Steve Says: Many thanks to Spencer, a law student, for contributing this well researched guest post. This is a legal post, not a political post.
Monday, the Supreme Court of the United States decided the case Abramski v. United Statesagainst Abramski in a 5–4 decision split along party lines. Bruce Abramski had purchased a blue-label Glock using his old police credentials to acquire the gun at a discount on behalf of his uncle, who lived in another state. After acquiring the gun, Abramski properly transferred the gun to his uncle at an FFL in his uncle’s home state.
In deciding against Petitioner Abramski, the Court held that when Abramski answered yes to Question 11.a on the 4473 (the actual buyer question), he made a false statement with respect to a fact material to the lawfulness of the disposition, which violated 18 U.S.C. § 922(a)(6). The Court also held that his misrepresentation concerned information required to be kept by the GCA, which violated 18 U.S.C. § 924(a)(1)(A).
The Court held that all the provisions relating to acquisition of firearms from dealers that refer to “person” or “transferee” actually refer to the person “always meant to get the firearm” and not the person at the counter (Abramski, pp 13–14). Therefore, the information of who is to ultimately get the firearm is material to the transaction, and Abramski’s misrepresentation therefore violated 18 U.S.C. § 922(a)(6) (Abramski, p 19). The Court glossed over the dissent’s recognition that “no provision of the Act prohibits one person who is eligible to receive and possess firearms (e.g. Abramski) from buying a gun for another person who is eligible to receive and possess firearms (e.g. Abramski’s uncle), even at the other’s request and with the other’s money” (Abramski,Scalia, J., dissenting, p 2).
Abramski also argued that his false statement was not material because his uncle was not a prohibited person. But under the new interpretation that the statute actually refers to the person always meant to get the firearm, the Court held that Abramski’s argument fails because the sale would not have complied with § 922(c) absentee purchase restrictions, and so his false statement was still material (Abramski, pp 19–20). Notably, the Court stated that the ATF’s previous view that identity of the true buyer is material only if the true buyer is prohibited is irrelevant because criminal laws are for courts to construe (Abramski, p 21). The ATF’s opinion simply doesn’t matter.
Finally, because the regulations (27 C.F.R. 478) require dealers to keep their form 4473s, any information in the 4473 is information “required by [Chapter 44]” to be kept, and therefore misrepresentations on a 4473 violate 18 U.S.C. § 924(a)(1)(A). Again, the Court brushes aside the dissent’s point that neither Chapter 44 nor the regulations actually require keeping any information as to “true buyers” (Abramski, Scalia, J., dissenting, pp 13–14).
The Court has implicitly granted the ATF enormous power when it comes to what it can require of dealers and transferees. The ATF can include any information in the 4473 and magically, the information is now required to be kept such that misrepresentations violate 18 U.S.C. § 924(a)(1)(A). I seriously doubt that even this liberal majority would allow the ATF to include a question such as “What is your favorite color?” since it is wholly irrelevant, but the ATF certainly could include other questions or change the actual buyer exceptions.
At the same time, the Court has diminished the ATF’s power by stating that the ATF’s interpretation doesn’t matter. Allen Thompson at Prince Law notes
What is interesting about the decision, however, is that it expressly disavows any deference to ATF’s interpretations of criminal statutes (although it conveniently upholds ATF’s current, court-favored interpretation). Slip op. at 21. The Court emphatically declined to give any deference to ATF’s interpretation of the statutes precisely because it is a criminal statute, codified in Title 18 of the U.S. Code (reserved for criminal statutes). While the Court’s apparent reason for disavowing any reliance on ATF’s interpretation was ostensibly to discredit Abramski’s argument that, at one point, ATF actually took exactly the same petition Abramski was proposing, it may well have opened quite a large door for firearms proponents. For example, the terms “firearm,” “silencer,” and “machine gun” are all defined in 18 U.S.C. § 921, part of the Criminal Code. Did the Court just invalidate all of ATF’s interpretations regarding what constitutes a firearm, silencer, or machine gun for purposes of criminal prosecutions?
This is not merely academic, as anyone who has had the misfortune of engaging a government agency in a legal battle knows that the courts typically defer to the agency on questions of interpretation of definitions and statutes. Now, however, a powerful argument can be made under Abramski that ATF’s determinations are to be given no deference at all, as many of the firearms regulations come under the Criminal Code (the rest come under the Tax Code). By way of example, ATF’s determination that Sig’s MPX-C muzzle brake is actually a silencer should no longer be given any deference, as the definition of “silencer” falls under the Criminal Code.
The Court’s analysis of materiality also raises some perplexing questions. The 4473 actual buyer requirement is not created anywhere in statute or regulation. The requirement and explanation is entirely a creature of the 4473. The 4473 asks question 11.a and provides instructions defining “Actual Buyer.”
Notice that question 11.a explains that you are not an actual buyer if you are someone who is acquiring a firearm on behalf of another, and that it prohibits transfers to people who are not actual buyers. At the same time, in the instructions the ATF has created several exceptions to the actual buyer requirement (again, nowhere to be found in statute or regulation). How do these exceptions (or loopholes if you will), not contravene the purpose of § 922(a)(6)? Prohibited persons could easily make use of these exceptions in straw purchase scenarios.
Also interesting is that an agent acting on behalf of a corporation should fill out Section A of the 4473 with his own information. Section A includes question 11.a, the actual buyer question.
Under the ATF’s definition, this officer acting on behalf of the corporation is not the actual buyer. Should the officer answer “no” to question 11.a? If so, the transfer is prohibited as explained by the actual buyer question and instructions. But if the officer answers “yes” to question 11.a, the officer is committing a violation of § 922(a)(6) since the officer is not the actual buyer. There is no exception in the 4473 for agents who are not actual buyers that buy on behalf of entities.
Could a dealer still transfer someone who answers “no” to question 11.a? Only the 4473 prohibits the transaction, there is no actual statute or regulation prohibiting such a transfer as the dissent in Abramski noted. However, under the majority’s view, § 922(c) seems to catch this scenario. But § 922(c) only applies to sales to persons not present, that is, it only contemplates two parties involved in the transaction, not three. Again, a corporate buyer will not be present, so should all corporate purchases proceed under § 922(c)? And what about someone who is not purchasing the firearm from the FFL (such as someone who bought from another dealer online, but only transfers at the receiving dealer).
Finally, it is interesting to note that in November of 2012, the ATF refused to answer an FFL’s questions, one of which involved a straw purchase on behalf of a corporation.