We Needed the Supreme Court to Tell us This?

In a unanimous decision, the U.S. Supreme Court has ruled that when a person who owns firearms is convicted of a felony – which makes firearm possession illegal for them – they still retain the right to dispose of their firearms as they see fit, as long as they don’t do so in a way where they would have access or control over those firearms.

What is astounding about this decision is that it had to go all the way to the Supreme Court to be resolved. Under what bizarre pretext could anyone suggest that a person’s property is no longer theirs, just because they were convicted of a crime, particularly when the crime had nothing whatsoever to do with the property in question?

As long as the property is not used in a crime, and is not the ill-gotten gains of a criminal enterprise, what possible claim could any government entity have on it? In certain circumstances I could see a judge ordering that personal property, including a gun collection, be sold to pay restitution to the person’s victims or to pay an associated fine, but not simply forfeited to the state just because the person is prohibited from physically possessing the property.

As a matter of fact, the Supreme Court has long held that any forfeiture, not just regarding guns, should be something of a last resort. According to attorney David Post, in an amicus curiae brief for the Institute for Justice on the case, the standard has long been that courts should interpret statutes in such a way as to avoid forfeitures if at all possible. Unless the statute clearly calls for the forfeiture of property, it should not be interpreted to do so. In other words, if the statute can be interpreted in any way that would not result in a taking or forfeiture, that is the interpretation that should be used. Like the baseball rule that a tie is decided in favor of the runner, any doubts in government takings are supposed to be decided to the benefit of the property owner.

In the case of firearms, where the law says it is illegal for a felon to be in possession – or control – of firearms or ammunition, the courts have generally ruled that selling the firearms or giving them into the control of a third party does not constitute possession. But that didn’t stop a panel of the 11th Circuit Court of Appeals from deciding, in the case of Henderson v. U.S., that Mr. Henderson, who was convicted of a felony marijuana charge, could not give his firearms to a friend. Henderson appealed his case to the Supreme Court and won. Justice Elena Kagan, writing for the Court, said that as long as the court could be convinced that the person receiving the guns would not give the convicted felon access or control over them, there was no justification for denying the transfer.

Many Court watchers were disappointed that the Supreme Court didn’t use the opportunity presented by this case to do something to rein in the aggressive forfeiture practices of many prosecutors and law enforcement agencies. In recent years, in the name of the “War on Drugs” and the “War on Organized Crime,” courts have dramatically liberalized forfeiture rules, resulting in forfeiture of property becoming a significant source of revenue for many law enforcement agencies, which get to keep a hefty percentage of those proceeds. Often these laws have been used to confiscate the property of Americans who have no involvement in organized crime or the illicit drug trade. This trend has become so popular that forfeiture specialists travel the country conducting seminars teaching local police and federal law enforcement agents how to use forfeiture cases as revenue generators. The Bureau of Alcohol, Tobacco, Firearms, and Explosives, which goes by the acronym ATF, went so far as to commission small, pocket multi-tools for their agents with “ATF” engraved on one side and “Always Think Forfeiture” engraved on the other. The order for the tools ended up being canceled after a public outcry.

It is also not unusual for law enforcement agencies, once they have taken custody of someone’s guns – whether during a criminal investigation, as a result of a restraining order, or during a mental health evaluation – to be extremely reticent to return them, even if the person is found “Not Guilty” or no charges are ever filed. In some jurisdictions it seems to be standard procedure to never return firearms under any circumstances short of a direct court order. Unless the firearms have significant value, or the owner has plenty of extra money, the cost of pursuing a lawsuit to force the guns to be returned generally outweighs the value of the guns. Unfortunately this recent Supreme Court decision did not address this problem either.

It’s good to see a unanimous decision regarding guns from the Supreme Court, even in a case that was rather unusual and shouldn’t have ever had to go that far to get a rational ruling, but meanwhile, at least a half-dozen cases seeking to clarify Second Amendment protections for lawful carry of self-defense firearms have been denied a hearing by the court in recent years. Getting an easy one right doesn’t excuse the Court’s silence on the tougher, more pertinent cases that are resulting in the denial of citizens’ rights around this country every day.

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