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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.

The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice A

QUESTION PRESENTED: Shall we smile?     DECISION: Yes, 5-4.
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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.

Questioning was vigorous. Within the first three or four minutes, five justices asked questions – Associate Justices Sonia Sotomayor, Antonin Scalia, Elena Kagan, Samuel Alito and Anthony Kennedy, followed soon thereafter by Chief Justice John Roberts.
.
RICHARD D. DIETZ
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: 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.

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.

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.

Now, can you - can you lie, so long as the question is improper?

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.)
JOSEPH R. PALMORE from the Solicitor General’s office
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?

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?

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.”

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.

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.

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.”

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.

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.

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 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.
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DIETZ REBUTTAL

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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.

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OBSERVATIONS

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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.

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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.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a battle of some sort.

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

Originally posted to Firearms Law and Policy on Thu Jan 23, 2014 at 05:12 PM PST.

Also republished by Shut Down the NRA and Repeal or Amend the Second Amendment (RASA).

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Comment Preferences

  •  Tip Jar (9+ / 0-)

    2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

    by TRPChicago on Thu Jan 23, 2014 at 05:12:34 PM PST

  •  What's the quick & easy: SC ruled against straw (2+ / 0-)
    Recommended by:
    Glen The Plumber, LilithGardener

    purchasing?

    "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

    by We Shall Overcome on Thu Jan 23, 2014 at 05:19:18 PM PST

    •  Nope. Jury, er, the justices are thinking ... (4+ / 0-)

      ... about it.

      I disagree with a commentary elsewhere on the thrust of the questioning. I think the Court may be Topsy Turvy on this case. I sense some out-of-the-traditional-box concerns going on during the arguments yesterday. Normally, it would be some time, several months, before we know. But I'm thinking there could be less disagreement in the Court than there was in our panel of DK commenters.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Jan 23, 2014 at 05:26:20 PM PST

      [ Parent ]

      •  Hopefully. If what happend in Colorado last year, (5+ / 0-)

        with the state chief of corrections being gunned down using a gun that was straw purchased, is weighing on their minds, then perhaps they will expand and strengthen the straw purchase box.

        A Colorado woman is facing straw-purchasing charges for supplying a gun to the man suspected of murdering the head of the state corrections department.

        Stevie Marie Vigil was arrested for buying a handgun and then allegedly transferring it to Evan Ebel, who police believe used it to shoot and kill Tom Clements, executive director of the Colorado Department of Corrections. Ebel, 28, is also suspected of killing a Domino’s Pizza driver before he was killed himself in a shootout with police in Texas.

        http://blogs.lawyers.com/...

        "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

        by We Shall Overcome on Thu Jan 23, 2014 at 05:36:18 PM PST

        [ Parent ]

        •  Whether Congress was thinking of it or not, ... (3+ / 0-)

          ... straw purchases are a - possibly THE - biggest single firearms enforcement problem today.

          Congress originally empowered the ATF to police Federal gun laws, that much is clear. In its expertise, upon being encouraged by several Federal court decisions, the ATF issued Form 4473, containing a strong ban of straw purchases.

          Abramski asks SCOTUS to do away with the ban. Period: entirely trust a buyer to know when someone he resells to is an eligible purchaser or not. Whoever thinks that responds to a demonstrable law enforcement problem is ... well, is a good friend of gun rights writ very large.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Thu Jan 23, 2014 at 05:49:36 PM PST

          [ Parent ]

          •  Face palm! Can't believe that's their argument. (3+ / 0-)

            I suppose it's because they say it's unenforceable - but just the threat and the possibility of getting caught in a sting probably reduces them.

            "Looking back over a lifetime, you see that love was the answer to everything." — Ray Bradbury

            by We Shall Overcome on Thu Jan 23, 2014 at 06:01:58 PM PST

            [ Parent ]

            •  Dietz doesn't say it in so many words. He just ... (1+ / 0-)
              Recommended by:
              Glen The Plumber

              ... says the first buyer is the only one that should ever count. After that, it's private resale that Congress deliberately did not want to outlaw.

              Dietz's answer is that plenty of other laws can be used to prosecute straw buyers, such as aiding and abetting a crime. To which, the reasonable pushback is ... after the fact? A prime goal of the straw purchase doctrine is interdiction at the point of sale.

              Whose rights are at issue in banning quick turnaround straw purchases? Balanced against the importance of keeping guns out of the hands of ineligible purchasers, for example, why would gun rights require blinding the gun dealer?

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Fri Jan 24, 2014 at 06:34:56 AM PST

              [ Parent ]

  •  This may be one where SCOTUS comes down (4+ / 0-)

    on the side of the law and against the NRA

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Thu Jan 23, 2014 at 05:43:49 PM PST

  •  Thanks for digesting the arguments for us, TRP (3+ / 0-)
    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.)
    So did Abramski's lawyer really have nothing to say on the materiality question?

    IMO the usefulness of the ~14 questions on the Form 4473 depend a lot on self certification by the buyer. There is much information in those questions that an FFL can't know, and even the NICS database will not have. By "self certification" I mean the buyer attesting with their signature that they are answering truthfully to every question, about themselves.  

    We might be surprised, but as you and others suggested they could come back with a decision, "Nope, the form is fine, the instructions are fine, truthfulness is necessary when you sign a form attesting to the truth about yourself."

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Thu Jan 23, 2014 at 06:00:17 PM PST

    •  Exactly! All Dietz can say to Scalia's question... (2+ / 0-)
      Recommended by:
      Glen The Plumber, WakeUpNeo

      ... in my view, at least, is that Abramski's lie didn't make any difference.

      Well, yeah, maybe, but is that the side you really want to be on?

      A better response - and this is totally unfair Thursday evening quarterbacking on my part - would be that the ATF gave Bruce Abramski no choice. He had to say Yes, or he wouldn't get the gun. It's an unfair, non-legal choice, etc., etc.

      As this system is set up, EVERYthing depends on an honest gun buyer. The core point is that a gun buyer does not know whether the person he or she is buying a gun for is actually an eligible purchaser.

      That, for me, is the turning point of this case. That finesses all the fine legal arguments and goes to what is the sense of the matter. (I can see things more clearly now that I am totally retired from the practice and not confined to the finer points of law.)

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Jan 23, 2014 at 06:15:27 PM PST

      [ Parent ]

  •  I'll place my bet... (4+ / 0-)

    ($0.02 wagered, for obvious reasons.)

    Ruling:
    5-4, in favor of overturning the conviction.

    Reason:

    Nothing to do with guns or the 2nd Amendment. If I'm right, the argument will go like this:

     a) The Gun Control Act of 1968 does not prohibit a person who is not in one of the categories explicitly prohibited from owning a firearm from buying one for someone else, indeed, it leaves all regulation of intra-state transfers between private parties to the states.

    b) Since the BATFE is an agency of the Executive branch, it has no authority to make any action a crime if Congress didn't do so.

    c) Therefore, the BATFE has no legal authority to ask if the buyer is purchasing the firearm for him/herself, let alone to prosecute someone for lying in answer to a question that was not legal for them be asking.

    Why do I think this?

    Because there are enough Justices who have a very limited view of the authority of Executive agencies to get 5 votes for a ruling to further narrow that authority. That this is a case about guns is probably a nice freebie, but remember that there's at least 3, if not 5, Justices who think that the answer to the question, "how much power should Executive agencies have," is "only that which was explicitly given them by Congress." Justice Thomas would probably answer, "None. Only Congress can make laws, and they cannot delegate that power to the Executive."

    --Shannon

    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Thu Jan 23, 2014 at 07:28:00 PM PST

    •  Whow, many themes there! (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      Bottom line - it would be somewhat ironic if justices appointed by an administration that believed in very expansive Executive powers limited them as you say.

      OTH, Congress did not specify straw purchases were a problem and as argued, this is a penal statute, so what one can be found guilty of should be specified clearly.

      BUT on your "cannot delegate" point, actually Congress has created a large number of agencies (the "headless fourth branch" but typically thought of as exercising Executive branch functions of administering laws) to which it has given quite sweeping powers.

      I think that's why Dietz's brief argued that the ATF did not follow administrative procedures in promulgating its form. That point accepts that the ATF could do it.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Thu Jan 23, 2014 at 07:50:30 PM PST

      [ Parent ]

      •  The "cannot delegate" part is unique... (0+ / 0-)

        To Justice Thomas. I'm pretty sure that's how he views Separation of Powers questions. If he wants to make that point in this case, I'd expect him to do so in a separate opinion... his concurrence in McDonald is an example.

        --Shannon

        "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
        "Dissent is patriotic. Blind obedience is treason." --me

        by Leftie Gunner on Fri Jan 24, 2014 at 11:03:20 AM PST

        [ Parent ]

        •  In this argument as in all others for years, ... (0+ / 0-)

          ... Associate Justice Clarence Thomas is the only silent partner of the Court.

          I'm thinking he might have been stung once when he asked what someone revealed as a dumb question. J. Thomas can write his tomes in the privacy of his chambers and his clerks' cubicles. The law may be no less because of his lack of active participation in oral arguments.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Fri Jan 24, 2014 at 11:49:51 AM PST

          [ Parent ]

    •  Thanks for your analysis Leftie Gunner, nice to (3+ / 0-)

      see you posting.

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Thu Jan 23, 2014 at 08:06:56 PM PST

      [ Parent ]

  •  On "straw purchases" and where they can lead: (2+ / 0-)
    Recommended by:
    TRPChicago, Glen The Plumber

    Spengler was with Greece woman when she bought his guns, court papers allege

    Prosecutors: Greece woman bought weapons for Spengler

    On a Sunday in June 2010, William Spengler Jr. accompanied a young woman to a Gander Mountain store in Henrietta and chose a Bushmaster rifle and a Mossberg shotgun for purchase.

    Having served time in prison for bludgeoning his grandmother to death with a hammer 30 years earlier, Spengler could not legally buy the guns.

    But the woman with him, Dawn Nguyen, who was his next-door neighbor and no more than 22 years old at the time, could. And she did.

    Two-and-a-half years later, those guns were found on Spengler following his shooting of four Webster volunteer firefighters, two of them fatally, outside his Lake Road home on Christmas Eve...

    Downloads available from links on that Democrat and Chronicle page:

    PDF: Criminal complaint against Dawn Nguyen

    Spengler's parole board hearings:

    1989 | 1991 | 1993 | 1995

    •  This was the "hypothetical" during arguments. (2+ / 0-)
      Recommended by:
      Glen The Plumber, WakeUpNeo

      Not by names and words, but here it is from a colloquy between Government counsel and Justice Scalia:

      MR. PALMORE: [U]nder [Abramski's] view of the statute, I
      could approach someone in a parking lot outside of a
      licensed dealer. I could say, would you like to make a
      quick buck? Please come in with me. I could point to
      the firearm I want. I could hand him the money. I
      could look over his shoulder as he fills out Form 4473
      in his own name. I could watch the dealer run that
      person's name and identity through the criminal
      background check, and as we leave the shop together he
      could hand me that firearm.

      JUSTICE SCALIA: Why is that -- why is that
      any more horrible than the notion that as soon as I buy
      it, I walk out of the store and I meet this guy in the
      parking lot. He says: Hey, that's a nifty looking gun
      there. How much did you pay for it? He says: You
      know, I paid 600 dollars. I'll give you 700. Oh, it's
      yours. Right? I can hand it to him, can't I?

      MR. PALMORE: You could, Justice Scalia.

      See why Dietz's arguments had traction? As a practical matter, WHEN the agreement to resell took place is what the ATF's view of quick turnaround resale hangs on.

      Spengler's case sure looks like Abramski's. (I wonder what Spengler and Nguyen said in the dealer's presence.)

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri Jan 24, 2014 at 05:17:11 AM PST

      [ Parent ]

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