Abramski v U.S. Supreme Court Decision (Straw Purchase case)

If the gun is intended to be a gift, and she is the intended giver, then she is the actual purchaser since she can't give it is a gift without first purchasing it.

Click to expand...

Which is why simply allowing two people to jointly file a 4473 would resolve all this nonsense (if both parties of the "straw purchase" sign the form and bounce through NICS, why should anyone care?)

I'm still not understanding how the ATF can require that the end user deal through the FFL without asserting authority over private sales. Were the end user a prohibited person I can understand, but not if no crime was committed by the subsequent transfer.

I think this was an example of the ATF legislating by form (since they make up the whole 4473 themselves) and the court not being suitably informed that the only reason a "lie" was made on the form in the first place was because the form exceeded "practical realities" of a gun sale which may legally be done by one person on behalf of another.

--Just so long as there's no 4473 involved, is what they're saying. That to me suggests something amiss with the 4473 rather than the activity; that there is no provision for a gift or proxy (not "straw") transaction in the form when "practical realities" show there really needs to be.

Midwest, this whole business started when Abramski was (wrongfully, IIRC) pursued by police under suspicion of bank robbery, and this was obviously the best thing they found to pin on him in order to justify the search warrant on his house (they found a receipt of the transaction --a cautionary tale about insisting on those 'transaction records' for all your private sales, btw. The police likely wouldn't have been wise to the 'deceit' otherwise)

TCB

Arizona_Mike said:

4th sticky on the forum: http://www.thehighroad.org/showthread.php?t=699556

Mike

Click to expand...

But the question was about buying a gun, not liking, then selling in a short period...no mention of "profit." If one buys/sells frequently w/out "engaging in the business" (ie, profiting) it is perfectly legal.

Dr.Rob said:

I am more confused by this ruling than I should be.

Click to expand...

It's real simple. You can't make a legal purchase of a gun for someone else who can legally own the gun because if you do, the government won't be able to keep important information that Congress has said the government can't keep because otherwise, the law would not make any sense.

Make sense?

Jlr2267 said:

But the question was about buying a gun, not liking, then selling in a short period...no mention of "profit." If one buys/sells frequently w/out "engaging in the business" (ie, profiting) it is perfectly legal.

Click to expand...

Making a profit has nothing to do with "engaging in the business". There are plenty of businesses that make no money or lose money and fail each year, they were still businesses.

There is also no acceptable number of firearms or time period associated with being engaged in the business of selling firearms and that is how the ATF likes it. If you start buying and selling/trading more often that the ATF thinks a typical hobbyist should, you run the risk being charged with being engaged in the business of dealing in firearms without a license.

lilguy said:

So, you tell your wife to get you a mini 14 for Christmas. She goes and buys it and fills out the 4473 how? If she says the guns for her she's lying on a federal form. If she says no she can't by the gun?

Click to expand...

No, she is the actual purchaser, who intends on giving it as a gift. Perfectly legal and appropriate as long as she's not giving it to a known prohibited person.

So since selling a firearm to a prohibited person is already illegal and this case specifically applied to lawful gun owners, why do they need to know the identity of who ends up with the gun?

"No piece of information is more important under federal firearms law than the identity of a gun's purchaser — the person who acquires a gun as a result of a transaction with a licensed dealer," Kagan said.

Click to expand...

Edit: NICS Records are 'destroyed' within 24 hours and according to 18 USC 926(a) a registration of firearms is already illegal for the government to do. So why does it matter as long as both parties are lawful gun owners?

I like Scalia's comment.

But Scalia ridiculed the majority's assertion that under federal firearms laws, the uncle -- not Abramski — was the true purchaser of the gun. "If I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say that the store 'sells' the milk and eggs to me," he said.

Click to expand...

And for anyone who would say, 'what if you were a prohibited person and he was buying those eggs because you couldn't? Well there's already a law against that, this case was about two lawful owners.

The BG records are destroyed. The purchase record (4473 & bound book) is kept in accordance with law and we all know what is happening with them.

So this exact language on the form has been upheld as something that must be strictly adhered to. It is code not law as far as I can tell, could a friendly AG clean it up? It looks like all it would take is another box where the person filling the form swears the one getting the gun is not prohibited.

It looks like all it would take is another box where the person filling the form swears the one getting the gun is not prohibited.

Click to expand...

And what should the penalty be if it turns out the recipient to be prohibited after all?

What is the penalty now? Such a box would be an improvement that could possibly happen. Removing the line item completely would require an extremely friendly AG and I don't see that on the horizon.

No, she is the actual purchaser, who intends on giving it as a gift. Perfectly legal and appropriate as long as she's not giving it to a known prohibited person.

Click to expand...

What if she pays for it with a debit card that's linked to a joint account?

happygeek said:

What if she pays for it with a debit card that's linked to a joint account?

Click to expand...

As long as her name is on the account I don't see how that could be an issue.

akv3g4n said:

Making a profit has nothing to do with "engaging in the business". There are plenty of businesses that make no money or lose money and fail each year, they were still businesses.

There is also no acceptable number of firearms or time period associated with being engaged in the business of selling firearms and that is how the ATF likes it. If you start buying and selling/trading more often that the ATF thinks a typical hobbyist should, you run the risk being charged with being engaged in the business of dealing in firearms without a license.

Click to expand...

Profit has everything to do with "engaging in the business." The legal definitions below make it very clear that the buying/selling must be done with the intent of making money. Obviously, if one buys multiple guns and sells at a loss or breaks even, his activity does not meet the legal definition. Even profiting on sales is fine as long as the activity is not a regular activity with the intent of "livelihood and profit"

http://definitions.uslegal.com/e/engaged-in-the-business-firearms/

According to 18 USCS § 921 [Title 18. Crimes and Criminal Procedure; Part I. Crimes; Chapter 44. Firearms], engaged in the business means--

A. as applied to a manufacturer of firearms, a person who devotes time, attention, and labor to manufacturing firearms as a regular course of trade or business with the *principal objective of livelihood and profit* through the sale or distribution of the firearms manufactured;

B. as applied to a manufacturer of ammunition, a person who devotes time, attention, and labor to manufacturing ammunition as a regular course of trade or business with the *principal objective of livelihood and profit* through the sale or distribution of the ammunition manufactured;

C. as applied to a dealer in firearms, as defined in section 921(a)(11)(A) [18 USCS § 921(a)(11)A], a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the *principal objective of livelihood and profit* through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms;

D. as applied to a dealer in firearms, as defined in section 921(a)(11)B [18 USCS § 921(a)(11)B], a person who devotes time, attention, and labor to engaging in such activity as a regular course of trade or business with the *principal objective of livelihood and profit*, but such term shall not include a person who makes occasional repairs of firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms;

E. as applied to an importer of firearms, a person who devotes time, attention, and labor to importing firearms as a regular course of trade or business with the *principal objective of livelihood and profit* through the sale or distribution of the firearms imported; and

F. as applied to an importer of ammunition, a person who devotes time, attention, and labor to importing ammunition as a regular course of trade or business with the *principal objective of livelihood and profit* through the sale or distribution of the ammunition imported

I read the facts of the case. This is a case of falsification on a government form. Don't do that.
The moral of the story is that you do not (should not) collect money from someone for the purposes of purchasing a firearm for them.
This guys downfall is the record that was created my making a notation on the check he got from the uncle that stated the reason for the check. The reason was in effect: "here is $400 so you can buy me a Glock"
He would have avoided jail time if he purchased the gun with his own money. Then at a later moment in time, he could have transferred the gun to the uncle through the PA FFL and collected the money then. He would not be a felon if he handled it that way.

1. Don't take money from someone and go buy them a gun with that money.
2. Don't lie on the 4473 where it asks if you are the actual purchaser, when you are in fact not the actual purchaser.
3. If you are purchasing a firearm that is to be a gift, make sure you use your own money to purchase the firearm, not money that the "gift" recipient gave you.

1. Don't take money from someone and go buy them a gun with that money.
2. Don't lie on the 4473 where it asks if you are the actual purchaser, when you are in fact not the actual purchaser.

Click to expand...

#1 is not a crime under federal law.

#2 makes #1 impossible to accomplish without committing a crime (making a false statement a govt. form).

Form 4473 requires the commission of a crime in order to engage in an otherwise legal activity. Or, you can choose to avoid engaging in a legal activity in order to avoid committing a crime.

This is justified because it is important for the govt. to collect information that Congress has said by law the government may not collect.

Is this starting to make sense yet?

Dr.Rob said:

I am more confused by this ruling than I should be.

Click to expand...

As I understand the ruling, Nothing has changed. The SC has ruled that the ATF's interpretation of a Straw purchase that they have been using since the early 1990's is correct.

Kinda goes like this.

Buy a gun as a gift, no Straw.

Buy a gun to keep, no Straw.

Buy a gun to keep and later decide sell it, no Straw.

Buy a gun to sell, but you do not have an actual buyer at the time of purchase, No Straw.

Buy a gun for specific person with the intent to be reimbursed $$, Straw.

Buy a Gun for another person with the other persons $$, Straw.

Correct me if I am wrong, but wasn't Abramski'a argument that his deal with his Uncle was not a Straw because (A) they transferred the the pistol through and FFL and (B) it was not a Straw because neither one of these players were Prohibited Persons.
Didn't this ruling just clarify this prohibited Persons stuff, meaning that a Straw is a Straw no matter if the recipient of the firearm is a prohibited person or not.

Is this starting to make sense yet?

Click to expand...

What, that this is an issue with the 4473 that requires congressional attention (because God knows the ATF won't rectify this on their own)? Just be aware that there's a good chance we'll end up with universal checks if congress tip toes through gun-buying transaction law nowadays... But nothing ventured, nothing gained.

TCB

barnbwt said:

Just be aware that there's a good chance we'll end up with universal checks if congress tip toes through gun-buying transaction law nowadays..

Click to expand...

How do you come to this conclusion when this SC ruling basically changes Nothing. Everything today is as it was yesterday, the only difference I see is that the SC has agreed with the ATF's interpretation of a Straw, and interpretation they have been using for over 20 years.

So, you tell your wife to get you a mini 14 for Christmas. She goes and buys it and fills out the 4473 how? If she says the guns for her she's lying on a federal form. If she says no she can't by the gun?

Click to expand...

No, she is the actual purchaser, who intends on giving it as a gift. Perfectly legal and appropriate as long as she's not giving it to a known prohibited person.

Click to expand...

What if she pays for it with a debit card that's linked to a joint account?

Click to expand...

As long as her name is on the account I don't see how that could be an issue.

Click to expand...

I'm sure the guy in this case didn't think it'd be an issue either, seeing as how they both filled out 4473s and passed background checks.

As silly as this is getting, I ask because if your wife buys a gun using a debit card that's linked to a joint account, your paycheck is direct deposited into said account, and she's unemployed at the time ... would they consider that a straw purchase?

As silly as this is getting, I ask because if your wife buys a gun using a debit card that's linked to a joint account, your paycheck is direct deposited into said account, and she's unemployed at the time ... would they consider that a straw purchase?

Click to expand...

Is it in a community property state?

Judging by how they do divorces here, I'd assume WA is.

My LGS has decided the decision applies to gifts as well. If the person at the counter mentions it's a gift, the transaction stops. The recipient will need to come in to complete a 4473 to take possession of the gun.

happygeek said:

Judging by how they do divorces here, I'd assume WA is [community property].

Click to expand...

It is. (Map showing community property states)

"In a community property jurisdiction, most property acquired during the marriage (except for gifts from outside sources or inheritances)—the community, or communio bonorum—is owned jointly by both spouses and is divided upon divorce, annulment, or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property."

This raises the question: Does the existence of a 4473/NICS check for only one spouse point to such a contrary conclusion in the case of a firearm purchased from an FFL?

HexHead said:

My LGS has decided the decision applies to gifts as well. If the person at the counter mentions it's a gift, the transaction stops. The recipient will need to come in to complete a 4473 to take possession of the gun.

Click to expand...

Then the intelligence level of that LGS Dealer is low enough where he/she should not be allowed to hold an FFL, or sell firearms.