dogtown tom
Member
In essence they do.
Federal agencies are granted wide regulatory authority. Those regulations carry the weight of law in their application.
Legal Ownership and Straw Purchases: SCOTUS
- Thread starter NickEllis
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Federal agencies are granted wide regulatory authority. Those regulations carry the weight of law in their application.
gc70
Member
JRH6856
Member
That doesn't necessarily help Mr. Abramsky since the transfer in his case was interstate.
JRH6856
Member
Only if and to the extent the law grants regulatory authority. The authority may be wide, but only as wide as the law allows.
gc70
Member
JRH6856 said:
While details differ, an argument that undermines the validity of criminalizing activity solely through Form 4473 changes would tend to help Abramski.
ngnrd
Member
Here is something I find interesting regarding the type of transactions that the BATFE publicizes as being a straw purchase.
These quotes are directly from the FAQ page of the joint BATF/NSSF 'Don't Lie for the Other Guy' public awareness campaign website.
So, even the BATF's own straw purchase awareness campaign glaringly omits the situation where there is a prior agreement for a firearm to be purchased by and for non-prohibited individuals (in this case, family members) out of simple convenience. Curious...
And here's a link to the 'Don't Lie' FAQ page.
These quotes are directly from the FAQ page of the joint BATF/NSSF 'Don't Lie for the Other Guy' public awareness campaign website.
So, even the BATF's own straw purchase awareness campaign glaringly omits the situation where there is a prior agreement for a firearm to be purchased by and for non-prohibited individuals (in this case, family members) out of simple convenience. Curious...
And here's a link to the 'Don't Lie' FAQ page.
dogtown tom
Member
Not curious at all and ATF omitted nothing...............you CAN"T buy a gun on behalf of another person from a licensed dealer.
gc70
Member
dogtown tom said:
Except as a gift or as a raffle prize ... or, in the states in the Fifth Circuit, for any non-prohibited person.
ngnrd
Member
I disagree. Consider the following hypothetical scenario:
I am not a prohibited person, nor do I care if my name is associated with a firearm transaction (as witnessed by several of my previous firearm transactions at my LGS). While I am on vacation, a firearm that a friend knows I have been wanting goes on sale at my LGS. (He is also not a prohibited person, so can pass the required background check, and he also doesn't care if his name is associated with a firearm transaction.) He texts me and informs me of the sale - which he knows will be over by the time I get back. I text back and ask him to buy it and state that I will pay him back when I get home, which he does. Then, when I get home, I pay him and take possession of the firearm.
In that case, the ATF would contend that my friend has acted as a straw purchaser on my behalf, and could certainly be prosecuted under the current rules - just as Mr. Abramsky has been. However, neither of us has violated the rules - as described in the ATF's 'Don't Lie' FAQ.
Unless, you are asserting that I somehow became unable to pass the required background check simply because I was out of town on vacation - an assertion that I wholly reject.
JRH6856
Member
dogtown tom, RE the portions of the quote you enlarged in your post #133:
In the Abramsky case, there is no evidence that the actual purchaser did not wish to have his name associated with the transaction as he apparently had no problem having his name associated with the subsequent transaction and 4473 actually transferring the gun to him. There is no intent to disassociate evidenced by his actions.
This transaction would be legal in the 5th Circuit. BTW, you are in the 5th Circuit.
In the Abramsky case, there is no evidence that the actual purchaser did not wish to have his name associated with the transaction as he apparently had no problem having his name associated with the subsequent transaction and 4473 actually transferring the gun to him. There is no intent to disassociate evidenced by his actions.
This transaction would be legal in the 5th Circuit. BTW, you are in the 5th Circuit.
OP
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NickEllis
Member
You continue to ignore, as you have throughout the thread, that it is precisely this ambiguity that has brought the case to SCOTUS.
I do find it interesting that the ATF literature emphasizes the prohibited person aspect, much in line with the congressional language and the 5th circuit decision. Their addition to the law (namely making third party sales for non-prohibited persons unlawful) is starkly absent from this literature.
I wonder if that was brought up in arguments. Would have been a great show and tell.
dogtown tom
Member
And the instructions on the 4473 clearly state that you are the actual buyer/transferee if legitimately purchasing the firearm as a gift to a third party.
dogtown tom
Member
Correct.....because your friend LIED when he signed the 4473, certifying that HE was the actual buyer/transferee of the firearm.
What do you think you do when you sign a 4473?
dogtown tom
Member
I haven't ignored jack squat bud.
It isn't ambiguous to me at all. Current ATF regulations and the 4473 clearly state if you are not the actual buyer/transferee.......don't buy the gun. If you disagree with ATF's interpretation......press your congressman to change it. Otherwise you run the risk that Mr. Abramski is running right now.
ngnrd
Member
You totally missed my point. And that point is:What do you think you do when you sign a 4473?
There would certainly not have been a violation of any rule AS DESCRIBED ON THE ATF's OWN PUBLIC INFORMATION WEBSITE.
Further, the reason I posted this at all was not to discuss what the 4473 says. Rather, it was to point out that nowhere on that website does it talk about the kind of scenario I described - which is exactly the same scenario in which Mr. Abramski finds himself - and which is currently being discussed at the highest court in the nation. Thus, I happen to think it is a notable curiosity.
ngnrd
Member
Indeed... And, I certainly hope Mr. Abramski's attorneys were resourceful enough to locate it, and at least considered presenting it.
OP
OP
NickEllis
Member
Simple question: is it or is it not established case-law in the 5th circuit (hint, your own circuit court) that a person can buy a gun for a different person, and be paid for it, as long as that person is not prohibited?
While not ambiguous to you, it was ambiguous enough to have multiple circuit court interpretations, and for SCOTUS to take up the question.
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dogtown tom
Member
I could care less what the 5th Circuit decision says. Until the Supreme Court forces ATF to change its regulations (and the Form 4473) I'm bound to uphold their regulations or face possible loss of my FFL. That may get your panties in a wad but you wouldn't be paying my legal bills would you?
OP
OP
NickEllis
Member
OK. Good to know. The legal points here are, after all, the topic under discussion in this thread.
I'm also not sure what bearing this discussion has on you upholding regulations, as this would be in the realm of the buyer. Can you get prosecuted for someone lying on their 4473?
danez71
Member
Simmer down Tom.
Others have said its ambiguous and have stated why.
You said it wasn't ambiguous at all to you and you stated why.
From each perspective, both sides are right and that is exactly why SCOTUS has taken the case; because it IS ambiguous. Heck, the different Circuit courts cant even agree.
As I see it, its a case of "letter of the law" doesn't jive with the "spirit of the law".
It will be interesting how SCOTUS rules on this. Hopefully on the "spirit of the law" side.
Others have said its ambiguous and have stated why.
You said it wasn't ambiguous at all to you and you stated why.
From each perspective, both sides are right and that is exactly why SCOTUS has taken the case; because it IS ambiguous. Heck, the different Circuit courts cant even agree.
As I see it, its a case of "letter of the law" doesn't jive with the "spirit of the law".
It will be interesting how SCOTUS rules on this. Hopefully on the "spirit of the law" side.
denton
Member
Swore I wasn't going to post on this again, but....
ATF cannot make rules that exceed the authority granted by statute, nor can they make rules that contradict the statute. They are bound by the laws Congress passes. They can't just make things up as they go along. Abramski's case argues (persuasively, I think) that they did exactly that.
Arguing that the Form 4473 instructions say this or that does not dispose of the issue. If they made a rule that you had to stand on one foot, facing East, holding your breath, while the NICS check was phoned in, they would quickly get their comeuppance from the courts. It is not within their authority.
If Question 11a is not within their authority, then it is null, void, and of no effect. It would not be a legal regulation at all. You could legally answer it in any way you pleased, sign the form, and be completely legal so far as I know.
In about June, SCOTUS will tell us whether Question 11a should ever have been there, whether the instructions matter at all, whether it will appear on future versions of Form 4473, and whether Abramski is entitled to a clean slate on this issue.
ATF cannot make rules that exceed the authority granted by statute, nor can they make rules that contradict the statute. They are bound by the laws Congress passes. They can't just make things up as they go along. Abramski's case argues (persuasively, I think) that they did exactly that.
Arguing that the Form 4473 instructions say this or that does not dispose of the issue. If they made a rule that you had to stand on one foot, facing East, holding your breath, while the NICS check was phoned in, they would quickly get their comeuppance from the courts. It is not within their authority.
If Question 11a is not within their authority, then it is null, void, and of no effect. It would not be a legal regulation at all. You could legally answer it in any way you pleased, sign the form, and be completely legal so far as I know.
In about June, SCOTUS will tell us whether Question 11a should ever have been there, whether the instructions matter at all, whether it will appear on future versions of Form 4473, and whether Abramski is entitled to a clean slate on this issue.
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denton
Member
The preamble of the Gun Control Act contains the following language:
That language makes it harder to successfully argue that Congress intended to restrict Abramski's behavior. Yet that is what the government's lawyer argued. And at least one Justice brought him up short for arguing intent, when the prohibited behavior was not in the text of the law, and possibly, not within ATF's authority.
dogtown tom
Member
Whether you think the question ambiguous or not, the fact is Abramski lied when he signed the form.
Very few people bother to read the certification statement at the top of page 2 on the 4473.........much less ask what does "Actual transferee/buyer" mean on Question 11a.
Even fewer will ask "What does__________ mean on Question _____"........amazingly, many dealers don't bother to read the instructions either. If you are not sure of the question, or your answer.......DON"T SIGN THE FORM!
I'm not arguing whether Abramski violated Federal law by taking the firearm to a dealer in another state to be transferred to another party.........just that he lied when he signed the Form 4473.
Very few people bother to read the certification statement at the top of page 2 on the 4473.........much less ask what does "Actual transferee/buyer" mean on Question 11a.
Even fewer will ask "What does__________ mean on Question _____"........amazingly, many dealers don't bother to read the instructions either. If you are not sure of the question, or your answer.......DON"T SIGN THE FORM!
I'm not arguing whether Abramski violated Federal law by taking the firearm to a dealer in another state to be transferred to another party.........just that he lied when he signed the Form 4473.
denton
Member
Wrong question.
The question is not whether he lied.
The question is whether he broke the law.
If Question 11a is found to be null, void, and of no effect, then he did not break the law, regardless of whether he signed the form and how he answered Question 11a.
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