Comments on: The Most Busted Name in News

By: Brandon Eubanks

Brandon Eubanks — Wed, 23 Feb 2005 04:40:55 +0000

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.

By: James Greer

James Greer — Tue, 22 Feb 2005 17:09:22 +0000

What happened to the gun after the story? Is it sitting in the den of a hypocritical journalists’ house?

By: Xrlq

Xrlq — Mon, 21 Feb 2005 08:14:28 +0000

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.

By: Matt Rustler

Matt Rustler — Mon, 21 Feb 2005 08:10:47 +0000

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?

By: Xrlq

Xrlq — Mon, 21 Feb 2005 06:53:31 +0000

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.

By: Matt Rustler

Matt Rustler — Mon, 21 Feb 2005 06:17:09 +0000

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? ;-)

By: Kevin Baker

Kevin Baker — Mon, 21 Feb 2005 05:35:21 +0000

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.

By: Xrlq

Xrlq — Mon, 21 Feb 2005 05:33:00 +0000

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.”

By: Kevin Baker

Kevin Baker — Mon, 21 Feb 2005 05:23:05 +0000

But an ATF agent will sit in a witness box and SWEAR it is.

By: Xrlq

Xrlq — Mon, 21 Feb 2005 05:12:31 +0000

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.