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April 15, 2010

Do all felons even forfeit their property rights when guns are involved?

Regular readers know that I am intrigued by the post-Heller jurisprudence which suggests that all felons (and even some misdemeanants) forfeit forever their Second Amendment right to armed self-defense in the home simply by virtue of a conviction.  Now I see from this intriguing new post at Volokh, which is headlined "The Second Amendment and the Takings Clause," that the feds and some courts seem to believe that felons (and presumably also some misdemeanants) forfeit forever their property rights in any gun simply by virtue of a conviction.  Here is the start of the Eugene Volokh's post noting a recent ruling on this topic:

Felons can’t lawfully possess guns — does it mean they can’t even arrange for their sale, and that the court may just order them destroyed? That seems to have been the government’s view in United States v. Brown (D.N.H. Apr. 9, 2010), and at least one court has apparently taken this view, but the court in this case disagreed (some paragraph breaks added):

Before he was indicted, Edward L. Brown, a defendant in the underlying criminal tax-fraud and money-laundering case, owned a number of firearms.  As a condition of his release on bail, Brown voluntarily surrendered those firearms and agreed both that the firearms would be held by Riley’s Sport Shop, Inc., pending resolution of the charges, and that he would pay all storage charges incurred. Brown was subsequently convicted of several felonies, all unrelated to the surrendered firearms....

The government relies on several decisions from other circuits and districts that seem to adopt the proposition that a convicted felon cannot lawfully divest himself of mere legal title to firearms that he can no longer lawfully possess, without thereby “constructively possessing” those firearms. Those decisions stretch the concept of “constructive possession,” as the term is used in the criminal statute prohibiting possession by felons (18 U.S.C. § 922(g)), much too far, in my view, essentially equating criminal constructive possession with even the most minimal exercise of an indicia of ownership-transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess).

The government’s main point ... is this: A person who lawfully owns, say, a valuable gun collection just before a jury returns an unrelated felony guilty verdict (e.g., for mail fraud) can, thereafter, no longer sell, give away, or transfer legal title to that collection.  But, strictly speaking, the decisions relied upon by the government are not so clear — they do generally accept that a defendant in such a predicament cannot unilaterally direct or “dictate” the specific disposition of owned firearms, but they do not, for example, hold that title to the firearms cannot be conveyed, or that a court cannot order an appropriate disposition of such firearms, for the benefit of the defendant.

April 15, 2010 at 09:26 AM | Permalink

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Comments

more typical CRIMINAL STUPIDITY in govt. You CAN'T posess the. BUT you can't SELL em either!

Posted by: rodsmith | Apr 15, 2010 12:24:09 PM

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