Another potential 2A/4473 issue

[ExRanger714]

A current thread titled 4473 is working the "intend to resale (sic)" question but this is in the news today.

The embedded articl from Politico embedded below may portend the emergence of the proverbial "strange bedfellows" of politics in this country.

I AM NOT trying to insult, offend or draw anyone into an argument or trigger anything. This is not intended to demonstrate a particular personal political slant. I did not get to pick the players. Some may find the following thought provoking. Perhaps one of our legal pros could offer an opinion.

Advisory: The following article contains the name Hunter Biden prominently and repeatedly.

Hunter Biden could benefit from Supreme Court’s expansion of gun rights - POLITICO

Submitted without further comment.

 

[Racer X]

Here is an example of a page from a 4473 with those questions for those who are unfamiliar Hunter Biden 4473 Form 1 Redacted | PDF

I was very surprised to learn it is actually 2 felonies when you lie on a 4473. 5 years for lying on a federal form, and 10 for lying to get a firearm illegally. That second one could be lying verbally during a private sale not involving a 4473.

Here is the explanation of those 2 statutes from the CFRs.

NRA-ILA | New Hunter Biden Revelations Further Undermine President’s Gun Control Effort

we all should pay close attention to their explanation of their addicted characteristics. It is very much not a did you smoke a joint today question.

so we now have a better understanding on how to stay legal and comply with our laws and regulations, while still enjoying the freedoms guaranteed by our Constitution, and the 2nd A. We all should support the NRA-ILA, the 2nd Amendment Foundation, the GOA and the FPC and your local or state organization.

With all the lawsuits fighting firearms bans, magazine bans, and a few others, they need our support more and more as they gain momentum.

 

[ISCS Yoda]

I was fixing to post this myself.........and it's all RKBA, not political

So, for about 4 or 5 days, we had a thread ongoing with respect to Form 4473:


http://smith-wessonforum.com/2nd-amendment-forum/702396-4473.html#post141750386

Part of my comment therein follows:

Form 4473 has never been particularly well written.

.....

Questions 21b and 21c are ridiculous. "Do you intend...." Seriously? If the buyer truly intends to transfer a firearm to a prohibited person why would he or she tell of that intention?

My favorite question has always been this one:

Quote:
Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?

On the assumption that the buyer or transferee is not addicted to anything, but the buyer routinely abuses drugs on weekends, what is the correct answer? I think it is "not at the moment".

Naturally, the required answer is "NO" but even if you're a heroin addict you can say "no" because to answer "yes" would be self-incriminating and the Fifth Amendment says you cannot be compelled to do that. And there is a Supreme Court case on that very subject.

.....

In the back of my mind when I wrote that yesterday was what I saw as a potential defense for Hunter Biden, one that I have always seen. Between the Fifth Amendment's protections against self incrimination and the Second Amendment's "shall not be infringed" there are many, many arguments that can be made against the National Firearms Act of 1934, the Gun Control Act of 1968, as amended, and the use of Form 4473. How those statutes ever got passed and not overruled by SCOTUS is a matter of public outcry at the time and politics but we will omit that discussion and stick to the RKBA matter at hand.

Hunter Biden himself has written that he was using cocaine every 15 minutes but if he wasn't using it AT THE VERY MOMENT that he purchased that handgun then the purchase was arguably legal under the Second Amendment, never mind the Fifth. I think it is the precise legal strategy under the Second Amendment that his lawyers should be using.

The important question, and that which falls precisely under the rules of this Forum, is what impact, if any, will such a claim have when used in a trial should one occur? How will the current Supreme Court handle it if it comes up on appeal and the answer most important to us is not about Hunter Biden (I couldn't care less) but how devastating to Form 4473 can their decision be? I'm looking forward to it!

The negative impact on the ATF could be amazing!

We can only hope.........

 

[ISCS Yoda]

Follow up:

My earlier discussion did discuss the two felonies of lying on a Federal form and violating this specific regulation but indirectly in the latter case:

The relevant regulation (27 C.F.R. § 478.11) elaborates,

A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.

(c) NRA-ILA 2023

If that has ever been litigated I am unaware of it. But there is a significant difference between losing your self control and being actively engaged in the conduct in question. I'd like to know if it has ever been litigated, the NRA-ILA doesn't seem to indicate that it has, and I think the regulation cannot withstand judicial scrutiny but time will tell.

 

[Racer X]

Follow up:

My earlier discussion did discuss the two felonies of lying on a Federal form and violating this specific regulation but indirectly in the latter case:



(c) NRA-ILA 2023

If that has ever been litigated I am unaware of it. But there is a significant difference between losing your self control and being actively engaged in the conduct in question. I'd like to know if it has ever been litigated, the NRA-ILA doesn't seem to indicate that it has, and I think the regulation cannot withstand judicial scrutiny but time will tell.

lose power of self control sounds like "addicted" to me, and if you have admitted it publicly, say, in your memoirs, stating during a specific year when you purchased a firearm, sure sounds like it applies.

 

[Racer X]

Seeing this litigated all the way to the Supreme Court would be devestating on so many levels, for so many parties.

I don't have an issue with a 4473, except the waiting period is a PITA. I read somewhere is you already have firearms, making you wait to buy your 6th, for example, lessens no risks to anyone whatsoever. Maybe kill the waiting period on subsequent purchases, or waiting only on multiple purchases on the same 4473?