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.