Reader Elliotte writes:
I wanted to pass along some more details that I’ve learned while reading the briefs in the Abramski case. I first heard about it on my local gun forum, www.mdshooters.com, (there’s a group that regularly posts briefs from and discusses 2A cases).
When I first read through the plaintiff brief and the amicus briefs I realized this case has the potential to have a much bigger impact than just clarifying the resale of guns to non-prohibited persons. Abramski’s lawyers and the amicus briefs are challenging the ATF’s regulation writing when it came up with the “straw purchase” questions on the 4473.
The GCA law that set up the background checks was only intended to keep firearms out of the hands of prohibited persons. However, in 1995, the ATF rewrote the 4473 form to make it a crime to buy the gun for someone else, even if that other person was not a prohibited person. Later the form was revised to permit gifts. But, the GCA says nothing about buying a gun for another person, only about selling/transferring a gun to a prohibited person.
So by writing their own regulations, the ATF has gone beyond the letter and intent of the law passed by Congress. They have, in effect, written and have been enforcing their own laws. This has the potential to be a huge, pivotal case if the court addresses this aspect.
The ATF essentially wrote new law, inconsistent with what was passed by Congress and the briefs. Even quotes from Congresscritters from the floor debates at the time prove the intent of the law was only to limit the transfer of firearms to prohibited persons.
If the court strikes this part of the 4473 down because it goes beyond the law Congress passed, it could create precedent to open up every single bit of federal and state regulations to court challenges if that regulation extends beyond what the legislature specifically passed.
Say it with me:
“The Governments (not constitutionally enumerated) Interest To Enforce Public Safety makes it OK”
You heard the ruling here first!
Sounds like what was said about MD’s screwy laws.
Yup. Never look to the federal government (SCOTUS) to restrain the federal government.
Of course not. SCOTUS is part of the Federal Government
For at least the last 25 years the Court has deferred to Congress on the intent of the law. They will continue to do so. If there is evidence in the Congressional Record indicating that the intent was only to restrict access by prohibited purposes then the will at least overturn the conviction and probably strike down the regulation. You can take that one to bank.
All very interesting, but can anyone show me the part of the Second Amendment that says Congress, SCOTUS, or POTUS has any authority to create and/or enforce a list of “prohibited persons” who may not exercise their natural, civil and Constitutionally protected right to keep and bear arms?
I thought not.
If SCOTUS was honestly ruling on the validity of the law their only possible response would be that the entire law passed by Congress, regardless of the intent of Congress, is unconstitutional and therefore null and void.
Holy shit. That was breathtaking.
Why couldn’t they both claim the father gav… I mean, “gave back” the money, thus making it a gift? Why wouldn’t that work?
My understanding was that the SCOTUS was hearing it on the basis that wording of 4473 potentially violates Fifth Amendment protections. Could they hear the case based on more than one doctrine?
Hasn’t SCOTUS already ruled that someone could not be prosecuted for lying on a 4473 because that would violate their 5th Amendment rights?
Did anybody tell the ATF?
Not that I recall, but they did make a ruling arising from the registration requirements for certain firearms under the NFA, saying that a felon could not be prosecuted for failing to register a classified weapon on the grounds that doing so would be self-incrimination.
Haynes v. US, 1968:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=390&invol=85
Not so sure about the last sentence, Any regulation that exceeds the authorizing statute is subject to challenge. But just on its face it raises an important issue. I, for example, bought a pistol for my daughter Two issues arose–one, the 4473 as I as not the ultimate “purchaser,” and second the gun was not on the California roster. So I had it shipped to an FFL in Ohio where she lives, and had her do the 4473, avoiding both problems. The issue arises with some regularity in California, as LEOs are not restricted by the roster and can buy any gun they desire. That gun I turn my be lawfully transferred to a non-LEO in a FTF transaction (since an FFL does not take possession, the roster is not implicated). Several officers have been arrested and charges with illegal sales fort buying off roster guns and turning around and selling them to others–tidy little side business–that this case applies to.
Those officers are flipping guns to make a profit and make money at it, that, I believe that is against the law.
The men from the lawsuit bought and sold one gun for the same price with no intent to profit or make a living.
A LEO purchase for resale to avoid the Roster is illegal via 27515
27515. No person, corporation, or dealer shall sell, loan, or
transfer a firearm to anyone whom the person, corporation, or dealer
knows or has cause to believe is not the actual purchaser or
transferee of the firearm, or to anyone who is not the one actually
being loaned the firearm, if the person, corporation, or dealer has
either of the following:
(a) Knowledge that the firearm is to be subsequently sold, loaned,
or transferred to avoid the provisions of Section 27540 or 27545.
(b) Knowledge that the firearm is to be subsequently sold, loaned,
or transferred to avoid the requirements of any exemption to the
provisions of Section 27540 or 27545.
**This is why we REALLY need to get rid of the CA handgun roster
I hope they strike that down with a quickness I’d love to see the ATF lose one.
I’m not holding my breath.
This is the same SCOTUS that said The Patriot Act was legal, and that the NSA’s highly illegal and Unconstitutional “PRISM” domestic spying program was kosher — even though they know damn well just as you and I do that it’s not.
If they do strike it down, it will be added to a very, very short list of victories for We, The People.
But nevertheless, one grown longer.
Well said. They also considered Obamacare legal, and that is clearly a law that is enforceable against some whilst exempting others.
I’d loved to see the ATF get spanked – heck, eliminated – but I’d be loathe to make any predictions regarding SCOTUS in this political climate.
“They (ATFE) have, in effect, written and have been enforcing and has written their own laws.” Well seeing as there is nothing constitutional about the ATF and for the most part they are anti gunners, I am not surprised by this. On top of all that they are a government agency, thus can not be trusted to begin with.
The ATF’s arm has grown long indeed if It can hurl regulations at us all the way from Mordor…
Limit the ABC agencies from writing and enforcing laws beyond their original intent when created. In the words of a certain celebrity, that’s a good thing.
The government creates these ABC agencies and empowers them to enforce laws that are ever changing by those agencies.
The government grows ever larger by creating more ABC agencies and granting them powers over the people.
From the ATF and NSA that regulates firearms and such to the FDA, the EPA, DPS, IRS, FEMA, ICE and many more the never ending list of ABC agencies extend the ever growing long arm of the law that grows longer by the day when they are allowed or permitted to write their own rules outside the limits of the Constitution.
This is well beyond the original intent of our founding fathers that so painstakingly gave us the finest document ever penned by mankind that outlines and defines the freedoms and liberties of a free nation and a small limited government.
They would be more than appalled to see what this once great nation has became in the last 100 years of it’s existence.
It’s long past time to take a step back and view the current situation from a different perspective that closely aligns with the original intent of the founding fathers that created the greatest nation the world has ever known.
Word.
Go get em boys,they’ve been overstepping their boundaries for years!
I’m pretty sure there is already A LOT of precedent for striking down regulations that exceed the scope of their legislative authorization. This is will probably be a much narrower decision than the poster realizes.
Per the guidelines on the 4473, Abramski was definitely in violation of U.s.¢. 922(A)(6). But, I’m very interested in if the BAFTE has overstepped its legal authority in crafting the form and its guidelines to make the requirements for buying a firearm more restrictive that it is meant to be under the law. The clear and repeated abuses of the BAFTE and other government agencies are a frustrating reminder of the oppressive power of big government. Two of the primary purposes of the SCOTUS are to limit the powers of government to those enumerated in the constitution, and to limit government business units to the authority granted them in the law. To these purposes, they have failed this country countless times. Let’s hope they get this one right and send a clear message to the federal government that it only has what authority and power granted to it by the constitution and the people.
Oh, the government knows this already. But agencies like the ATF continue to push the envelope, knowing that they will either not be challenged or that actions to contain them will be years down the road.
And you might mention that these agencies know that most of “We the People” cannot afford the hundreds of thousand of dollars it will take to fight the feds in court.
Yeah! All the way to how the Commerce clause has been stretched to justify government’s overreaches.
Government agencies write new laws in the form of regulations all the time. It’s not right nor what Congress intended but these agencies transcend administrations and become their own mini governments. It’s very hard to determine what they are up to or what the law really is.
The obvious answer is they should administer the laws Congress writes. But that gets boring and sometimes there are gaps found. Rather than go back to Congress for clarification or amendment, a regulation is minted. And then another.And before long you have situations like at IRS or DOJ and ATFE.
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