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BATF has often recognized the legality of such transactions. In its publication Gun Control Questions and Answers, the Bureau presents a dialogue for guidance on these matters:
(34) Can a licensed dealer send or sell a gun to anyone?
No, except for rifles and shotguns in contiguous State sales, a licensee may not make direct sales to a non-resident. What the dealer can do is ship the firearm to a licensed dealer of the purchaser’s choice whose business is in the purchaser’s state of residence. The individual could then pick up the firearms after completing form 4473 [the federal registration form].
(54) Since persons under 18 years of age cannot buy long guns or ammunition from dealers, how can they obtain them?
A parent or guardian may purchase firearms and ammunition for a juvenile. [Gun Control Act] age restrictions are intended only to prevent juveniles from acting without their parents’ or guardians’ knowledge.
These are the Bureau’s only public statements on this subject. BATF has avoided ever stating conditions under which such purchases may make the dealer subject to a felony prosecution.
The straw-man case, however, makes it clear that just such transfers may indeed bring one face-to-face with the law. In this form of entrapment an agent or informant who is a prohibited person approaches a dealer to buy a firearm. The agent then produces out-of state identification or indicates that he cannot sign the registration form (which contains a statement that he is not a prohibited person). The dealer invariably refuses to sell.
The “prohibited person” then suggests that perhaps someone else (usually a local relative or friend) could purchase the gun for him. If the dealer takes the bait, he will respond that he can sell to a local person, provided that person can produce valid local identification and can legally fill out the purchase forms.
The “prohibited person” then returns with a second agent, the “straw man.” The straw man produces the required identification and signs the appropriate forms. The “prohibited person,” however, is the one who comes up with the money; at the end of the transaction, the straw man steps back and the “prohibited person” quickly steps in to pick up the firearm. And that’s it for the dealer, who is arrested by BATF agents for selling to a prohibited person.
(It is possible to sidestep the trap. In two reported cases, the dealer refused to go through with the transaction unless the money was offered by the straw man; likewise, he handed the firearm to the straw man, in one case having to snatch it from the hands of the quickly grabbing “prohibited person.” Although the Bureau nevertheless arrested both dealers, it prosecuted without success.)
When BATF goes after dealers engaging in straw-man sales, is it merely implementing the Gun Control Act? To permit wide open sales of this type, under any conditions, would allow for extensive evasion of the act. Even so, if the intent of the law is to prohibit the transfer of firearms to certain persons, why should enforcement be aimed at the dealer, who nominally sells to the straw man, rather than the straw man himself, who makes the transfer to the “prohibited person”? In at least one case where a straw-man sale occurred–without BATF inducement–the Bureau prosecuted the woman who served as the straw man and did not bring charges against the dealer.
If BATF believes that a straw-man sale constitutes violation of the law, it could easily prevent most future violations by simply informing dealers that it is a violation. This has obviously not been its intent. It is far easier to build up its status with Congress by creating felons of those who are disinclined to crime than by taking the time and risk to seek out real criminals.
Dealers are not the only ones to have been caught in the Bureau’s entrapment snare. A second scheme, equally dependent on BATF’S calculated ambiguities, involves the “implied dealership.” It is used exclusively against those who do not hold federal firearms licenses.
The law requires that a license be obtained by anyone “engaged in the business” of dealing in firearms. The statute, however, does not define dealing, and BATF regulations make no attempt to do so, except to say that persons who sell but “four to six” guns a year-mostly collectors-do not need a license. In fact, such persons are actively discouraged from obtaining licenses. Yet, when non-dealers sell weapons, fully complying with the standards set out by the Bureau, they are in danger of being arrested for dealing without a license.
Entrapment proceeds in this way: One or two agents approach a collector at a gun show and make a purchase. The same happens at the next gun show, and so on, until the “implied dealer” has made four to six sales. At this point, the collector is booked on felony charges of dealing without a license. Legal defense costs can run as high as $20,000 (with the person’s gun collection usually having been seized by BATF). If convicted of a felony, the collector loses all right to possess any firearms in the United States.