BREAKING: U.S. Supreme Court Says Felons Don’t Lose Right to Transfer Firearms To Dealers, Others in Unanimous Opinion Published Today

In a unanimous decision published today, the United States Supreme Court held that while convicted felons cannot “possess” firearms under 18 U.S.C. 922(g), they retain “the right merely to sell or otherwise dispose of” their firearms as long they do not have any control over them.

Justice Elena Kagan, who has been reported to hunt with Justice Antonin Scalia (the author of the landmark D.C. v. Heller Second Amendment decision in 2008), delivered the opinion of the Court in the matter of Tony Henderson v. United States.

Henderson, a former Border Patrol Agent, was previously charged with and pleaded guilty to a felony crime involving the distribution of marijuana. A Magistrate Judge ordered that Henderson’s guns be seized as a condition of bail, and the Federal Bureau of Investigation (FBI) took custody of his guns. After he was released from prison, “Henderson asked the FBI to transfer the guns to Robert Rosier, a friend who had agreed to purchase them for an unspecified price. The FBI denied the request.”

In a letter to Henderson, the FBI explained that “the release of the firearms to [Rosier] would place you in violation of [§922(g)], as it would amount to constructive possession” of the guns. A federal district court and the Court of Appeals for the Eleventh Circuit agreed. After Henderson petitioned the Supreme Court for review, the Court granted certiorari “to resolve a circuit split over whether, as the courts below held, §922(g) categorically prohibits a court from approving a convicted felon’s request to transfer his firearms to another person.”

The Court said that a felon’s “naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them” could be exercised by an order of a court to transfer the firearms to a licensed gun dealer, for example, or a “court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use.”

But the Supreme Court also held that lower courts retain some discretionary power to decide if a transfer to an individual is appropriate.

“In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request.”

Ultimately, a court “facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so.”

Henderson v. United States is an important case that clarified and limited the scope of section 922(g)’s ban on the “possession” of firearms by ‘prohibited persons’ like convicted felons, the adjudicated mentally ill, those convicted of a misdemeanor crime of domestic violence, and persons subject to some types of restraining orders.

You can read the full decision here.