Tony Henderson was convicted in federal court of a felony drug crime. Before conviction, he had voluntarily turned over his firearms to the FBI. After conviction, knowing that, as a felon, he could no longer legally possess firearms under 18 U.S.C. Section 922(g)(1), Henderson sold his firearms to a third party. Henderson then asked the FBI to transfer his firearms 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.
On the contrary, our brief argued, 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.
Our brief argued that the purpose of the Gun Control Act of 1968 was to prevent crime by keeping felons from physically possessing firearms. Clearly, public safety is not served by disabling Henderson from transfering his firearms 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 the rules and procedures for civil forfeiture proceedings.
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.