The Case of the .50-Caliber Felony
It seems CNN went out on a limb
in their quest to attack the .50 rifle,
sending one of their reporters to purchase a .50 in a private sale from
a resident of another state. The following law appears to apply
922. Unlawful acts (a) It shall be unlawful - (1) for any person - (A)
except a licensed importer, licensed manufacturer, or licensed dealer,
to engage in the business of importing, manufacturing, or dealing in
firearms, or in the course of such business to ship, transport, or
receive any firearm in interstate or foreign commerce...
Why, yes, flying to another state to conduct the purchase would count as "receiving a firearm in interstate commerce".
UPDATE: I think CNN can skate on this one. They are not in the
business of manufacturing, importing, or dealing in firearms.
However, the ATF FAQ on this topic (see below) does not include this
exception! So the official position may be different, and less
favorable to CNN, than the plain language of the law.
(3) 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...
Why yes, flying home with it is also a crime.
UPDATE: After the collective wisdom of gunblogger analysis, this
violation seems to hold up to scrutiny IF, and ONLY IF, CNN's reporter
is considered to have bought the gun. That's a very tough
question that isn't covered by the law itself, that I know it.
That means it would be a jury question.
Here's the plain-language explanation
, from the ATF's FAQ:
From whom may an unlicensed person acquire a firearm under the GCA?
person may only buy a firearm within the person s own State, except
that he or she may buy a rifle or shotgun, in person, at a licensee's
premises in any State, provided the sale complies with State laws
applicable in the State of sale and the State where the purchaser
So the short answer is, you can buy a firearm out of your state of residence from a licensed dealer only
. CNN's story involves a private sale; they make an explicit point of that in their voiceover.
UPDATE: The story also says they "made sure the buyer and seller were
in the same state". That might mean physically, in which case
this applies, or it might mean residing in the same state, in which
case the initial sale was legal. The conclusion I am reaching
here is that the video doesn't tell us enough. There are gray
For those who are wondering if these rules include the modifications in
the Firearms Owner's Protection Act, the answer is yes. Later in
that same document, the transportation rules from that law are
May a nonlicensee transport firearms for sporting or other lawful
Yes. Federal law provides a person, who is not prohibited by
the GCA from receiving or transporting firearms, the right to transport
a firearm under certain conditions, notwithstanding State or local law
to the contrary. The firearms must be unloaded and in a locked trunk
or, in a vehicle lacking a trunk, in a locked container other than the
glove compartment or console. Also, the carrying and possession must be
lawful at the place of origin and destination.
of that, I will take this data as reflecting the current state of the
law. CNN [ed- may have
] fucked up big. But will they get prosecuted?
We'll have to wait and see.
The Definition of a Straw Texan
|I've been using the term "straw buyer" and "straw Texan" a lot in the
CNN story. I figured I had better explain them. I don't
think either is actually a legal term, but rather a colloquial
expression derived from an older time when scarecrows saw regular use. What's a scarecrow? Simply a man made of straw.|
When you're buying a gun from a dealer, you have to be buying it for
yourself. That's because the 4473 asks if you are buying for
yourself, and it is a felony to fill it out falsely. If you lie,
and work with someone else to buy a gun (someone who, for example,
cannot pass the background check), then you have become a straw
purchaser: a "fake" man in order to fool the background check, like a
scarecrow fools crows. The term can apply even when there is only
one person involved; if you falsify the 4473 with someone else's
information and provide the dealer a false ID that matches it, there's
still a straw man buying the gun.
If you are not going through a dealer, and thus are not filling out a
4473, then there's no straw purchase problem. However, you can
still be a straw purchaser if you are acting the same role of fake
buyer. It's just that, in that scenario, there's no penalty for
In the CNN situation, there is a private sale either to Griffin, or to
some mystery person. There's no 4473, so the laws against a straw
purchase don't apply. But the only reason Griffin would use a
third party to buy the gun would be for that third party to pass
himself off as the buyer to the seller. If the seller knows the
law, he won't sell to Griffin, who is not a Texas resident.
(Why not? You can sell a long gun to another resident of your own
state in a private sale, but not to someone who resides in another
And that's how we get from a straw buyer, generic, to a straw
Texan. It's only legal as a private sale in this scenario if the scarecrow is
Texan. I wrote it once and it sounded good, so I kept using
it. The scarecrow must be Texan.
reports that a reader has informed him that the ATF in Houston is aware of the situation
. The below is directly from the ATF's email response:
I have forwarded this to the Houston office. There is no straw purchase
since the transaction does not involve a licensed dealer. However the
owner did sell a firearm to a non-resident of Texas which is a
violation of 18 U.S.C. 922(a)(5).
is almost right. It is exactly the impression that the video is
supposed to leave in the mind of the viewer. But there are two
significant danger signals, too.
- This particular email appears to be focusing on the seller.
- The author doesn't appear to be aware of the (invisible) straw Texan that has been postulated.
It would be a shame if the seller got nailed and the buyer got off
scott-free. The seller MAY be legally in the wrong, if sold
directly to Griffin and did not check for a Texas ID. But it
falls into the category of a typical mistake for which I have a fair
amount of sympathy.
However, if there was a straw Texan involved, the seller is off the
hook and the straw Texan and Griffin himself are threatened
instead. The question in that case, as noted earlier, is: who
owns the gun? The straw Texan? Or Griffin, who videotaped
himself pretending to own it and pretending to pay for it?
We'll have to wait and see if the BATFE can sort it out.
BTW, SaysUncle shouldn't get too cocky about exclusives: someone posted a comment to the same effect on my loophole post
. Remember, though, it's just a friendly competition... [ed - but yeah, getting an actual response from the ATF is different. Conceded.
The loopholes that CNN may wiggle through...
Based on a close reading of this transcript
(and kudos to The Smallest Minority for finding it), CNN may have some
room to wiggle out of the felony problem. The catch is, it
involves admitting that they deliberately misled their viewers in
I should note, for the record, that I don't think this transcript
matches the video I saw; it probably matches the broadcast version
instead. The main differences are in the sequence of scenes (the
Barrett interview is moved further up), and I think there is also some
additional information at the tail end that wasn't in the video I
Here's the relevant section:
On the Internet, you learn all the new nuances and all the loopholes of
buying a gun. If I bought that through a licensed dealer, I'd have to
clear a background check. I would have to show proof of age, proof of
residency. By going through a private seller, private seller, private
buyer, it's strictly a cash transaction. We made sure that the two, the
buyer and the seller, were in the same state. And after that, cash and
what I'm hearing from this passage is that Griffin is not, himself, the
purchaser. He's referring to the buyer in the third person.
This is the straw sale angle. The straw sale is probably not
illegal, because no one filled out a 4473. However, it still
looks like a straw sale to me at first glance. This is mostly
based on the video, which features Griffin himself pretending to be the
purchaser. Technically, however, he may not be
. We don't know, because the details aren't in the video.
IF Griffin now owns the rifle, and took it "home" to Atlanta, that
would be a violation of GCA'68 (purchasing a rifle outside of your
state of residence and transporting it into your state of residence
without using an FFL). On the video, it sure looks like
that's what he did. He picks up the gun case from the baggage
claim area, and there's no one else (besides the cameraman) in the
visible area. But that could be staged. He could be
pretending to claim it. We don't know for sure, because we don't
know what's on that luggage tag. That could be the straw Texan's
So what information do we need to settle this?
- Who is in possession of the rifle presently?
- Who actually provided the money to purchase the rifle?
- Did the rifle ever leave Texas, and if so, in whose possession?
The way I see it, in order to prove that this was not Griffin buying
the rifle for himself (and his story), CNN needs to produce the person
who actually bought it. That person needs to have current
possession of the rifle, and to have paid for it himself, without being
reimbursed. And that person needs to have gone along with that
rifle any time it left Texas on a passenger airplane.
If they can do that, they are only guilty of misleading the public
something awful, because the whole video is set up from the perspective
of Griffin being the buyer. If you aren't listening very
carefully, you'll miss the fact that he usually says "we" and the
explanatory bit at the end. Plus, there's this:
(voice-over): But before I shelled out $2,500 to buy this gun, I wanted
to make sure I could buy ammunition. That turned out to be as easy as
ordering flowers. With just a couple of clicks on my computer, I
ordered and paid by credit card for 50 .50-caliber armor- piercing
where he slips up and says "I". Everywhere else he says "we",
even though there's usually no one but Griffin visible to the camera.
If Griffin/CNN paid for the gun, it's hard to imagine that he wouldn't
be considered the actual owner. But that's the argument that CNN
will need to make if the BATFE decides to investigate this.
The Quality of Mercy
Many people, including gun-rights people, have suggested that CNN
deserves to get off on this one. The laws are bad, they
say. The laws are wrong and should not be enforced.
On that, I have no argument at all.
But mercy is something that you apply to someone who requests
quarter. Someone who is either innocent or reformed.
Someone who will not get up, dust themselves off, reload their gun, and
shoot you in the back.
CNN as an organization is anti-gun. The simple fact that they ran
this story proves it. They are not repentent. They are not
sorry. They are not seeking to change their ways and live a
virtuous life. And they shall reap what they have sown
There's another party here, though. The seller, almost certainly
taken advantage of by CNN, may have exposed himself to liability as
well -- depending on exactly how CNN's reporter handled the
details. (In short, if there was a straw Texan involved, the
seller is OK; otherwise, he's in trouble). But I have little
doubt in the absence of conflicting information that this individual is
a firearms enthusiast who just wanted to sell a legal firearm, and
either was fooled by the straw Texan or didn't quite know the details
of the law.
Based on the facts as we understand them, nailing this individual with
a felony for his part in the transaction is not justice. And
that's what we need to push for here: justice for all.
Remember, it could have been any one of us. And if the gun bigots have their way it will be ALL of us.
So how do we make things right?
First of all, if the BATFE does charge the seller in this case (no word
on that yet, and it's likely to be a while before we know for sure) we
can make a committment to help out with his defense. It's only
fair, since we brought down the heat. Just keep that in mind for
the future, folks. If you've called up the BATFE to urge a
prosecution, you owe this guy a favor should they go after him.
Second, our message needs to be clear. Obviously, we would all
like to see CNN nailed on their technical violations of the GCA'68,
since we all put so much effort into complying with an essentially
useless law, and they put so much of theirs into creating more criminal
hazards for us.
From a PR perspective, CNN will garner a lot of negative publicity from
this. But we can't take that to the bank. We need to think
about what changes we can offer to reform the laws.
So I'm calling for ideas. We all know that this area of the
law is a mess, and it leads to innocent people without any ill intent
becoming criminals. What can we do to improve it?
- If we are OK with restrictions on firearm possession by felons,
how can we better enforce that without infringing on firearms
rights? One possibility would be a designation on a state-issued
identification card (eg, driver's license) for felons who are
prohibitted from firearms possession. Seller checks buyer's
license, and the sale is OK if the license is not marked "FELON"; no
restrictions on interstate sales as long as the license is
checked. This has the advantage of avoiding the backdoor
registration mechanism that the present 4473 + NICS is.
- Make technical violations of GCA'68 into tickets, paperwork
violations with nominal fines, rather than felonies, at least for cases
lacking any ill intent. There is no reason to threaten honest
citizens with a felony that bars future gun ownership forevermore
simply for making an honest mistake. The responsibility for not
possessing a firearm needs to rest on the shoulders of the felons
themselves, because they will always be able to obtain a firearm by
means fair or foul.
I'm sure we can come up with other improvements. There are lots
of ways the current laws don't make sense. But we need to
demonstrate that we have proposals to fix them, if we want to make any
lasting gains from CNN's mistake.
Wanted: .50 round next to a 105mm artillery shell
So, I was exchanging email with the Heartless Libertarian
, and the
topic of CNN's absurd claim (that the .50 round was the size of a small
artillery shell) came up. It seems that the smallest artillery
shell in use in the military is a 105mm howitzer round. (That's
big, folks). Unfortunately, to really make it work, I need a
picture of a .50 round next to a 105mm artillery shell.
So... anyone got one?
UPDATE: David Codrea provides these two pictures. Not quite to scale, but they give the right impression:
- .50 rifle bullet next to ketchup bottles
- 105mm Artillery Shells (converted to vases)
Right. Small artillery shells. Whatever.
At this point we can be fairly sure that CNN's reporter will not be
prosecuted. There are a couple factors leading to this
- The BATFE does not want to make an enemy.
- GCA'68 has been amended to require ill intent.
It is unlikely to save any normal gun owner from prosecution, but it
gives the BATFE the excuse they need to duck the issue.
- The CNN broadcast does not prove, only strongly imply, that their
reporter took possession of the gun from their straw Texan and returned
to Atlanta, GA with it. This interstate transfer is a necessary
component for laws to be broken.
- We are unlikely to get the answers to these questions without a BATFE investigation.
There can be no doubt, however, the CNN has aired another deliberately
misleading report designed to produce calls for more gun control -- as
well as, arguably, providing instructions to terrorists.
It is only CNN's poor understanding of firearms that has prevented
terrorists from taking up their advice. Unlike American
journalists, terrorists understand firearms all too well, and know that
hitting an airplane with a rifle would be extremely difficult and
produce no useful effect.
UPDATE: I was remiss
in not linking earlier to Zendo Deb
's call to action
on the CNN issue. I had to rebuild the CNN Gunswarm
more than once, and somehow she never got in. In other news, that
event generated a lot of new gunbloggers for the blogroll, and as soon
as I get a chance I will add them.
SaysUncle provides contact information for CNN
and suggests people contact them to ask some questions. Good point. Here are the questions we should be asking:
- Where, and in whose possession, is the .50 rifle that your reporter, Drew Griffin, videotaped himself purchasing?
- Who is the legal owner of that rifle?
- Who is in current possession of that rifle?
- At what shooting range was the segment filmed?
- Was the buyer of the rifle reimbursed by CNN for his purchase?
Please leave any answers you get in comments.
Responding to the moonbats...
Seems the folks over at Democratic Underground have picked up on this
and are making some comments. Most of them, surprisingly, are
sane. There are a few that are worth responding to, though.
you would think the trigger happy freepers on that site would be a
little less gung ho about someone being prosecuted for automatic
First, I'm a blogger, not a freeper.
Second, this has nothing to do with automatic weapons.
Third, I'd be a lot less excited about John Doe Gun Owner being
prosecuted. But CNN? They deserve it all the way,
especially since they were working on a piece about gun control at the
time. That, my moonbat friend, is called justice
All the excitement of CNN breaking the law but what law(s) they broke
is too much of a mystery for even the person who wrote the page. Guess
you don't really have to know what is happening, its important just to
be in the pipeline and keep the information flowing.
of the mystery comes from the fact that the gun laws surrounding this
transaction are complex, and CNN doesn't have enough accurate
information in the report to determine exactly what they did. But
I did spell it out
; just not on the single post that was linked earlier in the thread.
suggests in a comment at The Smallest Minority
that we should give the reporter a break.
My take on this is simple. Should this have been illegal? Of course not. But it is
Would I advocate giving an average gun owner a break if he made a
mistake? Sure. But as a general rule, you will only have a bad law
overturned if that law is enforced vigorously
. If the
prosecutor can selectively choose who to prosecute, there will never be
an opportunity to overturn the law in court or repeal it in the
Recall that both Seegars v Ashcroft
and Parker vs DC
were decided on
standing; none of the defendents were charged and thus have no
standing. If the prosecutor only charges criminals who can't challenge
the law, no one will ever successfully challenge it.
Everyone is equal under the law. That includes CNN reporters trying to
get a story. (The Valerie Plame case
also has some interesting
commentary on journalistic privilege; specifically, that if there is
one, it is very limited and only as created by state law).
While I may not agree with the law, I respect it and make an effort to
live in compliance with it. Laws should be enforced uniformly. To do
otherwise is to hand the prosecutor the Rod of the State and permit him
to smite those against whom he holds some manner of grudge, while
permitting illegal conduct from those towards whom he bears friendship.
If the BATFE wishes to cease enforcing this law wholesale, that would
be acceptable. But if they would prosecute John Doe, they should
prosecute this reporter.
My letter to CNN
In a recent story you aired on .50 caliber rifles, you videotaped your
reporter committing multiple federal felonies while claiming his
actions were perfectly legal in order to advocate for more gun control.
What is your explanation for this shameful failure of journalism?
Your erroneous report could mislead honest citizens into committing
crimes under the mistaken impression the CNN accurately reports on the
present gun control laws. Worse, your report practically begs
terrorists to follow the instructions you provide in order to attack
When will you issue a correction on the factual errors contained in your reporting, including laws broken by your reporter?
What consequences will your reporter face for breaking the law?
What is your comment regarding the risk of prosecution by the BATFE in this matter?
For those having trouble viewing the CNN video...
Some people are reporting
that CNN is not letting them view the .50
video I've been referencing, claiming that a (paid) subscription to CNN
or to Real's service is required. That's odd -- because I've
viewed it twice without any such subscription. You do need a
working Realplayer plugin, though.
Here is a brief description of the video from memory; quotes are
reasonably close to what was said but should be considered a paraphrase:
Voiceover talks about the .50 and how it's easy to buy one without any
government paperwork. Video of a reporter browsing the web...
"and this website is one of the biggest firearms sales sites on the
The video shows the report browsing down the list of .50 rifles
available. He explicitly states (and the video highlights) that
he is looking for a private individual, not a federal firearms
dealer. He finds one, writes an email on the site suggesting a
meeting, and says he's paying cash.
"Before we actually buy the gun, I want to make sure that I can buy
ammunition for it." And so he goes to an ammo dealer website,
orders it with a credit card, and gets it shipped to his office by UPS
"no questions asked". Well duh. Only problem is, he says
it's "armor piercing" ammunition. Maybe he means it's rifle
ammunition, since just about any rifle round will defeat most
Cut to the reporter in his SUV, taking about how the only paper
involved in the transaction will be the cash. He flashes what
looks like about 5 bills to the camera. Since the price of the
gun was about $3000 new, he's not exactly representing the amount
Cut to the reporter walking into a building, then walking out again
with a carrying case. More inane comments in voiceover.
Cut to an airport baggage claim, where he picks up the gun case.
Voiceover about how it's perfectly legal to transport the gun on an
airplane on your baggage (never mind the paperwork).
Cut to a shooting range, where the reporter proves he needs a lot of
practice to hit an airplane door at about 300 yards. Gee, what a
surprise, the bullets penetrate the door, leaving a small hole that
could be plugged with someone's finger! Good thing I don't depend
on thin aluminum to stop a bullet.
After a bit of that, they put a 1-inch steel plate behind the emergency
door and shoot a hole in that. Lots of slow motion for that
shot. I'm left wondering why it matters, since airplanes don't
have 1-inch steel plate armor, and wouldn't be blown to bits by a
little tiny hole even if they did.
And it closes, as I recall, with the reporter doing voiceover about
airport vulnerabilities while an airplane flies overhead, much closer
than the maximum effective range of that "evil" rifle (and most other
rifles). Never mind that actually hitting an airplane in the air
is difficult enough to require a computer with radar.
The single overriding impression I got from this video was that CNN is begging
yes literally begging, some terrorist to watch this segment, buy a .50
rifle using the "gun show loophole", and shoot at airplanes. They
are handing out instruction manuals to terrorists because they are
tired of the fact that the terrorists have never done anything like this
CNN is not merely biased. CNN is on the other side
UPDATE: There are two brief segments with Ron Barrett, who does his
best but is at the mercy of the CNN editting. There's also a
quote: "Bullets the size of small artillery shells". Right.
For those who are having trouble viewing the video, I can still view it for free.
UPDATE: For those who are STILL having trouble viewing the video, I've
figured out what might be causing the problem. You need the RealPlayer plugin
When you go to download it, RealPlayer is desperate to make you pay
them for a premium product, but if you are determined, you can download
a free version. You have to click through at least two pages that
try to sell you the expensive version. Just look for the link
that says "free". They will try to hide it, so look closely.
UPDATE: The Smallest Minority has a transcript
The original source
for this story has posted an update:
Odds are zero.
Of course if we did this and blogged it, we would be talking to the ATFE in short order.
Now it seems CNN is claiming a Texas resident bought the rifle.
So, now we have a strawman transaction, and two ( or maybe three ) felonies, in my opinion.
a straw purchase is another felony, and having a Texas resident make
the purchase is enough to take the seller completely off the
hook. The only thing a private seller can do is check ID to make
sure the buyer is in the same state, and a straw purchase from a Texan
is enough to beat that check. The Texan, however, is also in
trouble to the tune of a felony.They should have just run the story
using their Texan stooge as the reporter, then it would have all been
legal. Too late now.
UPDATE: A couple people have misunderstood this post. If CNN used
a Texas resident to make the purchase, the SELLER of the firearm is off
the hook for the GCA violation unless the BATFE can prove he know about
the straw sale.
The straw sale is itself illegal, meaning that the ACTUAL BUYER has
still committed every felony I listed, and the STRAW BUYER has
committed, at a minimum, conspiracy to violate those same laws and most
likely a seperate law explicitly forbidding straw sales. The
seller may be OK. The CNN reporter is still screwed, and so is
his straw man.
UPDATE: Just to make it clear, the only real evidence we have for the
straw purchase angle is the post by kbarrett, and he was NOT a primary
source for that. Consider this part unconfirmed speculation.
UPDATE: One more clarification. According to XLRQ's analysis
a straw sale, if it took place, is only illegal if there's a form-4473
involved, which there probably was not. Purchasing the rifle out
of your state of residence and transporting the rifle back to your
state of residence without using an FFL is still problematic.
So, CNN sends a reporter to conduct an out-of-state purchase from a
private seller in order to obtain a .50 caliber rifle for their
story. (I wonder if, maybe, they tried to obtain one from the
manufacturer and Barrett refused?) To see their video clip,
you'll have to look on the right of this search results page
Suffice it to say, after they get the rifle, they shoot at an airplane
door and proceed to demonstrate that just about any rifle is powerful
enough to put a hole in an airplane's thin aluminum skin.
So what's the legality of this little adventure? The 1968 Gun
Control Act made out-of-state firearm sales illegal. The 1987
Firearm Owner's Protection Act may
have removed that restriction for long guns; I say may
because I haven't found a good explanation. From memory, I think
that the 1987 law relaxes the rules for purchases from a dealer but
continues to prohibit long guns. And, of course, if your state
bans the .50 (eg, California) then your purchase cannot be legal.
Worse, after the 1987 law, and in part due to the hoopla over the
so-called "gun show loophole", many states passed laws restricting
private sales in a variety of ways. So depending on the state,
performing a private sale without a background check may be illegal
even if the seller is not a licensed firearms dealer.
I will try to nail down the details of the law on this matter.
But I find it interesting that CNN would choose to air this
story. They just recently lost Eason Jordan
one of their executives, to the blogosphere's demands for
accountability. Are they really that eager to attract more
attention? Well, the segment is out there now. They
shall reap what they have sown.
UPDATE: If you arrived here directly, there is a lot more detail on
this story that has come out. For the moment, you can just go to the main blog page and keep scrolling
, who appears to be an outdoorsy type with a shooting sports program on the Outdoors Channel, also has contacts within the National Shooting Sports Foundation
, an organization of firearm manufacturers. He's used those contacts to good effect, and he has this to say
FLASH! CNN Violated Federal Firearms Law! Based on my conversations with legal experts within the firearms industry, CNN did indeed violate at least one, and probably two, federal firearms laws in their reporting of the .50 caliber controversy last week. Representatives of the industry are currently in touch with the ATF. More to come.
That's right, folks. Expert lawyers from the firearms industry are now saying that CNN broke the law. Better yet, this is not an ATF guy seeing the situation for the first time this morning and firing off a quick response
to have Houston look into it. This is a reasonably considered opinion, by more than one lawyer with expertise in the area, informed and prompted by a fellow blogger who has been following the situation on his own and is thus aware of the full situation
as we have developed it over the weekend.
And those lawyers thought enough of the matter that they are contacting the ATF themselves. That's serious, folks.
It's not just armchair attorneys and non-attorney bloggers over drinks in the den anymore.
Now we watch the situation develop, and see how the ATF chooses to handle it.
UPDATE: Welcome, Instapundit readers! Please feel free to browse the rest of the blog
. Most of what's on the front page is related to the CNN .50 caliber report, but there's quite a bit of other stuff too. The link above the update describes the full situation
with links to all the other blogs (that I know of) discussing this, but that's on the front page too, so feel free to start at the top and scroll to your heart's content.
UPDATE: Michael Bane has another update
with more detail.
UPDATE: Since Michael has raised the intent issue, I figure it should be addressed. As I understand it (and I should reiterate here that I am not a lawyer), there is a common law tradition of requiring ill intent before a criminal law can be violated. That means it's hard to get in serious trouble unless you deliberately did something wrong. On the other hand, that's a tradition that isn't necessarily binding, and many laws these days are explicitly intended to apply whether or not ill intent exists.
I don't see anything in the 1968 Gun Control Act that would require ill intent as a matter of law. So we're basically in the realm of prosecutorial discretion. The BATFE can choose not to prosecute CNN's reporters for this, whether they violated the law or not, for what amounts to strategic or economic reasons.
They have the same options with respect to the seller, but he doesn't have the weight of CNN behind him. Much easier target, unfortunately.
As Michael Bane noted, however, lack of ill intent doesn't excuse CNN from the ethical concerns related to this story. In particular, the ethical concerns related to doing a story on firearms law, in order to advocate gun control legislation, and getting the law wrong
. (Or, at best, deliberately misleading the public
about what they were representing as legal). Not that this is anything new to gun owners; the Assault Weapons Ban
was a model of propaganda journalism.
The fact is, gun control laws are a mess of complex, sometimes silly, regulations that do absolutely noting to keep a determined criminal from getting his hands on a firearm. It took all weekend for a bunch of gunbloggers to figure out if what CNN did was legal or not, and we know the law on this narrow subject about as well as any layman can. CNN has an expensive legal staff for stories like this, and they missed a detail with months to set up the story.
How can any normal person expect to safely navigate the law just to own a gun or two for self-defense, hunting, or civil defense? If you make a mistake, the consequences are huge: a federal felony, and forbidden to possess a gun for the rest of your life. In America, gun ownership is both a right and a duty. It's time we brought the laws of our Congress back in line with the laws of our Constitution:A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
UPDATE: Countertop Chronicles doesn't think that intent is a factor here
. Since I try to avoid stepping between dueling lawyers (commenting from the sidelines is much safer), I will quote from him:
The simple fact is that CNN didn't commit a common law crime, where mens rea is an element of guilt. No, instead they violated a statute that provides for strict liability, ir-regardless of intent. Your reading is correct Michael.
As a practical man, I must admit that I doubt the BATFE will actually prosecute anyone at CNN, regardless of what the law says, unless serious pressure is applied to force them to do so. The question they will most likely be asking is not, "What is the correct reading of the law?" but "What is the reading of the law that will allow us to avoid having CNN as an enemy?"
Justice, however, requires it. Equal justice, for all: CNN reporters included.
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