Drug Convictions, Firearms and the Supreme Court :: 06/01/2015

How the Second Amendment should be interpreted is one of those topics that doesn't come up at dinner parties often. One of the reasons is that people tend to feel very strongly on the subject.  No matter where you land on that spectrum, you should also know that there is a federal statute, cited as 18 USC 922, regulating firearm transactions and ownership. One portion of that law, 922(g), specifically prevents felons from possessing firearms.  

As the Supreme Court pointed out in their May 18, 2015 case of Henderson v. U.S. this is a valid restriction that just needed a little additional explanation.  In Henderson, the petitioner had been a member of law enforcement before he was convicted for distributing marijuana. As one can imagine, the gentleman had lawfully owned firearms before being charged. The difficulty began when his conditions of release on bail included surrendering all firearms. This issue was compounded when Mr. Henderson was subsequently convicted on a felony drug offense. The court was asked to address a question that could present in any state or federal trial court:  what property rights, if any, does a person have to items he is now barred from possessing?     

In general, a federal court has the authority to make law enforcement return property seized during an investigation to its owner.  Like any other judicial power, it is not unlimited and may be shaped by an act of Congress.  In this situation a court cannot return physical possession of firearms to a convicted felon because of the law discussed above.

The justices ultimately decided that 18 USC 922(g) clearly prevents possession of firearms by felons. That means a person cannot personally control those things. In addition, they can't use friendly third parties to mask the fact that they still have the power and intent to exercise control over these objects. This situation is known as constructive possession. The court went on to rule that 922(g) does not, however, prevent the felon from selling or otherwise disposing of their firearms.

In the Henderson decision the Supreme Court explained that their ruling was based on the practical impact of the transaction. First, the guns are in law enforcement custody. Next, if the transaction is approved by the court then the items go on their way. There is no opportunity for direct, or constructive, possession and 922(g) is not violated.

Underlying this ruling is the funny idea that you have the right to sell something you can't possess.  Consider, as an analogy, that if you lost your license to operate vehicles you might have a car you technically still own that you can't drive.  You could, for example, sell that car without operating it.  Lawful ownership of an item has many components and, as the Henderson opinion explains, possession is just one of them.  

The justices took the time to explain what would be considered to be a valid transaction that a trial court could approve.  First, a firearms dealer could be delegated to sell the guns on the open market.  Another option might be for the felon to delegate a person that could take possession of the firearms.  Naturally, cynics out there might see this a way for a friendly face to take ownership and get them back to the defendant when no one is looking.  The Supreme Court was not blind to this and addressed it by placing the trial court in control of vetting the proposed recipient.  If, for example, the judge is not satisfied that the third party will keep the firearms from the felon nothing says the transaction must be approved.

This decision reflects the idea that a statute will not be extended beyond the plain meaning of the words the legislature chose. It also affirms that property rights in the United States mean something.  Given the vast ideological background of the Supreme Court Justices, it is noteworthy that the Henderson decision was unanimous.

http://www.golocalworcester.com/news/angiulo-drug-convictions-firearms-and-the-supreme-court