Supreme Court to decide whether felons can sell their guns

After shying away from a number of potentially pivotal Second Amendment cases in recent months, the Supreme Court agreed Monday to decide whether a gun owner convicted of a felony has the rights to sell off his gun collection.

In the case Henderson v. United States, Tony Henderson surrendered 15 guns to the Federal Bureau of Investigation per court order following a 2006 charge for distributing marijuana. After his plea and six-month sentence, he was denied the ability to transfer his guns upon sale to a third party. The FBI explained to him that doing so would “amount to constructive possession.”

A lawsuit filed in District Court was refused, as well as the appeal to the U.S. Eleventh Circuit Court of Appeals, which led Henderson’s attorneys to petition the Supreme Court.

In the 58-page petition, Henderson’s legal team argues that there’s conflict over possession and ownership rights between the federal court of appeals and state supreme courts.

The Second, Fifth and Seventh Circuits, as well as the Montana Supreme Court, all hold that individuals convicted of felonies still may have some ownership rights of firearms, just not possessory rights. In opposition, the Third, Sixth, Eighth and Eleventh Circuits have maintained that Section 922(g) of the U.S. Code strips all firearm ownership rights away from felons.

Henderson’s attorneys want the court to determine whether or not a felon can transfer non-contraband firearms to an unrelated third party to whom he has sold them, or sell the firearms for that person’s benefit.

If the appeals court ruling remained in effect it would “strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” the legal team continues.

The Henderson case is one of the first gun rights cases that the high court has agreed to hear in the past several batches of petitions. In 2013, the court refused two different requests for cases involving the right to carry firearms outside the home.

In February, the court batted away three out of three gun rights cases without comment. Shortly thereafter, the court declined another concealed carry case, Drake v. Jerejian, even though 19 state attorney generals and 34 members of Congress supported it.

While all of these cases involving law abiding gun owners seeking the protection of the Second Amendment were declined, others that involved criminals and firearms possession were heard.

The high court ruled on two gun cases this year: one concerning domestic violence convictions and another on straw purchases. The latter, in which police charged a man who bought a handgun for an uncle with no felony convictions, was upheld in a split 5-4 ruling. The deciding vote in that case was Justice Anthony Kennedy. When deciding on the landmark Second Amendment cases Heller v. DC and McDonald v. Chicago, Kennedy lined up with the conservative justices, but this year, he went against the grain.

Monday’s decision to hear the Henderson case may be an extension of a steady progression of the court to approach gun rights cases obliquely.

“This case appears to be continuation of recent Supreme Court trend: non-Second Amendment gun cases,” UCLA law professor Adam Winkler told Monday. “Last term the court refused to take any Second Amendment cases but did decide important questions of gun policy on straw purchasing and domestic violence misdemeanors. Both cases read federal law broadly against the claims of gun owners.”

Winkler cautioned that this trend could bode poorly for gun rights.

“Even though the court subscribes to the individual-rights reading of the Second Amendment, the Justices often privilege law and order. When gun cases go to the court involving convicted criminals, it’s usually bad news for gun owners,” Winkler said.

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