This case tests the legality of the ATF's ban on straw purchasing guns. These nine Justices of the Supreme Court of the United States heard oral arguments on the morning of January 22, 2014.
What did they ask? How did the lawyers for Bruce Abramski and the US government respond? How closely did these match the issues, predictions and concerns of our panel of voters and expert commenters in What? Straw Purchase a Gun? and our Open Thread last Sunday, Buying a Gun for Someone Else: What Should the Law Be?
Slide beneath the slippery squiggle and see ...
|The chronology, links to the briefs and a link to the argument transcript can be found in SCOTUSblog, an excellent resource.
DISCLAIMER: What follows is general information on a law topic. Nothing in this diary constitutes legal advice and is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
for Bruce Abramski
He began with a theme he would use throughout, that the Gun Control statutes are a patchwork quilt of exceptions (for gifts, transactions with relatives, charities and raffles), where there would be no record keeping, background checks or trails for law enforcement to trace crime guns. He exploited well the inconsistencies, political compromises and “holes” in the language of the statute. If any justices were inclined to believe that Congress actually fashioned coherent policy out of controversial legislation, they might be able to accept this approach.
Dietz suggested that Congress was not concerned with the general issue of resale but focused on the first sale only ...
MR. DIETZ: The second sale is a private transaction between two private citizens and Congress did not want any regulation of those types of sales.This is a stretch, a conclusion rather than a fact from legislative history. To deal with the enforcement issues that this would present, Mr. Dietz insisted that the states had room to legislate in this area or not as they saw fit, Congress could always act if it wanted to address straw purchase situations and that many other provisions of the statute could be used to police straw transactions.
Justice Alito challenged Dietz’s statutory interpretation. “Well, what you're saying is [Congress] did a meaningless thing.” It’s “utterly meaningless” to run a check on the Straw Purchaser because he’s not going to have the gun a short time later. Justice Ruth Bader Ginsburg suggested that Dietz was proposing an “end run around what Congress said.”
Justice Scalia asked how any buyers there were in the Abramski case. Dietz contended there was only one, the straw buyer, because Congress was “not concerned about the ultimate recipients of firearms or what happens to a gun after it leaves the gun store.” This response provoked a stinging question from the bench and a gutsy response from Dietz:
JUSTICE SOTOMAYOR: Are you arguing that it doesn't matter whether it's a straw purchaser or not; a buyer is a buyer is a buyer? It's the person who puts the money down on the counter? Or are you arguing ... that if it's a lawful buyer using a straw man, that that's not actionable? ... Even if their intent is to sell it to a prohibited person?Mr. Dietz did not explain what those “means” are or how the ATF would police guns once out of the straw purchaser’s hands. Government counsel would point this out later.
MR. DIETZ: That's correct, Your Honor. And - and in those circumstances - again, I think this is an important point - is that Congress provided a number of means to prosecute illegal straw purchasers. And all of those provisions are still available to the government, even if this Court was to disapprove the straw purchaser doctrine in all its applications.
J. Scalia asked about Count II – the dealer records – saying it was “the one I have more trouble with” and proceeded to nail Abramski’s false statement on the ATF form:
JUSTICE SCALIA: Can you lie in, in answering questions that the government has no technical right to answer? I mean, let's assume 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.Dietz responded that “materiality” of the buyer’s representation is not at issue in the dealer provision, so Abramski shouldn’t be convicted under that provision. He then reserved the rest of his time for rebuttal. (A smart move, in my view, because this is a very weak point of Abramski’s defense.)
Now, can you - can you lie, so long as the question is improper?
for the government.
It was the Chief Justice who went to the core argument Abramski’s counsel had been making:
C.J. ROBERTS: Where in the Act does - is the basis for the requirement on the form? The form says, you know, if you're not the actual [buyer], you're buying for somebody else. Where is that in the statute?Justice Breyer suggested that was a broad reading of the statute. Even the ATF interpreted it differently for some time, he said (a point other justices would be echoing), the Gun Control Act is a criminal statute, “So what we should do is interpret it strictly.”
MR. PALMORE: That is ATF's reasonable interpretation of the statute and I was just going to get to that.
J. SCALIA: Its current one. It used to have a different one.
MR. PALMORE: That's the current one, and it's been consistent for the last 20 years, Justice Scalia.
... And so we think that the same kind of practical common sense inquiry is applicable here. When looking at the transaction the question is what is the ultimate purpose and effect of this transaction. Is it to have someone else acquire the firearm?
Palmore pointed out that under Dietz's argument, a potential buyer could approach someone in the parking lot, ask him to buy a gun for him, go inside with him, do the transaction and it would be lawful. J. Scalia pointed out that could happen anyway.
MR. PALMORE: Congress was obviously balancing a number of interests when it enacted these provisions. If you read the text of the statute and the legislative history, it's clear that Congress thought the principal problem was effectively unregulated sales of firearms from dealers. That’s the problem it wanted to focus on.J. Ginsburg underscored that the ATF changed its mind in 1994, but the statute hadn't changed, “So the – the statute has to be open, at least, to either interpretation, no change in the words.”
And you're right that it didn't want to go further and intrude on private transactions among unlicensed individuals. It drew a line, and it - but it drew a line at a point where it thought the actual problem was. And that line was up to and including the point of sale.
Palmore agreed but responded: “[T]he agency’s earlier view was essentially overtaken by the case law in several respects. And the agency therefore updated its view and has consistently applied that view for the last 20 years.”
He then met head on Dietz's argument that the government had many ways to prosecute straw purchases. Back to the hypothetical of a guy in the dealer’s parking lot who approaches a potential straw buyer to buy a gun for him. Palmore pointed out that the straw buyer in the parking lot doesn’t necessarily know whether the guy is eligible to buy a gun or not. He has no reason to ask and the guy has no motive to tell him. It would be very hard to prosecute the straw buyer under those facts.
CJ ROBERTS: [This was] a very sensitive compromise. There's, as far as I can tell, nothing in the language of the statute that talks about straw men or actual buyers or anything like that.It is unusual for an advocate to stand before the Supreme Court of the United States and cite lower courts as authority, but this is the history of the straw purchase doctrine! Then, Mr. Palmore attacked the situation of gifts, which was Dietz's opening:
MR. PALMORE: The courts of appeals and the lower courts have consistently rejected that argument. And what those courts hold is that in all cases, the lawfulness of the sale of a firearm from a regulated dealer is contingent on the recording, confirming, and after 1993, screening of the identity of the purchaser.
MR. PALMORE: The ATF has never interpreted this provision to - to prohibit gifts. And a gift recipient is in no sense a party to the gift giver's purchase of the gift. That's just not the way we think of gifts. The purchaser may change his mind. The purchaser is not acting at the direction and control of the gift recipient. And in ATF's experience, there's not a problem with gift recipients.J. Sotomayor asked whether “this [is] all contingent on the intent of the moment?” Palmore admits there could be a factual question in a given case, but that is not this case. Here, Abramski knew the truth and he lied on the form.
MR. DIETZ: And as a final point, Your Honors, I think, perhaps, the most important point in this case is if the Court rejects the straw purchaser doctrine as it - as it applies in this case to a lawful gun owner buying for another, there are really no harmful consequences. The government retains a very robust toolbox of criminal statutes to prosecute illegal straw purchasers, those who buy guns to get them into the hands of prohibited persons, and the government will receive accurate, truthful information about that first sale so they can trace firearms when they're used in the commission of a crime..
So the only thing the straw purchaser doctrine in this case really accomplishes is to prohibit law-abiding citizens from buying guns for other law-abiding citizens, and that's something that Congress expressly chose not to do.
Reading tea leaves has a lot in common with reading meaning into questions asked by Supreme Court justices. Their questions pin down points, clarify muddles and weaknesses, test how far to carry a particular rationale, exploit gaps in reasoning, perhaps poke a hole or two in what is thought to be another justice's position. But generally, these are poker faces up on the bench, very good advocates in their own right, and I would not wager on the outcome of most cases based on an hour before the Court.
Do the advocates' answers influence outcomes? Who knows, but to avoid adversely influencing the case, a good and respectful answer is essential. The arguments in this case were certainly that.
In comments to the first diary on the Abramski case, 35% of us would reverse the convictions, 25% would uphold them and another 18% of responders felt the Court "improvidently granted review" and would let the convictions stand. So "the weight of authority" would seem to favor conviction. However, 20% of us felt the Court should uphold the straw purchase doctrine but require disclosure of all the parties. This seems like a sensible result, a compromise between acknowledging Abramski's dilemma yet retaining the ATF's enforcement ability, but this option was not explored by the justices.
The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. We also cover positive aspects of gun ownership including hunting, shooting sports and self-defense.
To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.
Sat Jan 25, 2014 at 8:22 AM PT: An audio recording of the arguments can be found at the Oyez project: www.oyez.org/cases/2010-2019/2013/2013_12_1493