On October 15, 2013, certiorari was granted by the United States Supreme Court in the case of Bruce J. Abramski v. United States, with oral arguments set for January 22, 2014. The case concerns whether BATFE’s policy barring the purchase of a firearm by a non-prohibited person for the purpose of selling it to another lawful purchaser exceeds the authority given to the agency under the Gun Control Act.
The case originated when Abramski, a former law enforcement officer, used a law enforcement discount to purchase a gun for his uncle. Abramski purchased the gun at a dealer then transported the gun to his uncle’s hometown. The pair then went to a local federally licensed firearms dealer, where Abramski transferred the gun to his uncle, after the uncle filled out a 4473 form and a submitted to a background check. Subsequently, the BATFE prosecuted Abramski for making a false statement on the 4473 during his initial purchase of the firearm, as he had responded affirmatively to a question asking whether he was the “actual buyer” of the gun.
In their petition for cert, lawyers for Abramski asked the Court to answer two questions. Whether or not a gun purchaser’s intent to sell a gun to another eligible buyer in the future is lawful, and whether that intent is information that is required to be kept by a federally licensed firearms dealer. The petition points out the importance of the Supreme Court’s intervention in the case, noting that the courts of appeals for the Fifth and Ninth Circuits have found that these types of purchases lawful, while the Fourth, Sixth and Eleventh Circuits have taken the opposite position.
In a friend of the court brief filed August 26, 2013, lawyers for the NRA Civil Rights Defense Fund (CRDF) outline an argument making clear that BATFE is well outside its congressional mandate in criminalizing these types of transactions. The brief states that in authoring the GCA it was Congress’ intent “to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous,” citing the earlier case of Barrett v. U.S. Also cited is the preamble to the GCA, which states, “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, “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.” This suggests that BATFE has overstepped congressional intent with prosecutions of gun purchasers like Abramski, as Congress intended that the GCA prohibit sales only to a very specific set of persons. Therefore BATFE’s inclusion of the question on the Form 4473 asking whether a purchaser is the actual buyer of the firearm criminalizes conduct that Congress did not seek to prohibit and is therefore unlawful.
In making the case against the prohibition, the brief goes on to point out that BATFE’s definition of what constitutes an illegal sale of this type has been inconsistent. A BATFE Industry Circular stated in 1980, “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.” Further, BATFE does allow for an exemption to the “actual buyer” rule if a firearm is being purchased as a gift.
The NRA brief also argues that BATFE’s inclusion of the “actual buyer” question on form 4473 violates the Administrative Procedure Act, which requires the creation of legislative rules to involve notice and a comment period. CRDF explains that BATFE’s “actual buyer” rule does not fall into the narrow exceptions under which an agency is allowed to promulgate a rule without following prescribed procedure.
Congress’ intent in enacting the GCA was to make it unlawful for persons falling into certain categories to acquire or possess firearm. An improperly enacted BATFE rule barring lawful gun purchasers from selling guns to other lawful gun purchasers does nothing to further Congress’ goal or promote public safety, and it is easy to see how lawful gun owners are encumbered by this rule. For instance, a non-prohibited person might have a friend or relative that lives a distance away and has access to a better-stocked or lower-priced gun dealer and is willing to purchase a firearm on their behalf to transfer to them later. As long as the initial and ultimate purchasers are not prohibited, Congress’ goal of barring people in prohibited categories from purchasing guns is intact. In the coming months NRA will keep a close eye on this case and its important ramifications for gun owners, and will provide updates following January’s oral arguments.