Felons and Firearms

It is commonly understood that felons and other prohibited persons cannot own firearms. However, strictly speaking this statement is incorrect. Prohibited Persons cannot possess firearms or control their movement in interstate commerce. (This includes a prohibition on controlling who uses a firearm through the legal theory of constructive possession.) See Henderson v. United States 575 US _____ (2015) (“By its terms, §922(g) does not prohibit a felon from owning firearms.”)

So What Can a Felon do?

Now that we know a felon or Prohibited Person can technically own a firearm, what can they do with it? The simple answer, sell it!

Prohibited Persons can direct who receives their firearms and receive the proceeds from the sale. This allows a Prohibited Person to divest himself of his property in an appropriate manner without losing it to the state.

In the recent Supreme Court case Henderson v. United States, the Court unanimously ruled that a court can order law enforcement holding firearms belonging to a Prohibited Person to transfer those firearms to any person or entity the Prohibited Person nominates as long as the Prohibited Person will not gain possession, constructive or physical, over the firearms.

Can I get my Firearm used in Committing the felony?

Likely not. Property used in the commission of a crime is commonly deemed forfeited to the state. The technicality we are discussing applies to firearms not used in the crime but owned by a Prohibited Person.

If you’re caught dealing cocaine with a Glock 19 you can kiss the gun good bye. However if you happen to have Grandpa’s mint double barrel at home that wasn’t part of the crime you can transfer that to a non-Prohibited Person. (But if you were storing the drugs and guns on the same property then all bets are off.)

What About My Trust?

The Court specifically mentioned trusts in their recent opinion. See Henderson v. United States 575 US _____ (2015) (“Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. . . . Results of that kind would do nothing to advance §922(g)’s purpose.”)

An appropriate trust protects your firearms even from you. The trust becomes the owner of the firearms and can deny you the right to control or possess those firearms should you become a Prohibited Person. This ensures that firearms you previously owned remain in your family and are passed down according to your wishes.

Is it too late to set up a Trust now?

While every set of facts are unique, most of the time a trust can be established by a Prohibited Person for this purpose. Some special precautions will have to be taken. For instance, the trust will need to be irrevocable, meaning the Prohibited Person cannot change it. Trustees must be individuals eligible to own firearms, and the Prohibited Person must not have control or influence over these Trustees. (And Successor Trustees should have the same qualifications.)

If the firearms are currently in the possession of a law enforcement agency or other governmental body then there may be additional requirements to meet that agency’s reasonable standard to ensure the Prohibited Person will not gain possession of the firearms.

Transfer Your Guns.

If you, or someone you know, is a Prohibited Person trying to have your firearms transferred to a third party contact Robert for help. He can provide you with guidance and represent you in court if necessary to achieve a transfer.