Friday, January 24, 2014

Supreme Court Oral Arguments on ATF Change of Interpretation Without Change in Law

The oral arguments in the case of Abramski v. United States, where the Supreme  Court is determining if the ATF can change the definition of what is a "straw buyer" without a change in the statute, and whether a person who transfers a firearm to someone who can legally posses the firearm is involved in a "straw purchase".  The ATF had one interpretation of the statute from the implementation of the law in 1968 until 1994, 26 years later.   Then they started a different interpretation of the law under the Clinton regime.

The arguments did not seem to go well for the government, as several of the justices focused on the ATF change in interpretation of the law, which occurred in 1994, without a change in the statute.  From Mr. Dietz, the defendants attorney:
Another point, Your Honors, is that the

21 plain text interpretation of the statute is one that the

22 agency, ATF, had adopted initially.  In 1979, the Agency 
23 sent a circular to gun dealers that took the -- the

24 precise position that -- that Petitioner is taking here,

25 which is that a purchase of a gun for another lawful gun  
1   owner is permissible.   And in doing so, the -- the
2 Agency said that that was an interpretation of the text

3 of the Gun Control Act.
Justice Roberts Questioning the Government's lawyer, Mr. Palmore: 
17  CHIEF JUSTICE ROBERTS:  Where in the Act

18 does -- is the basis for the requirement on the form?

19 The form says, you know, if you're not the actual,

20 you're buying for somebody else.  Where is that in the

21 statute?

22 MR. PALMORE:   That is ATF's reasonable

23 interpretation of the statute and I was just going to

24 get to that.

25 JUSTICE SCALIA: Its current one.  It used

1 to have a different one.

2 MR. PALMORE:  That's the current one, and

3 it's been consistent for the last 20 years, Justice

4 Scalia.
Justice Ginsburg, a little later:
23 JUSTICE GINSBURG:  Mr. Palmore, when the

24 Agency changed its view in 1994, there was no change in

25 the statutory text, was there?

1  MR. PALMORE:There was not, Justice 

2  Ginsburg.

3 JUSTICE GINSBURG: And at that time, the

4 interpretation was that you committed the offense if you

5 sold -- if the person, the true buyer, was an

6 unlawful -- a person to whom firearms could not be sold.

7 But if you -- if the ultimate possessor was a lawful

8 possessor, then there was no liability.

9 So the -- the statute has to be open, at

10 least, to either interpretation, no change in the words.

11 The Agency read it one way, and then later changed its

12 mind and read it the other way.
A little later, from Chief Justice Roberts:
22 CHIEF JUSTICE ROBERTS: Well, but there

23 wasn't -- there wasn't a strong lobby in Congress saying

24 we're the group that supports Ponzi schemes, so maybe it

25 makes more sense to have a broad construction of that

1 provision.  This language is fought over tooth and nail

2 by people on the, you know, gun control side and the gun

3 ownership side.  And to say -- you look at it and say
4 well, the purpose is this, even though there's no words

5 in the statute that have anything to do with straw

6 purchasers, I think, is very problematic.
 Several other issues were brought up in  the case, including questions as to the utility of the regulation when it is legal to sell to a private purchaser immediately after the purchase, as long as no money changed hands before, that gifts to private parties are also perfectly legal, and other arguments make me believe that the defense ended with an edge in the oral arguments. 

We will not know for certain until the written decisions come out, and that may not be until June.   Oral arguments are not a great predictor of how a decision will finally be rendered, but I find the point that ATF interpreted the law both ways to be quite interesting and helpful to the defense.

My interpretation is that the ATF changed their interpretation because their boss, President Clinton, was extremely anti-second amendment rights, and pushed for as many restrictions as he could possibly obtain.   Whether he went beyond what this court will allow remains to be seen.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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1 comment:

Anonymous said...

ATF must be getting ready to charge all those sellers in the fake pawn shop sting operations. The ones that went to gander mountain and bought guns only to sell them to atf agents for twice what they were worth.