Supreme Court: Felons allowed to sell or transfer their guns

In a unanimous ruling handed down Monday, the nation’s highest court found something all justices could agree on — that a gun owner convicted of a felony still has the right to sell off their gun collection.

In the case, Henderson v. United States, former Border Patrol agent and Florida resident 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 last summer. After hearing the case last December, the court sided with the gun owner and agreed that the guns could be legally transferred to a third party as long as they were not under his control.

“What matters here is not whether a felon plays a role in deciding where his firearms should go next,” Justice Elena Kagan wrote on behalf of the court. “What matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer.”

In the ruling, while the court authorized a transfer, it also outlined that while transfer to a licensed dealer for sale would be preferable, a court could allow the guns to go to another individual known to the owner such as a friend, relative or neighbor, with certain safeguards.

“In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a … violation,” wrote Kagan, who then followed up that the court could similarly decide against such a move if not satisfied that the proposed new owner would keep the guns out of the hands of the now-prohibited possessor.

Henderson’s legal team, coordinated through the University of Virginia School of Law Supreme Court Litigation Clinic, argued that there’s conflict over possession and ownership rights between the federal court of appeals and state supreme courts, and the Supreme Court’s intersession was needed to cut through the split decisions.

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 — even the ability to arrange for their transfer or sale to another.

As such, Second Amendment scholars argue that the case, although seemingly about guns, was more about property rights.

“You can tell by the unanimous, 9-0 ruling that this wasn’t perceived by the justices to be a Second Amendment case,” UCLA constitutional law Professor Adam Winkler told Monday. “This was a property case that happened to involve guns.

“The Court sensibly ruled that people prohibited by federal law from possessing firearms have a right to sell their firearms,” Winkler said. “They can’t sell them to someone who will give them back, or make a sham sale. Courts have the discretion to reject proposed sales if there is any doubt about the sale’s legitimacy.”

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