serious trouble for a local guy who sold a gun to an out of state person

[Cee Zee]

Well, I'm not in favor of convicting him of anything without a trial which he is apparently going to get. Let the evidence convict him if it can. Otherwise, let him walk.

I certainly haven't said any such thing. I do believe in the constitution and the American judicial system whether it has been corrupted or not (it has). If it was brought back around to the way it was supposed to work I would be happy as a clam.

As for doing something about it I actually thought my first step in trying to do something about it was posting this story here and talking about the level of punishment. I was hoping others would agree and that we might somehow work together to at least try to make a difference here. The courts are more favorable to gun owners now IMO. Maybe this case could be one to take up the chain of federal courts. It would be tough with this court because of the youth of the gun buyer. This seller certainly isn't a sympathetic example of someone who was punished out of proportion for his deeds. But there may be others.

I think the gun boards on the net could be a big force in politics in various ways. One way would be to form a foundation to provide money for people unfairly punished by this law. I'm not saying this is the case. I don't know enough about the facts obviously. The only thing I really saw in that article that meant anything was the potential punishment for this crime. It seems out of proportion to me. Again someone who does this often isn't someone I would have sympathy for. But one person who made a mistake maybe out of ignorance might by sympathetic if they got a severe punishment. And the best place to learn about something like that IMO is on a gun board. We are a resource and we should act like one.

 

[JRH6856]

CeeZee, This law and the penalties specified have been tested in court more than a few times. The law is a duly enacted act of Congress under the powers granted by the Constitution. I don't think the court system will get anywhere unless a lot of juries engage in jury nullification.

A really long shot would be to challenge on the idea that regulating interstate commerce in arms between private citizens infringes on the core right to keeps arms by potentially denying access to those arms. But that will be a really difficult thing to argue in light of historical interpretation of the Commerce clause and 2A.

The best way to change the law would to amend the Constitution to remove Congress authority to regulate interstate commerce in firearms. Amending the Constitution is a difficult process. It can be done. It is not easy. And doing it without the cooperation of Congress and/or the state legislatures is the hardest way of all.

Failing that, pressure congress to repeal the law. And that is just not going to happen anytime soon. Gun rights are improving under existing laws. Some states have overreached and are being corrected by the courts. But federal law remains a symbolic safety net for a lot of people who have no strong interest in the issue. Start trying to remove that net and their interests may change in an unfavorable direction. We need a lot more people conciously on our side before start to really fix the laws. That too takes time and hard work.

 

[Frank Ettin]

...GCA68 is Congress flexing its muscle through the Commerce clause that allows Congress to regulate interstate commerce....

Actually, GCA68 was Congress responding to enormous public pressure after the assignations by gunfire of three wildly popular public figures -- JFK, RFK and MLK. And in the political climate of the time nothing would have stopped it.

 

[Cee Zee]

This law and the penalties specified have been tested in court more than a few times.

Do you happen to know any case names or the particular aspect of the law that was challenged. I know it was a law passed by congress but that doesn't stop certain groups trying to get the courts to overturn the law even long after it was written and even though it has been tested before. I just don't think it's a good idea to just lay down and take it on this. The penalty is way out of line with the severity of the crime.

 

[JRH6856]

Off the top of my head, you might start with US v. Bass, 404 U.S. 336 (1971), That seems to be a key case.

 

[Frank Ettin]

Do you happen to know any case names or the particular...

The actual statute violated is 18 USC 922(a)(5):

(a) It shall be unlawful—
....
....
(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to

(A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

(B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;...​

A quick search of a legal data base to which I subscribe immediately showed the following seven convictions for violation of 18 USC 922(a)(5) affirmed by a Federal Circuit Court of Appeal:

• U.S. v. Tyson, 653 F.3d 192 (3rd Cir., 2011);
  
  
• United States v. Sprenger, 625 F.3d 1305 (10th Cir., 2010);
  
  
• U.S. v. Camacho, 528 F.2d 464 (C.A.9 (Ariz.), 1976);
  
  
• U.S. v. Gjurashaj, 706 F.2d 395 (C.A.2 (N.Y.), 1983);
  
  
• U.S. v. Ward, 7 F.3d 228 (C.A.4 (Va.), 1993);
  
  
• U.S. v. Cox, 77 F.3d 483 (C.A.6 (Tenn.), 1996);
  
  
• United States v. Stamas, 443 F.2d 860 (1st Cir., 1971)

I stopped there and did not continue my research further. Clearly the federal government has successfully prosecuted violations of this statute.

Also, the foregoing are only court of appeal cases. So the list would not include convictions at trial which for some reason weren't appealed or prosecutions resolved by a plea agreement.

 

[Elkins45]

A question I have asked many times before in discussions of firearms laws: Does knowing you're in prison for breaking a stupid, unconstitutional law make the forced sodomy any less painful?

Don't sell guns across state lines. Period. It's a stupid law, but they enforce stupid laws with just as much vigor as the good ones.

 

[Cee Zee]

FWIW all the cases mentioned by Frank involved either shipping guns to Mexico or NYC. One case did involve a person in Mass. selling to a Maine resident. It seems like the ATF is spending their time and effort concentrating on these areas but that's certainly no guarantee it won't happen elsewhere. Some of the cases were particularly egregious though. One person had 200 weapons hidden in the gas tank of a truck bound for Mexico. Certainly that person deserved al the government could throw at him. At least 2 of the cases involved organized efforts to send guns to NYC. That's always going to be a bad idea. So is selling a gun of any type in Mass. to an out of state person or not. I am NOT suggesting that people should consider themselves safe to transfer weapons to out of state people except as a temporary loan. And I'd be dang careful about that.

 

[Frank Ettin]

FWIW all the cases mentioned by Frank involved either shipping guns to Mexico or NYC.,,,

Wrong --

• Tyson bought guns in Tennessee and took them to the Virgin Islands for sale.
  
  
• Ward involved a Virginia resident selling guns in Virginia to a New York resident.
  
  
• Cox involved sales by a New York resident to someone in Tennessee.
  
  
• Stamas was the Massachusetts resident selling to someone in Maine.
  
  
• And again, these are only appeals.

To be sure, prosecutors may exercise discretion and not pursue cases they conclude would not warrant expenditure of the necessary resources. But one can not expect a law not to be enforced.

 

[Davek1977]

n/m

 

[gym]

I just came from a gun show where a guy from Detroit asked a dealer if he could buy a colt 45 being thet he had a Detroit carry and lived part time ib FL. I budded in as the guy who was selling was really old and seemed confused. I asked him why he didn't have a FL part time residents ID, "we have those". He said he just never got around to it, the old guy was going to sell him the gun, I walked away before I ended up in trouble, it looked like a set up, the guy looked like a cop. I don't think half of these vendors who do this as a secondary income know the laws. As soon as the guy said he had cash and would pay full price, the old guy wanted to do the deal.

 

[dogtown tom]

gym I just came from a gun show where a guy from Detroit asked a dealer if he could buy a colt 45 being thet he had a Detroit carry and lived part time ib FL. I budded in as the guy who was selling was really old and seemed confused. I asked him why he didn't have a FL part time residents ID, "we have those". He said he just never got around to it, the old guy was going to sell him the gun, I walked away before I ended up in trouble, it looked like a set up, the guy looked like a cop. I don't think half of these vendors who do this as a secondary income know the laws. As soon as the guy said he had cash and would pay full price, the old guy wanted to do the deal.

Perfectly legal sale under Federal law.
ATF considers you a resident of the state where you make your home. Having ID/drivers License/etc from that state is NOT a requirement.

 

[Cee Zee]

Wrong --

I couldn't find info on Tyson but I did find this:

Sprenger was indicted for, "...conspiracy to willfully transfer firearms to a person residing outside the State of Oklahoma in violation of 18 U.S.C. §§ 922(a)(5) and 924(a)(1)(D); and (2) conspiracy to fraudulently and knowingly export firearms into Mexico without an export license or written authorization..." which is one of the cases I talked about that involved guns in a gas tank. "In March 2009, border patrol officers in Laredo, Texas discovered a cache of weapons in the gas tank of a truck driven by Mr. Sprenger." He was about to cross the border with the guns.

Cox sold guns to a guy who was shipping guns via Fedex to NYC twice a week or more. So that's the connection to NYC I mentioned. Here's a quote from the case:

"The Government's main witness was Leon Price, a convicted felon. Price testified that Cox ordered the guns for him, and he paid Cox for the guns with money and cocaine that he got from a contact in Yonkers, New York known to him as Shatee or "T". Price received the two pistols from Cox and took them to Federal Express to ship them to Shatee in Yonkers, New York. Cox kept no record of the transaction. Neither Price nor Figgures had a firearms license."

The Ward case was also about selling to a person reselling guns in NYC:

"In October 1991, New York resident Morris Lee Garrett came to Virginia to buy guns to resell in New York. Morris asked Virginia resident William Marshall Ward whether he had a Virginia drivers license and no felony convictions and then hired him to purchase firearms. Listing himself as the "transferee and buyer" on the firearms purchase form, Ward bought at least twenty guns for Garrett in a three month period. In a statement to United States Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Jack Tuttle, Ward said that Garrett had never told him where he lived, but that Ward knew Garrett drove a car with North Carolina license plates and that he planned to take the guns Ward bought to New York."

The Camacho case also involved guns going to Mexico:

"Camacho is a federally licensed firearms dealer who has a small store in Somerton, Arizona near the Mexican border. On August 21, 1974 Lieutenant Pena, a Mexican Army officer on assignment with the Alcohol, Tobacco, and Firearms Division of the U.S. Department of the Treasury, went to Camacho's store and told Camacho that he was from Mexico and was interested in purchasing firearms. Camacho asked Pena if he had someone to sign the registration forms required by the Gun Control Act. Pena stated that he did not. At about that time Raygoza came into the store. Camacho suggested that Pena should ask Raygoza to sign the form. Raygoza declined, explaining that he had done so on too many previous occasions. At Camacho's suggestion Pena left with Raygoza to find someone else to sign. Raygoza drove Pena to find Gonzalo Quintero. Quintero agreed to sign the forms after Raygoza vouched for Pena. At the store Camacho had Quintero sign for two weapons. Pena paid Camacho for the guns and gave Quintero twenty dollars for his signature."

I think these quotes establish what I said pretty well. I was not wrong.

 

[Frank Ettin]

...Cox sold guns to a guy who was shipping guns via Fedex to NYC twice a week or more. So that's the connection to NYC I mentioned....

That might be a connection to New York, but that doesn't change the fact that Cox' conviction for selling guns to a non-resident was affirmed.

...The Ward case was also about selling to a person reselling guns in NYC...

U.S. v. Ward, 7 F.3d 228 (C.A.4 (Va.), 1993), at 228:

...William Marshall Ward was convicted on one count of conspiracy to transfer firearms to a person not residing in Virginia and two counts of transferring firearms to a person not residing in Virginia. He was sentenced to three concurrent twenty-four month prison terms. Ward appeals, contending that the evidence was insufficient to support his convictions and that the district court failed to properly instruct the jury. We find these claims lack merit; consequently, we affirm.

In October 1991, New York resident Morris Lee Garrett came to Virginia to buy guns to resell in New York. Morris asked Virginia resident William Marshall Ward whether he had a Virginia drivers license and no felony convictions and then hired him to purchase firearms. Listing himself as the "transferee and buyer" on the firearms purchase form, Ward bought at least twenty guns for Garrett in a three month period. In a statement to United States Bureau of Alcohol, Tobacco and Firearms ("ATF") Special Agent Jack Tuttle, Ward said that Garrett had never told him where he lived, but that Ward knew Garrett drove a car with North Carolina license plates...

So Ward, a resident of Virginia, transferred guns to Garrett, apparently a resident of a State other than Virginia. The transfers took place in Virginia. The fact that Garrett did, or intended to, transport those guns to New York is irrelevant to Ward's conviction for violating 18 USC 922(a)(5) by transferring guns to a non-resident of Virginia.

...I was not wrong.

In post 82 you wrote (emphasis added):

FWIW all the cases mentioned by Frank involved either shipping guns to Mexico or NYC....

Of the seven cases I cited in post 80, Camacho and Sprenger involved the selling of guns to foreign nationals for shipment to Mexico, and Cox involved a fairly complex, multilayered conspiracy to ship guns to New York.

Three (or even four) cases out of seven is not "all", so you were still wrong.

 

[Cee Zee]

The fact that Garrett did, or intended to, transport those guns to New York is irrelevant to Ward's conviction for violating

Garrett sold guns to a guy shipping guns to NYC. That's the guy that testified against him,. I'm certainly not saying he wasn't guilty. I just said there was a NYC connection there. And the other place where you mentioned that I said "all" I said in the next sentence that there was one case not connected to either Mexico or NYC. I talked about that case so clearly I knew it didn't involve Mexico or NYC. Specifically I said, "One case did involve a person in Mass. selling to a Maine resident." I knew I messed up on my grammar there but I didn't think it would be such a big deal. But I did acknowledge one case did not involve Mexico or NYC. The actual rate was 5 out of 7 with me saying one didn't involve those areas. Yeah I failed to mention that I find info on Tyson. I didn't think there was going to be a test. Throwing out the one I couldn't find info on the rate was 5 out of 6 with me saying one didn't fit the pattern. I was not wrong.

At any rate can we get past this? It doesn't seem real productive to me.

 

[JRH6856]

I knew I messed up on my grammar there but I didn't think it would be such a big deal.

When arguing with a lawyer (and Frank is a lawyer) it's a big deal. You need to get your facts straight and keep them straight...and relevant. Mexico and NYC involvement is irrelevant in these cases.

 

[Cee Zee]

It just seemed odd to me that so many of the cases pertained to those two locales. I can get my grammar straight enough if need be. I just don't spend a lot of time doing re-writes on web posts. It's not that formal of a setting. My journalism school taught me to write to my audience. So I do. Most people here are lucky to get through a post without spelling a word or two wrong. That's no big deal. They get their point across usually. I generally try to be as grammatically accurate as possible without spending time on revisions. And none of this has anything to do with the issue at hand.

I thought it was a point worth making that a lot of the cases where this law is involved seem to be associated with particular areas. It's such a small sample it likely isn't significant and I certainly didn't meant to imply that anyone was innocent of their charges. But we have the two hot buttons here of gun running to Mexico and selling guns in the rabidly anti-gun NYC. It's no surprise that people get prosecuted more for cases with even a small connection to those places. I don't have a stack of cases to check and I don't think it's really worth the effort to check. I just thought it was worth mentioning. I'd be willing to bet that very few cases of gun sales between residents of KY and WV get prosecuted the way NYC would go after people selling illegal guns there. That certainly doesn't mean it's ok to break those laws. Far from it. The example of the guy from my rabidly pro-gun area is enough reason to pay attention to these laws very closely.

Again I wanted this thread to be about the severe punishment for what seems to be an innocuous crime in most places. Consenting adults (without felony records) should be able to sell guns to each other without fear of ruining their lives IMO. If I sold a gun to my best friend, who happens to live in Ky, I could ruin my life in a hurry. That seems extreme to me. I don't know the federal sentencing guidelines which would certainly be a good thing to know but with the maximum penalty being what it is I can't imagine even taking the risk. It doesn't cost that much to go through an FFL. If it turns out I'm wrong and it is expensive to go through an FFL I will just avoid selling to anyone out of state. But I very rarely sell a gun anyway. I generally keep what I buy. I just thought it might be worthwhile trying to see if there was a chance we could fight the level of punishment here. IMO it's like sending someone to jail for 6 months for stealing a loaf of bread - the crime is not proportional to the punishment. A more established precedent would be the fact that pot laws go unenforced in Colorado and Washington while Texas and Arizona, until recently, continued to send people to prison for possession of small amounts of pot (from what I've heard - I'm not a lawyer or an expert in any way here). I don't support pot smoking in any way but there were cases where Texas sent people to prison for 40 years for having a single joint. That's another place where the punishment didn't fit the crime.

This is my last post on this topic. I'd like to get back to the gun issues.

 

[hso]

We'll continue this when the case is decided in court.

The law is pretty clear, but there may be circumstances that we're not aware of that allow a jury to either acquit or convict the guy charged. We'll find out at a later date.