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Are the Bradys Felons?

Earlier in the week, a few gun bloggers noted, along with AR-15.com, that the Brady Campaign was breaking the law in regards to this video showing Colin Goddard going to out of state gun shows with friends and buying guns. Is it illegal? To know, first you need to find out exactly how these transactions went down, so I actually asked them. Peter Hamm, Communications Director for the Brady Campaign, responded with the following:

Colin Goddard only purchased firearms in Virginia, and he is a legal resident of Virginia.  All other guns, at gun shows in states other than Virginia, were purchased by legal residents of those states, and Colin was just a witness. And all firearms purchased were turned over to local police departments in the jurisdictions where the gun shows were conducted.

This is legal. I would be surprised if they had done something illegal. As much as I disagree with Dennis Henigan and Daniel Vice on the legal issues surrounding firearms, they are competent attorneys are know this area of law. So how is this legal? First, it’s not illegal to buy a gun out of your state in a private sale. What is illegal is bringing it back to your state of residence or transferring it to someone else who is not a resident, except for temporary use for lawful sporting purposes. This is found in 18 USC 922(a)(3):

[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[.]

So the crime isn’t purchasing, but transporting back to your state of residence. Since Colin and his resident buddy turned them into local police, they were never transported back home, or even across state lines. Now, if Colin had been the actual buyer of the firearm, it could have opened the seller up to liability under 922(a)(5):

[It shall be unlawful] for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides[.]

Now whether or not you could nail him on the conspiracy element for the crime on the purchase, I don’t know. It seems to me the answer might be yes, so I suspect that’s why, even not yet considering state law, that it’s safe to use a resident to avoid problems on the purchase. But the main reason you need to use a resident is because once you have the gun, you have to get rid of it. It would be lawful to transfer it back to an FFL, but for PR reasons I don’t think the Bradys wanted to do that, so they gave it to police. But police aren’t exempted under 922(a)(5)! It would have been unlawful for Colin to turn them into police himself. Doubly so if he dropped his buddy off and then turned them in to police, one unlawful transfer to Colin, and one to the police. But what about straw buying? That’s a crime under 922(a)(6):

[It shall be unlawful] 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[.]

Emphasis mine. That section only applies to acquisitions from FFLs. There’s no such thing as a straw purchase under federal law from a private seller. That’s not to say that purchasing a firearm on behalf of a prohibited person is legal in a private sale, but it’s prosecuted under 922(d) and (g) rather than 922(a). There is also 922(a)(9):

[It shall be unlawful] for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes.

This only applies to someone who is not a resident of any state, which would include American citizens living abroad. Alan Gura has actually been litigating on 922(a)(9), but the case is running into standing issues (DC Circuit’s standing requirements are a bitch).

But the ultimate conclusion is that the Bradys aren’t breaking the law here. It would have been interesting if Colin Goddard had been caught in temporary possession of a rifle, and charged. The logical thing would be to claim the sporting purposes exemption. “But it wasn’t a sporting purpose,” the government would fire back. That could leave Brady the only option of arguing that the sporting purposes exemption is too narrow in light of Heller. Wouldn’t that be funny? Think they would? I think they’d let Colin rot in jail. And the next time one of these joker groups claims that firearms are less regulated than teddy bears, point to this post. Or better yet, drop the ATF publication that contains all federal, state and local firearms laws on their foot. It’ll hurt. I promise.

8 Responses to “Are the Bradys Felons?”

  1. Jake says:

    “But the ultimate conclusion is that the Bradys aren’t breaking the law here firearms laws are far too complex and Byzantine for the average citizen to follow without extensive study or the help of an attorney, and that level of complexity should be considered an infringement and therefore unconstitutional.”

    Fixed it.

  2. Alpheus says:

    I also think it’s funny when someone tries to make it seem so easy to get guns (like Michael Moore, in “Bowling for Columbine”), but when you learn all the little legal details it took to make that sholt little video legal, you discover that it’s not that easy to get guns after all.

    Not that I wouldn’t mind it being easy to get guns! As Orrin Hatch said, we’ve had less problems when everyone–including criminals and madmen–had access to guns, than when we’ve tried to restrict them.

  3. JH says:

    So based on this, if one inherits a firearm from a parent or grandparent out of state do you have to send it through an FFL to take it home? I haven’t yet, but someday could be faced with such an issue.

  4. Sebastian says:

    No… there’s an exception for inheritance. I didn’t include that because it’s not relevant to this case.

  5. rem says:

    Can you imagine being the police department in this situation?

    Bradycampaign: “hello, I just bought these guns at the local gun show. I would like to give them to you for proper disposal.”

    Police: “Um, ok….”

  6. Jake says:

    “Can you imagine being the police department in this situation?”

    That’s easy. Whoever was working the desk and took them gets some free guns to take home. After all, there was no crime committed, so there’s no need for them to be entered as evidence or kept by the department, and the buyers giving them to him could be considered a private transfer.

    It makes me wish I was that guy.

  7. Matthew Carberry says:

    For that matter, what are those states laws on police disposal?

    Presuming the officer actually entered them into the locker, in many states those guns are then “put back out on the street via auction sales to FFLs and distributors, many of whom then lawfully sell them online in other states.

    Thanks Brady’s for making them available to the wider gun-owning public than just those folks who went to those shows.

  8. kaveman says:

    I agree that that the Brady Bunch is smart enough to follow the letter of the law while ignoring the spirit of the law.

    Where have I heard that before?

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