The Second Amendment and Housemates of Felons

Yesterday’s United States v. Huet (3d Cir.) reverses a district court indictment dismissal that I blogged about a year ago (some line breaks added):

Although [Melissa] Huet is legally permitted to possess a firearm, [her housemate and boyfriend Marvin] 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 [a raid on her house that uncovered guns], 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….

[Huet moved to dismiss the indictment, arguing] that even if Count Three did state an offense for aiding and abetting a felon in possession, under the factual scenario presented in this case, the charge violated her rights under the Second Amendment. The District Court agreed, finding that “to permit [the] Indictment to go forward … would be [to] countenanc[e] 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.” “[T]o punish Huet, who has not been convicted of a felony … as a principal, violates the core of the Second Amendment right to keep arms,” the Court opined, because the conduct alleged to have aided and abetted was “purely possessory.” Although the District Court did not explicitly designate the Second Amendment violation as an alternative basis for dismissal, it clearly viewed it as such. Accordingly, we must address both the sufficiency of the Indictment and the Second Amendment challenge….

[T]he District Court erred to the extent that it imposed a heightened pleading standard for offenses under 18 U.S.C. § 922(g)(1) and § 2 [the federal aiding and abetting statute -EV]. The District Court dismissed Count Three based on its determination that “[t]he facts in the Indictment fail[ed] to set forth any allegations to support the conclusion that … Huet aided and abetted … Hall in his unlawful possession of the SKS rifle.” The District Court faulted the Government for failing to include “any specifics” as to how Huet aided Hall, and determined that the Government simply “charge[d] its conclusion.” Although some offenses must be pled with greater specificity than the “plain, concise, and definite written statement” contemplated by Rule 7(c)(1), we have never held aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 to be such an offense, and we decline to do so now….

[As to the Second Amendment,] Huet argues that based on the circumstances of her case, she cannot constitutionally be charged with aiding and abetting a felon to possess a firearm. Specifically, she contends that the Government’s only evidence is that she possessed the SKS rifle in her home while living with a convicted felon. The District Court agreed, finding that “to permit [the] Indictment to go forward” would be to “countenance[e] 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.

We disagree. We cannot say that an indictment which properly alleges aiding and abetting a felon in possession under 18 U.S.C. § 922(g)(1) and § 2 violates the Second Amendment under Heller. Applying Marzzarella [a recent Third Circuit precedent -EV], a properly-brought aiding and abetting charge does not burden conduct protected by the Second Amendment. The District Court’s characterization of the Indictment as seeking to criminalize the otherwise legal possession of a firearm by a non-felon simply because she lives with a felon is misleading. The Indictment does not allege that Huet’s possession of the SKS rifle violated the law; rather, it alleges that Huet aided and abetted Hall to possess the firearm.

We are mindful of the risk that felon dispossession statutes, when combined with laws regarding accomplice liability, may be misused to subject law-abiding cohabitants to liability simply for possessing a weapon in the home. However, in this case, the District Court’s determination that the Government overreached was premature. Huet’s arguments regarding the circumstances of her possession must await further development of the evidentiary record.

Huet’s argument that her status as a non-felon brings her case within the scope of Second Amendment protection is unavailing…. Huet would not violate § 922(g)(1) simply by possessing a firearm. She would, however, violate § 922(g)(1) and § 2 by aiding and abetting a felon to possess a firearm. Count Three charges her with the latter. Thus, the fact that she is not within the class of persons prohibited from possessing a firearm is irrelevant; her right to possess a firearm is not implicated by the charges against her. Moreover, even if part of the conduct that allegedly aided and abetted Hall’s possession involved possession of the firearm by Huet, the Second Amendment does not afford citizens a right to carry arms for “any purpose.” Huet’s right to keep the SKS rifle in her home did not give her the right to facilitate Hall’s possession of the weapon. Otherwise illegal conduct does not somehow become immunized because possession of a firearm is involved in the offense. See, e.g., United States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (per curiam) (rejecting a defendant’s challenge to his conviction for possession of a firearm in furtherance of drug trafficking and concluding that “[e]ven if [the defendant] kept the firearm also to protect himself and his home,” it could not “seriously be contended that the Second Amendment guarantees a right to use a firearm in furtherance of drug trafficking ”).