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Gun Rights in America

Abramski v. United States, 573 U.S. _____(2014) (Decided June 16, 2014)

Petitioner Bruce Abramski was a former police officer whose uncle wanted to buy a Glock 19 hand gun. Abramski believed he could get his uncle a discount at Town Police Supply, a federally-licensed local gun dealer. His uncle agreed, and gave Abramski $400 to make the purchase. At the gun store, Abramski had to fill out a form designed to prevent “straw” purchases, or gun buys made for third parties who may not be able to own a gun because of criminal history, mental illness, or one of the other exceptions to the right to own a firearm. The form was created by the Bureau of Alcohol, Tobacco and Firearms (ATF). It says the following: “Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.” Despite this warning, Abramski declared on the form the gun was for him. Nonetheless, he then delivered the gun to his uncle in exchange for a receipt. Sometime later, the true nature of the purchase came to light when the police found the uncle’s receipt in Abramski’s apartment during a search on an unrelated charge. Abramski was convicted of making false statements on the form and sentenced to five years’ probation. So far, pretty straight-forward, you may be thinking. How did this end up in front of the Supreme Court?

The answer turns on a task that takes up a huge amount of bar and bench brain bandwidth: the art of statutory construction. What did Congress mean, exactly, when it wrote this law? If it’s not completely clear, how do we go about deciding what Congress must have meant? Should we take the context of the law into account, and if so, how far outside the “plain meaning” of the words should we go? Everyone is familiar with one of the most confounding and acrimonious debates over legislative intent, one that at least lightly colors this case, namely, the Second Amendment to the Constitution. It goes without saying the debate on what exactly it means is intensely polarizing. In this case, we first have to remember that the ATF form is not the law. It is simply a means of implementing the law. So, this case turns on the underlying statute, which is the law: Abramski was convicted for knowingly making false statements “with respect to any fact material to the lawfulness of the sale” of a gun, 18 U. S. C. §922(a)(6). Abramski’s argument was that his misrepresentation on the form was not “material to the lawfulness of the sale” because his uncle would have been eligible to purchase the gun had he appeared in person before the gun seller. In addition, the statute itself is silent as to “straw” purchases. The majority, however, found that the statute does require that buyers appear in person before the seller, give his or her name, age, home address, and present a valid photo ID so that the seller can run the buyer through the National Instant Background Check System. The statute also requires the seller to maintain records on each sale that are subject to inspection by the Department of Justice. As a result, concluded the majority, we can reasonably infer that Congress created all these requirements because it wanted the gun dealer to be as sure as possible that the person buying the gun was not someone who would be prohibited from doing so. Therefore, lying on the form is clearly “material to the lawfulness of the sale”, and Abramski was lawfully convicted under the statute. The petitioner made some other arguments with which the dissent largely agreed, but which the majority considered a bit out there. In sum, Abramski claimed that not only was no crime committed because his uncle could have lawfully purchased the form, but that even if his uncle was prohibited from buying a gun, the only thing federal law on this subject “cares” about is who is actually standing in front of the gun seller. If that person is entitled to the gun, everything else that comes after is essentially of no moment. The dissent is worth reading, as it is instructive on the differing views of statutory construction: “The majority’s purpose-based arguments describe a statute Congress reasonably might have written, but not the statute it wrote”, declares the dissent. Your own views here may indicate whether you like your right to own a gun served largely without infringement, or more as part of a well-regulated militia.

District of Columbia et al v. Heller, 554 U.S. 570 (2008), a 5-4 decision, the Supreme Court held that the Second Amendment’s reference to the right to “keep and bear arms” applies to individuals, and not just to militias. Lots of analysis of the text of the amendment took place, and enough parsing to please all the old sentence diagrammers immensely. In sum, the case struck down the District of Columbia’s near total ban on handguns as unconstitutional. People who are otherwise not prohibited from owning a firearm should be allowed to keep one in an operative condition to protect themselves and their home and family. The dissent was incredulous, saying the case is not about collective (i.e. the states and their militias) or individual rights, but about whether the Second Amendment protects the right to “possess and use guns for nonmilitary purposes like hunting and personal self-defense”. The dissent took the view that the framers of the Second Amendment were not concerned with that question, as the issue at the time was fear of a national standing army that would disband the state militias and forever diminish the sovereignty of the states. In fact, the dissent held that a case from the 1930’s, United States v. Miller 307 U.S. 174 (1939), addressed the question squarely, and concluded that the Second Amendment has no bearing on individual gun ownership. That case concerned a man who was arrested for taking an unregistered shotgun across state lines. The Justices concluded that “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Miller at 174.

Doesn’t this mean that the question presented in Heller had already been addressed and laid to rest in Miller? This idea of not contradicting yourself in opinions, except in rare circumstances, is known by the Latin term “stare decisis”, roughly meaning “let the decision stand”. In common law systems, the goal is to create some certainty for litigants as to how their disputes will be decided; previous cases that have had similar facts to your case are supposed to give some idea of how your claim is going to turn out.  Contentious subjects and evolving social and political norms frequently put that idea to the test.

Where is Yeb Saño?  Finding the Limits of International Agreements

Today starts the second week of the latest round of U.N. climate talks taking place in Lima, Peru.  The work done in Lima will prepare for next year’s summit in Paris, in which binding and universal terms on climate change will be agreed to at last. The 2013 meeting in Warsaw also happened to coincide with the most powerful weather event in recent memory: the devastating Super Typhoon Haiyan, which destroyed large swaths of the Philippines and became a symbol of a warming climate’s ferocious weather events.  The Philippines’ lead delegate to the Warsaw talks, Yeb Saño, lived in one of the areas nearly obliterated by Haiyan, and his speech to the assembled delegates in Warsaw briefly stopped the show.  To the delegates pressing for urgent action, the topic under discussion at these staid, acronym-plagued gatherings is preventing the end of human civilization as we understand it.  To his supporters, Mr.  Saño provided both the heat and light appropriate to the subject, reflected in the following extended excerpt:

“With an apparent cruel twist of fate, my country is [again] being tested by this hellstorm called Super Typhoon Haiyan, which has been described by experts as the strongest typhoon that has ever made landfall in the course of recorded human history. It was so strong that if there was a Category 6, it would have fallen squarely in that box . . . The initial assessment show that Haiyan left a wake of massive devastation that is unprecedented, unthinkable and horrific, affecting 2/3 of the Philippines, with about half a million people now rendered homeless, and with scenes reminiscent of the aftermath of a tsunami, with a vast wasteland of mud and debris and dead bodies . . .

To anyone who continues to deny the reality that is climate change, I dare you to get off your ivory tower and away from the comfort of you armchair. I dare you to go to the islands of the Pacific, the islands of the Caribbean and the islands of the Indian ocean and see the impacts of rising sea levels; to the mountainous regions of the Himalayas and the Andes to see communities confronting glacial floods, to the Arctic where communities grapple with the fast dwindling polar ice caps, to the large deltas of the Mekong, the Ganges, the Amazon, and the Nile where lives and livelihoods are drowned, to the hills of Central America that confronts similar monstrous hurricanes, to the vast savannas of Africa where climate change has likewise become a matter of life and death as food and water becomes scarce. Not to forget the massive hurricanes in the Gulf of Mexico and the eastern seaboard of North America. And if that is not enough, you may want to pay a visit to the Philippines right now. . .

This process under the UNFCCC has been called many names.  It has been called a farce.  It has been called an annual carbon-intensive gathering of useless frequent flyers.  But it has also been called the project to save the planet.  It has been called ‘saving tomorrow today’.  We can fix this.  We can stop this madness.”

At the conclusion of his speech, Mr. Saño said that in solidarity with some of his family who had not eaten for three days because of the typhoon’s devastation, he would fast until the conference produced measurable progress.  Other climate activists joined him.  Incredibly, this year’s conference again coincided with another serious if not as deadly typhoon in the Philippines.  In Lima, the absence of the world’s most visible climate negotiator without explanation to Mr. Sano or the rest of the conference has lead to rumors that the industrialized nations pressured the Philippines to keep him at home.  Whatever the truth, Mr. Saño tweeted, “They can silence my mouth, but they cannot silence my soul.”

Contact the Sarah M. Phelps, General Counsel, in the Office of General Counsel at 202-884-9049, or by email at



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