2aHawaii
General Topics => Legal and Activism => Topic started by: suka on May 18, 2015, 08:30:36 AM
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http://www.foxnews.com/politics/2015/05/18/supreme-court-says-convicted-felons-can-sell-their-guns/ (http://www.foxnews.com/politics/2015/05/18/supreme-court-says-convicted-felons-can-sell-their-guns/)
May 18, 2015 10:14 PM
By SAM HANANEL
Associated Press
WASHINGTON (AP) - A unanimous Supreme Court ruled Monday that the government can't prevent a convicted felon who is barred from possessing firearms from trying to sell his guns after they are confiscated by authorities..............
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Why would this even be an issue? So someone committed a crime and can no longer have their guns, fine but why wouldn't they be allowed to sell or give away the guns? It is still their property, their investment. Imagine if you had a DUI and the state took your car!
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He wanted to sell them to his wife or something, the case was about whether you could sell them to someone else who was really just a proxy for him retaining them.
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He wanted to sell them to his wife or something, the case was about whether you could sell them to someone else who was really just a proxy for him retaining them.
You're close. He wanted to transfer the ownership to his friend after he was convicted. The holding of the case is as follows:
A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by § 922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. And because § 922(g) bans constructive as well as actual possession, it also prevents a court from ordering the transfer of a felon's guns to someone willing to give the felon access to them or to accede to the felon's instructions about their future use.
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Accordingly, a court may approve the transfer of a felon's guns consistently with § 922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon's request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon's transfer request.
I should add though that SCOTUS helped to define actual and constructive possession. Kagan wrote the opinion for the unanimous court.
Actual possession exists when a person has direct physical control over a thing. See Black's Law Dictionary 1047 (5th ed. 1979) (hereinafter Black's); 2A O'Malley § 39.12, at 55. Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. See Black's 1047; 2A O'Malley § 39.12, at 55. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others.
Here's another interesting piece talking about the crucial focus for a constructive possession inquiry:
If (as the Government argues) that is all it takes to exercise control over and thus constructively possess an item, then (contrary to the Government's view) the felon would violate § 922(g) merely by selecting a dealer to sell his guns. To be sure, that person will predictably convey the firearms to someone whom the felon does not know and cannot control: That is why the Government, as a practical matter, has no worries about the transfer. See Tr. of Oral Arg. 19–21. But that fact merely demonstrates how the Government's view of § 922(g) errs in its focus in a case like this one. What matters here is not whether a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even when the chosen recipient will later sell the guns to someone else. What matters instead is whether the felon will have the ability to use or direct the use of his firearms after the transfer. That is what gives the felon constructive possession.