Can Someone Else Buy a Gun for You?

Can Someone Else Buy a Gun for You?

Under federal law, anyone buying a gun from a licensed dealer must undergo a background check. If you can't pass a background check, the obvious way to get around it is to use a "straw purchaser" -- to pay someone else to buy the gun for you. To counteract this, the Bureau of Alcohol, Tobacco, Firearms, and Explosives makes every purchaser sign a form stating that the gun is either for personal use or a bona fide gift. Law enforcement then prosecutes people for lying on the form, though it's a difficult charge to prove.

Today the Supreme Court ruled on a rather unusual case, in which a straw purchaser bought the gun, but the actual recipient of the gun was not a criminal -- the straw purchase was made not to avoid the law, but to take advantage of a special discount. The court ruled 5-4 that the act was illegal anyway.

There's no denying that the buyer lied on the form. Here's what it says:

Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.

The buyer said "yes," even though he was buying the gun on behalf of his uncle. But was this particular lie illegal? That's where it gets interesting: Though the federal government has for years tried to stamp out straw purchasing, including through the question above, the law itself doesn't explicitly address the phenomenon. It's illegal to transfer a firearm to someone if you know or have reason to believe they can't buy it themselves, but nothing in the law specifically says you can't buy a gun on behalf of someone else, period.

There are two statutes that come close, by making it illegal to lie during the purchasing process in some cases. Here's one (emphasis mine):

It shall be unlawful ... for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a [licensed dealer] knowingly to make any false or fictitious oral or written statement ... intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

And another statute makes it illegal to "knowingly make[] any false statement or representation with respect to the information required by this chapter to be kept in the records of a [licensed gun dealer]." (Again, emphasis added.)

These statutes were a significant fault line in the new case -- the majority (the liberals plus Anthony Kennedy, with Elena Kagan writing) thought these provisions clearly banned lying on the form; the dissent (the conservatives with Antonin Scalia writing) argued that this buyer's lie was not "material to the lawfulness of the sale," and pointed out that the law does not "require[]" the dealer to gather the "information" solicited in the question above.

The majority also argued that the law as a whole becomes rather pointless if it's legal to misrepresent, on legally mandated paperwork, whom the gun is for -- why go to so much effort conducting a background check on a person who isn't really the buyer? Such a reading would also interfere with laws making it difficult for gun dealers to sell firearms to people who don't appear on the premises in person, and would make it more difficult to trace firearms using purchase data. The majority thought it obvious that the law's references to, for example, the "transferee" or the "person" being sold the gun pertain to the "real" buyer, not just the person standing in the gun store.

The dissent, by contrast, found this interpretation "strained" -- the transferee is the person who gives the store owner money and takes the gun -- emphasized the lack of any explicit prohibition on straw purchases, and pointed out that the law mostly concerns itself with the person buying the gun. (For example, it's legal for a buyer to resell the gun without a background check, or to give it as a gift.)

It's an obscure legal issue, but the case highlights the complexity of our gun laws. You know it's bad when four members of the Supreme Court say it's legal to lie on a government form used to purchase a firearm.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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