/article/scotus-ruling-does-kagan-opinion-smack-of-gun-r...
Workman also observes that the "spirited" dissent from Scalia points out the fact that, using the majority opinion, being asked your favorite color on a 4473 and then saying "blue" when you actually mean "green" would be a "false response" - a federal crime.
Another question about the rigidity of the form concerns the question of recreational usage of marijuana - legal in Washington and Colorado- answering the question about the use of controlled substances in the negative -in the belief that you had some sort of loophole due to state law- would also constitute a false response -and serious trouble.
In her majority opinion, Justice Kagan says the "twin goals of this comprehensive scheme (4473s) is to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes....no part of that scheme would work if the statute turned a blind eye to straw purchases- if, in other words, the law addressed not the substance of a transaction, but only empty formalities."
That's a solid sounding argument, until you take into consideration the fact that criminals are seldom known to fill out a Form 4473. And the worst abusers of the straw purchase were known to the federal authorities at the time they were purchasing guns for illicit purposes. They were allowed to make the purchases under the now-infamous gunwalking disasters created by the ATF.
Republished from The Outdoor Wire.
Additional Information:
On Monday, [June 16], the U.S. Supreme Court ruled in a case involving a Virginia man who could legally purchase a firearm and did so for an uncle from Pennsylvania. Even though the Pennsylvania man who ultimately bought the gun was not legally prohibited from owning a firearm and passed a background check, the Court, in a 5-4 decision, said the transfer violated federal “straw purchase” law.
The ruling has resulted in confusion among federal firearm licensees (FFLs), particularly relating to gift purchases of firearms.
NSSF has asked the Bureau of Alcohol, Tobacco, Firearms and Explosives to provide clarification on the Supreme Court’s decision for its firearms retailer members. As soon as ATF responds, NSSF will provide the information to all FFLs.
Meanwhile, it is our understanding that the Supreme Court ruling does not make it illegal for a consumer to purchase firearms as gifts. As expressly noted in the instructions on the Form 4473 for Section 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 (e.g., redeeming the firearm from pawn/retrieving it from 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 [emphasis supplied].
In this case (Abramski v. United States), the Court ruled in effect that the Virginia man, a former police officer purchasing the firearm at a discounted price, was acting as agent for the true buyer—his uncle. By declaring he was the “actual buyer” on the Form 4473, the Virginia man violated straw purchase law, because in effect he was acting as an agent for his uncle who had provided the funds for the purchase.
NSSF advises retailers wanting an official clarification on how the decision will affect their business to call their ATF field office and ask for a response in writing.
On the matter of purchasing a firearm as a gift, ATF recommends firearms retailers use a gift certificate. This way the person receiving the gift can redeem the gift certificate with the retailer and get exactly what he or she wants, and there is no question about who is the “actual buyer of the firearm” and whether the person can lawfully possess a firearm.
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