Legal Ownership and Straw Purchases: SCOTUS

[NickEllis]

For those who haven't been following, scotusblog has some pretty interesting reading on the topic and a fairly positive (for us) take on the oral arguments.


http://www.scotusblog.com/2014/01/argument-recap-when-compromise-is-the-problem/#more-204323

At times, the hearing actually bordered on the amusing — as, for example, when Justice Samuel A. Alito, Jr., conjured up the image of a “Mr. Straw” running a very busy gun-buying operation that showed how easy it was to get around the law. So, Alito said, Congress did something “utterly meaningless.”

Richard D. Dietz, a Winston-Salem, North Carolina, lawyer for an individual convicted of being a straw purchaser, did his best to try to undermine the very notion of straw purchasing, but appeared to have his best moments when confirming for the Justices the variety of situations in which guns might pass from hand to hand entirely outside the regulatory structure set up by Congress. “The law,” he said candidly, “may have holes in it.” He told Justice Elena Kagan, for example, that compromises in passing the law at issue had shown clearly that Congress did not want to intrude into the wide range of private sales of guns “between citizens.” The law was aimed at the first sale, Dietz argued, but not beyond it, and especially not when a gun is transferred from someone legally entitled to have it to someone else also eligible to be a gun owner.

The seeming lack of clarity in the law — and the concessions the government had had to make about what it did not outlaw — were continuing problems during the argument of the government’s lawyer, Assistant to the Solicitor General Joseph R. Palmore. It also turned out to be a problem for Palmore that the government’s gun-regulating agency, the Bureau of Alcohol, Tobacco and Firearms, had previously interpreted the law in much the same way as Dietz suggested it should be read now. Although Palmore said the interpretation had changed twenty years ago, that did not keep the Justices from bringing up the prior position several times.

His main argument was that, in trying to set up a system to monitor the movement of guns, to keep them from the wrong hands and to allow them to be traced after use in a crime, was that Congress had focused tightly on what gun dealers can do to identify the real buyers in the first instance . . . Perhaps the low moment for Palmore was when Chief Justice John G. Roberts, Jr., noted that the language in the law had been “fought over, tooth and nail” by the opposing sides in the gun control debate, and that the compromise which resulted simply had nothing to do with the idea of a “straw purchaser.” That, of course, was one of attorney Dietz’s main talking points.

 

[Field Tester]

A poll would be completely irrelevant. It doesn't matter what the members here might think of our respective arguments. What matters would be which a court would be likely to accept.

In fact, there is a good deal of case law on Fifth Amendment issues, and I know that you will find none to support your contentions.

There are cases in which the Fifth Amendment privilege against being compelled in a criminal case to testify against yourself has been found to bar prosecution of a failure to file a tax return (Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968)) and failure to register an illegally possessed NFA firearm (Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)). There are similar cases, but they all reflect a common theme:

1. A person's sole choices are, essentially, to commit a crime by failing to register or file something or admit a crime by registering or filing something.
   
   
2. And thus a person is compelled by law to testify against himself because if he doesn't do so by registering or filing something he can be prosecuted for failing to register or file.

But you commit no crime by not buying a gun. Therefore, you are not compelled to fill out a 4473 and thus, if you do so honestly, admit to another crime (if you were a prohibited person or not the actual buyer or subject to some other disqualification). And since you are not legally compelled, on pain of criminal prosecution, to buy a gun, the Fifth Amendment, based on the reasoning of the cases I've cited, would not bar prosecution for your false statements on a 4473 in violation of 18 USC 922(a)(6) it you chose to attempt to buy a gun.

To support your Fifth Amendment argument you would need to find cases ruling that a mere desire or want is sufficient compulsion to support invoking the Fifth Amendment. Good luck with that.

Furthermore, looking at a sampling of appeals from convictions for making false statements on a 4473, the lawyers for none of those defendants raised the Fifth Amendment. It would be hard to imagine that all of those lawyers were incompetent for failing to raise the Fifth Amendment if it could have been a viable defense. I looked at these cases: U.S. v. Hawkins, 794 F.2d 589 (C.A.11 (Fla.), 1986); Brown v. U.S., 623 F.2d 54 (C.A.9 (Cal.), 1980); United States v. Beebe, 467 F.2d 222 (10th Cir., 1972); U.S. v. Ortiz, 318 F.3d 1030 (11th Cir., 2003); U.S. v. Ortiz-Loya, 777 F.2d 973 (C.A.5 (Tex.), 1985); and U.S. v. Graves, 554 F.2d 65 (C.A.3 (Pa.), 1977).

So I'll be interested to see what you can come up with.

What about Kennesaw, GA? According to city ordinance every household was required to have a firearm and ammunition. Therefore you may be required to fill out a 4473.

I'm not saying I disagree with you Frank, just playing Devil's Advocate a bit.

 

[NickEllis]

What about Kennesaw, GA?

If that law was actually enforced it would likely be judged unconstitutional due to precisely such requirements. Ala what happened in Nelson GA (though I think that was settled before ever going to court).

 

[JRH6856]

I understand what Frank is saying regarding finding cexisting ase law to support a defense. But if none can be found, so what? If 1 or 100 are found, one of those had to be the first, which means when it was presented, there was no case to support it. Making a case for the first time certainly presents a heavier burden, but there is always a first time for everything. I believe it is called "precedent".

 

[Frank Ettin]

What about Kennesaw, GA?

If that law was actually enforced it would likely be judged unconstitutional due to precisely such requirements. Ala what happened in Nelson GA (though I think that was settled before ever going to court).

I agree that there can be a serious question of whether the town ordinance is enforceable. AFAIK, it has never been enforced.

In addition, it's unclear what the penalty might be. The ordinance itself sets out no penalties for non-compliance, and it provides for a number of exemptions. Here's the ordinance in full (Kennesaw Municipal Code 34-21):

Sec. 34-21. Heads of households to maintain firearms.permanent link to this piece of content

(a) In order to provide for the emergency management of the city, and further in order to provide for and protect the safety, security and general welfare of the city and its inhabitants, every head of household residing in the city limits is required to maintain a firearm, together with ammunition therefore.

(b) Exempt from the effect of this section are those heads of households who suffer a physical or mental disability which would prohibit them from using such a firearm. Further exempt from the effect of this section are those heads of households who are paupers or who conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine, or persons convicted of a felony.

And since federal law, under the Constitution, is the "supreme law of the land" (Article VI), any federal disqualification from possessing a gun would necessarily excuse compliance with the ordinance.

 

[Field Tester]

I understand that, but I was trying to fulfil the requirement of the 5th Amendment being applicable to the situation. Would this qualify if the same senario happened in Kennesaw?

 

[Ryanxia]

Frank, I don't want to get off the original topic so this will be the last thing I point out regarding the ATF scanning records, but in the Alaskan incident there is actually a quote from the ATF stating clearly that this is an illegal act and they were 'taking steps to ensure agents are better trained' so as not to happen again. I understand your skepticism but there's a fine line before it's called burying your head in the sand.

 

[Frank Ettin]

Frank, I don't want to get off the original topic so this will be the last thing I point out regarding the ATF scanning records, but in the Alaskan incident there is actually a quote from the ATF stating clearly that this is an illegal act and they were 'taking steps to ensure agents are better trained' so as not to happen again....

Old news -- see post 170:

...There is a difference between "field agent error" and "institutionalized policy flouting the law." So far, all we have reason to know we have is the former. If someone wants to claim that the latter is true, we need more and better evidence.

 

[Ryanxia]

Sorry, missed that.