Institute on the Constitution is pleased to announce that it has joined with Congressman Steve Stockman, Gun Owners of America and others in filing an Amicus Curiae brief in the United States Supreme Court in the case of Abramski v. United States. The gravamen of this case surrounds whether Mr. Abramski committed a crime, what is known as a “straw purchase,” when he completed Alcohol Tobacco and Firearms (ATF) paperwork to purchase a handgun from a federal firearms licensed dealer (FFL) in Virginia and then subsequently transported the handgun to Pennsylvania to another FFL which completed additional ATF paperwork to have the handgun transferred to his elderly uncle.

At the heart of the Government’s case against Mr. Abramski is a “straw purchase” theory based neither in law nor regulation that it is impermissible for a person to purchase a firearm from an FFL if the transferee is acting as an agent for a third party, who furnished the funds for the purchase, even if both parties are eligible under state and federal law to possess a firearm.

In the Amicus Curiae brief we contend that the United States Supreme Court should grant review of this case on its merits. We submit that Mr. Abramski’s conviction cannot stand for three reasons. First, the question he was asked on the ATF Form 4473 – whether he was the “actual buyer” of the firearm – is invalid, not only unauthorized by law and regulation, but in actual conflict with both. Second, Mr. Abramski’s statement provided on the ATF Form 4473 was not, in fact, false, since the question posed by the ATF Form 4473 is ambiguous, and the accompanying instructions are confusing. Third, and finally, the question posed by the ATF Form 4473 arbitrarily and discriminately imposed a duty upon Mr. Abramski inconsistent with the policy it purports to enforce.

The Amicus Curiae brief argues, among other things, that Congress has thus far declined to enact what is known as the ATF “straw purchase” doctrine into law. It is interesting to note that Congress never gave the ATF the authority to question where a firearm might eventually wind up. Rather, the text of the statutes Congress has enacted prohibit only the transfer of a firearm from an FFL to an ineligible person and the receipt of a firearm by a person who knows he is ineligible. Simply put, it is neither for courts nor for the ATF to create crimes where Congress has not done so.