Adressing Mistakes SCOTUS Made About Gun Industry

The Supreme Court heard arguments regarding Mexico’s lawsuit against Smith & Wesson, among other manufacturers. As I noted at the time, things didn’t look to be going Mexico’s way. A 9-0 decision going against them is a real possibility.

But from the questioning, it’s pretty clear that many on the Supreme Court, learned though they may be in some matters, aren’t particularly familiar with how the firearm industry works.

Some of that was addressed during the arguments, such as how gun manufacturers normally sell to distributors versus directly to gun stores.

That was only one such example. The National Shooting Sports Foundation’s Larry Keane took to the keyboard to address some of those other errors recently.

Straw Purchase vs. Straw Seller

Justice Sonia Sotomayer asked a line of questions about illegal straw purchasers of firearms that got flipped on its head. The illegal straw purchase of a firearm is a crime by the individual who lies to the licensed retailer on the Bureau of Alcohol, Tobacco, Firearms and Explosives’ background check form (ATF Form 4473), specifically the question where the purchaser attests that they are the true intended recipient of the firearm being purchased.

Justice Sotomayor said, “I think their complaint is saying that the violation is selling to straw purchasers, and I think the risk in selling to a straw purchaser – and that’s the known risk of that violation – is that that straw purchaser is giving or selling the gun to someone who can’t possess it because the likelihood is that they’re going to use that gun illegally.”

Later, however, Justice Sotomayor wasn’t so much interested in the illegal activity of a straw purchaser. She put the onus on the licensed retailer.

“… we know that a straw seller is going to sell to someone who is going to use the gun illegally because, if they weren’t, they wouldn’t use the straw purchaser,” Justice Sotomayor said. “And that illegal conduct is going to cause harm and harm like this, that the gun is going to be used in some way to injure people.”

That’s wrong. An illegal straw purchase is a crime committed by the individual lying on the Form 4473. The retailer is trusting they aren’t lying on the form and verifying with the FBI’s National Instant Criminal Background Check System (NICS) that the individual isn’t prohibited from possessing a firearm.

If a seller is knowingly selling to an individual lying on the form, that retailer is committing a crime. That’s called conspiracy. The firearm industry wants those individuals to lose their licenses and face justice. That, however, is an exceedingly rare exception.

Keane also addresses the “erasable” serial number bit. He notes that gun manufacturers permanently engrave the serial numbers. There’s nothing you can do to prevent serial numbers from being obliterated in some manner, but the industry does as good as it can. Plus, the justices who focused on this seem to think it’s just super easy. Well, it’s not overly difficult, but it does require tools to do so.

Unless they know a better way to put a serial number in, there’s not much anyone can do on that.

Then Keane talks about gun trace data.

You see, one question that did come up is whether gun manufacturers can be held accountable for firearm sales to dealers known to have a history of selling to straw buyers, what was termed as “rogue” gun dealers.

First, as Keane notes above, most dealers aren’t aware they’re selling guns to straw buyers. If they did and made the sale anyway, they’re criminals, but most honestly don’t.

But Keane also points out that gun manufacturers aren’t exactly handed gun trace data. They don’t know who these so-called rogue dealers actually are.

And the only such dealer Mexico named, as Keane points out, is Lone Wolf Trading Company in Arizona. That also happens to have been the same store that former ATF agent Peter Forcelli notes was the most cooperative with his agents during Operation Fast and Furious.

In other words, those guns were firearms the store was directed to sell by the ATF directly, which means they’re anything but a rogue dealer.

While it still looks like Mexico is going to lose and lose big before the Supreme Court, the facts still matter. These points are important as part of the overall discussion, even if these mistakes do little to harm the gun industry this time around. They need to be noted and publicized.

The understanding of how the gun industry works among the public as a whole is lacking, at best. Too many people think that a company like Smith & Wesson is responsible for where each and every firearm ends up, and that’s just idiotic. Yet it’s an idiocy that I’d like to believe is born of ignorance of how the industry works.

I can’t say that it really is, but I want it to be because I’d like to have faith in humanity.

I’m just not holding my breathe.