Prohibited person visiting a house with guns?

[g.willikers]

What are the laws concerning a prohibited person visiting and staying in a house where guns are stored?
Not just for the day but longer term, like say a month.
This question was asked on another forum and per usual the answers were contradictory and confusing.
Any legal eagles here know?

[Frank Ettin]

Essentially, the guns will need to be stored in a manner which reasonably assures that the felon can't get his hands on one -- e. g., in a locked safe to which he doesn't have the combination or can't get the key.

Let's see what courts have said about what constitutes unlawful possession:

1. See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.
   
   The court of appeal noted, at 551:

   ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....

   In affirming the conviction, the court of appeal found, at 551 -- 552:

   ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...

2. See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):

   ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.
   
   Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....

   So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

[JoeSixpack]

Frank I have a question.
What happens if the owner of the guns has no knowledge of the prohibition?
I mean it's not like we brand people, Are you aware of any cases under those circumstances?

I also wonder what would qualify as secure.. surely a safe would fit.. but what about a gun on the night stand or near bed while you sleep?

[Frank Ettin]

Originally Posted by JoeSixpack

...What happens if the owner of the guns has no knowledge of the prohibition?....

The owner of the guns might escape an aiding and abetting charge. But if the prohibited person has access, he could be convicted of unlawful possession.

Originally Posted by JoeSixpack

...what about a gun on the night stand or near bed while you sleep?

Most likely that would not be considered secure against access by the prohibited person. You're free to try it with a jury, but I don't see a jury buying that as properly secured.

[g.willikers]

Thanks for the replies.
It sounds like if a prohibited person is in the house, all firearms must be locked up securely enough to render the home owner completely defenseless, maybe even from the prohibited person. , at least with a gun.
Better know who or what is coming to visit.

What ever happened to the idea of the western outlaw serving his term and getting his guns back as he walks out of the prison?
Did that actually ever happen other than in the movies?

[Frank Ettin]

While you're awake a gun carried on your person would most likely be considered secure. When a self defense gun is not on your person it can be secured in a quick opening lockbox and thus readily available to authorized persons and secured against access by unauthorized persons.

This isn't the movies, nor is it the past. We live in the world of today, and things are as they are.

[44 AMP]

What ever happened to the idea of the western outlaw serving his term and getting his guns back as he walks out of the prison?

That legally ended in 1968. On the federal level, I don't know about each state..

Prior to that, a convicted felon could legally possess a firearm, once all time was served and all probation/parole requirements were met.

After the GCA 68 became law, convicted felons became prohibited persons, for life, unless their right was restored by a court. (almost never happens)

The Lautenberg amendment (passed a couple decades later) extended that lifetime prohibition to anyone convicted of a domestic violence misdemeanor.

[FrankenMauser]

I am not a lawyer, but I live with a prohibited person. Or, more precisely, a prohibited person lives in my house. (B&E, grand larceny, 1998)
The above advice is good.

I keep all firearms (even just receivers) locked up, if not on my person.
Most things live in the safes. A few projects sometimes find themselves in a Stack-On (locking) cabinet. And there are a few HD firearms that are locked up in hidden, but easily accessible, lock boxes.
All keys, except for the one on my person, remain locked in one of the safes. ...Even the one for the Stack-On cabinet with just ammunition and accessories in it.

Seems like a pain, but I've got little kids running around all the time, too. So, it's not much different than keeping things away from the kids.

[44 AMP]

I would add a small bit of advice, don't put the keys to the guns on your regular keyring with your house & car keys, if you are someone who, like many, hangs the keys up on a rack open to anyone in the house to grab. That is not considered secure storage under the law.

[TheFriendlyMarksman]

There is no statute that specifically answers this question, and the opinions mentioned above are just that, lower court opinions. The law on this matter is still unsettled.

By the way, I actually contacted one of the nation's leading legal scholars, Eugene Volokh, about this very question, some time ago.

[OldMarksman]

...the opinions mentioned above are just that, lower court opinions. The law on this matter is still unsettled.

Actually, those "opinions '' constitute case law. They may someday be reversed by higher courts, but for now, they are established legal precedent. As such, they are as binding as any statute.

[Frank Ettin]

Originally Posted by TheFriendlyMarksman

There is no statute that specifically answers this question, and the opinions mentioned above are just that, lower court opinions. The law on this matter is still unsettled....

It's only seldom that there's a statute which will, by itself, be the basis for the answer to a factually vague or complex question. Any answer, to the extent that there actually is an answer, will need to come from an analysis of the the application of relevant law, both statute and case law, to the facts.

For the purpose of this analysis we'll look only at federal law. To the extent state law is more lax than federal law, federal law will, under the Supremacy Clause (Article VI, Clause 2 of the Constitution) will control. If state law is stricter, it will apply (18 USC 927).

The statute we need to concern ourselves with is 18 USC 922(g):

(g) It shall be unlawful for any person—

[subparagraph (1) -- (9) list the classes of prohibited persons]

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

So we first consider what constitutes possession for the purposes of this statute. The legal meaning of "possession" is well understood under federal law (see U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1, emphasis added)):

...The law recognizes two kinds of possession, actual possession and constructive possession.... Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...

In post 2 I cited two federal court of appeal decisions considering when access without actual physical possession nonetheless constituted possession for the purposes of an 18 USC 922(g) violation.

And here's what the courts have said about the interstate commerce issue under 18 USC 922(g):

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

   ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

   ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   
   The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
   
   All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

   ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

   In rejected Singletary's assertion, the court of appeal noted, at 200:

   ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

   ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

So if a house guest who is prohibited from possessing a gun has any access to the host's gun, and if the host's gun was ever transported in interstate commerce. it's probable that the house guest could be charged and convicted of a violation of 18 USC 922(g), i. e., a prohibited person unlawfully in possession of a gun. There's also the possibility that the host could be charged and convicted of aiding and abetting that crime.

Originally Posted by TheFriendlyMarksman

....I actually contacted one of the nation's leading legal scholars, Eugene Volokh, about this very question, some time ago.

This appears to be another of your cheap rhetorical tricks I've had occasion to comment on before. For your comment to be meaningful you will need to provide evidence of --

1. Exactly what you asked him and in what context; and
   
   
2. Exactly what his response was.

Also, since in my view based on your posting history you generally lack credibility, your evidence needs to be more robust than your merely telling us the answers.

[armoredman]

Originally Posted by Frank_Ettin

...and if the host's gun was ever transported in interstate commerce.

I have read how that has been so far twisted around that even conceivably if you have a firearm built from the ground up, i.e., mined, smelted, forged, etc., all in that state, it could still be "affecting" interstate commerce because none of the parts were bought outside of the state. That was a wheat case, though, IIRC - I am not a lawyer and will never be one.

[Frank Ettin]

Originally Posted by armoredman

I have read how that has been so far twisted around that even conceivably if you have a firearm built from the ground up, i.e., mined, smelted, forged, etc., all in that state, it could still be "affecting" interstate commerce because none of the parts were bought outside of the state. That was a wheat case, though, IIRC....

Whether the Commerce Clause has been "twisted around" is a value judgment, but it certainly is given an expansive application. The wheat case was Wickard v. Filburn, 317 U.S. 111 (1942) and similar reasoning applied with regard to federal regulation of marijuana in Gonzales v. Raich, 545 U.S. 1 (2005).

Wickard and Gonzales were applied by the Ninth Circuit to cases involving the federal regulation of firearms in United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006) and Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).

Your summary of the Wickard decision isn't entirely accurate, but this isn't the place for a Commerce Clause seminar.

[KyJim]

With a number of states allowing the use of medical marijuana and some now allowing its recreational use, there has been renewed discussion of federalism in the popular media and even in some academic/legal circles. Just Google "marijuana federalism" for a host of links. For example, a blog over at the Volokh Conspiracy argues:

First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. Congress's enumerated powers are to regulate interstate commerce, and to pass laws necessary and proper to carrying that interstate regulation into effect.

This is, of course, the same argument made when some states have tried to make an end-run around federal restrictions of firearms --- if made entirely in-state, the feds cannot regulate it. Note that the blogger quoted above recognizes that the Supreme Court has held otherwise. The ship on that issue sailed a long time ago and I just cannot see putting the genie back in the bottle without a constitutional amendment. And I have seen no serious movement on that.

[ammo.crafter]

Has any one found any PUBLISHED opinions?

[Spats McGee]

Originally Posted by ammo.crafter

Has any one found any PUBLISHED opinions?

Holding what, exactly?

[44 AMP]

Whether you think its right, or not, the situation as it currently exists is that any physical object that could be moved from one state to another is considered to be covered under the Commerce clause, and so the govt. has authority over it.

doesn't matter if it did move between states, or not. All that matter is that it could have, and because it could have, it has an effect on interstate commerce.

The same principle is used in the legal definition of "possession" The law(s) cover not only what is done, but also what could be done.

I think most people are blissfully unaware of the laws covering "what could be done" until/unless it affects their personal lives directly. And I think this is because the law covering what could be done is applied so selectively.

Firearms law is one of the places where "could be done" is applied more broadly than others. And, often applied without a uniform standard between individual states, and the Fed govt.

One area where this can be clearly seen is the various definitions of what constitutes a loaded gun for the purposes of transportation.

Everyone agrees that if there is ammunition in the chamber the gun is loaded. Beyond that, the definition of "loaded" jumps all over the map. Some places don't consider the gun loaded unless there is a round in the chamber. Other places consider the gun loaded if there is ammunition in the gun, anywhere, and still other places consider the gun loaded if there is ammunition in the same compartment of the vehicle as the gun. (this is constructive possession at work. The gun might not be physically loaded, but because it could be, then the law considers it as if it were...)

Same thing is applied to felon/prohibited person in "possession" of a gun. They don't have to have it in their hands to be in violation of the law. If they COULD get it in their hands, the law is being broken.

[armoredman]

Originally Posted by Frank_Ettin

Your summary of the Wickard decision isn't entirely accurate, but this isn't the place for a Commerce Clause seminar.

That is why the last line of my post was,

Originally Posted by armoredman

I am not a lawyer and will never be one.

I only deal with the ones whose defense attorneys failed them.

[Frank Ettin]

Originally Posted by armoredman

....I only deal with the ones whose defense attorneys failed them.

It's not necessarily the defense attorney who failed. Often the failure is that of the defendant, and Clarence Darrow himself wouldn't be able to save him.

[Aguila Blanca]

It isn't [supposed to be] the purpose of defense attorneys to guarantee an acquittal, any more than it's [supposed to be] the purpose of a prosecutor to guarantee a conviction. The intent is to have a trial before an impartial arbiter, whether that's a judge or a jury.

Sadly, too many attorneys on both sides seem to have decided that their purpose is to win, rather than to ensure that the defendant gets a fair trial.