The Supreme Court has decided the Abramski case with a 5-4 vote. The reaction thus far has been fairly muted, but the implications of the decision are potentially far reaching. Kagan, writing for the majority, spends a significant amount of painful time [painful for those of us who have filled it out many times] in the nuts and bolts of Form 4473 and what she believes must have been the intent of Congress when they crafted the Gun Control Act of 1968. Scalia wrote a spirited dissent, and anticipating the objections, Kagan writes:
But Abramski and the dissent draw the wrong conclusion from their observations about resales and gifts. Yes, Congress decided to regulate dealers’ sales, while leaving the secondary market for guns largely untouched. As we noted in Huddleston, Congress chose to make the dealer the “principal agent of federal enforcement” in “restricting [criminals’] access to firearms.” 415 U. S., at 824. And yes, that choice (like pretty much everything Congress does) was surely a result of compromise. But no, straw arrangements are not a part of the secondary market, separate and apart from the dealer’s sale. In claiming as much, Abramski merely repeats his mistaken assumption that the “person” who acquires a gun from a dealer in a case like this one is the straw, rather than the individual who has made a prior arrangement to pay for, take possession of, own, and use that part of the dealer’s stock. For all the reasons we have already given, that is not a plausible construction of a statute mandating that the dealer identify and run a background check on the person to whom it is (really, not fictitiously) selling a gun. See supra, at 9–15. The individual who sends a straw to a gun store to buy a firearm is transacting with the dealer, in every way but the most formal; and that distinguishes such a person from one who buys a gun, or receives a gun as a gift, from a private party.9 The line Congress drew between those who acquire guns from dealers and those who get them as gifts or on the secondary market, we suspect, reflects a host of things, including administrative simplicity and a view about where the most problematic firearm transactions—like criminal organizations’ bulk gun purchases—typically occur. But whatever the reason, the scarcity of controls in the secondary market provides no reason to gut the robust measures Congress enacted at the point of sale.
If it seems that Kagan is making the judgment of a legislator here, you are not mistaken, and it isn’t a mistake that she spends so much time in her decision on the federal code.
Via David Codrea, attorney Joshua Prince says of the decision:
There is NO law enacted by the Congress regarding straw purchasers! This was made up in whole cloth by the ATF! This is a FAR worse decision than anyone is comprehending. NOW, administrative agencies can enact criminal laws, which have NOT been enacted by the Congress!
David Workman also weighs in at Examiner:
Nelson Lund, a constitutional scholar and Second Amendment expert at George Mason School of Law, had this to say: “Five members of the Supreme Court have decided to make it a federal crime for a lawful gun owner to buy a firearm for another lawful gun owner. No federal statute says any such thing. The Justices are once again legislating from the bench, which violates the Constitution, and enacting a retroactive criminal law, which is even worse.” His comment came via e-mail.
In his dissent, Scalia notes that there is evolving history in how the ATF has applied and enforced the Gun Control Act.
After Congress passed the Act in 1968, ATF’s initial position was that the Act did not prohibit the sale of a gun to an eligible buyer acting on behalf of a third party (even an ineligible one). See Hearings Before the Subcommittee To Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., pt. 1, 118 (1975). A few years later, ATF modified its position and asserted that the Act did not “prohibit a dealer from making a sale to a person who is actually purchasing the firearm for another person” unless the other person was “prohibited from receiving or possessing a firearm,” in which case the dealer could be guilty of “unlawfully aiding the prohibited person’s own violation.” ATF, Industry Circular 79–10 (1979), in (Your Guide To) Federal Firearms Regulation 1988–89 (1988), p. 78. The agency appears not to have adopted its current position until the early 1990′s.
Then Scalia offers up this zinger.
In the majority’s view, if the bureaucrats responsible for creating Form 4473 decided to ask about the buyer’s favorite color, a false response would be a federal crime.
He has put his finger on a core problem with this decision [and other such rule-making inside the beltway]. As I’ve noted before:
Laws are passed by the Senate and Congress. But after laws pass, thousands of lawyers inside the beltway go to work writing regulations based on those laws, or not, using the law as a pretext for further regulation that Congress didn’t specifically intend. At times, Congress has even had to pass laws undoing regulations because the regulations don’t meet the intent of the law, and yet the executive branch won’t stop enforcing that regulation (or class of regulations).
Regulation is passed merely by entering them into the federal register, allowing a waiting time for public comments (which are nothing but a chance afforded to the authors of the regulations to ignore them or write sarcastic rebuttals), and then after the waiting period, it takes on the force of law including prosecution, fines and imprisonment for failure to follow them.
This happens every day, all over the nation, and in the DOT, NRC, EPA, DOJ, ATF, DHS, and other departments and agencies that the reader cannot even name and didn’t know existed. Any law giving the executive branch the authority to further regulate firearms will be an opportunity for abuse, overreach and exploitation.
I’ve seen it in my own line of work. Regulations take on the force of law after comments responding to entries in the Federal Register are summarily ignored by the agency doing the regulating. It makes little sense to respond with comments when the regulator’s mind is made up. These regulations frequently far surpass the law in breadth, scope, depth and magnitude.
One such example on Form 4473 might be the following. My own son was honorably discharged from the Marine Corps, but knew of one poor soul who became inebriated the eve of his discharge and was caught for DUI on base. This Marine was dishonorably discharged. According to the wording on Form 4473, he will never be able to legally purchase a gun even if a judge agrees with him because the USMC won’t revisit its discharge and thus he won’t be able to answer – truthfully – on Form 4473 about discharge from a branch of the service.
[I don't mean here to exonerate the ridiculous GCA for its requirement that gun transfers across state lines go through an FFL. I have gifted a firearm to one of my sons this way, and in order to fulfill this part of the law (he couldn't legally carry it with him on the airline even by following TSA regulations since he didn't own it), we had to pay the exorbitant cost of shipping the gun air express to an FFL and then a transfer fee in his home state. It had the effect of escalating the cost of the whole affair, and I'm convinced that this was part of the intended effect by Congress.]
To me, this kind of regulation seems onerous compared to what Congress wrote, but it is latitude given (and taken) by the federal regulators. If there is a problem with legislating from the bench, there is even a worse problem with regulating by the executive branch from inside the beltway. The problem will continue (and grow) as long as the public abides the abuse.