Abramski v. US is the only gun case still pending as the Supreme Court finishes its current term the end of June.
Twenty-five of this term's 70 cases have been fully argued and await decisions. Abramski is one of five that had oral arguments more than four months ago.
It is a very simple case on its facts. A guy buys a Glock 19 handgun from a Federally licensed dealer without disclosing he was buying it for his uncle, knowing he was violating ATF rules.
It's a simple case on the law, too. Gun purchasers must sign an ATF form that states you have to buy the gun for yourself; you cannot buy it for others. Bruce James Abramski was convicted (with a suspended sentence and a slap-on-the-wrist fine). The ATF's rule is simple and clear and it is either lawful or it is not.
So what's the hold up?
Let's go below the orange loophole and speculate about it.
|Special thanks to Art Lien for permission to use his drawing. Photography not being allowed at the Supreme Court, Art is featured regularly on SCOTUSblog where he is the resident court artist. You'll also see his courtroom scenes on NBC News.
Disclaimer. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure - and Supreme Court practice - are law specialties. If you need advice, get it from a skilled professional.
Mainly because the law on straw purchases - buyers who buy for others - is a swiss cheese of loopholes and chasms. Much of this is due to legislative compromises the NRA and other pro-gun groups insisted on before allowing a gun control bill to pass. Pro-gun litigators then exploit the results of these compromises, arguing that the laws are defective.
Courtesy Franklin (VA) News-Post
The government pointed out that the Federal regime of verifications in-person, background checks and weapons tracing relies on accurate purchase information. It was properly skeptical that just trusting buyers would be adequate, seeing that straw purchases are "one of the most common ways criminals get guns."
- SCOTUSblog is an excellent source for access to written briefs, up-to-date status of cases and commentary by knowledgable observers. Abramski is here.
- For the facts and arguments: What? Straw Purchase a Gun?
- For policy issues and a DK poll on the subject: What Should the Law Be?
- For oral arguments before the Court: The Justices Asked. Counsel Answered.
- Lyle Denniston has an excellent summary: Argument Recap: When Compromise is the Problem. Recorded oral arguments are available at the Oyez Project.
Decisions in two simple cases argued a month ago were released last Monday with unanimous opinions in each. So in Abramski, it is most likely the justices are not unanimous on the outcome or are divided over the way(s) to explain it, or both. After all, the rationale the majority uses counts for a lot. It is providing guidance to other Federal courts and lawyers in innumerable cases on the subject ... and for DOJ and the Bureau of Alcohol, Firearms and Tobacco Enforcement (ATF) in the Executive Branch. Dissents and concurrences count, too, for they can to expose niches in reasoning and are signals for arguments in cases to come.
Moreover, the Straw Purchase Doctrine is important for administration of Federal gun laws. You need to think thoroughly to buck the judgment of the law enforcement agency with responsibility to crack down on illegal sales of firearms in a country rife with guns - now roughly one for every 300-plus million men, women and children in the US.
And note, Abramski v US is not a Second Amendment case (although some amicus filings wish it were). No, this is an application of administrative agency rules and congressional intent. And speaking of Congress, although the Court shouldn't be undertaking too much consideration of politics (a subject for another diary altogether, perhaps for summer beach writing and reading), the justices do look at the Washington Post. They know Congress has a hard time stepping up to gun control issues. To send Straw Purchase back to Congress for a more definitive resolution may be a fool's errand, leaving a void in the law that only the most pro-gun advocates could embrace.
So, What's happening? The Court's Processes. On the Friday after a case is argued in Court, the justices confer and vote on the outcome. The Chief Justice assigns opinion writing to a justice in the majority. (If the CJ is in the minority, the ranking justice in the majority assigns it.) Who gets the nod is based on all kinds of factors, from who talks most articulately or passionately about the case, to whose workload can readily take on drafting another opinion, or perhaps to the justice who looks up from the table at the wrong time. Also, some justices are known for expertise in a particular area of the law, although this would not seem to be so in this case.
The designated justice circulates a draft opinion to the others. Then concurrences and dissents get flushed out, so to speak, in reasoning more elaborate than in the conference. At this stage, do justices' minds change on the outcome of a case? On the rationale for it? On implications for cases that will come later? Sometimes ... although how often and how much is debatable. It is absolutely certain, however, that the texts of opinions change during the circulation process. (Count the many references in J. Scalia's opinion in DC v Heller to the dissents of Justices Stephens and Breyer.) Opinions are also advocacy pieces. Antonin Scalia devotes - by my count - close to a third of his text to those dissents, not just in response but to forcefully rebut them!
A particular fancy of mine is Scalia's opinion in Heller. There is language there to give all sides solace and fodder to argue the extent of Second Amendment rights. For example, some references are sprinkled through it on carrying weapons in public. But the holding of the case is explicitly limited to self-defense in one's home. In a stand alone section, J. Scalia takes pains to specify that "... the right secured by the Second Amendment is not unlimited." He lists examples of acceptable "longstanding prohibitions," "laws forbidding the carrying of firearms in sensitive places" and "laws imposing conditions and qualifications on the commercial sale of arms." Not even those caveats are enough.
To put a very fine point on those points, J. Scalia added the tantalizing footnote 26: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." Might those sentences and the footnote have been put there to secure the necessary fifth vote for the majority? (After all, except for extending the Heller ruling to the states in McDonald in 2010, the Court has not accepted another Second Amendment appeal in the six years since Heller. This indicates to me that Heller's majority is deliberately restraining itself. And possibly (I am maybe smoking some tea leaves here), the majority itself is fragile. If so, taking the next 2A case could be dicey.
Again, might a justice change his or her mind as opinions are circulated? Yes, certainly on the rationale, if not the outcome. Remember the case that challenged Obamacare, where it was reported that Chief Justice John Roberts changed his vote at the last minute in order to uphold the law.
Sometimes - rarely, but sometimes - the justices will think more about the case and ask the parties to reargue it. The best recent example of this is Citizens United, when C.J. Roberts himself asked for reargument during the next term in what began as a relatively narrow "case of modest importance."
I am not suggesting any particular explanation for the time the Court is taking to release a decision in Abramski. Speculation is hazardous, of course, and it is engaged here in
purely impurely for guilty enjoyment.
That said ... what do you think?
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