THE BLOG
11/10/2013 08:33 pm ET

The NRA and the Upcoming Supreme Court Gun Case

You may recall that in the debate over a new gun bill earlier this year, the major issue was whether to expand the FBI background check system to cover private sales. Proponents of expanded checks (Bloomberg, et al) argued that background checks helped prevent "straw sales," thus keeping guns out of the wrong hands; opponents of the measure (NRA) said that there was no reason to further restrict law-abiding citizens from exercising their constitutional rights to own guns.

Now the Supreme Court has decided to hear a straw sales case concerning a transaction that took place in Virginia where a former state trooper, Bruce Abramski, was convicted of committing a straw sale purchase because he bought a gun for his uncle but stated on the background check form (ATF Form 4473) that the gun was for himself. Abramski argued that there was nothing illegal about the sale because his uncle was, in fact, legally able to buy a gun. Therefore, since the intent of the statute and the background check was to keep guns from getting into the wrong hands, the defendant's transfer of the gun to his uncle didn't violate the law at all.

Abramski is represented by the NRA, whose attorneys discovered a split at the federal appellate level over how to handle straw sales. Several circuits have upheld the government's contention that making a false statement on the 4473 is, in and of itself, a violation of the law, regardless of the intention or additional facts in the case. But the Fifth Circuit held in U.S. vs. Polk that purchasing a gun for someone else, as long as the latter individual also qualified to own a gun, was completely permissible within the statute that applies to the 4473. SCOTUS has agreed to hear the case and resolve the apparent dispute between the different appellate courts.

Who was this guy Polk whose conviction for lying on a 4473 Form was overturned by the Fifth Circuit? It turns out that Polk didn't actually purchase the gun or guns in question; the real straw purchase was committed by a guy named Davidson who was acting on instructions from Polk. And the reason that Polk instructed Davidson to buy more than 40 guns for him, along with plastic explosives, grenades, a light tank anti-weapons system and a machine gun, was that he allegedly represented an organization called Constitutional America that was planning a rebellion to restore America to its "common-law roots."

Polk was finally arrested, charged and convicted of soliciting various crimes of violence, along with "aiding and abetting" a straw purchase even though he didn't actually fill out the 4473. The NRA wants SCOTUS to exonerate the Virginia state trooper who lied on the 4473, using as precedent a wacko in Texas who got somebody else to lie on his behalf. It would be nice if Mother Teresa was the defendant every time an attorney wanted a conviction overturned, but a guy who wants to blow up IRS offices and assassinate judges and police officers all over the country deserves just as much consideration if the law was used improperly to get a conviction in his case.

On the other hand, it seems to me that the NRA is really scraping the bottom of the barrel by trying to assert a constitutional right to gun ownership because everyone involved in the transaction is legally entitled to own a gun. The 4473, with all its shortcomings, doesn't give the purchaser the right to decide for himself whether the gun will eventually wind up in law-abiding hands. Abramski could have avoided the entire problem by having his Virginia dealer send the gun directly to his uncle's dealer in Pennsylvania; licensed dealers do this all the time. If SCOTUS decides this case in favor of Abramski and the NRA, we might as well get rid of the background check system all together. But isn't that what the NRA wants?

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