Gun Purchase Under Scrutiny at Supreme Court

Bruce Abramski is a former police officer in Virginia who purchased a gun for his uncle in Pennsylvania. His uncle is law-abiding and could have gotten the gun himself, but Abramski made the purchase to use a policeman’s price discount.

On Jan. 22, the Supreme Court heard arguments in Abramski v. U.S. Question 11 on Form 4473–created by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)–asked whether the buyer is the actual purchaser of the firearm (versus buying for another person).

Federal law makes it a crime to lie about any information that is “material” to purchasing a firearm, but does not require ATF to ask for the information sought by Question 11. As Breitbart News previously reported on Oct. 20, 2013 in more detail, Abramski said he was the actual purchaser of the firearm, since otherwise he could not receive the firearm.

Abramski’s lawyer, Richard Dietz, began his argument:

In 2009, Bruce Abramski went to a gun store at his home in Virginia and purchased a firearm. When he did so, he filled out all the required federal paperwork providing his own name and identifying information and passing a background check. He then traveled to his uncle’s home in Pennsylvania and delivered the firearm to a licensed gun dealer there. That gun dealer required Mr. Abramski’s uncle to fill out the exact same federal paperwork and pass his own background check before taking possession of the firearm.

Justice Antonin Scalia said of ATF, “you get the buyer and you don’t make the buyer promise not to give it to somebody else.” When Scalia asked if the buyer could immediately give it to someone who cannot legally own a guy, Dietz explained that Congress later amended the law to “provide that a private citizen who transfers a firearm to someone they know or have reasonable cause to believe is prohibited, that’s a crime.” Such persons included convicted felons or other dangerous persons.

But Justice Samuel Alito expressed skepticism, referring to the practice of a straw-man who makes a purchase to enable someone else to avoid undergoing a criminal background check. He played out what would happen if a person who obtained a gun through such a method later commits a crime, and police trace the gun. “So they find the gun dealer [who] says, ‘I sold it to Mr. Straw.’ And they go to Mr. Straw [who says], ‘My client took it.’ ‘Okay, who’s your client?’ ‘I have no idea. He came into my store. He contacted me. I didn’t ask his name.'”

Dietz insisted that Congress understood that when passing the statute, and as a political compromise Congress decided to trace the person who initially buys from a federally-licensed dealer, but does not track the firearm after the sale. Alito referenced back to his hypothetical situation, and responded that would mean Congress did something it knew would be “utterly meaningless.”

Scalia tried to narrow Dietz’s broad argument, pointing out that this case is different. If police “went to the straw purchaser [here], he would say: Oh, I actually bought it for my uncle. And he’d give the uncle’s name.” Dietz agreed, and reminded the Court that in this case the uncle also went through the same federal background check before taking possession.

Justice Anthony Kennedy asked, “Why isn’t it material in light of the fact that it was a question that was on the government form that was promulgated … by regulations?” Dietz responded that the Obama administration acknowledged in its brief that this issue did not arise from an agency interpreting a federal statute, but instead deciding to change a form based on what ATF saw happening in some lower courts.

Chief Justice John Roberts then offered Dietz considerable help, offering the answer Dietz should have given to Alito’s question. “A person who’s doing this several times a month and has an ad in the Yellow Pages, is that person subject to regulation as a dealer?” Dietz grabbed Roberts’ lifeline, answering yes, that if you regularly engage in buying and selling, you fall within the federal law’s definition of someone who must be a licensed dealer with the ATF.

Alito later came back asking, “If we disagree with you on the first point about the straw purchaser, would you lose [since Abramski’s] uncle could not have lawfully purchased the gun at that [Virginia] store because he wasn’t a resident of [Virginia]?”

Dietz said Abramski should still win, because if he had told the dealer the details of planning to take the gun to Pennsylvania and go through the process with his uncle, the dealer could still have sold him the gun. In a prior Supreme Court case, the Court held that a matter is not “material” if full disclosure would not have impacted the result–in this case, whether the dealer would still have sold the gun.

Scalia also expressed his own concern regarding another criminal charge the government made against Abramski. He began by noting that the crime is lying about information that the government requires must be kept by the dealer. “Let’s say I agree with you that, in fact … the government was not authorized to obtain this information, and therefore, it was not required to be kept. But nonetheless they asked it, and your client didn’t just say, ‘I won’t answer.’ He lied. Can you lie, so long as the question is improper?”

Dietz responded that Congress specified in the law what information it wanted, and that only those are the items are “material.” The ATF form’s question about being the actual buyer is not one of them, so his client in this case should not be charged regardless of his answer.

Representing ATF, the Justice Department was asked tough questions as well. Roberts noted the question at issue of whether the person buying is the “actual buyer,” and asked point blank: “Where is that in the statute?”

When the Obama administration responded, “That is ATF’s reasonable interpretation of the statute,” Scalia pushed back, “Its current one. It used to have a different one.” That’s because ATF used to hold the view that Abramski’s actions were legal. ATF changed its view under Bill Clinton in 1994 to take a broader view of what constitutes a crime under this statute.

In the end, this case is likely to turn on whether ATF was empowered to interpret Congress’s statute to ask questions Congress did not and make it a crime to answer those question in a particular way, and if so, whether ATF’s interpretation on Question 11 is a reasonable one.

The lower courts are divided on the issue presented in Abramski, showing this to be a difficult issue of legal interpretation. That is probably why the Supreme Court took the case. Many times a lawyer familiar with a case can guess after oral argument which way the justices are leaning. This is not one of them.

A decision is expected early this summer.

Ken Klukowski is senior legal analyst for Breitbart News and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.