Supreme Court argument approaching
Tuesday, Feb. 24, the Supreme Court will hear argument in Henderson v. United States, describing in this SCOTUSblog post. Henderson surrendered his firearms to the government, as one of his conditions of release. He was later convicted of a felony, and thus could not "possess" firearms. He requested to be allowed to sell or transfer his firearms to others, who could legally have them. The government refused, arguing that one aspect of possession is control, and for him to designate who the firearms went to would be for him to exercise control. In other terms, he "constructively possessed" ("constructive" here derived from "construe") if he tried to transfer them, even if they were locked away in an evidence locker and inaccessible to him. Looks like Second Amendment issues are raised, as well.
I'd rate the government's position as very weak. If you cannot lay hands on something, you don't really possess it; you may own it, but you don't possess it. By that standard, a person could be convicted in New York for possessing an unregistered handgun, based on his owning one that is in Arizona. Also it has a practical problem. Henderson owns his firearms; the government does not. The government, it would seem, is bound to keep them through all eternity for him. It can't destroy them without depriving him of property without due process of law. It can't forfeit them: they were involved in no violation of the Gun Control Act. At the time he surrendered them, he was a legal possessor (a person under felony indictment can continue to possess the firearms he has, though he cannot "receive" additional ones). The government is setting itself up for a loss, and probably by a big margin (which means a quick ruling; the Court disposes of 9-0s and 8-1s pretty quickly, and saves the 5-4s for the end of the Term in the late spring).