|
Summary: gun control advocates would push for lifetime prohibition after the first hospitalization and use the fact that SMI are susceptible to kindling (worsening of illness) even if there are no future hospitalizations. They would argue that a lifetime prohibition would address the risk inherent in SMI with kindling of the diseases, protects the public, and comports with Bruen's historical traditions of prohibiting mentally defective persons from owning firearms.
Arguing the converse, proponents for gun control may use the fact that there is neurological kindling in untreated or poorly managed bipolar disorder, all which leads to more frequent and severe episodes. Sensitization, decreasing well intervals over time, presents itself in triggering life events triggering the first few episodes, creating a positive correlation between life events throughout the first few episodes, but as the person ages episodes begin to randomly occur without a life event. As seen in bipolar disorder, major life stressors are required to trigger initial onsets and set off recurrences of affective episodes, but with kindling successive episodes become progressively less tied to stressors and may eventually occur autonomously. If bipolar disorder patients are prone to stop treatment due to anosognosia or the belief they do not need medication during periods of remission, then proponents for gun control like Giffords and Everytown would find that a lifetime prohibition would be in the best interest for public safety as the research demonstrates that kindling is exacerbated by noncompliance and the episodes will increase in frequency and not always triggering successive hospitalizations and by extension new prohibitions. Everytown and Brady would further contend that even though the concept of kindling was not known at the time, it was well known that severe mental illnesses were lifelong and incurable; thus enough to trigger a prohibition once someone was institutionalized. Since Everytown et all will need to address how this fits into the scheme of Bruen as it is controlling, below is how Bruen is construed. Bruen does not address mental illness prohibitors. Rather it lays out the framework for future challenges to base their constitutional claims upon. This comment shall also include Heller since many courts still rely on it. Adhering to a Heller and Bruen analysis, gun control advocates would need to demonstrate in their amicus briefs that the 922 (g)(4) prohibitor would meet constitutional muster as Heller indicated that its decision to reverse the ban on keeping arms unsecured in the home, “should [not] be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .” Id. (quoting Heller, 554 U.S. at 626). Heller in a way if positioned correctly by Everytown and Giffords, predicted its eventual overturn and included the clause that there was a long standing prohibition on mentally ill persons and violent felons from possessing and controlling firearms. Now turning to Bruen and Duarte, this case did not pass constitutional muster because in their briefing they described how felonies during the writing of the constitution was to mean violent felons who faced life sentences. Duarte was charged with a nonviolent felony and did not pose a danger to society and had demonstrated reintegration into society with no recidivism. Drawing from Duarte, looking at the historical traditions it is important to see if the conduct was a one time violation or whether the conduct is likely to repeat itself and carries an inherent danger to society.
Therefore illnesses such as Bipolar and Schizoaffective disorder were intended to disqualifying illnesses if the person had ever been sectioned. Everytown and Giffords would contend that untreated or poorly managed bipolar disorder leads to more frequent and severe episodes. If there was one hospitalization, it would indicate that the illness was more severe than cyclothymia given that per DSM V criteria hospitalization would change the diagnosis to a manic episode and Bipolar 1. With a more severe illness, there is the known fact that sensitization for episodes and decreasing well intervals over the lifespan, there would be a high risk for someone who may have been in remission for many years can still have a severe relapse and use a firearm in a deadly manner.
0 Comments
Denial Notification Example The following is an example of a denial notification you may receive when a person is denied a transfer: ************************************************************************** FIREARM DENIAL NOTICE: A PERSON PURCHASING/RESIDING IN YOUR JURISDICTION WAS RECENTLY DENIED THE TRANSFER OF HANDGUN **************************************************************************
THE FBI ENCOURAGES YOU TO CONTACT YOUR LOCAL BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES OFFICE PRIOR TO TAKING ACTION. CHARLESTON ATF, 304-234-5678 THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS) SECTION CONDUCTED A NAME SEARCH USING DESCRIPTIVE DATA, NOT FINGERPRINTS, FOR A FIREARM BACKGROUND CHECK WHICH WAS DENIED ON 4/26/2022, 02:02:23 PM FOR: NAME: DOE, JOHN L. NTN: 102356748 SEX: M RACE: W DATE OF BIRTH: 10-11-1990 PLACE OF BIRTH: WV HEIGHT: 6’1’’ WEIGHT: 185 SOCIAL SECURITY NUMBER: 123-45-6789 RESIDENCE ADDRESS: 456 AMERICAN WAY, APPLE PIE, APPLE PIE COUNTY, WV 22445 INFORMATION RECEIVED INDICATES THE ATTEMPTED PURCHASER IS PROHIBITED FROM RECEIVING OR POSSESSING FIREARMS IN THE STATE OF PURCHASE AND/OR STATE OR RESIDENCE, BASED ON: MENTAL HEALTH RECORDS THE ATTEMPTED PURCHASE OCCURRED AT: NKM DEALER: USA ARMS ADDRESS: 123 MAIN STREET, HOMETOWN, HOMETOWN COUNTY CA, 23456 PHONE: 304-625-1002 SHOULD YOU HAVE ANY QUESTIONS REGARDING THIS NOTIFICATION, PLEASE VISIT: FBI.GOV/NICSDENIALS THIS NOTIFICATION WAS ALSO PROVIDED TO THE FOLLOWING ORI(S): WV0470150 SO APPLE PIE COUNTY 304-478-0000 WV0625630 PD HOMETOWN 304-457-0000 Denial Overturn Notification Example The following is the denial overturn notification that will be received when the NICS Section determines a person is not prohibited: ***************************************************************************** NOTICE OF FIREARM DENIAL OVERTURN: A PERSON PURCHASING/RESIDING IN YOUR JURISDICTION WAS PREVIOUSLY DENIED THE TRANSFER OF A HANDGUN AND IS NOT PROHIBITED ***************************************************************************** AS OF 7/1/2022 THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS) SECTION HAS DETERMINED THE PERSON BELOW IS NOT PROHIBITED. IF ADDITIONAL PROHIBITIONS ARE ESTABLISHED, YOU WILL RECEIVE ANOTHER DENIAL NOTIFICATION. THE NICS SECTION CONDUCTED A NAME SEARCH USING DESCRIPTIVE DATA, NOT FINGERPRINTS, FOR A FIREARM BACKGROUND CHECK WHICH WAS DENIED ON 4/26/2022, 02:02:23 PM FOR: NAME: DOE, JOHN L. NTN: 102356748 SEX: M RACE: W DATE OF BIRTH: 10-11-1990 PLACE OF BIRTH: WV HEIGHT: 6’1’’ WEIGHT: 185 SOCIAL SECURITY NUMBER: 123-45-6789 RESIDENCE ADDRESS: 456 AMERICAN WAY, APPLE PIE, APPLE PIE COUNTY, WV 22445 ***************************************************************************** PER AVAILABLE INFORMATION, THE PERSON LISTED ABOVE IS NOT PROHIBITED ***************************************************************************** SHOULD YOU HAVE ANY QUESTIONS REGARDING THIS NOTIFICATION, PLEASE VISIT: FBI.GOV/NICSDENIALS THIS NOTIFICATION WAS ALSO PROVIDED TO THE FOLLOWING ORI(S): WV0470150 SO APPLE PIE COUNTY 304-478-0000 WV0625630 PD HOMETOWN 304-457-0000 A SEARCH White Paper By the Mental Health Records in NICS Focus Group Reporting Mental Health Records to the NICS Index 
Abstention doctrines are usually used in establishing federal jurisdiction in civil cases. People can bring challenges to firearm prohibitions via criminal court or civil suits against the government. Because the federal courts' obligation to adjudicate claims within their jurisdiction is unwavering, abstention is permissible only in a few defined situations with set requirements. United States of America v. Morros (9th Cir. 2001) 268 F.3d 695, 703. Abstention is not an avenue to be casually strolled down, nor is it a shield to be raised up against federal preemption and Federal Supremacy Clause.
The plausibility standard set in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) dictates that the plaintiff must demonstrate that their complaint meets the pleading standards that rise more than just a "formulaic recitation of the elements of a cause of action" and that the petitioner must create a. nexus between the factual allegations and the right of relief beyond just speculation. If the petitioner fails to do such then they will to survive the defendant's motion to dismiss. Case law finds that although a court must “‘take the facts in the light most favorable to the plaintiff,”’ the court is not bound to accept legal conclusions disguise as facts, inferences, or arguments. see Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). While legal conclusions can provide the framework of a complaint, they must always be supported by factual allegations. PULLMAN ABSTENTION In considering whether 18 U.S.C. § 922 (g)(4) against Welf and Inst Code § 8103 warrants abstention, the court per R.R. Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (Pullman abstention doctrine) must determine when appellants claim their federal rights are being violated if there is already an area of state law that addresses constitutional conflicts. Pullman holds that federal courts should abstain from decisions when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts avoid unnecessary adjudication of federal questions and generating friction with state policies. Since California does have a state level constitutional right to bear arms, there is some area of ambiguity in the state laws. Courts rely on three criteria in the determination of abstention under Pullman. First, the case must touch on a sensitive area of social policy that federal courts generally do not to enter unless there is no alternative to its adjudication. Second, it must be plain that the constitutional adjudication can be avoided if a definite ruling on the state issue would terminate the controversy federally and state. Simply stated if the state can resolve the issue in such a manner that legal analysis would yield very similar results, then abstention may be warranted. Finally, the possible determinative issue of state law must be uncertain if the federal courts were to consider involvement. However, the Supreme Court applies Pullman doctrine, “where deference to the state process may result in elimination or material alteration of the constitutional issue, does not require that [a] Court defer to the wishes of the parties concerning adjudication.” Since writers originate from the southern district under the Ninth circuit this comment shall address the lawful citizen test under Heller not Bruen. Bruen analysis have not address 922 (g)(4) prohibitors and the lawful citizen historical analyses. When the majority in Heller described individual self-defense as the “central component” of the Second Amendment, a right that “pre-exists” the written Constitution, these decisions and ones that followed them—have focused little on this alleged “central” feature of the Amendment, but rather on how various classes of persons do not qualify as law abiding citizens. The Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 626 (2008), recognized that, like most rights, the right secured by the Second Amendment is not unlimited in that anyone may possess and control firearms for whatever reason. Since Heller was controlling for many years and continues to be controlling even in the face of Bruen in many district courts, they rely on the reasoning in Heller, that the scope of the Second Amendment is limited to presumptively lawful regulatory measures, including “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626-27, 627. Even though bans on possession of unsecured firearms in the home was rule unconstitutional, the Heller Court explained that nothing in its opinion should be taken to cast doubt on the other regulatory measures and that the findings in McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) continue to control. Therefore, Heller has long been used to uphold prohibitions on felons and the mentally ill possessing firearms. With the findings in Bruen should control, most courts still follow the mandates of Heller, in which the courts issue opinions that analyze second amendment's challenges by tying in any historical patterns of denying these classes of persons to Bruen's founding-era historical traditions and understandings of the scope of the second Amendment. For purposes of this writing, Bruen's core requirement of historical traditions does not lay the foundation for pro second amendment advocates to create a strong argument that there lacks a historical tradition of barring firearms from mentally ill persons as only modern developments in psychology have discussed the longitudinal studies of mental illness and dangerousness to others and remission. Therefore, we shall analyze the case studies using Heller's interpretation of lawful citizen. If under Heller, the purpose was to keep firearms out of the hands of mentally ill persons, the intent was to keep it out of the hands of those who were adjudicated mentally ill by a full court and with the intent that the person was so severe they faced a judicial hearing to make a formal decision. Most hospitalizations have periodic reviews and to comport with due process, they must occur before a judicial or hospital committee. Even though Mai and Stokes discussed the limitations of treating such hearings as formal adjudications, the purpose of Heller was for those who were committed for years in a hospital or found NGRI and sent to state hospital for years of treatment. Those persons under Heller were the intended population for a 922 (g)(4) prohibition as they did not fall under the lawful citizen. For all of the others who face short term commitments, they, once rehabilitated are lawful citizens. 34 U.S.C. § 40911 (C)(1)(A) serves as proof of such reasoning as the commitment by a federal agency, once discharged and released evinces how the federal government considers the person rehabilitated and the record ineligible for the NICS. When a hospital submits a 5250 cert hearing premised on either misplaced or transient psychiatric issues, they effectively violate the defendant's constitutional right to possess firearms, right to due process, and to be considered a law abiding person under Heller, the harm occasioned by such a violative action ought to be redressable via petition for federally recognized state relief from disabilities under the NIAA. The ATF has explained itself that mental illness alone does not confer a prohibition. It is the determination by a court that a person is incompetent or a formal commitment to a mental hospital that confers the lifetime prohibition. Given that CA's state relief from disabilities process is not recognized at the federal level, the lifetime prohibition stays. Because of our overburdened hospital system, many patients face long stays and eventually run up against the mandatory 5250 certification review hearing. This cert hearing must occur by law and often happens on day three or four of the 5250 hold.. Now given the high case loads, patients often find themselves in the ER triage for a day or two waiting before they are send to the actual psychiatric unit or transported to another facility that does have space. By the time the patient may have actually arrived, the clock has already began to run even though the law suggests otherwise [link]. Therefore, by the time the patient will have arrived at the facility they will soon receive the 5250 hold paperwork and the notice of upcoming certification hearing. They have yet to meet their actual treating doctor who will fully review their file and history and make decisions about their treatment and plan for release. This brings us to the facts of our case where the patient may have had a medication induced manic episode from pseudoephedrine and was admitted to the hospital under dangerousness to self and others. In the case of many people who are diagnosed with some milder forms of mental illness, medications can trigger an episode that is very uncharacteristic for them and the resultant hospitalization will have marked them as unfit and not a "law abiding citizen" under Heller. Their certification of dangerousness to self and others is not characteristic of their mental illness or for those without an underlying mental illness, not characteristic of themselves and therefore do fall within the intent of the legislature and Heller in regards to the federal prohibition under 922(g)(4). Within the scope of Bruen, the historical tradition of keeping and bearing arms extends to those who are not chronically severely mentally ill; but rather, just suffering a transient period of medication imbalance relating to an unrelated condition such as pneumonia. With no recourse for them to seek relief from disabilities at the federal level from within California, they would have no way to restore their rights without having to go through expensive lawsuits entailing suing the DOJ. Furthermore, if the BSCA intends to prosecute more lie and try cases and investigate failed NICS background checks, a patient may have even forgotten they were certified danger to self and others if this was a one time occurrence from a medication never to be repeated again. Jasani, R., Deacon, J. W., & Sertich, A. (2021). Corticosteroid-Induced Mania After Previous Tolerance of Higher Doses. Cureus, 13(9), e17719. https://doi.org/10.7759/cureus.17719 Panwar, V., & Lassi, K. (2011). Stable Bipolar Patient Switched to Mania following Clinical Doses of Prednisone. Case reports in psychiatry, 2011, 797658. https://doi.org/10.1155/2011/797658 5/11/2024 the expanded definition of engaged in the business of dealing in firearms and mental healthRead NowThe BSCA removed the requirement to consider income for ‘‘livelihood’’ when determining that a person is ‘‘engaged in the business’’ of dealing in firearms at wholesale or retail. The definition of ‘‘predominantly earn a profit’’ now determines earn a profit on whether the seller's intent underlying the sale or of firearms was predominantly one of obtaining pecuniary gain. Pecuniary gain per the ATF's determination means any kind of benefit wether it was financial or for personal gain. The ATF determined that a single sale does not usually qualify as engaged in the business; however, it does not quantify in the GCA or in this final rule how many sales fall within the meaning of engaged in the business of dealing in firearms. This final rule according to gun control advocacy groups like Giffords and Everytown are intended to target sellers who try and engage in firearm "trafficking" or multiple sales to persons who they choose to ignore signs that the buyer is a prohibited person. With this final rule coming into effect within 30 days of its publication, private party sellers must register as an FFL eg (FFL-01) and whenever they conduct a sale or transfer they must abide by their state's laws and federal laws which include conducting a background check using the 4473.
For mental health prohibitors, this may cut down on some illegal sales where the proposed buyer may have tried to go through the private party transfer route to bypass the . However, federal law does dictate regardless of the means of sale, the seller must have reasonable belief the person they are transferring the firearm to is not a prohibited person. With the expanded definition of For current CA residents, this rule does not affect them as CA is a point of contact state where all transfers must go through an FFL and no firearms may enter the state without being registered in the CFARS within 30 days of entering the state. However, it could impact some buyers who may have triggered the lifetime prohibition through a 5250 cert hearing, moved state, and then attempted to buy a firearm via private party transfer years later in a state like Maine. With the stricter regulations of who is considered engaged in the business of dealing in firearms, the private party transfer seller would have to run a NICS background check, where they would then realize the person to whom they about to sell the firearm to was prohibited under federal law as the CA mental health records. A few concerns raised were that the rule would cause such an increase in the number of dealer applicants and licensees that ATF and NICS would not have the resources to handle the corresponding increased workload. With many states having the "Charleston loophole" active, concerns would be raised that they would still release on an undetermined when there may be a prohibiting entry. According to the group Giffords, even a full POC state like Florida allows for releases on undetermined statuses. Related concern raised were that even though this final rule was proposed, most private party sellers especially ones that resided in border states to CA are already extra careful about checking for real IDs and proof of residency that evinced the buyer was a resident of their same state. 2A proponents also contend that interstate sales of firearms is illegal and CA state law prohibits any transfer of magazines, ammunition, and firearms into the state without registry. Finally, they argue that someone who wishes to acquire a firearm will a means to procure the firearms and that increasing the burden on private party sellers who may not have the financial means to become an FFL are punished. They also contend that this rule will generate more sale data that can be used in growing an illegal centralized registry that may not be immediately searchable but still searchable none the less. Furthermore, they argue that if there is another federal "assault weapons ban" passed, more firearms will be known to ATF and if there is no grandfather clause, they will be subject to either confiscation or a mandatory buyback. Additionally given that federal mandates that all FFLs when they close must provide the last 20 years of 4473's to the ATF who does not have a date where they destroy the 4473s gives rise to concern about the growing illegal registry as many private party transfers occur because people do not want their information in a registry. If there were mental health patients from decades ago who acquired their firearms via private party transfer, when they attempted to purchase a firearm and now the private party seller conducted a background check, the "surprised" buyer would be prosecuted for lying per 18 U.S.C. section 922 (a)(1) as they might not be aware they triggered the federal prohibition years ago. Pro gun control advocacy groups like Moms Demand and Everytown assert that even though some criminals will find means to acquire their firearms, this will slow the flow of firearms that enter tightly regulated states like CA and lower the rate of firearm related deaths in states with less restrictions as less readily accessible firearms will deter criminals. A note: many term this closing the "gun show loophole". Most gunshows booths inside are run by FFLs who must already conduct the background check and 4473s regardless. This rule would be more apt to be termed the "private party transfer" exception. At many gun shows and around border state FFLs like Cabela's, undercover ATF agents monitor the sales going on within and outside for out of state buyers, straw purchasers, and suspicious buyers. They search for out of state plate, buyers with non state IDs, or alerts of denied persons. 5/10/2024 Should 922 (g)(4) denials trigger prosecution under 922 (a)(1) (False Statement to Acquire a Firearm) ie lie and try prosecutions for mental health patientsRead NowFalse Statement in Connection With Acquisition of a Firearm,
18 U.S.C. § 922(a)(6) For purposes of this discussion most of it will cover federal law. State law will be covered later. If a person attempts to purchase a firearm from an FFL and they are denied, when the denial is reported to the state, the state technically has the discretion to pursue an investigation as to whether the prospective buyer was attempting to deceive the FFL by providing information they knew was materially false. Most of the time § 922 (a)(6) is used when charging defendants who have prior felonies or domestic violence convictions and civil court orders. However, with the increased focus on mental health, expanding gun control laws, and the passage of the BSCA, many proponents against gun control believe that mental health patients will be prosecuted for "lie and try"; even for a first time attempt to purchase a firearm. Per CA law, when the person completes their 5250 hold assuming they did not prevail on their cert hearing/writ of habeas corpus, they will be given legal document describing the prohibitions. The document states that the prohibition term under state law is five years for one 5150 and a lifetime for 2 5150's in a year. The document then states that if you were held for more than three days federal law may prohibit you from owning and possession firearms for a longer period of time. The BOF 4009B at the bottom has a signature where it reads "I certify that I have read and understand that I am subject to the prohibition(s) indicated in this document". It is important to note that the 4009B does not have this disclosure certifying that the patient read and understood the document. This to a charging prosecutor is likely to qualify as knowingly making a false statement about prohibition status. The ATF endorses legal enforcement of those who fill out a 4473 without ensuring that they are very reasonably certain they are not in a prohibited class. “Prior to stepping foot in a gun store, potential purchasers with eligibility concerns have access to a variety of information, reference materials and Q&A at www.atf.gov or by contacting their local ATF Office,” -Dallas Division ATF Special Agent in Charge Jeffrey C. Boshek II. Many years down the road, a person who may have been certified when they were 18 years old have forgotten that they signed such a document. Most mental health patients discard their paperwork and do not sign that they wish to have a hearing to restore their rights. When they sign the 4473, a federal document, they most likely do not understand that the 5250 certification review hearing triggers the lifetime prohibition. Even though Stokes found this prohibitor unconstitutional, Stokes was an as applied case and therefore did not change federal law. With the push for gun control and past events of mass shooters having been mentally committed years before, there could be a push to charge prospective buyers with making a false statement in connection with trying to buy a firearm/ammunition, specifically about "have you ever been adjudicated mentally defective or committed to a mental institution". The law mandates that the FFL cannot assist a buyer in filling out the form 4473. Rather, they can only guide the buyer to the end pages with the definitions of each criterion. Most persons who were committed in CA remember the 5150 and being told about the 5 year prohibition. They do not know about the lifetime prohibitor and neither do most hospital persons administering the paperwork. Because of this it is difficult to prove the mens rea behind filling out the 4473 falsely. For the court to find [defendant] guilty of this crime, it must be convinced that the US District Attorney has proven each of these things beyond a reasonable doubt: First, that defendant knowingly made a false statement as charged in the Indictment; Second, that at the time they made the statement, defendant was trying to buy a firearm/ammunition from a licensed dealer; and Third, that the statement was intended to, or likely to, deceive the licensed dealer about a fact material to the lawfulness of the sale. It is important in all of the facts discussed above, that the government does not have to prove that defendant knew that they were violating the law regarding false statements on a 4473. They only have to show that the statement is "false" if it is untrue when made. The false statement is made "knowingly" if the person making it knows that it is false or demonstrates a reckless disregard for the truth, with a conscious purpose to avoid learning the truth. Finally, the fact of 5150's being different from 5250's and their attendant certification hearings is "material" as it either has a natural tendency to influence or to be capable of influencing the decision of the licensed dealer as to whether it is lawful to sell the firearm. Legally it is irrelevant if the licensed dealer actually relies upon the statement in processing the 4473. For reference, the FFL is charged with denying the sale up front if they have reasonable suspicion that the person is a prohibited purchaser or a straw buyer even without providing a 4473. [CITATION] The court may consider any statements made or acts done or omitted by defendant and all other facts and circumstances received in evidence that may aid in its determination of defendant's knowledge or intent. That is where a pro gun control judge may use the certified signature of read and understood the prohibitions in BOF 4009B against defendant in proving that they knew about their status. Ignorance of the law is almost never an equitable excuse. Case law that has addressed this issue United States v. Currier, 621 F.2d 7, 10 (1st Cir. 1980), stated that section 922(a)(6) "does not require a showing that appellant 'knowingly' violated the law; it simply requires proof that appellant 'knowingly' made a false statement." (2) The definition of "knowingly" is different from the customary definition of "knowingly" for other types of offenses. It comes from United States v. Wright, 537 F.2d 1144, 1145 (1st Cir. 1976), a case arising under 18 U.S.C. § 922(a) United States v. Santiago-Fraticelli, 730 F.2d 828, 831 (1st Cir. 1984), emphasized that section 922(a)(6)'s scope is "not limited to situations in which an accused knew he was lying." When a person recklessly fails to ascertain the meaning of the questions contained in Form 4473, and simply answers the questions without regard to whether the answers are truthful, he is acting "knowingly" for purposes of this section. For purposes of the 5250 federal prohibitor, this would entail finding that defendant was responsible for reading the back of the 4473 and even possibly researching what kind of prohibition a 5250 hold triggers both statewide and federally. The defendant may also be required to due their due diligence in researching the difference between a certification review hearing and just the mere beginnings of a 14 day hold as the cert hearing is the triggering event. (3) Section 922 does not require proof that the transaction was in interstate commerce. see Scarborough v. United States, 431 U.S. 563 (1977). The requirement of a transaction with a licensed dealer is sufficient. Those dealers' general involvement with interstate commerce is ample to justify federal regulation of even intrastate sales. see United States v. Crandall, 453 F.2d 1216, 1217 (1st Cir. 1972). (4) The definition of "material" is defined in United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994). |
|||