Oral argument will occur on Tuesday, February 24, in the case of Henderson v. United States. On December 15, 2014, our firm filed an amicus brief in this important case.

Tony Henderson was charged with a felony drug crime in federal court and voluntarily turned over his firearms to the FBI. After his felony conviction, knowing that he could no longer legally possess firearms under 18 U.S.C. section 922(g)(1), Henderson sold his collection to a third party eligible to purchase those firearms. Henderson then asked the FBI to transfer his firearms in its custody to that eligible third party buyer. The FBI refused, arguing that to do so would put Henderson into temporary “constructive possession” of the firearms.

Even though Henderson’s firearms were in no way related to the crime for which he was convicted, the government has argued that, at the moment of conviction, Henderson lost his entire property interest in the firearms.

Our brief explained that the concept of “constructive possession” applies only in cases where it is necessary to deem a person in actual physical possession of an item, such as when a person who exercises “dominion” over a residence is deemed to constructively possess the objects inside. By selling his firearms, Henderson was not seeking to exercise dominion over his firearms, but rather only exercising one narrow right out of his “bundle of sticks” of property rights — the right to transfer.

Our brief argued that the Gun Control Act of 1968 was designed to prevent crime by keeping felons from physically possessing firearms. Clearly, public safety is not served by disabling Henderson from selling his firearm collection to an eligible gun owner.

Next, our brief argued that permitting the government to act in this manner to seize firearms allows the government to effectively circumvent established laws, rules and procedures governing civil forfeiture proceedings. If Henderson could not sell his firearms, the government would consider them forfeited or abandoned. In order to seize property, the government must demonstrate a superior property interest in the thing to be seized. Here, the government had absolutely no property interest in Henderson’s firearms — they were not contraband, fruits of a crime, or instrumentalities thereof.

Finally, our brief argued that the government’s seizure of Henderson’s firearms violated his Second Amendment rights. We point out that the felon prohibition was enacted at a time when the prevailing view was that the Second Amendment protected collective rather than individual rights. By permitting the government to eliminate the property rights of anyone convicted of a felony — about 1.2 million per year — the constitutionally-protected market for firearms is harmed. Moreover, anyone who is even charged with a crime must give away, or rapidly sell all of his firearms, or else risk losing their value forever upon conviction. This imposes a sort of unauthorized criminal penalty on gun owners simply accused of committing a crime.

Our brief was filed on behalf of Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Institute on the Constitution, Conservative Legal Defense and Education Fund, and Policy Analysis Center.