Monday, June 16, 2014

A Very Brief, Cynical, Comment on Abramski v. United States

by Michael Dorf

A few minutes ago, the SCOTUS handed down Abramski v. United States. The Court holds that a person who falsely states on a federal form that he is purchasing a firearm for himself when he is actually purchasing it for someone else has made a "materially" false (and thus criminal) statement, even if the person for whom the firearm is really purchased is lawfully entitled to own firearms. I haven't looked at the issues closely enough to figure out what I think about the decision, but I will note that the Court divides 5-4 (with Justice Kennedy joining the liberals to make the majority).

Thus, with the exception of Justice Kennedy, the result exactly tracks the justices' respective views about the Second Amendment. That would be unremarkable if the dissenters thought that the law needed to be construed narrowly to avoid raising a constitutional issue under the Second Amendment, but they didn't. The disagreement between the majority and the dissent purports to be simply about statutory construction. (The dissenters do say that the law should be construed in favor of the defendant to reflect the rule of lenity, but that's not an explanation for the ideological divide, because in non-firearms contexts, liberals are at least as likely to favor the rule of lenity as are conservatives.)

To be sure, policy considerations frequently influence statutory construction too, and one sees that phenomenon at work in Abramski. For example, the majority says that the federal statute aims not only to keep guns out of the hands of persons ineligible to own them, but also to facilitate crime solving (and prevention) by enabling the government to keep track of whose guns were used in crimes. Etc.

Still, it's notable that at no point do the members of the majority come out and say "we favor gun control", nor do the dissenters say "we don't like gun control (except for keeping guns out of the Supreme Court building)." But those sorts of views are undoubtedly playing a very large role in Abramski. So score another point for the predictive power of simple-minded cynical legal realism.