Sometimes what the Supreme Court almost does is more striking than what it says in its majority opinion. Such is the case with today’s 5-4 ruling that federal agents may go after a “straw” purchaser who buys a gun for someone else, even if both people are legally eligible to own firearms.
What’s amazing about this decision is that four dissenting members of the court—led by Justice Antonin Scalia—were prepared to rule against the federal government in a fashion that would have undermined countless prosecutions of alleged gun traffickers. To put this more starkly: The Supreme Court is one vote away from judicially nullifying one of the most common tools U.S. law enforcers use to deter and punish criminals who send other people into gun stores to purchase firearms and circumvent the federal background-check system.
At a moment when Second Amendment activists are pushing in other lawsuits to limit the government’s ability to impose gun-control laws, Monday’s near-death experience for the straw-purchase prohibition offers a reminder of the skeptical view some justices take of aggressive regulation of firearm transactions. In 2008, Justice Scalia wrote the majority opinion in a separate 5-4 ruling that established for the first time that the Second Amendment protects an individual right to own a handgun. In the earlier case, the Supreme Court struck down what amounted to a ban on private handgun ownership in Washington, D.C.
Today’s ruling, which didn’t directly involve the Second Amendment, emerged from a strange set of facts. In a majority opinion written by Justice Elena Kagan, the justices ruled that the federal background-check law applied to Bruce Abramski when he bought a Glock 19 pistol in Virginia in 2009 and later transferred it to an uncle in Pennsylvania. Federal prosecutors sought to convict Abramski because he falsely told the Virginia gun dealer he was the actual buyer of the Glock, even though he had already agreed to give the gun to his relative and the uncle had provided $400 for the purchase. The high court acknowledged that Abramski and his relative were both legally allowed to acquire and own guns. Still, the majority said Abramski could be prosecuted for lying on forms he filled out for the background-check process.
Kagan noted that while there may have been nothing terribly nefarious afoot in this transaction, the whole point of the background-check system is to deter and punish the more common scenario, in which a would-be illegal trafficker arranges to have a “straw” buyer with a clean record purchase firearms that are then resold on the black market. “Abramski’s reading [of the federal statute] would undermine—indeed, for all important purposes, would virtually repeal—the gun law’s core provisions,” Kagan wrote. No part of that law “would work if the statute turned a blind eye to straw purchases—if, in other words, the law addressed not the substance of a transaction but only empty formalities.” Kagan was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.
In dissent, Scalia said the “plain language” of the federal gun statute supported Abramski’s argument that he, not his uncle, was the “buyer,” and therefore it wasn’t “material” that he planned to pass along the firearm to someone else. “In ordinary usage, a vendor sells (or delivers or transfers) an item of merchandise to the person who physically appears in his store, selects the item, pays for it, and takes possession of it,” Scalia wrote. “So if I give my son $10 and tell him to pick up milk and eggs at the store, no English speaker would say that the store ‘sells’ the milk and eggs to me.”
The difference between Scalia’s hypothetical and the real world of gun trafficking, of course, is that Congress hasn’t passed a law designed—however imperfectly—to stop widespread straw purchasing and illegal trafficking of milk and eggs. Nevertheless, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito endorsed Scalia’s reasoning.
Federal prosecutions of straw purchases of firearms may continue—for now.