Submitted by Gun Owners Foundation Attorney William Olson and GOC Staff In a move that surprised even the most cynical when it comes to the Courts’ interpretation of gun and private property rights, the U.S. Supreme Court decided the Henderson case, allowing a felon to sell his firearms collection even after convicted of a felony.  The government had argued that the ban on felons in possession extended broadly to prevent even the sale of the collection, resulting in its likely forfeiture to the federal government.  The decision was 9-0, remarkably written by Justice Kagan.

At stake was the right of a person, upon conviction of a felony, to sell his firearms (which he could no longer legally possess) to a third party. 

Mr. Henderson’s firearm collection was in the FBI’s possession as a condition of release pending his criminal trial on unrelated marijuana charges.  After his conviction, he sold his ownership rights in the firearms to an “unrelated” third party who was legally eligible to possess the firearms.  The third party asked the FBI to turn the guns over to the purchaser, but the FBI had refused.  This is the crux of an issue that has far-reaching consequences for all gun owners.

The government had used a theory of “constructive possession” to claim that Mr. Henderson’s firearms could not be transferred, even to a third party, without violating the felon-in-possession ban (18 U.S.C. §922(g)).  The trial court and the court of appeals agreed with this legal fiction, preventing Mr. Henderson from selling his ownership interest in the firearms to the unrelated third party.

The Supreme Court held that the government’s “constructive possession” theory was unsustainable, inconsistent with the purpose of the statute.  This ruling was consistent with GOC’s amicus brief in which we argued (p. 9 ) that the government’s theory did not further Congress’s purpose for 922(g), which is to help state and local government fight crime by preventing felon’s from possessing firearms.

Our amicus brief (Section II) also had argued that the government did not have a superior property interest in Mr. Henderson’s firearms, and that is why it could not use a forfeiture proceeding to divest all ownership rights in the firearms.   Illustrating Henderson’s continuing property interest was the court’s rejection of the government’s position that he could not “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.” 

Lastly, the court of appeals for the 11th Circuit also had rejected Henderson’s request for equitable relief because a convicted felon has “unclean hands to demand return [or transfer] of his firearms” to basically effect a de facto forfeiture.  But the Court rejected this in a footnote, concluding that “Henderson’s felony conviction had nothing to do with his firearms, so the unclean hands rule has no role to play here.”

The only constraint the Court imposed was that the felon could not sell his collection to someone who later would allow him to control the firearms.

The court did not address our argument, that under the government’s theory it is the government that would seize the firearms for its own purposes — but it didn’t need to address that issue, given its decision. 

Our December 15, 2014 amicus brief is here:

Oral argument transcript:

Read the Court’s decision: