Justices ponder 'straw purchasers' gun law

[mrblond]

I think this law is pointless. It seems its all based on intent rather then the act itself. The basics, with how I understand it and without dealing with the mans intentions, is He bought a gun, then turned around and sold the gun.
It just goes to show you to keep your mouth shut

 

[oknow]

Yeah well - let's not go there - for the sake of your marriage and health.

I have given guns as gifts, but I know enough about the law to know that if someone wants to buy a gun then they need to buy it themselves, not give me the money to buy it - even if they are legal to buy it. That's the law and it states it right there on the form you sign. It takes a special kind of dumb to sign that form, get caught, and then complain about it because they get caught.

I have to wonder how this particular person got caught.

Moreover, he bought the firearm for a person in another state - even as a gift, such a transfer has to happen via an FFL. Seems to me that this person - a former LEO who should have known better - broke two federal laws.

I may not like a LOT of our current laws, but I often do not have much sympathy when someone knowingly and blatantly breaks them and then complains about getting caught.

Until such time as an unjust law is repealed, don't break the law.

that's why you don't ask a cop about gun laws that they are suppose to enforce.

 

[Swedish K]

The real question here is why did they even charge him? The intent of the law (at least on the face) is to prevent prohibited persons from acquiring firearms. In this case the initial purchaser went through a BGC and the recipient did as well - clearly neither were prohibited and there is a paper trail to follow.
As was pointed out in one of the articles - the ATF "made law" by adding the question if you are the final user - not following the wording of the actual law and expanding it.

Another thing to consider here - if SCOTUS upholds the conviction doesn't this mean that organizations, businesses, clubs, etc. couldn't have gun raffles or give guns as prizes? What about all the fancy engraved guns given to politicians?

Just something to think about.

 

[slingshot1943]

If you did no harm there should be no charges. The government wants to create criminals. Filling up the prisons is big business. They even get food stamp money for each prisoner.

 

[BroncoFan]

By law, it was a straw purchase. Whoever wrote this article does not know the law. The law has nothing to do with being legally allowed to own a gun. The law clearly states you cannot ever act as an agent for another buyer...regardless of whether they can legally own or not. That part of the law is stupid.

Citation Please - In what capacity did he act as an agent? He bought a gun, hence Transaction #1. He then sold said gun to another party, hence a wholly separate transaction #2. He bought a good for consideration. He then in a separate transaction LEGALLY sold that same good for consideration.

By your logic every FFL that buys a gun wholesale and then sells it would be guilty of straw purchasing as they have no intention of keeping it and would be acting as an "agent" of the buyer.

This is from the Law Center to Prevent Gun Violence's website Not exactly a pro-gun organization - USC citations are included there - But by even their reasoning the definition of a straw purchaser is to provide a prohibited person with a firearm. Uncle was not a prohibited person, hence no straw purchase.

http://smartgunlaws.org/straw-purchases-policy-summary/#identifier_1_6443

" The U.S. Department of Justice has described a straw purchase as the "acquisition of a firearm from a federally licensed firearms dealer by an individual (the "straw") for the purpose of concealing the true identity of the intended receiver of the firearm(s)." Bureau of Justice Assistance, U.S. Dep't of Justice, Reducing Illegal Firearms Trafficking: Promising Practices and Lessons Learned 24 (July 2000), at http://www.ncjrs.org/pdffiles1/bja/180752.pdf"

 

[Boomerang]

Citation Please - In what capacity did he act as an agent? He bought a gun, hence Transaction #1. He then sold said gun to another party, hence a wholly separate transaction #2. He bought a good for consideration. He then in a separate transaction LEGALLY sold that same good for consideration.

The definition of straw purchase lies in the intent. If your intent was to buy the gun for yourself, then 45 minutes later you decided you don't want it and you turn around and sell it-- No straw purchase. If your intent was to buy it with your money as a gift for someone else-- No straw purchase. If your intent was to buy it for someone else, then it is a straw purchase. Not saying I agree, but that's the way it currently is.

By your logic every FFL that buys a gun wholesale and then sells it would be guilty of straw purchasing as they have no intention of keeping it and would be acting as an "agent" of the buyer.

No, because when someone is prosecuted for a straw purchase, what they are actually being prosecuted for is lying on form 4473, specifically the question "are you buying this for yourself". The law/regulation he broke was lying on the form, that's it. Since FFLs don't have to fill out form 4473, this doesn't apply to them.

 

[PlayboyPenguin]

The law clearly states that any false information on a 4473 is a federal crime and it clearly defines on the form that you may not act as an agent for another buyer..period.

Taken right from the 4473...
"a. Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.(See Important Notice 1 for actual buyer definition and examples.)"

He admitted to purchasing the gun for his uncle so as to utilize his discount. That is acting as an agent. The form makes no condition that the person you are buying on the behalf of be unable to own said firearm.

 

[Blitzkrieg]

All these laws are unconstitutional because they infringe

 

[Boomerang]

All these laws are unconstitutional because they infringe

We probably all agree with you. But for that to have any legal weight, it would need to backed up by case law, as in Judges ruling to that effect.

 

[U201491]

Citation Please - In what capacity did he act as an agent? He bought a gun, hence Transaction #1. He then sold said gun to another party, hence a wholly separate transaction #2. He bought a good for consideration. He then in a separate transaction LEGALLY sold that same good for consideration.

By your logic every FFL that buys a gun wholesale and then sells it would be guilty of straw purchasing as they have no intention of keeping it and would be acting as an "agent" of the buyer.

This is from the Law Center to Prevent Gun Violence's website Not exactly a pro-gun organization - USC citations are included there - But by even their reasoning the definition of a straw purchaser is to provide a prohibited person with a firearm. Uncle was not a prohibited person, hence no straw purchase.

http://smartgunlaws.org/straw-purchases-policy-summary/#identifier_1_6443

" The U.S. Department of Justice has described a straw purchase as the “acquisition of a firearm from a federally licensed firearms dealer by an individual (the “straw&rdquo for the purpose of concealing the true identity of the intended receiver of the firearm(s).” Bureau of Justice Assistance, U.S. Dep’t of Justice, Reducing Illegal Firearms Trafficking: Promising Practices and Lessons Learned 24 (July 2000), at http://www.ncjrs.org/pdffiles1/bja/180752.pdf"

The org you cited is as ANTI GUN AS EXISTS TODAY.

 

[ocarolan]

The law clearly states that any false information on a 4473 is a federal crime and it clearly defines on the form that you may not act as an agent for another buyer..period.

Taken right from the 4473...
"a. Are you the actual buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.(See Important Notice 1 for actual buyer definition and examples.)"

He admitted to purchasing the gun for his uncle so as to utilize his discount. That is acting as an agent. The form makes no condition that the person you are buying on the behalf of be unable to own said firearm.

To be clear, Form 4473 is not a law. The Gun Control Act (GCA) is the law.

The GCA does not prohibit buying a gun for someone else.

It does require licensure for those who deal in firearms, per s921(a)(11). Possibly a buying agent could be interpreted as a dealer and require an FFL - see below.


21) The term "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), 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), 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.

(22) The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection:

 

[PlayboyPenguin]

To be clear, Form 4473 is not a law. The Gun Control Act (GCA) is the law.

The GCA does not prohibit buying a gun for someone else.

It does require licensure for those who deal in firearms, per s921(a)(11). Possibly a buying agent could be interpreted as a dealer and require an FFL - see below.


21) The term "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), 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), 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.

(22) The term "with the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection:

Misleading...the FEDERAL LAW does clearly state that it is a FELONY (punishable by 5 years in prison) to provide false information on the 4473. He lied on form 4473 by his own admission. To try and muddy it beyond that is self serving and borderline deceptive.

 

[elsie]

If you're interested in the actual petition http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/Abramski-Petition-for-Writ-of-Certiorari.pdf

A lot of legaleese, but what it is saying is that the "straw-purchase" clause is not in law, but added on by the BATFE. It can be argued that Abramski bought and paid for the firearm using his own money and was thus the purchaser. He admitted to having the intent to later sell the firearm to his uncle who was not a prohibited person and that transaction was conducted using a 4473 as well. The primary intent of the "straw-purchase" clause is argued as a prohibition against an intended transfer to a known prohibited person. Someone may buy a firearm for themselves, usually a collectable, with the intent of selling it at a future date for a profit, though they don't necessarily know who they will sell it to. Or someone may purchase with the intent of transferring to family member through a gift or estate. There really isn't any difference between those three.


elsie

 

[Nightcrawler]

Any word on when Gabby Giffords' husband, Mark Kelly, will be indicted and prosecuted for his attempted 'straw purchase'? He lied on the forms to purchase an AR15 last year, because once he was outed buying it, he claimed he was going to donate it to a police department...

<broken link removed>

 

[BroncoFan]

Misleading...the FEDERAL LAW does clearly state that it is a FELONY (punishable by 5 years in prison) to provide false information on the 4473. He lied on form 4473 by his own admission.

With all due respect - A form is not the same as a law. I can't find it right now but there was a state court action in New Mexico. The Feds (through the state as for some reason they said they were "too busy" due to the volume of immigration cases...hmmm, but I digress ) prosecuted a dealer for counseling an individual to answer :"no" even though he knew the gun was going to another person. The judge, while finding that the individual "lied" at the behest of the dealer found it was immaterial to the transaction because the "no" did not result in the gun going to a prohibited person, but rather to another person with a clean record.
He concluded it would have been material and a straw purchase had the intent (or for that matter the fact) resulted in the gun going to a prohibited person. He cited Federal Law in his opinion.

His (correct) conclusion was that there is nothing in 18 U.S.C. §92 that says a person cannot buy a firearm for another person. Only that you cannot buy a firearm on behalf of a prohibited person.
I see opinions but no citations? Am I missing something?
I for one am looking forward to this SCOTUS opinion. It will either put the Feds in their place or shed further, much needed light upon the war on our individual liberties.

 

[PlayboyPenguin]

With all due respect - A form is not the same as a law. I can't find it right now but there was a state court action in New Mexico. The Feds (through the state as for some reason they said they were "too busy" due to the volume of immigration cases...hmmm, but I digress ) prosecuted a dealer for counseling an individual to answer :"no" even though he knew the gun was going to another person. The judge, while finding that the individual "lied" at the behest of the dealer found it was immaterial to the transaction because the "no" did not result in the gun going to a prohibited person, but rather to another person with a clean record.
He concluded it would have been material and a straw purchase had the intent (or for that matter the fact) resulted in the gun going to a prohibited person. He cited Federal Law in his opinion.

His (correct) conclusion was that there is nothing in 18 U.S.C. §92 that says a person cannot buy a firearm for another person. Only that you cannot buy a firearm on behalf of a prohibited person.
I see opinions but no citations? Am I missing something?
I for one am looking forward to this SCOTUS opinion. It will either put the Feds in their place or shed further, much needed light upon the war on our individual liberties.

Actually, it is...

If the law says you must "obey the ten commandments" the law need not actually list the commandments to make each one enforceable. The law says you must provide true information on the form and abide by the forms conditions. Therefore it is law.

 

[BroncoFan]

Actually, it is...

If the law says you must "obey the ten commandments" the law need not actually list the commandments to make each one enforceable. The law says you must provide true information on the form and abide by the forms conditions. Therefore it is law.

Huh? OK - Let's try this - What is the purpose of USC 922 (the ten commandments of firearm law)?

 

[PlayboyPenguin]

Huh? OK - Let's try this - What is the purpose of USC 922 (the ten commandments of firearm law)?

Once again, you are not understanding the law. The list of prohibited persons has no bearing on the fact that the 4473 states you cannot act as an agent or that the law states you must provide true statements on the 4473 and must abide by it's conditions.

 

[BroncoFan]

Once again, you are not understanding the law. The list of prohibited persons has no bearing on the fact that the 4473 states you cannot act as an agent or that the law states you must provide true statements on the 4473 and must abide by it's conditions.

Once again you are not providing citation, only opinion. I guess I as well as the United State 5th Circuit Court of Appeals misunderstand "the law." Again you misunderstand that form 4473 is not law:

Here is the link to the court case of US vs Polk, so let's cut to the chase -

UNITED STATES v. POLK, No.?96-40836., July 17, 1997 - US 5th Circuit | FindLaw

From the case as it pertains to the Straw Purchase Charge (bold is mine):
"We find that the Government's construction of §&#8194;922(a)(6) sweeps too broadly so that the evidence is insufficient to support a conviction on Count 6.7 Although §&#8194;922(a)(6) on its face does not prohibit "straw purchases," we have nonetheless held that such transactions violate §&#8194;922(a)(6). &#8194; See, e.g., United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir.1985). &#8194; It is clear to us-indeed, the plain language of the statute compels the conclusion-that §&#8194;922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the "lawfulness of the sale&#8201;" of firearms. &#8194;(Emphasis added.) &#8194; Thus, if the true purchaser can lawfully purchase a firearm directly, §&#8194;922(a)(6) liability (under a "straw purchase" theory) does not attach. &#8194; See, e.g., Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 503, 46 L.Ed.2d 450 (1976) (holding that purpose of §&#8194;922(a)(6) was "&#8201;&#8216;to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency'&#8201;""


Using the Court's logic - Would you agree that his "false statement" was immaterial to the purpose of 922 (keeping guns out of the hands of prohibited persons)? His sole purpose was to transfer a firearm to a person legally entitled to receive said firearm?

In plain language - Uncle the "True Purchaser" could have bought the gun legally. Liability does not attach....

 

[PlayboyPenguin]

Once again you are not providing citation, only opinion. I guess I as well as the United State 5th Circuit Court of Appeals misunderstand "the law." Again you misunderstand that form 4473 is not law:

Here is the link to the court case of US vs Polk, so let's cut to the chase -

UNITED STATES v. POLK, No.?96-40836., July 17, 1997 - US 5th Circuit | FindLaw

From the case as it pertains to the Straw Purchase Charge (bold is mine):
"We find that the Government's construction of §&#8194;922(a)(6) sweeps too broadly so that the evidence is insufficient to support a conviction on Count 6.7 Although §&#8194;922(a)(6) on its face does not prohibit "straw purchases," we have nonetheless held that such transactions violate §&#8194;922(a)(6). &#8194; See, e.g., United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir.1985). &#8194; It is clear to us-indeed, the plain language of the statute compels the conclusion-that §&#8194;922(a)(6) criminalizes false statements that are intended to deceive federal firearms dealers with respect to facts material to the "lawfulness of the sale&#8201;" of firearms. &#8194;(Emphasis added.) &#8194; Thus, if the true purchaser can lawfully purchase a firearm directly, §&#8194;922(a)(6) liability (under a "straw purchase" theory) does not attach. &#8194; See, e.g., Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 503, 46 L.Ed.2d 450 (1976) (holding that purpose of §&#8194;922(a)(6) was "&#8201;&#8216;to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency'&#8201;""


Using the Court's logic - Would you agree that his "false statement" was immaterial to the purpose of 922 (keeping guns out of the hands of prohibited persons)? His sole purpose was to transfer a firearm to a person legally entitled to receive said firearm?

Once again, you try to hide your confusion by blasting unrelated information. The law states you must abide by the 4473. The 4473 says you cannot act as an agent. End of story. The court has given NO indication that their previous stance has changed on this topic. That is why this case is not arguing whether it is actually illegal as the law stands (that has been decided before), but as to whether the feds have the right to pass such a law. They are not arguing the fact that a law has been broken, they are arguing the principle of the law itself. As for you case you cited, they are dealing specifically with a charged violation under s specific statute under specific circumstance relevant to that case. They are not invalidating the 4473 requirement. In fact, in 1999 the ATF clarified the requirements of the 4473.

PS: The ATF website itself answers the question by saying...
"A straw purchase is an illegal firearm purchase where the actual buyer of the gun, being unable to pass the required federal background check or desiring to not have his or her name associated with the transaction, uses a proxy buyer who can pass the required background check to purchase the firearm for him/her. It is highly illegal and punishable by a $250,000 fine and 10 years in prison."