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Abramski is lost, Kennedy goes with the liberals
- Thread starter TFred
- Start date
JamesCanby
Activist Member
Admittedly I did not read the entire transcript ... but how long must someone own a purchased firearm before they can give it or sell it to someone else, privately, without being accused of having made a straw purchase?
There is no time limit. The issue is intent. I have bought guns only to decide relatively quickly that I did not like them and sold them. Nothing illegal about that, and even making a profit on it is irrelevant.
Abramski's case had very clear evidence that his intent all along was purchasing for another party with the other party's money. While I agree it should not be illegal to do that, he had to lie on the form to do it. The justices should have nullified the question on the form, instead of ruling on it in their judicial activism, which is normal for Kagan and Sotomayor.
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OC4me
Regular Member
So Kennedy was the swing vote in the divided opinion. Here is the gist of the dissent:
"Under §922(a)(6), it is a crime to make a “false . . .
statement” to a licensed gun dealer about a “fact material
to the lawfulness of ” a firearms sale. Abramski made a
false statement when he claimed to be the gun’s “actual
transferee/buyer” as Form 4473 defined that term. But
that false statement was not “material to the lawfulness of
the sale” since the truth—that Abramski was buying the
gun for his uncle with his uncle’s money—would not have
made the sale unlawful. See Kungys v. United States, 485
U. S. 759, 775 (1988) (plurality opinion) (materiality is
determined by asking “what would have ensued from
official knowledge of the misrepresented fact”); accord id.,
at 787 (Stevens, J., concurring in judgment). Therefore,
Abramski’s conviction on this count cannot stand."
Having just finished the rest of the dissent, its quite clear how wrong the majority was. This should make us quite fearful of Kennedy, to say the least, he is not to be trusted any more that the other liberal judges sitting on the bench. In my humble opinion, we were lucky with the Heller and McDonald opinions as they were decided. We should not be so hopeful for a positive outcome to any further Second Amendment cases that might come before this same court.
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davidmcbeth
Banned
The court.... we will follow the law, follow the law follow the law; screw the law screw the law screw the law ...
Petition the gov't to stop RKBA abuses? Not always going to turn out good.
Petition the gov't to stop RKBA abuses? Not always going to turn out good.
TFred
Regular Member
I haven't had a chance to read the opinions myself, but just from the comments and analysis I've seen so far, I have no doubt that we have yet another situation where the conservatives follow the rule of law, and the liberals are writing NEW law based on "the sky is falling" emotions. A country cannot long survive when this is the "justice" that is dispensed.
TFred
...this was not the case this time...Abramski intended to buy another person a gun with the other person's money...clearly a straw purchase, not a gift...that dishonesty followed his trying to use an old police ID to get a discount...he was a scumbag who's made it tougher on a lot of honest gunowners...
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I'll admit that I haven't kept up with all the details of this issue.... can you please elaborate what you mean by 'used an old police ID'? Are you saying that he was no longer a LEO but was using his official ID for the purposes of getting a LEO discount?
Edit: Never mind. I just did a couple searches and that does indeed appear to be the case.
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ChristCrusader
Regular Member
Other than Question 11a, straw purchases are not illegal.
That's why 11a should have been attacked by the courts, rather than his lying to question 11a.
Remove the form's questions about substance abuse, felony status, or domestic violence convictions, and those are still legislated disqualifications.
Remove 11a's question about straw purchase circumstance, and there's no legislated law prohibiting it; only the arbitrary added question by BATF.
Now re-read the dissent:
The raw democratic majority of the liberals on the "court" who wanted to achieve their desired effect counted question 11a as sacred and ruled him guilty.
The minority of judges who considered the written law to be sacred found question 11a to be in violation and without legislated law to support it.
Presumably, BATF shall be free to add whatever screening questions and disqualifications to the form that they see fit from here on out, without the need for legislation to call for them. They can continue to make illegal that which is not.
Of course they all failed since they continued to ignore the shall not be infringed law. Everything is arbitrary outside of that.
...in fact, the truth about 11a WOULD have made the sale unlawful...Abramski's uncle was not a resident of the state where the FFL was doing business... http://beforeitsnews.com/opinion-co...-shoots-down-straw-gun-purchases-2867240.html ...a fact seemingly missed by the dissenting judges...as well as ignoring the two laws the Court cited that demand truthful and complete answers on the forms required to purchase...
...I don't like the 68 GCA...Brady, or anything else that restricts 2A...but it IS law and we've been living under it for a long time...when enough Americans decide they're going to get it repealed, and convince the Congress to do that...I'll be at the party...but it's wise to operate honestly within the laws as they're written now...
...I don't like the 68 GCA...Brady, or anything else that restricts 2A...but it IS law and we've been living under it for a long time...when enough Americans decide they're going to get it repealed, and convince the Congress to do that...I'll be at the party...but it's wise to operate honestly within the laws as they're written now...
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ChristCrusader
Regular Member
The uncle's residence is irrelevant to the laws in play at the counter, where the nephew made the purchase/accepted the transfer. The subsequent transfer from the nephew to the uncle was done legally using FFL's.
The two laws?
The subsequent owner after the initial transfer is not required to be kept in the records.
The problem is that it wasn't law. It was an arbitrary added question, added by the BATF, outside of the law, and lying in response did not even break the 924 law regarding lying on the form.
... the " 924(a)(1) ...whoever—
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter..." does not pertain to the subsequent owner...the lies that the person who fills out the 4473 tells are the ones " ...required by this chapter to be kept..." as long as the FFL is in business...
...as to the uncle's residence...the lie that Abramski told in 11a circumvented the purpose of the 4473...and, since all the other answers were built on Abramski being the purchaser, they are worthless in determining if the actual buyer can legally purchase that gun from that dealer...which Alvarez, living in PA instead of VA, could not legally do...perfect example of how a straw purchase is made to get around the law...
...the two cites (in the SC's opinion cited early on) are accurate...and, as the law is currently written, Abramski broke it...
...what we wish would be is far removed from the reality we live with today...when enough Americans care, the Congress can get rid of the 68 GCA, Brady, and any other laws that we believe to be infringement on our God-given rights...to be a part of that, we have to live in a manner that we don't lose our right to vote in the matter when it does come up...
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter..." does not pertain to the subsequent owner...the lies that the person who fills out the 4473 tells are the ones " ...required by this chapter to be kept..." as long as the FFL is in business...
...as to the uncle's residence...the lie that Abramski told in 11a circumvented the purpose of the 4473...and, since all the other answers were built on Abramski being the purchaser, they are worthless in determining if the actual buyer can legally purchase that gun from that dealer...which Alvarez, living in PA instead of VA, could not legally do...perfect example of how a straw purchase is made to get around the law...
...the two cites (in the SC's opinion cited early on) are accurate...and, as the law is currently written, Abramski broke it...
...what we wish would be is far removed from the reality we live with today...when enough Americans care, the Congress can get rid of the 68 GCA, Brady, and any other laws that we believe to be infringement on our God-given rights...to be a part of that, we have to live in a manner that we don't lose our right to vote in the matter when it does come up...
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ChristCrusader
Regular Member
Again, to whom the nephew transferred the gun subsequent to the purchase from the FFL is not required to be kept in the records. 924(a)(1)makes it illegal to falsify the information to be kept in the records.
This is where the libs on the court wished the laws that were written to accomplish something that the laws in and of themselves fail to do, and still fail to do even after they let the BATF add this stipulation. It fails a little less, but the same transaction would have been legal with minor, insignificant differences - like not accepting prepayment. A difference that is insignificant to the outcome of the transaction itself, and not in and of itself breaking any law, just what the libs on the court wish the law to accomplish.
If we are to judge based on what the intent of the law is, and how 11a is phrased, then every transfer subsequent to a purchase from an FFL is illegal.
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...seems we're going in circles...one more try then I'm done:
...he DID falsify the records that were required by law to be kept...he lied that he was the actual buyer...making all the other answers false, too, since they didn't honestly answer the questions about the true buyer...he went in there with a lie to scam a police discount from the dealer, lied that he was the actual buyer, despite clear examples in the instructions on the 4473 that said he wasn't, then filled out and signed the form based on that fundamental lie...that form IS required by the law to be kept by the dealer in his permanent records, as long as he is in business. 924(a)(1) applies to Abramski and his lies, not someone whose name doesn't appear on the form...
...when you read the form, follow the instructions, answer honestly, then at some later date legally transfer the gun to another person or dealer, you haven't broken any law...the fact that his whole approach was a pack of lies and you have to say such as this:
"... It fails a little less, but the same transaction would have been legal with minor, insignificant differences - like not accepting prepayment..." is your acknowledgement that the transition, as done, with the facts of this case, was NOT legal...as the courts upheld...
...hope nobody here follows Abramski over the cliff...
...he DID falsify the records that were required by law to be kept...he lied that he was the actual buyer...making all the other answers false, too, since they didn't honestly answer the questions about the true buyer...he went in there with a lie to scam a police discount from the dealer, lied that he was the actual buyer, despite clear examples in the instructions on the 4473 that said he wasn't, then filled out and signed the form based on that fundamental lie...that form IS required by the law to be kept by the dealer in his permanent records, as long as he is in business. 924(a)(1) applies to Abramski and his lies, not someone whose name doesn't appear on the form...
...when you read the form, follow the instructions, answer honestly, then at some later date legally transfer the gun to another person or dealer, you haven't broken any law...the fact that his whole approach was a pack of lies and you have to say such as this:
"... It fails a little less, but the same transaction would have been legal with minor, insignificant differences - like not accepting prepayment..." is your acknowledgement that the transition, as done, with the facts of this case, was NOT legal...as the courts upheld...
...hope nobody here follows Abramski over the cliff...
ChristCrusader
Regular Member
He was standing there at the counter. He was the actual buyer.
There's no law saying he can't buy it for someone else.
There's no law that says he can't lie to question 11a.
It might defeat some people's subjective wish for the purpose of the law (most notably of late the 5 black-enshrouded injustices), but it doesn't break the law as written.
he was the buyer at the counter. he answered truthfully about himself
separate, not the issue at hand
I should have said that it would have been more obviously lawful, one less glitch to trip on.
7/8 of the problem is we let them get away with it for so long because we thought it was law, and unlearning what we trusted an assumed for so long is harder than looking at it fresh to begin with. Now we let it set for so long that it has become a shackle binding us. We never should have let an unlawful element go for so long. Of course it takes standing and years and $$$ to undo a simple additional line of a form. And it doesn't always get corrected.
This is another manifestation of legislation vs. application.
Constitution < Constitutional Law
Congressional legislation < legislation from the bench
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jmelvin
Founder's Club Member
ChristCrusader, when one fills out ATF Form 4473 they are obligated to use the definition of terms that are defined by the ATF, when the terms are defined. Form 4473 Question 11a asks if the person filling out the form is the actual transferee / buyer. The question also has notes to see the instruction for Question 11a. The instruction for Question 11a read:
Actual Transferee/Buyer: For purposes of this form you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g. redeeming the firearm from pawn / retrieving it from consignment, firearm raffle winner). You are also the actual transferee / buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE / BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE / BUYER of the firearm and must answer "NO" to question 11a....."
The form asks the question about a term and then goes on to define the term, including giving an example of what the term is and is not. It does not matter what you think the term means, or could mean, since the term is already defined by the agency whose form you are willfully completing.
The Form 4473 is required for purchases and transfers made from licensed firearm dealers. If Abramski did not want to fill out Form 4473 he should have bought the firearm from a 3rd party, non-licensed casual seller and he could have avoided the entire mess of being prosecuted for knowingly providing false information, when the form itself defines the terms of the question he was asked to answer truthfully.
Actual Transferee/Buyer: For purposes of this form you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g. redeeming the firearm from pawn / retrieving it from consignment, firearm raffle winner). You are also the actual transferee / buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE / BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE / BUYER of the firearm and must answer "NO" to question 11a....."
The form asks the question about a term and then goes on to define the term, including giving an example of what the term is and is not. It does not matter what you think the term means, or could mean, since the term is already defined by the agency whose form you are willfully completing.
The Form 4473 is required for purchases and transfers made from licensed firearm dealers. If Abramski did not want to fill out Form 4473 he should have bought the firearm from a 3rd party, non-licensed casual seller and he could have avoided the entire mess of being prosecuted for knowingly providing false information, when the form itself defines the terms of the question he was asked to answer truthfully.
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Where is ATF's authority to define terms? And what limits are placed on that authority? This will be found in whatever law gives them authority to define terms and make questions.
jmelvin
Founder's Club Member
A firearms transaction record Form 4473 or similar using the information as provided in Form 4473 is required per 27CFR478.124 for transfer of firearms from specified firearm licensees. US Code Title 18, Chapter 44 likely provides the authorization of the requirements of 27CFR478, but go ahead and knock yourself out and let us know what part.
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