Second Amendment Protects Gun Possession by the Housemates of Felons

As I mentioned in my Implementing the Right to Keep and Bear Arms in Self-Defense article (PDF p. 57), “[B]ans on felon possession of firearms also affect their law-abiding spouses, girlfriends and boyfriends, and other housemates: Those people might be unable to safely possess guns in their homes because of the possibility that their felon housemate will be seen as ‘constructive[ly] possess[ing]’ the gun, and that they themselves will therefore be seen as criminally aiding this illegal possession.” “There are limits on the constructive possession doctrine [at least in the view of many courts], for instance if the housemate keeps the gun locked in a combination-locked safe. But such practices can substantially burden the housemate’s gun possession, both by making guns hard to access in an emergency and by increasing the cost, especially for long guns that require large safes.” (See also PDF p. 28 of my nonlethal weapons article, n. 121, and United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005), and United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995).)

Here’s a long excerpt from Monday’s decision in United States v. Huet, which deals with this very issue. The court concludes that the government didn’t introduce evidence that Huet purposefully helped her boyfriend, who lived with her, possess her gun. (Some states and some federal courts allow aiding and abetting liability based on conduct that the defendant merely knows helps someone else commit a crime, but this court is one that seems to require a showing that the defendant had the conscious object of helping the person commit a crime.) But the court also concludes that such a result is mandated by the Second Amendment (some paragraph breaks added):

Huet’s co-defendant and paramour, Marvin E. Hall … was charged … with possession of a firearm by a convicted felon on or about January 11, 2008, in violation of Title 18, United States Code, Section 922(g)(1)…. On February 1, 2010, defendant Hall pled guilty …, and on June 25, 2010, Hall was sentenced by this Court to time served. Defendant Hall already had served twenty four (24) months imprisonment in pretrial detention, and actually served more time than was called for under the advisory sentencing guideline range of fifteen (15) to twenty-one (21) months imprisonment….

Defendant Huet is 35 years old, has never been convicted of any crime, and is not disabled or otherwise prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1), or its Pennsylvania counterpart, 18 Pa.C.S.A. § 6105. Count Three (3) of the Indictment charges Huet with aiding and abetting the possession by her paramour, defendant Hall, of a firearm identified as an SKS rifle, 3 from August 10, 2007 to January 18, 2008….

The genesis of the investigation by federal agents claims that they worked undercover “to penetrate a cell of militia extremists,” and during their investigation, they met defendants Hall and Huet, while the agents pretended to have an interest in the activities of Morgan Jones, of Lucinda, Clarion County, including Jones’ collection of guns and his hosting of an annual “flame-throwing” party in 2005….

Under authority of a search warrant, federal agents seized the SKS rifle from an upstairs bedroom at the Hall/Huet home at Lawsonham Road in Clarion County, during a raid conducted on June 6, 2008…. According to the Rule 16 discovery materials, at no time during the undercover investigation did agents observe either Huet or Hall actually handle the SKS rifle. They did not observe Huet handle or otherwise deliver the rifle to Hall or direct him to handle it. Importantly, at no time over the five (5) months period covered by the Indictment did agents observe Huet in the same room as the rifle. There is no allegation that it had been discharged, either legally or illegally, by either Hall or Huet, and in particular, there is no allegation that Huet directed Hall to discharge the rifle, or possess the rifle, nor that Huet was a “straw” purchaser of the rifle for Hall.

As set forth in the affidavit of probable cause, Huet indicated to one or more of the agents on August 10, 2007 the following:

That she was angry that HALL had been showing off an SKS assault rifle. HUET said that if it happened again, she would take it back to MORGAN. HUET further elaborated that she was worried that if HALL “gets in trouble with that, I get in trouble, too. Cause it’s in my name and he’s got it.” HALL invited [the undercover agent] into his residence, where the [undercover agent] observed an SKS rifle assault in HALL’s computer room. Referring to the SKS rifle HALL said, “That’s her SKS rifle, I’m not allowed to have a gun.”

… While the affidavit is filled with labels of “assault” rifle and “militia” language, there are no allegations that SKS rifle is a “true” assault weapon (at least for the last 50 to 60 years), or that Huet was personally involved in any militia activities, legal or illegal. The attempt to “label” Huet should not deter a thorough analysis in this case — is the government, through the framework of “aiding and abetting,” attempting to convert a lawful rifle owner into a criminal?

Importantly, absent from the Indictment are any facts supporting an inference that Huet did anything to aid and abet defendant Hall in “possessing” her firearm, the SKS rifle, or that Huet purchased or possessed the rifle as a means to assist Hall to avoid his restrictions. In other words, the government has set forth no facts addressing any specifics as to how defendant Huet aided and abetted Hall….

As stated above, notably absent from the Indictment in this case are any facts setting forth how defendant Huet aided and abetted defendant Hall in his unlawful possession of the SKS rifle. The government’s theory, disclosed on the record as set forth in defendant Hall’s proceedings, appears to be that defendant Huet passively aided and abetted Hall in his possession of the curio firearm which she owned and kept in their shared residence. Supported by the June 8, 2008 statement made by Huet claiming ownership of this collectors’ rifle, the government’s theory in support of the aiding and abetting charge is that Huet owned the firearm and kept it unsecured in the home. At defendant Hall’s guilty plea hearing, which is a matter of public record, government counsel stated that:

Mr. Hall lived with … Melissa Huet, (who) had no prior record of which we are aware, but … bought firearms in her name for (sic) Morgan Jones, who on the side sold firearms… Miss Huet would allow Mr. Hall to have access to those firearms. In essence, that’s the very basis of the charge against Mr. Hall to which he is pleading guilty today.

Section 2 of Title 18 of the United States Code states that anyone who “directly commits an act or aid, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” In 1951, the aiding and abetting statute was amended to include the language “punishable as” in order to “eliminate all doubt that in the case of offense whose prohibition is directed at members of specified class (e.g. federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition.” … [I]n order to “aid and abet” another person to commit a crime it is required “that a defendant ‘in some sort associate himself with the venture, that he participate in it as something that he wished to bring about, that he seek by his action to make it succeed.” …

[T]he government cannot successfully establish that Huet “participat[ed] in the venture as something that [she] wished to bring about[“] … The facts in the Indictment fail to set forth any allegations to support the conclusion that defendant Huet aided and abetted defendant Hall in his unlawful possession of the SKS rifle. Here, as stated above, there are no allegations in the Indictment (nor any information at the proceedings produced in the proceeding of co-defendant Hall) that Huet was a straw purchaser of the SKS rifle, or that she ever witnessed defendant Hall handling or firing the weapon.

The most the government proffers is that Huet stated that if defendant Hall got in trouble with the gun, she would get in trouble also because she was the owner of the rifle. This statement, which the Court accepts as undisputed, does nothing to advance the cause that defendant Huet knew, or had reason to know that defendant Hall was a felon in possession and that her owning a weapon somehow aided or abetted him in his unlawful possession of the SKS rifle. The Court therefore finds that Count Three (3) of the Indictment against defendant Huet must be dismissed for failure to state an offense under the aiding and abetting statute, 18 U.S.C. § 2….

For the reasons set forth below, this Court finds that under the facts of this case, to punish Huet, who has not been convicted of a felony under 18 U.S.C. § 922(g)(1), as a principal, violates the core of the Second Amendment right to keep arms, at least, where, as here, the conduct said to have aided or abetted the substantive firearm possession is itself purely possessory….

[D]efendant Huet’s possession of the gun — which is the crux of the government’s case against her — at all times occurred within the home, where her right to possess is undoubtedly most sacrosanct…. At the time of the offense charged in this case, defendant Huet, who was charged with aiding and abetting, was neither a felon, nor insane. Rather, Huet allegedly aided and abetted another who was not permitted to lawfully possess a firearm, thus compounding an inchoate offense upon another inchoate offense.

Applying the aiding and abetting statute at section 2, together with the alleged violation of section 922(g)(1), under the facts of this case, implicates the protections of the Second Amendment. Were this Court to permit this Indictment to go forward, the Court would be countenancing the total elimination of the right of a sane, non-felonious citizen to possess a firearm, in her home, simply because her paramour is a felon, and not because of some affirmative act taken by the citizen. Under any level of scrutiny, said Indictment as to Huet is a substantial, if not unfettered, infringement on her Second Amendment right to keep arms.

Further, the SKS rifle owned by defendant Huet is a type of firearm that was not banned by the 1994 assault weapons ban and thus was not a “dangerous” or “unusual” weapon, such as a firearm with an obliterated serial number in Marzzarella [a recent Third Circuit case]. Instead, the Court takes judicial notice that as early as 2001 (and certainly no later than 2005), the Yugoslavian M59/66 had been designated a “curio” by the Bureau of Alcohol, Tobacco and Firearms’ under 27 CFR § 478.11. The SKS rifle was commonly used as a sporting rifle, and was mass produced and is owned by American gun owners in the hundreds of thousands.

Having determined that the prosecution of Huet, a non-felon, for possession of a firearm which she owns, in her own home, infringes on her “core” Second Amendment protections as set forth in Heller, the Court must next balance her rights against the government’s interest.

As stated above, under 18 U.S.C. § 922(g)(1), certain classes of persons, most notably those convicted of felonies, are prohibited from possessing firearms…. Broadening the scope of section 922(g)(1), by expanding the class to whom it applies to include non-felons, punishes a non-felon as a principal under a statute which, by its express terms, is applicable only to felons. Especially where, as here, the non-felon’s allegedly culpable activity is inchoate — in this case mere possessory — the non-felon has not earned the title of “felon,” and has done nothing to “demonstrate that [she] may not be trusted to possess a firearm without becoming a threat to society.”

Additionally, as defendant Huet highlights, and this Court agrees, persons convicted of felony antitrust violations are not included within the prohibition of section 922(g)(1), which is to say that Congress is capable of, and has, exempted persons outside the class to whom a penal statute is directed from accomplice liability. Therefore, to attempt to punish defendant Huet, who has a guiltless past (or at least one free from any felonies or misdemeanors), and has done nothing to establish that she may not be trusted with a firearm without becoming a threat to society, places her in a more perilous position than other felons who are certainly less guiltless….

The Court finds that the Indictment fails to set forth an offense under 18 U.S.C. § 2. Furthermore, under Heller, and its progeny, the Second Amendment protects defendant Huet’s right to possess the firearm the government seeks to criminalize through the use of sections 2 and 922(g)(1). To hold otherwise would be to ignore Heller: defendant Huet, not being a felon, insane, or otherwise disabled from possessing a gun, is entitled to possess a lawful firearm in her home, a place which is recognized as sacrosanct for purposes of Second Amendment analysis.

In conclusion, this Court echoes the words of the United States Supreme Court in Heller, when it stated:

The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people… And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Defendant Huet, is one such law abiding citizen, and she is entitled to at least keep arms (if not to bear arms) within the confines of her home….