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In a unanimous decision drafted by Justice Elena Kagan, the Supreme Court ruled Monday in the matter of Henderson v. United States that federal law does not bar a convicted felon from transferring his firearms to a third party, provided that the court is satisfied that the recipient won’t allow the prohibited person to use them or direct their use . . .

Tony Henderson was an agent with the U.S. Border Patrol who had been charged with distributing marijuana. As a condition of bail, Henderson was required to surrender possession of his firearms to the Federal Bureau of Investigation. Shortly thereafter, Henderson pleaded guilty and as a result became prohibited from possessing firearms under 18 U.S.C. § 922(g).

Henderson asked the FBI to transfer those firearms to Robert Rosier, a friend who had agreed to buy the firearms. The FBI refused, stating that the release of firearms to to Rosier would effectively place Henderson in constructive possession of the guns, thus violating § 922(g). (By “constructive possession“, the Fibbies meant that they believed Henderson would still be able to control or access the firearms even though legally title to the heaters would belong to Rosier.)

Undaunted, Henderson asked the District Court to order the Feds to transfer the guns, only to be smacked down. He appealed, only to have the 11th Circuit give him the thumbs down, too.

The Supreme Court, though, saw fit to grant the order. The U.S. Government argued that by allowing a felon to decide who would receive the firearms, he was still ‘exercising his right to control’ those guns, which violates the prohibition on possession. The government argued that the only option available to Henderson would be to transfer the guns to a firearms dealer who would sell the guns on consignment. In the opinion drafted by Justice Kagan, the Supreme Court disagreed, and made it clear that the Feds’ position was a bit incoherent. I’m going to quote it at length here just because I think she does a good job of explaining some of the law behind the decision, and the reasons why the government’s arguments failed.

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike. Actual possession exists when a
person has direct physical control over a thing. Constructive possession
is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others….

[T]he Government’s theory wrongly conflates the right to possess a gun with another incident of ownership, which §922(g) does not affect: the right merely to sell or otherwise dispose of that item….

Congress enacted [the ban on felons possessing firearms] to keep firearms away from felons like Henderson, for fear that they would use those guns irresponsibly. See Small v. United States, 544 U. S. 385, 393 (2005). Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. Results of that kind would do nothing to advance §922(g)’s purpose.

Finally, the Government’s expansive idea of constructive possession fits poorly with its concession that a felon in Henderson’s position may select a firearms dealer or other third party to sell his guns and give him the proceeds. After all, the felon chooses the guns’ “first recipient” in
that case too, deciding who “next ha[s] access to the firearms.” If (as
the Government argues) that is all it takes to exercise control over and thus constructively possess an item, then (contrary to the Government’s view) the felon would violate §922(g) merely by selecting a dealer to sell his guns. To be sure, that person will predictably convey the firearms to someone whom the felon does not know and cannot control: That is why the Government, as a practical matter, has no worries about the transfer. But that fact merely demonstrates how the Government’s view of §922(g) errs in its focus in a case
like this one. What matters here is not whether a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even when the chosen recipient will later sell the guns to someone
else. What matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer. That is what gives the felon constructive possession.

(Citations omitted.)

The Supreme Court did allow that a sale could be blocked if there are insufficient assurances that the transfer will not be genuine, but “when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request.”

Overall, the decision appears very sound, and keeping in line with the state of what the law currently is as opposed to what they’d like it to be. I’m not sure where the government’s attorneys thought it was going with its arguments. If we’re determined to have a law barring felons (and many others) from possessing firearms, it’s adding real insult to injury to not allow them to efficiently sell and transfer those firearms to another party.

As an aside, Henderson was represented in this case by several different attorneys, including John Ellwood of Vinson & Elkins and Daniel Ortiz of the University of Virginia’s Supreme Court Litigation Clinic. The brief they filed before the Supreme Court for this matter back in December is available online here. I mention this, because one of the points they brought up as part of factual background was rather interesting:

[F]irearms represent significant household assets. One commenter estimates the cost of a handgun—one of the least expensive types of firearms—with associated ammunition and equipment at $714. Dan Zimmerman, The True Cost of Buying a Handgun, The Truth About (Oct. 20, 2013), That sum represents two thirds of the typical American household’s monthly discretionary income.

With that sort of strong background research on their side, how could they lose?    [h/t Dirk Diggler, Esq.]


DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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  1. ” provided that the court is satisfied that the recipient won’t allow the prohibited person to use them”

    So felons aren’t allowed to fire a gun?

      • They are not permitted to *hold* a gun, I think it’s 10 years in federal prison, no parole. Dirk?

        • all depends on what your definition of “is” is. . . . but yes, touching can be a no no. Hence, have an FFL come to your house and perform the work.

    • A felon “may not use, own, possess or carry a firearm.”

      I read that statement to hundreds of newly-minted parolees sitting next to my desk.

      I, too, am surprised this case went so far. I just seems to be an overreaching exercise in Federal authority: the FBI said “No” just because they could. They probably thought the dirt-bag felon would just roll over.

      • If you own a firearm, and are convicted of a felony, and you are not permitted to dispose of (sell, give, whatever) that gun, then you will continue to own it. Which is illegal? Seems goofy.

        • “Own” is a misnomer since the Feds will take it away from you and do whatever they want to with it.

  2. Good ruling.. Especially nice to see that it was unanimous. Since his guns weren’t (apparently) any aspect of the crime he pled guilty to, he should be able to dispose of them in a manner that remains legal.

    I’m not a big fan of the blanket felon ban on firearm possession. If it’s a crime committed with a firearm, or just a violent crime, that’s one thing, but it doesn’t appear to be the case here.

    I read some where that the ATF was empowered to make rulings on restoring firearm rights, but the Democrat Congress in 1992-1993, stripped out the funding for it.

    • “Convicts of non-violent misdemeanors or felonies must have their 2A rights restored once their sentences and probation have been completed. -The ATF”

      I just made that up, but…

      How much could that have cost? They could have made the new guy to type it.

    • It was actually the D.O.J. The technically can, but in reality, they won’t. Some states will for state crimes depending on the state. It is pretty complicated from what I understand but possible in Florida.

      • No, it was the Democrat controlled House of Representatives. ATF was a division of the U.S. Treasury at the time.

        “Since October 1992, Congress, in its annual appropriations, has prohibited BATF from using appropriated funds to investigate or act upon applications for relief submitted by individuals. BATF claims that as long as this ban remains in place, it cannot process such applications.”

  3. This reminds me of an instance where I wasn’t allowed to have firearms (because someone had hidden a handgun in my car and I was alleged to have known it was there and was thus in illegal possession), so I turned them all over to a friend with instructions to store them somewhere I wouldn’t know about. He, in turn, put them in a portable safe and asked someone we both trusted to store them somewhere he didn’t know about, either. The D.A. tried to get me for still having my firearms because I knew how to track them down.

    The judge looked very much like she wanted to call him a total asshat, after my friend testified that he didn’t know where they were, and commented that it would be stupid for him to tell me because then I’d lose them permanently.

    She even indirectly but pointedly reminded him of her ruling on that when he started treading a similar line at the actual trial. After that he pretty much handed me an acquittal.

    (postlog: that D.A. is now under investigation for “misdirection of justice” [whatever that is] in several other cases)

  4. This ruling has interesting implications for so-called “gun buybacks” that destroy all of the firearms turned in, rather than offering collectors and other lawful buyers the chance to purchase them.

    If a felon can sell off his firearms, why do cities that buy up guns (mostly junk, admittedly) insist on shredding them? I would bet that plenty a Python has met its end in the shredder after being turned in by a well-meaning widow.

    By the way, I know the answer to my own question: Cities destroy the guns because that’s part of their agenda — to reinforce the idea that guns are evil. Reselling them to collectors would negate their talking points about “taking dangerous weapons off our streets.”

  5. But how are the various and assorted Alphabet Law Agencies going to get their guns for the auctions? That is a potentially huge loss in revenue for them having to allow the original owners to sell them instead of confiscating them, sorry… seizing them.

  6. Good to see a great decision being made unanimously by The Court… And the decision being opined by a liberal judge.

  7. Great to see an enlightened decision coming from the Supreme Court. It’s also nice to note that the judge writing the decision was none other than Elena Kagan, the most recent appointee to the court and and OBAMA! appointee! I can’t help but imagine that he’s wondering where he failed in keeping his minions in line.

    Hopefully, other liberal (and conservative) judges will keep this in mind – they are not there to twist the law to their own devices, but to interpret it fairly.

    • It’s simply not a politically polarizing case. It doesn’t even touch on the issue of gun rights and gun control in any meaningful way.

      • It will throw a wrench in agencies seizing firearms that weren’t part of the crime under auspices of someone being a felon. Its about the revenue.

  8. I’m not sure I like this ruling. I admit that its better than getting all arms seized outright, but it sounds like transfer to any family member or friend is forbidden. But what happens after the guns go to an ffl? Can friends or family then buy those very same guns back from the ffl? It seems that this would be the only way to keep heirlooms in the family.

    Bear in mind that I am not condoning the behavior that it takes to reach this point. I just like the idea that great grand dad’s gun has a chance to not be shredded or auctioned by .gov.

    • No, the ruling still allows a felon to transfer guns to individuals (or a FFL) where there is reasonable safeguards to prevent possession. You can still transfer to friends & family.

      • In this day and age, just about everybody has relatives in other states. If you give or sell the guns to someone like that, no one could claim you still have access or control. It’s a good ruling.

  9. Nice win for property rights.

    The fed should not have had possession of the firearms in question to begin with. The court should have ordered/allowed a third-party transfer or divestment at the beginning.

    Also: I still can’t find “prohibited person” in my copy of the Constitution.

    • Doesn’t have to be in your copy. It’s in the ATF copy, and they not only have guns, but they don’t have to follow the law.

    • @Chip, you have properly categorized this case as a “[n]ice win for property rights.” It wasn’t really a gun rights case — it was a property rights case where the property happened to be guns.

      • Kagan does seem to be influenced by Scalia’s originalist/judicial restraint philosophy. Crisply written decision.

        I think Sotomayer may surprise some people, with “liberal” expectations, as she gets more comfortable with the job. Her question about “the government trying to frame a pro se litigant” (my recollection, re-phrase) shows she is an independent thinker, with obvious sympathy for civil rights for everyone.

  10. The feds’ argument was a fig leaf that they offered up to the courts so the latter could hide behind it. Turns out it was big enough for the lower courts but not quite large enough to cover the deficiencies at the highest level.

  11. And if he were married, and wished to give the guns to his wife (as G. Gordon Liddy did), the FBI would object to that? What about her constitutional rights? The SCOTUS ruled well on this case, and preserved the 4th Amendment a little longer.

  12. I guess there’s hope for the obama gal(hanging with Scalia?). Good ruling for a change…

  13. This is somewhat similar to Tyler v Hillsdale, in the step by step restoration of rights by common sense way.

  14. I know some people on TTAG have an issue with Gun Owners of America (GOA), why I really don’t know, but the article fails to give them credit where it’s due. They provided a great deal of legal support for Henderson in the case. A link to their amicus is below.

    In this case the guy was a felon, but not a violent offender. Either way, The Feds overstepped their bounds and then tried to argue that he would still possess the guns if he sold them . . . what?

    We need to stop fighting among ourselves and stand united.

  15. Good ruling. Marijuana shouldn’t be illegal anyway, but we’ll get there someday.

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