Abramski case

You haven’t seen a lot of outrage over the Abramski case in the gun blogosphere. It’s been mostly just a statement of the facts (see here, here, here, and here). There are some dissents (here and here) but while I agree Abramski didn’t do anything wrong in regards to the intent of congress he clearly did violate an ATF regulation. We were hoping to get the adults to put the ATF bully in their place for writing regulations unsupported by law. That didn’t happen.

That regulation should not exist because it doesn’t reflect the intent of the law in all cases. The law was intended to prevent guns from being sold to people forbidden by law from owning a gun. The question 11.a on form 4473 asks (bold in original):

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. (See instructions for Question 11.a.) Exception: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.

The instructions do not include an exception for the situation Abramski found himself in. Hence it is clear that Abramski violated the letter of the regulation when he said that he was the actual buyer.

If I only focus on the narrow issues affecting of this case I see two things to complain about. 1) The prosecutor should never have pursued this case. Abramski didn’t deliver the gun into the hands of someone forbidden to own it. Didn’t he have a cases where there were victims to spend his time on? That the government was lied to over something this minor just doesn’t seem to be worth prosecuting over. 2) Herschel Smith explains the second issue in much better words than I can:

Regulations take on the force of law after comments responding to entries in the Federal Register are summarily ignored by the agency doing the regulating.  It makes little sense to respond with comments when the regulator’s mind is made up.  These regulations frequently far surpass the law in breadth, scope, depth and magnitude.

this kind of regulation seems onerous compared to what Congress wrote, but it is latitude given (and taken) by the federal regulators.  If there is a problem with legislating from the bench, there is even a worse problem with regulating by the executive branch from inside the beltway.  The problem will continue (and grow) as long as the public abides the abuse.

I haven’t read the briefs leading up to this decision but I don’t think the supporters of this case should have taken it to the Supreme Court. The only way they could have had a good chance of winning is if they had a lot of case law that supported attacking the lower court ruling on the basis of the overreaching regulation contrary to the law.

In order to get the case law to support slapping down zealous regulators we need to attack them on something less contentious like regulations forbidding the aging of cheese on wood shelves. But in those cases the regulators are going to cave like a school yard bully confronted by an adult without giving us the case law we need to confront the bullies in the ATF.

2 thoughts on “Abramski case

  1. In other words, we need another path of baby steps, where overreaching regulations that go beyond what the statute explicitly states are removed, and we can establish a pattern of abuses and usurpations by the agencies (*cough* IRS/BATF/NSA/DEA/FDA/DHS/etc *cough*) that crossed the and get pruned back.
    So, you mention cheese on wood. Any others that people know of? TSA gate checks, perhaps?
    Or do we need to impeach a bunch of judges until they start doing their jobs and preventing executive overreach?

  2. There was a clear split between the circuit courts on the issue. I can’t remember the breakdown, but it’s Abramski’s cert petition. There were multiple circuits that had ruled that the statement was only material if the real purchaser was prohibited.

    As to the why did the prosecutors bother, the receipt for the Glock was discovered at his house when it was being searched on a warrant for a bank robbery. They were looking for anything they could get him on. Whether that’s because they honestly believed he robbed the bank but couldn’t prove it or the bank robbery thing was a frame job, I have no idea.

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