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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.
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