GUN RIGHTS

Henderson v. United States

Issues

May a court order the government to transfer or sell firearms to a third party on behalf of a convicted felon, who may not possess firearms under 18 U.S.C. § 992(g)?

In this case, the Supreme Court of the United States will have the opportunity to resolve a circuit split and determine whether a convicted felon may request that the government transfer possession of a felon’s non-contraband firearms to a third party. Henderson, a convicted felon, requested that the FBI transfer possession of the firearms to a third party interested in purchasing the firearms. The FBI denied his request, asserting that convicted felons may not possess firearms and that a transfer to a third party would give Henderson constructive possession in violation of federal law. Henderson, however, argues that his inability to possess firearms under federal law does not terminate his entire ownership interest in non-contraband firearms. The Supreme Court’s ruling will implicate ownership rights of convicted felons’ non-contraband firearms.

Questions as Framed for the Court by the Parties

“The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated.” Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977))). 18 U.S.C. § 922(g), however, makes it “unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm.”

The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them.

Petitioner Tony Henderson is a former Border Patrol Agent who was charged with distributing marijuana, a felony under 21 U.S.C. § 841(a)(1). See U.S. v. Henderson, 555 Fed. Appx. 851, 852 (11th Cir. 2014). He was arrested on June 7, 2006.

Written by

Edited by

Additional Resources

Submit for publication
0

National Rifle Association of America v. Vullo

Issues

Does a government regulator violate the First Amendment when the regulator threatens companies with regulatory action for doing business with a party because the regulator disagrees with that party’s viewpoints?

This case asks the Supreme Court to determine whether a government regulator violates the First Amendment when the regulator threatens companies with regulatory action for doing business with a party because the regulator disagrees with that party’s viewpoints. In 2018, New York State Department of Financial Services (“DFS”) Superintendent Maria Vullo asked financial institutions, in response to the Parkland school shooting, to reconsider their business with the National Rifle Association (“NRA”). The NRA argues that these communications constitute impermissible coercion designed to stifle its freedom of speech under the First Amendment. Vullo contends that such communications are protected government speech and essential to her job as a regulator. The outcome of this case has important ramifications for free speech, state officials’ ability to regulate, and the right to bear arms.

Questions as Framed for the Court by the Parties

Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.

In October 2017, the New York State Department of Financial Services (“DFS”) opened an investigation into the legality of certain insurance programs endorsed by the National Rifle Association of America (“NRA”). National Rifle Association of America v. Vullo at 3.

Additional Resources

Submit for publication
0

New York State Rifle & Pistol Association Inc. v. Bruen

Issues

Does the Second Amendment guarantee all Americans the right to carry concealed firearms outside the home for the purpose of self-defense?

This case asks the Supreme Court to determine whether New York’s discretionary gun permit law, which requires an applicant demonstrate “proper cause” to carry a weapon for self-defense purposes, violates the Second Amendment. Robert Nash and Brandon Koch applied for a general concealed carry permit under New York law, but their applications were denied by Richard McNally for lack of proper cause. New York State Rifle & Pistol Association (“NYSRPA”) contends that at least one of its members would be eligible for a concealed carry permit but for New York’s proper cause requirement. Petitioners Nash, Koch, and NYSRPA brought a Section 1983 claim challenging the law, arguing that it violates their Second Amendment right to bear arms. Respondents McNally and Kevin Bruen—the superintendent of the New York State Police—counter that the law is a valid exercise of New York’s regulatory power. This case has important implications for the future of gun ownership and regulation, public safety, and racial discrimination.

Questions as Framed for the Court by the Parties

Whether the state of New York's denial of petitioners' applications for concealed carry licenses for self-defense violated the Second Amendment.

New York law criminalizes the possession of handguns; however, a New York citizen may apply for a license to own, and in some circumstances even publicly carry, a handgun. NY State Rifle and Pistol Ass’n, Inc. v.

Additional Resources

Submit for publication
0

United States v. Rahimi

Issues

Does 18 U.S.C. § 922(g)(8), which prohibits people under domestic-violence restraining orders from possessing firearms, violate the Second Amendment?

This case asks the Supreme Court to decide whether 18 U.S.C. 922(g)(8), which bans firearm possession for someone under a civil protective order due to domestic violence, violates the Second Amendment on its face. Petitioner United States argues that the ban does not violate the Second Amendment because the history and tradition of firearm regulations in the United States allow Congress to disarm individuals who are not law-abiding, responsible citizens, such as those subject to civil protective orders. In opposition, Respondent Zackey Rahimi contends that § 922(g)(8) violates the Second Amendment on its face because the Second Amendment protects the firearm rights of all United States citizens and § 922(g)(8) bears no resemblance to any firearm regulations in American history. The outcome of this case will affect the constitutionality of laws that address domestic violence, as well as how future gun regulations will be analyzed.

Questions as Framed for the Court by the Parties

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.

Between December 2020 and January 2021, Respondent Zackey Rahimi was involved in five shootings. United States v. Rahimi at 2. On December 1, Rahimi sold drugs to a buyer and, when the buyer talked badly about him, fired multiple shots into the buyer’s residence with an AR-15 rifle.

Additional Resources

Submit for publication
0
Subscribe to GUN RIGHTS