The sound of the government retreating

|The Volokh Conspiracy |

I went to yesterday's oral argument at the Supreme Court in the case of Henderson v. US, a case I blogged about earlier. The issue in the case is whether the prohibition on a convicted felon's "possession" of firearms extends to a prohibition on a transfer of those firearms to a third party at the direction, and for the benefit, of the felon. [The amicus brief I submitted on behalf of the Institute for Justice, supporting Henderson's argument that the statute should not be read to prohibit such transfers, is here].

Richard Re over on SCOTUSBlog has an excellent account of the day's argument:

When the government has a dog of a case, someone has to draw the short straw and argue it. InHenderson v. United States, Assistant to the Solicitor General Ann O'Connell drew that straw. It seems clear that the Court will side with petitioner Tony Henderson—a felon seeking the right to sell or otherwise dispose of firearms that he owns but can no longer legally possess. In offering concession after concession and various fallback options, the government offered a case study in controlled implosions.

That sums it up pretty nicely. As I noted before, the government, in its brief on the merits, had more-or-less surrendered on the central legal issue in the case, abandoning the 11th Circuit's holding that no such transfers are ever permitted, as a matter of law, because allowing the transfer would constitute an exercise by the felon of "dominion and control" over the firearms and would therefore amount to an exercise of "constructive possession" over them. [Second-best line of the day from the Court: Justice Breyer, who said: "I mean, to me, when somebody uses the word "constructive X," that just means it's not X and and it's a way of pretending that it's X when it isn't." ]

The government's attorney—Ass't SG Ann O'Connell—tried to make lemonade out of this lemon, with little success. The government's position was: the statute does indeed prohibit convicted felons from exercising "constructive possession" over any firearms he/she may own, but not all transfers are thereby prohibited; transfers to a federally-licensed firearms dealer, for sale on the open market (with proceeds going to the felon-owner), are OK, because that wouldn't involve the exercise of "dominion and control" over the property. As a number of the Justices pointed out, O'Connell was never able to establish why (a) a request to "please transfer my firearms to Mr. Jones, who has offered to pay me $1000 for them" involves the felon's "constructive possession", but (b) a request to "please ask licensed dealer X to sell my firearms" does not; or why (a) a request to "please transfer my firearms to my brother Jimmy" constitutes constructive possession, but not if Jimmy ends up buying the guns from the licensed dealer.

It was all a bit of a muddle and a mess—though the outcome seems pretty certain (and correct): the Court will surely reverse the 11th Circuit and hold that transfers at the direction of the convicted felon do not constitute "possession" within the meaning of the statute (and the Court may well, following Justice Breyer, abandoning the whole "constructive possession" nonsense entirely). Could well be unanimous.

And in case you're wondering what was the best line at oral argument, that honor goes (as it so often does) to Justice Scalia. At the tail end of the hour, when Daniel Ortiz, Henderson's lawyer—who did, incidentally, a terrific job—was using his rebuttal time, Justice Scalia referred him back to the beginning of his argument, when he had said that a particular detail of Henderson's argument appeared in five different places in the record. He had been interrupted, first time around, before he could get through all of the five, and Scalia asked him to do so, "just in case I'm unfortunate enough to be assigned this opinion." Maybe you had to be there, but it was pretty darn funny—we'll see if Chief Justice Roberts picks up the theme as does indeed assign it to him . . .