On January 22, 2014, oral arguments (PDF) were heard in the US Supreme Court in the case of Abramski v. US. The case concerns a Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) created policy barring the practice of a lawful purchaser of a firearm subsequently transferring the firearm to another lawful purchaser. This case is about more than just the civil right of a person to purchase constitutionally protected firearms. This case is about a federal agency exceeding its statutory authority and overreaching by creating felonies where Congress chose not to do so.
Abramski is a former law enforcement officer and Virginia resident eligible under both federal and state law to purchase and possess a firearm. Abramski's elderly unclea Pennsylvania resident also eligible under both federal and state law to purchase and possess a firearmrequested Abramski's help in purchasing a firearm. Three federally-licensed firearms dealers (FFLs) advised Abramski that he could purchase the gun from a Virginia FFL and transfer it through a Pennsylvania FFL to his uncle. Abramskiwanting to use his law enforcement discount to save his uncle a few dollarspurchased the firearm through a Virginia FFL, filled out Form 4473 (PDF) (the federally mandated firearms transaction form), submitted to the federal and state background checks and paid for the background checks.
He then took the firearm to a Pennsylvania FFL, where the uncle filled out Form 4473, submitted to the federal and state background checks and paid for the background checks. After he was approved by the background check, the uncle took possession of the firearm from the Pennsylvania FFL.
BATFE prosecuted Abramski for making a false statement on Form 4473 during his initial purchase of the firearm because he had responded affirmatively to question 11.a asking whether he was the "actual buyer" of the gun. The term "actual buyer" appears nowhere in the text of the Gun Control Act of 1968. The term only appears in the BATFE-created Form 4473, and even there it did not first appear until 1995. BATFE effectively invented the term and added it to Form 4473 without any procedure.
The fact is that, in passing GCA, Congress did not intend to prohibit purchases by lawful gun owners. Congress intended only to forbid sales to certain prohibited personssuch as felons. BATFE's policy criminalizes behavior that Congress specifically chose not to criminalize. The GCA contains a list of persons who are prohibited from possessing firearms and ammunition and to whom it is unlawful for firearms or ammunition to be transferred or delivered to. Such "prohibited persons" include convicted felons, certain misdemeanants, persons adjudicated mentally incompetent and persons involuntarily committed to mental institutions. There is no prohibition on transferring a firearm to a lawful non-prohibited person. It is clear that Congress's intent was not to prevent transfers of firearms between persons who are both legally entitled to purchase and possess the firearm. Rather, Congress desired to prevent people from purchasing firearms on behalf of prohibited persons.
In fact, even BATFE did not originally take the position that it takes now. From 1979 to 1992, BATFE publicly took the position that the GCA did not prohibit the practice of a lawful purchaser of a firearm subsequently transferring the firearm to another lawful purchaser, unless the FFL knew that the ultimate recipient was a prohibited person. BATFE took the position that prohibited "straw purchases" were of "two basic types," both of which involved at least one person who was prohibited from possessing firearms. As the US Court of Appeals for the Ninth Circuit pointed out in US v. Moore, a BATFE industry circular stated in 1979: "It makes no difference that the dealer knows that the purchaser will later transfer the firearm to another person, so long as the ultimate recipient is not prohibited from receiving or possessing a firearm."
In 1995, BATFE added the inquiry in question to Form 4473which was not subject to notice and comment rulemaking#151;asking whether the purchase was the "actual buyer" of the firearm. However, even now BATFE is inconsistent with the application of this form-created "law." For instance, BATFE has stated that there are exceptions to the "actual buyer" rule, including the purchase of a firearm as a gift and the purchase of a firearms by parents for their children. Again, none of this can be found in the GCA; neither the prohibition nor the exceptions.
However, if the purchaser responds to BATFE's statutorily unauthorized question in a way that does not accord with BATFE's arbitrary definitions, that person will be charged with two separate felonies for lying on Form 4473. On the other hand, if the purchaser answers "no" to the "actual buyer" question, then#151;even if the subsequent transfer would be a lawful transfer to a non-prohibited person#151;the firearm transfer will be denied. Thus, by simply adding a question to Form 4473, BATFE has unilaterally, and without any statutory authorization, prohibited and criminalized conduct which Congress did not criminalize.
BATFE's inclusion of the "actual buyer" question on Form 4473 criminalizes conduct that Congress specifically chose not to criminalize: the transfer of firearms between non-prohibited persons. BATFE now takes the position that it is merely prosecuting Abramski for lying on Form 4473. However, BATFE admits that if an individual purchasing a firearm on behalf of another answers "no" to question 11.a., the sale will be denied. So again, the effect of BATFE's amendment to question 11.a. of Form 4473 is to prohibit the legal transfer of firearms between lawful non-prohibited persons.
There is no statutory authority for this prohibition, and it violates the plain intent of Congress in passing the GCA#151;as specifically stated in the GCA itself, the GCA's preamble and the GCA's legislative history.
Congress intended that the GCA prohibit sales only to a very specific set of "prohibited" persons. It was Congress's intent "to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous"such as convicted felons. The preamble to the GCA specifically states that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms," and that "this title is not intended to ... provide for the imposition by Federal regulation of any procedures or requirements other than those reasonable necessary to implement and effectuate the provisions of this title."
Whether or not you like a certain civil right (such as the right to possess a firearm), the idea that an agency can#151;in clear contravention of Congress's specific intent and the statute itself#151;prohibit and criminalize lawful conduct, should concern everyone.
The Supreme Court now will determine whether BATFE can effectively criminalize statutorily lawful conduct by simply adding a question to Form 4473. The US Court of Appeals for the Fifth and Ninth Circuits have found that the conduct in question is lawful, while the US Court of Appeals for the Fourth, Sixth and Eleventh Circuits have taken the opposite position. The Supreme Court will now settle the circuit split.
Stefan Tahmassebi has worked as an attorney in the Office of the General Counsel of the NRA for over 25 years, including the last 16 years as its Deputy General Counsel. His areas of practice include employment, corporate, commercial, commercial real estate, sales and use tax, insurance, constitutional and civil rights law.
Suggested citation: Stefan Tahmassebi, Abramski v. US: BAFTE Policy Contravenes Congressional Directives, JURIST - Sidebar, Mar. 14, 2014, http://jurist.org/sidebar/2014/03/stefan-tahmassebi-nra-actual-buyer.php.
This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org