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October 21, 2014, 03:14 PM | #1 | |
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Henderson v. United States
The Supreme Court granted cert last night. At issue is the disposition of a person's firearms once he's convicted of a felony.
Quote:
The government's response is here [also pdf]. Henderson is not claiming he has a right to keep his firearms--he is claiming he has the right to be compensated for their value.
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October 21, 2014, 04:35 PM | #2 |
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I disapprove of dope dealers, especially when they are LEOs, but I disapprove much more strongly of theft under colour of law.
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October 21, 2014, 06:17 PM | #3 |
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Wow this question is confusing. I've re-written and re-understood the question twice now. First I confused defendants/convicts, and victims over reparations, then I realized that either 1 and 2 are allowed some places, but barred in others and that was the problem, not that 1 is allowed here, but only 2 is allowed there.
Is this a 2A issue, or a 5A takings clause issue? If it's his property, and they're non-contraband (which I think means not seized as part of his crime?) Isn't it still his property and illegal to "take" without compensation? Now he likely can't ever possess them again, so he has to get rid of them through an agent of some sort, but the value of the firearms is still some metaphysical thing he has a right to, yes? |
October 21, 2014, 10:51 PM | #4 |
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It is not a 2A case nor IMO, a takings case. I say that because it appears Henderson requested relief under the federal rules authorizing return of property. I think the government makes a telling point when discussing cases which allow third parties (FFLs) sell surrendered firearms and give the proceeds to the now convicted felon. This would presumably compensate the defendant and eliminate any takings issue.
The issue will likely turn on what constitutes constructive possession The government argues that Henderson exercises a possessory interest in the firearms if he retains the right to determine to whom they are sold or transferred. Henderson refers to the landlord-tenant relationship but misses a key point, I think. A tenant, subject to contractual limitations, may be able to sell his possessory interest in the property but not the legal title. The landlord can sell the legal title but not the tenant's possessory interest. Henderson would seem to be in a situation similar to the landlord. He cannot direct the person holding possessory rights (here the government) to sell their possessory rights. Since there needs to be a method of merging the legal and possessory title to the firearms, it seems like a sale by a third party would accomplish that. |
October 21, 2014, 11:14 PM | #5 | ||
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Quote:
In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added): If dominion and control is the test, does dominion and control include the right to direct a sale and retain the proceeds? Will dominion and control be the test, or will it relate to physical access/possession?
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October 22, 2014, 12:12 AM | #6 | |
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October 22, 2014, 08:47 AM | #7 |
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You're right, I was at least partially wrong to say Taking Clause.
There are two ways the 5A refers to property. You can't have your property taken without due process of law, and property can't be taken for public use without just compensation. Which I suppose should have prompted my first question- what is the due process of law which gives the government the ownership of non-contraband firearms? For that matter, does this happen in any other property? Is a drunk driver who loses his license subject to having his other cars seized? A computer hacker barred from having a computer while on parole losing any non-contraband computers? |
October 22, 2014, 01:34 PM | #8 | ||
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Quote:
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October 22, 2014, 03:46 PM | #9 |
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leaving aside the legalese, if you become a prohibited person, is this saying you are not allowed to sell the property from which you are now prohibited?
Isn't that kind of a double punishment?
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October 22, 2014, 04:07 PM | #10 |
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^^^
That is the case in some districts. |
October 22, 2014, 04:20 PM | #11 | |
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Quote:
That's the part I think i being skipped over. First it's his stuff. Then he's not allowed to have his stuff. What makes his stuff he's not allowed to have now the government's stuff, and not his Parent/Child/Closest Living Relative's stuff? |
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October 22, 2014, 04:26 PM | #12 |
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The .gov doesn't take his house and/or car and/or hand tools and prohibit him from selling them ... how is a gun any different than a Skil Saw?
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October 22, 2014, 09:41 PM | #13 | ||
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Quote:
I think the Court may end up spending quite a bit of time discussing property law. Quote:
And to be clear, I am not advocating the government's position, just trying to explain it. |
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October 22, 2014, 10:11 PM | #14 | |
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Quote:
I also understand the basis of the government's position in the Kelo v. New London case on eminent domain, but I likewise regard that whole concept as theft under colour of law -- irrespective of the fact that the Supreme Court bought into it. I know a convicted felon is prohibited from "possessing" firearms. But IMHO the .gov can't just eradicate his/her ownership interest in them, any more than it can eradicate his/her ownership of a house or a car or a Skil saw. There are probably some due process ways that can be accomplished, if there are laws supporting such action, but I don't think the police just saying, 'We've got them and you can't have tham, nyah, nyah" qualifies as due process. |
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October 23, 2014, 12:23 PM | #15 |
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There appears to be quite the double standard.
The Govt routinely seizes property, from suspected people. After conviction sometimes the govt sells it. Including houses, boats, cars, airplanes etc. In this case, it appears the govt didn't seize the guns. Taking the position that having even the tiny amount of control of deciding to sell, vs give away or surrender the property (guns) is effectively prohibited by the same ruling that prohibits physical possession doesn't seem ethical to me. The dope dealer's car that got seized, and gets sold at auction is not the same thing, I get that. I can even understand how the felon cannot sell his guns himself, personally. But I don't get the rest of it. Maybe that's why I'm not a lawyer....although I suspect other reasons played a larger part in that decision of mine...
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October 23, 2014, 01:30 PM | #16 | |
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Quote:
If the government has the guns, they did seize them. Either by requiring their surrender, or via a warrant. |
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February 25, 2015, 01:35 PM | #17 |
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Oral argument was held today in the Supreme Court. ScotusBlog has a detailed analysis at http://www.scotusblog.com/2015/02/ar...led-implosion/. It appears that Henderson is going to win his right to have the firearms sold/transferred, though the exact parameters may be decided by the lower courts. If the analysis is correct, even the "liberal" members of the court were on board.
It's hard to say what this will mean outside the narrow parameters of the facts at issue. We'll have to wait for the written opinion. |
February 25, 2015, 10:31 PM | #18 | |
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Quote:
So the government wants constructive possession to mean, on one hand, that if a person has in the same room with him -- irrespective of who owns them -- two firearms parts that, if combined, make an illegal firearm, that's constructive possession. Then they also want to claim that a person who has title to something but does NOT have possession is also in "constructive possession." This sounds like an argument that might be put forth by the Red Queen from Alice in Wonderland. Last edited by Aguila Blanca; February 25, 2015 at 10:47 PM. |
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