SCOTUS Decides What Felons Can Do With Their Surrendered Guns

Federal prosecutors charged Tony Henderson with distributing marijuana, a felony. A condition of Henderson’s bail was that he surrender his firearms; the guns went to the FBI.

Henderson ended up pleading guilty to the distribution charge. A federal law that prohibits anyone convicted of a felony from possessing a gun—18 U.S.C. § 922(g)—meant that Henderson couldn’t get his weapons back. (States have their own laws on gun possession.)

The question was what should happen to the guns. In this kind of situation, may the convicted felon sell or transfer the guns? Does the government simply get to keep them? (Henderson v. U.S., 575 U. S. ____ (2015).)

Once out of prison, Henderson asked that the FBI transfer the guns to a friend who had agreed to buy them. The FBI denied the request. So Henderson went to court: He asked a judge to order the FBI to transfer the firearms to either his wife or the friend. The judge sided with the FBI, finding that such a transfer would put Henderson, now a convicted felon, in “constructive possession” of the guns in violation of section 922(g).

Henderson’s transfer request eventually made it to the U.S. Supreme Court, and the Justices were unanimous in their disagreement with the FBI and lower court. They held that the federal law doesn’t categorically prevent the kind of transfer Henderson sought: A judge may approve of the transfer of lawfully owned guns, but only if the transfer prevents the felon from ever having any control over them. The felon must be incapable of either using the guns or telling someone else how to use them.

The Court remarked that the guns could go to a weapons dealer (whom the felon doesn’t control) for sale on the open market. But it also allowed for a properly assured judge to order transfer of the firearms to someone who expects to keep them and won’t “allow the felon to exert any influence over their use.”