By Sam Hananel
Associated Press
WASHINGTON (AP) — The Supreme Court is considering a tricky dilemma faced by people who legally own guns, but are then convicted of a serious crime and have to get rid of them.
Since federal law bars convicted felons from possessing firearms, how can those guns be sold or transferred without running afoul of the law?
The quandary, which has divided lower courts, came up Tuesday as the justices weighed the unusual case of Tony Henderson, a former U.S. Border Patrol agent from Florida who was arrested and charged with distributing marijuana.
Henderson had turned over 19 firearms valued at more than $3,500 to the FBI as a condition of his release.
After pleading guilty, Henderson wanted to transfer the weapons to his wife, sell them to a friend or otherwise get some value for them.
But lower courts sided with the government, which argued that letting Henderson transfer ownership of the weapons technically would give him possession in violation of law. Prosecutors also said they could not be sure Henderson’s friend or wife would actually prevent him from using the weapons.
The case has drawn the attention of gun-rights groups, including the National Rifle Association, which argued that the government’s expansive reading of the law violates the Second Amendment by preventing law-abiding citizens who want to buy the guns from doing so.
By the time the case reached the Supreme Court, though, the Obama administration changed its position. The government now says it would be acceptable for a district court to arrange for a federally licensed firearms dealer to sell them, with the proceeds going to the felon.
Henderson’s lawyer, Daniel Ortiz, told the justices their task was simple: to reverse the lower courts because the government now concedes that a court can have an independent dealer sell the guns.
“This court should have the power to approve sales and transfers so long as the recipients are not under the control or influence of the owner,” Ortiz said.
But Chief Justice John Roberts didn’t seem ready to embrace that view. He said he would have expected Henderson to insist on getting to decide who purchases the guns.
Justice Department lawyer Ann O’Connell told the justices that the felon can’t pick the person who gets the guns because he would still have “dominion and control” over the firearms, which would be tantamount to possession.
Roberts questioned that logic, saying the ability to sell something depends on ownership, not possession.
“He doesn’t want to control them,” Roberts said. “He doesn’t want to use them. He doesn’t want to possess them, constructively or otherwise. In fact, he wants to get rid of them, which is what the statute is supposed to accomplish.”
Justice Anthony Kennedy said it seemed like lower courts should work out a solution under the principle that “we don’t want these guns back in the hands of either his control or people who might misuse them.”
“This is very complicated, more so than I ever thought,” Kennedy said. A decision in the case is expected by June.
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