The Second Amendment and the Takings Clause

Felons can’t lawfully possess guns — does it mean they can’t even arrange for their sale, and that the court may just order them destroyed? That seems to have been the government’s view in United States v. Brown (D.N.H. Apr. 9, 2010), and at least one court has apparently taken this view, but the court in this case disagreed (some paragraph breaks added):

Before he was indicted, Edward L. Brown, a defendant in the underlying criminal tax-fraud and money-laundering case, owned a number of firearms. As a condition of his release on bail, Brown voluntarily surrendered those firearms and agreed both that the firearms would be held by Riley’s Sport Shop, Inc., pending resolution of the charges, and that he would pay all storage charges incurred. Brown was subsequently convicted of several felonies, all unrelated to the surrendered firearms….

The government relies on several decisions from other circuits and districts that seem to adopt the proposition that a convicted felon cannot lawfully divest himself of mere legal title to firearms that he can no longer lawfully possess, without thereby “constructively possessing” those firearms. Those decisions stretch the concept of “constructive possession,” as the term is used in the criminal statute prohibiting possession by felons (18 U.S.C. § 922(g)), much too far, in my view, essentially equating criminal constructive possession with even the most minimal exercise of an indicia of ownership-transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess).

The government’s main point … is this: A person who lawfully owns, say, a valuable gun collection just before a jury returns an unrelated felony guilty verdict (e.g., for mail fraud) can, thereafter, no longer sell, give away, or transfer legal title to that collection. But, strictly speaking, the decisions relied upon by the government are not so clear — they do generally accept that a defendant in such a predicament cannot unilaterally direct or “dictate” the specific disposition of owned firearms, but they do not, for example, hold that title to the firearms cannot be conveyed, or that a court cannot order an appropriate disposition of such firearms, for the benefit of the defendant.

The Third Circuit’s unpublished and brief decision in United States v. Roberts, 322 Fed. App’x 175, 176 (3rd Cir. 2009), relied upon by the government, supports the notion that courts may exercise equitable power to dispose of firearms owned by felons, but it takes an additional, and questionable, step. In Roberts, the Third Circuit affirmed a district court’s order permitting the government to destroy firearms owned by a convicted felon. Roberts is not controlling in this circuit, and its conclusion with respect to disposition of the firearms is unpersuasive on several grounds.

For example, the ordered destruction would seem to raise serious Takings Clause issues. Firearms subject to neither lawful forfeiture nor confiscation as contraband (as in this case) remain valuable tangible personal property belonging to the convicted felon. I doubt the government’s right to simply confiscate and destroy such valuable property without first affording due process and payment of just compensation, even if it is accepted that the felon-owner cannot unilaterally transfer his ownership rights following a felony conviction. In Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir.1990), for example, the Fifth Circuit recognized that even one convicted of illegally possessing firearms does not lose his or her property interest in the firearms by virtue of the conviction alone. That property interest cannot be simply taken by the government without affording the property owner due process of law….

I reject the idea that firearms lawfully owned must, following the owner’s unrelated felony conviction, sit wherever they may be, unalienable and wasting, not subject to forfeiture, not subject to confiscation as contraband, and not subject to disposition by the owner, or by anyone else, or by the court for the owner’s benefit. I also reject the notion that such property is subject to government confiscation and destruction in the absence of due process or payment of just compensation.

Senior Judge Longstaff’s pragmatic solution to this problem is the appropriate one: the court, exercising equitable powers, may order the transfer of title to firearms lawfully owned by a person later convicted of a felony (which are not subject to forfeiture or confiscation as contraband) for the felon-owner’s benefit. See United States v. Approximately 627 Firearms, 589 F.Supp.2d 1129, 1140 (S.D.Iowa 2008) (quoting Cooper, 904 F.2d at 306 (“We see no reason that a court … could not order a sale for the account of a claimant who … legally could not possess firearms, were forfeiture to be denied for any reason.”)); United States v. Seifuddin, 820 F.2d 1074 (9th Cir.1987) (convicted felons retain a non-possessory interest in seized firearms). That approach precludes convicted felons from constructively possessing firearms (to the extent that term can be teased to include transferring mere legal title); it precludes a convicted felon from unilaterally dictating or directing disposition, as some courts have found objectionable; it avoids serious constitutional issues arising under the Takings Clause; and it fully protects the felon-owner’s legitimate property interests in a manner consistent with applicable criminal law.