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« Recovering attorneys' fees in Federal forfeiture cases | Main | RIP Mike McNulty »

Supreme Court argument approaching

Posted by David Hardy · 19 February 2015 04:19 PM

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).

5 Comments | Leave a comment

Dave D. | February 20, 2015 6:57 AM | Reply

....I had a deputy US Atty in L.A. Tell me he never had to sign a weapons release order and, while it was property in a moot case ( the D. Committed suicide ) it would stay in the Wilshire Blvd evidence room forever. That was 1982.
..This is an old Federal ploy.

joel stoner | February 20, 2015 9:12 AM | Reply

It is an interesting case. Could possibly lead to a challenge of the Felon disqualification to firearms ownership.

TJM | February 20, 2015 10:43 AM | Reply

Surprised that this issue never came up before. The statute only prohibits possessing, shipping or transporting a firearm--it doesn't prohibit outright ownership. By the government's argument, any transfer by a felon would be void, including a bequest from a deceased felon in a will to an heir.

Fyooz replied to comment from joel stoner | February 20, 2015 2:57 PM | Reply

There are challenges to the felon-in-possession ban, and many are successful. Volokh follows this topic well.
Maybe our new Congress will consider allowing funding to ATF to process rights restoration, though they'll have to screw up the courage to properly investigate FnF first.
Yeah, I'm a dreamer.

Mr Evilwrench | February 23, 2015 1:30 PM | Reply

"Constructive" possession is one of those legal dirty tricks they'll use to back you into a corner, turn you around, and anally rape you. A "they do what they want" thing. If they're going to confiscate and store them, as far as I'm concerned, once his sentence has been served they should be required to return them. I frankly don't care if he's been convicted of a felony; my only question is whether he has served his time or not. If he still deserves punishment (denial of civil rights), why are we releasing him? Decide when he'll have paid his price, then when he has, leave him the hell alone.

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