Supreme Court Rules Felons Can Sell Their Firearms

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 Guns.com (Oct. 20, 2013), http://goo.gl/vzrcV8. 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.