The Most Busted Name in News
Jed and Kevin catch CNN violating a federal law. Apparently, in their zeal to promote gun control, the Clinton News Network sent a Georgia reporter to Texas to purchase a .50 BMG rifle from a private party, and then brought the rifle back to Georgia. The violation is innocent enough, as .50 BMG rifles are legal in 49 states, and the 50th one sure as hell isn’t Texas or Georgia. However, innocence is no excuse for a violation of the law, and while the sale itself probably did not violate any law, bringing the gun back to Georgia almost certainly did. 18 U.S.C. 922(a)(3) provides as follows:
It shall be unlawful . . . for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter[.]
Subsection (b)(3) generally prohibits licensed manufacturers, dealers, and collectors from knowingly selling firearms to nonresidents, but carves out an exception for sales of long guns that “fully comply with the legal conditions of sale in both such States.” It has no application whatsoever to private transfers. Thus, the question of whether a CNN reporter can lawfully return home with a gun purchased from a private party in Texas depends on what “in conformity with subsection (b)(3) of this section” means. One theory is that only a sale by a licensed dealer can be “in conformity” with that section. The other is that any sale that does not violate subsection (b)(3) is “in conformity” therewith. The latter is a more natural reading of the statute, but would produce an absurd result, as it would allow a resident of State A to purchase all the guns he wants from private parties in State B, even if the gun was sold in violation of subsection (a)(5), which prohibits a non-licensee from knowingly selling the gun to a resident of another state, or if the purchaser was barred from owning it for any other reason. The ATF, it seems, agrees.
UPDATE: Triggerfinger, David Codrea, Denise, Say Anything, the Puppyblender and Matt Rustler have more.
UPDATE x2: However, the straw purchase charge appears to be bogus. According to this ATF training cartoon, the illegality of a straw purchase lies in the fact that a person other than the intended recipient fills out Form 4473, which is not involved in private sales. Even when that form is filled out, it’s not an illegal straw sale if the person who fills it out does so truthfully and as the actual purchaser. I haven’t found the applicable statute yet.
UPDATE x3: The “straw purchase” prohibition appears to be grounded in 18 U.S.C. (a)(6), which makes it a felony:
…for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, 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;
It is possible, of course, that CNN or their “strawman” did provide false, fictitious or misrepresented ID or lie about any fact material to the lawfulness of the sale, but at this time there’s no at there’s no evidence that this is the case.
Straw purchases from licensees have also been held to violate 18 U.S.C. 924(a)(1)(A), which makes it a crime 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 person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter.” Again, the statute does not appear to apply, as the purchase was from a private party, not a licensee.
UPDATE: Publicola weighs in, offering the second punniest heading (to mine, natch) and the punniest original one thus far.
February 20th, 2005 at 5:27 pm
No, I think the sale was almost certainly illegal. You can buy a long gun from someone not in your own state only if you’re buying from an FFL. If the reporter is a GA resident, and he bought the gun in TX from a non-FFL, that would be a federal felony.
February 20th, 2005 at 6:15 pm
For the seller, if he knew he was selling to a nonresident. But what law makes the purchase itself (as opposed to the trip home) a crime for the buyer?
February 20th, 2005 at 8:11 pm
The only reason CNN would need to involve a Texas resident at all (which is where the straw sale issue comes from — note that that part is not in the video!) would be to convince the seller (also a Texan) that the sale is legal. That would normally involve presenting a Texas driver’s license or other ID. However, it may not matter; from your 18 USC (a)(6) citation, it may not be a crime to do a straw purchase from an unlicensed seller — simply because the unlicensed seller isn’t licensed.
HOWEVER.
The exception for transfer of long guns in a state where you are not a resident is an exception for licensed sellers only. So, the straw purchase might not be a crime (if the seller is not licensed and the transfer was to another Texan). But if the straw Texan transferred the rifle to a reporter who was not a Texan, that transfer was illegal, because it is receiving a firearm in interstate commerce not from a licensed dealer. And then, of course, bringing it back home without going through an FFL is also illegal.
FWIW, I don’t seen any indication in the video that it was a straw purchase, which makes it much simpler. Still illegal (receiving in interstate commerce from an unlicensed individual, transporting to your home state), but simpler. The only straw purchase claim is coming from the original poster, kbarrett, who has not expanded on why he thinks so.
February 20th, 2005 at 8:16 pm
Hmm. OK, the law says “engage in the business of”, or “in the course of such business”. So depending on how you read those limitations, it may not be a felony to receive the rifle if you are not engaging in the business of doing so. The BATFE FAQ does NOT mention any such restriction to business. Either way, however, transporting it home still applies.
February 20th, 2005 at 8:39 pm
Read the law. BUYING the gun as an out-of-stater was illegal. The ATF’s interpretation is: “A person may only buy a firearm within the person’s own state, except that he or she may buy a rifle or shotgun, in person, at a licensee’s premises in any state, provided the sale complies with state laws applicable in the state of sale and the state where the purchaser resides.” The purchase was an interstate PRIVATE PARTY SALE. That’s a FEDERAL no-no. All interstate transfers MUST go through a licensed dealer. You can BUY from a licensed dealer, or you can buy it in Texas and SHIP it to a Georgia licensed dealer (who will then make the transfer legal when you pick it up) but you CANNOT just go to Texas and buy a rifle and take it home. It’s an interstate transfer, and the Feds have sway over interstate commerce.
February 20th, 2005 at 9:12 pm
Kevin, I did read the law (18 U.S.C. 922 et seq.), and linked to it. What you’re quoting is the ATF web site, not law. The law itself isn’t nearly as cut and dried as the ATF’s interpretation.
February 20th, 2005 at 9:23 pm
But an ATF agent will sit in a witness box and SWEAR it is.
February 20th, 2005 at 9:33 pm
True, but the judge doesn’t have to buy it, and can be reversed on appeal if he does. Also, I think it’s a safe bet that the ATF will concede some points in court that they’d never admit to in a FAQ, where just about everything they dislike is “illegal.”
February 20th, 2005 at 9:35 pm
Oh, and your interpretation is correct: “(W)hile the sale itself probably did not violate any law, bringing the gun back to Georgia almost certainly did.” That’s correct. At one end OR THE OTHER it has to go through an FFL. I’ve sold a rifle to a private party in another state – but I HAD TO SHIP IT TO AN FFL who did the transfer for it to be legal. Had he traveled interstate, I’d have had to find an FFL here who would do the transfer to make it legal.
There’s an Idaho FFL dealer currently up on charges for doing interstate sales (to Californians, apparently) at gunshows in Nevada (among other things.) See this page.
February 20th, 2005 at 10:17 pm
Xrlq has this one nailed down. We went through the “is it illegal to purchase a gun out-of-state if you don’t bring it home” question back when Kerry got his shotgun from the union in West Virginia. We decided then — and I’ve found nothing to persuade me otherwise since them — that the purchase itself doesn’t appear to be problematic for the purchaser; it’s the transporting it home part that makes it a crime on his end.
And there’s no such thing as a straw purchase that doesn’t involve a dealer; just as Xrlq says, the crux of the crime is making a false statement in a purchase from a dealer. This purchase was from a private seller; ergo, it’s not a straw purchase, even if the reporter bought the gun on behalf of CNN rather than for himself.
But Xrlq, I have one bone to pick with you: Kevin said, “But an ATF agent will sit in a witness box and SWEAR it [ATF's interpretation] is [[the law.]” You said, “[t]rue. But . . . ” True?! If an ATF agent, vice the judge, is instructing the jury on the law, defense counsel has f***ed up. Or are witnesses allowed to give jury instructions in California? ;-)
February 20th, 2005 at 10:53 pm
That depends. If Lance Ito is the judge, everyone can argue everything. But I assumed what Kevin meant was that the ATF would argue passionately for their interpretation, which of course they would – to the judge.
February 21st, 2005 at 12:10 am
Well then, that’s fair!
But I don’t think ATF (well, actually, an AUSA) would argue that the purchase itself is prohibited by 922(a)(3), though they try to prosecute it as an inchoate crime. Either way it’s probably academic: There’s not a shred of doubt in my mind that when people actually make unlawful out-of-state purchases in the real world, they nearly always either (1) take the gun(s) home or (2) do something with it (them) them that violates some other provision of 922(g). Just as this reporter appears to have done.
So you’re telling me that the OJ trial wasn’t a fluke for Ito?
February 21st, 2005 at 12:14 am
No, for all I know Ito may be a perfect judge except the O.J. trial. But I’m a corporate/transactional attorney, not a litigator, so I’m not an expert on local judges.
February 22nd, 2005 at 9:09 am
What happened to the gun after the story? Is it sitting in the den of a hypocritical journalists’ house?
February 22nd, 2005 at 8:40 pm
I think that there will be some concessions made for CNN in the end (legal or not) because the ATF likes these kinds of stories. It makes their job seem important. So CNN will get a slap on the wrist. What they did is pretty aparently illegal but, other than that the point is mute because nothing will be done about it.