Home > Federal Power, Free Market, Gun rights > A closer look at the Supreme Court brief South Dakota has joined

A closer look at the Supreme Court brief South Dakota has joined

December 11, 2013

courthousesymbolSouth Dakota Attorney General Marty Jackley’s office put out a press release today announcing that South Dakota has joined a Supreme Court Brief supporting private firearm sales rights. Here is a snippet from the release:

PIERRE, SD: Attorney General Marty Jackley today announced that South Dakota has joined with 26 other states in an amicus, or friend of the court, brief filed in the U.S. Supreme Court opposing the attempt by the federal government to expand federal law in the prosecution of legal gun owners selling firearms to another person who can legally own firearms.

Abramski v. United States is a case I’ve been following since earlier this summer. SCOTUSblog has a great page to track the proceedings of this case. Here are the issues posted on SCOTUSblog for this case:

(1) Whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future a fact is “material to the lawfulness of the sale” of the firearm under 18 U.S.C. § 922(a)(6); and
(2) whether a gun buyer’s intent to sell a firearm to another lawful buyer in the future is a piece of information “required . . . to be kept” by a federally licensed firearm dealer under Section 924(a)(1)(A).

Basically there are two issues being looked at by SCOTUS in this case. Issue 1 revolves around 18 U.S.C. § 922(a)(6):

(a) It shall be unlawful—

(6) 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;

So the first issue will look at the situation of someone buying a gun from a licensed dealer with the intent to resell that same gun to someone else who can lawfully buy that gun; specifically whether that buyer has broken the law by not disclosing that intent to resell. SCOTUS must decide whether not disclosing the intent to resell is “material to the lawfulness of the sale” at the point it was bought from the licensed dealer.

The second issue revolves around 18 U.S.C. 924(a)(1)(A):

(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—
(A) knowingly makes 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;

So the second issue looks at whether the intent to resell a weapon by a buyer is a record required to be kept by the licences dealer. Both issues are basically the same thing: SCOTUS must decided whether failing to notify a licensed buyer that a weapon is being purchased with the intent to sell that weapon to another citizen that also is legally able to purchase firearms.

I have been following this case for two reasons. First I am interested in all gun control legislation and court cases. Personally I believe it was ‘stretching’ the law to prosecute someone under the above mentioned federal laws for a transaction that is legal in the state the transaction was conducted. Actually I don’t even think this should be thought of as a second amendment case, but it is being treated as one.

Second, and more importantly, I  find the case interesting because it has implications for private sales that are legal under state laws. A poor decision from SCOTUS could have harmful ramifications for citizens that wish to conduct lawful private commerce without federal government intervention. This case may be getting attention because of firearms aspect, however a poor decision in this case could make it even easier to justify federal interventions into other industries.

The full brief can be read here. The three arguments being used in this briefing are:

  1. The United States wrongly interprets federal law to indirectly regulate the private intrastate transfer of firearms between two individuals legally permitted to possess firearms.
  2. The United State’s expansive view of the statutes at issue unlawfully infringes on the states’ ability to be responsive to their citizens’ preferences.
  3. The United State’s Expansive view of the statutes at issue needlessly brings the second amendment into this case.

I applaud Jackley in joining with 25 other states in this Supreme Court briefing. . Arguments in this case will begin on Jan 22, 2014. I will be following the case at that time and hoping for a good ruling from SCOTUS.

PS. I almost forgot. Since this post involves SCOTUS I better cover my butt and invoke my First Amendment right to publish this post.

  1. Merlyn Schutterle
    December 11, 2013 at 5:45 pm

    I didn’t read all this because it really doesn’t matter. If people want to kill someone, fire arms are not the only way to do it.It may be the easiest way, but no the only way.Another matter of much to do about nothing..Let’s outlaw knives, axes and hands. You like that?

    • December 11, 2013 at 6:24 pm

      This case really isn’t a firearms case though, and never should have been turned into one by the feds. It is actually a case of private commercial transactions happening within a state and breaking no state laws.

      • Merlyn Schutterle
        December 11, 2013 at 7:14 pm

        But it was turned into one. None of this really maters to me. What matters to me is when I am protesting in the Capitol Rotunda, where are you and your followers going to be? I will be there to put my life, body, liberty and freedom on the line. I just want to know where you are going to be. So far, all I see of you is ink on a page. Show me you are willing to do what I am or just shut up. I hear all talk, but I want to see who will put their boots on the front line.

  2. December 11, 2013 at 10:48 pm

    Well, I can say that I am not likely to be quiet any time soon.

    I am all for protesting when done for the right reason and at the most opportune time. The protest you are talking about though doesn’t seem to have a purpose or end. I’ve been thinking about your proposed protest at the State Fair and it seems to be more about gaining attention; which is always a good reason for protesting. But gaining attention with no purpose after that attention has been gained will give no return. I have learned that lesson years ago.

    I think we see the administration in Pierre in different ways. It appears you are looking at a willful corruption and believe that is the problem. I think it is the opposite problem. There is no grand scheme going on with Daugaard and crew. I actually think Daugaard, Rounds, etc., are good and well-meaning people. What I oppose is their view of fiscal conservatism. I believe their interpretation of using government resources is not as conservative as they should be. It would be easier to fight against willful corruption (which does exist in DC). In South Dakota we have a problem of how conservatism has been defined by the populist politicians. This type of opposition takes a different approach than fighting willful corruption.

    So yes my logical approach moving forward may seem like I am not willing to put life on the line. The opposite is true however. I would rather put my life towards the best use of my resources in attaining my goals. Random acts of political activism with no clear objectives is not among my goals however.

  1. No trackbacks yet.
Comments are closed.
%d bloggers like this: