Supreme Court Says Convicted Felons Have A Right To Sell Their Guns

Plenty of Americans legally own firearms. If any of them are later convicted of a felony (that isn’t related to the weapons) and can no longer own a gun, should they have the right to have some input on where their former firearms go? According to the U.S. Supreme Court, yes.

The matter before the court in Henderson v U.S. involved a U.S. Border Patrol agent who was arrested on marijuana distribution charges. As a condition of his bail, the FBI took possession of his firearms. He later entered a guilty plea to a felony charge.

Under 18 U.S.C. §922(g), convicted felons are prohibited from possessing a firearm. So the man requested that the FBI transfer ownership of his guns to a friend. However, the FBI refused.

A federal court denied his request saying that the transfer of the weapons to a friend could effectively allow him to retain possession of the guns through the friend. An appeals court affirmed this decision.

In arguing before the Supreme Court, the government had maintained that the law prevents all transfer of convicted felons’ weapons to third parties, even in cases where a court approves the recipient, except to licensed firearms dealers who will sell them on the open market.

But in today’s SCOTUS ruling [PDF], Justice Elena Kagan explains that this is too oversimplified a view of the law.

She writes that the government is conflating the right to possess an item with the right to “sell or otherwise dispose of that item.”

Taking away a felon’s right to own a gun does not necessarily mean the felon gives up all his rights to decide where that gun ends up. Likewise, giving the felon the ability to determine the disposition of his guns doesn’t put him in possession of the weapons.

Kagan notes that in the Henderson example, where the felon turned over his guns to the FBI before he was even convicted, “The felon has nothing to do with his guns before, during, or after the transaction in question, except to nominate their recipient.”

So if the felon nominates a recipient, a judge approves that recipient, and law enforcement handles the transfer, Kagan writes that this is just doing exactly what the law is supposed to — getting the weapons out of the hands of a convicted felon.

“Such a felon exercises not a possessory interest (whether directly or through another), but instead a naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them,” she explains.

The appeals court had held that Henderson had no standing on which to request equitable relief for his weapons being held by the FBI because of “unclean hands.” But in a footnote to the SCOTUS ruling, Kagan dismisses this line of thought, pointing out that the while the “unclean hands doctrine proscribes equitable relief,” that is only in instances where the felon’s misconduct has “immediate and necessary relation to the equity that he seeks.”

Because Henderson’s conviction had nothing to do with firearms, this doctrine doesn’t apply, explains Kagan.

SCOTUS believes that courts have the authority to review firearm transfer requests from felons. The trial court “may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon.” If the court doesn’t believe that this transfer or sale will prevent the felon from exercising possession, it can deny the request.

Today’s ruling could have farther reaching implications for convicted felons who have been denied requests to transfer or sell property that was seized but unrelated to the crime for which they were committed.


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