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At PennLAGO we are dedicated to the community of law abiding gun owners (LAGOs). That’s what we’re all about. Members of our LAGO community exercise their right to bear arms safely, responsibly and within the bounds of the law.
Like Justice Scalia noted in Heller, there are “longstanding prohibitions on the possession of firearms by felons . . . .” Therefore, losing your LAGO status can affect your ability to legally have guns. Specifically, federal law precludes those convicted of a felony punishable by greater than one year, or a state misdemeanor punishable by greater than two years from possessing firearms or ammunition. See 18 U.S.C. § 922(g). Pennsylvania also has laws which prevent people convicted of certain crimes from lawfully possessing firearms. See 18 Pa.C.S. § 6105. NOTE: All that matters is whether the crime was punishable by the amounts of time noted, not the actual sentence imposed. Again, the amount of time sentenced or served is irrelevant.
So what happens when a gun owner crosses the line? The firearms don’t magically vanish. Can the government simply take the guns, and strip the owner of any interest he or she may have in the guns?
Yesterday, in Henderson v. United States, the Supreme Court of the United States (SCOTUS) said “no.” Section 922 prohibits felons from possessing firearms. But ownership includes more rights than mere possession. As noted by Justice Kagan, who wrote the Court’s opinion, if property rights are a “bundle of sticks,” the right of possession is only one stick in the bundle. This is a comparison used in many property law courses.
We all know that there are more property rights than possession, but it doesn’t come up often in regular conversations. When somebody owns something, we commonly think nothing more than “It’s his.” But what does that really mean? Let’s suppose Larry the LAGO buys a baseball glove. The minute he buys it, he can take it home. He can possess it. As the owner, he can also modify it. He can use special techniques to break it in. He can change the laces. He can choose to use it in games, or to let somebody else use it instead. If he wants, he can even rip in half after a bad game. And if the opportunity presents itself, he can sell it.
Let’s keep in mind that certain property rights are regulated when it comes to firearms. For instance, unlike Larry’s baseball glove, he can’t just make any old modification to his firearms whenever he wants, as he may run afoul of NFA or GCA regulations. He also has to comply with any laws related to transfer or sale both on the state and federal level.
But the Supreme Court unanimously found that all in all, a convicted felon retains a property interest in his firearms even if federal law prohibits him from possessing firearms.
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There are two kinds of possession: actual possession and constructive possession. Actual possession is the kind we normally think about. It’s when somebody has “direct physical control” over something. Henderson at page 4 citing Black’s Law Dictionary.
On the other hand, someone can have constructive possession of something even if they don’t have physical custody of it. Rather, one has constructive possession when they have the “power and intent to exercise control over the object.” Henderson at page 4 citing Black’s Law Dictionary.
I once heard a great attorney, Tim Barrouk of The McShane Firm, put it this way: “My wife has her Sex and the City DVD set on our entertainment center right next to my Sopranos DVD set. Her DVDs are in our living room, and I have the power to exercise control over them. But I will NEVER have the intent to exercise control over them.”
So what happened in this case?
When Henderson was charged with distributing marijuana ―a felony― he was required to surrender his firearms as a condition of his bail. Because Henderson later pleaded guilty, he became ineligible to possess firearms under Section 922. In light of his ineligibility, Henderson requested that the FBI transfer the firearms to his friends. However, the FBI refused to do so, asserting that the transfer would amount to Henderson constructively possessing the firearm, which is against federal law.
Justice Kagan
Both the district court and the Eleventh Circuit agreed with the FBI’s reasoning. The Supreme Court of the United States, however, did not. Instead, the Court reiterated that the right of possession and the right to sell or transfer are separate rights and are not inextricably bound. Because Section 922 specifically prohibits possession, the Court held that a felon retains his right to sell or transfer his firearms. In its reasoning, the Court noted that Congress enacted the ban in Section 922 “to keep firearms away from felons . . . for fear that they would use those guns irresponsibly. . . . Yet on the Government’s construction, §922(g) would prevent [a felon] from disposing of his firearms even in ways that guarantee he never uses them again . . . .”Henderson at page 6.
As a result, the Court held that at a felon’s request, a court may order a government agency ―such as the FBI― to transfer a felon’s firearms to a third party, “so long as the recipient will not allow the felon to exert any influence over their use.” Henderson at page 8. Basically, we now know that there is a mechanism for a felon to legally sell or transfer his firearms after becoming ineligible to possess a firearm.
Some of you may be thinking, “We’re LAGOs, this doesn’t mean a thing to us.” But that might not be entirely true. Even if you are not, nor ever will be legally ineligible to possess firearms, this ruling can have an impact on the firearms market. Transfers and sales which were previously not permitted, will now be permitted.
Plus, SCOTUS rarely has the opportunity to make rulings dealing with firearms. When this opportunity presents itself, it’s at least worth a discussion.
So LAGOs, stay law abiding. And in doing so, just know that there may be an increase in lawful transfers along the horizon.