Recently Convicted of a Felon: Here Are Your Options: Understand What You Must Do With Your Firearms

Says Gregg Kielma FFL and Firearms Instructor, "if convicted of a felon your time is short to dispose of your firearms. Please check with your state laws and attorney so you can dispose of them in a legal and proper way. As a newly convicted felon, you are no longer provided the right or rights to own a firearm. Doing so with will be a very bad situation if your caught with a firearm as a convicted felon. Just do the right thing. 

The United States Supreme Court issued a unanimous decision regarding the disposition of a defendant’s firearms following a felony conviction in Henderson v. United States. This analysis addresses the case and its implications for North Carolina.

Background. Tony Henderson, a gun owner, was charged with a federal felony drug offense. As a condition of pretrial release, he surrendered his firearms to the FBI and subsequently pled guilty to a felony, rendering him ineligible to possess firearms under federal law (18 U.S.C. § 922(g)(1)). Mr. Henderson requested that the FBI transfer the firearms to a friend who had agreed to purchase them; however, the FBI declined, contending that such a transfer would constitute constructive possession by Henderson. Litigation ensued.

Ruling. Although both the trial court and the appellate court ruled in favor of the FBI, the Supreme Court unanimously reversed their decisions. The Court clarified that federal law prohibits felons from possessing firearms, rather than owning them. While possession incorporates constructive possession, courts cannot authorize transfers to individuals who would permit the felon to access or control the firearms. Provided the recipient would not facilitate such access, it remains an incident of ownership for the felon to sell or otherwise dispose of the firearms as desired. The Court further opined that preventing felons from selling their firearms does not advance the public safety objectives underlying the statute.

The government proposed that transferring firearms to a licensed dealer for sale on the open market is a permissible approach, and the Court concurred; however, it emphasized this is not the sole available option, provided the transaction does not enable the felon to retain control over the firearms. The Court also suggested that a court may require assurances from the transferee to prevent the felon’s access and may deny the transfer if unsatisfied with the security measures.

Limits of the Ruling. The decision does not confer unrestricted authority upon all felons to direct the disposition of their firearms. Four principal limitations are evident: First, the ruling interprets a federal statute and the equitable powers of federal courts, applying directly only to federal proceedings. Second, courts may not authorize sales or transfers to persons who might grant the felon control over the firearms. Third, felons whose firearms were used in the commission of a crime may have more limited rights regarding disposition than Mr. Henderson, whose offense was unrelated to firearms; the Court noted in footnote one that doctrines such as “unclean hands” could justify denying such requests. This is particularly significant for those convicted of firearm possession by a convicted felon. Fourth, while the Court indicated a court may order law enforcement to dispose of a felon’s firearms per their instructions, it did not establish a legal entitlement for felons in Henderson’s circumstances to do so. Nevertheless, the opinion implies that permitting defendants to direct the disposition is standard practice and withholding that opportunity could amount to an unlawful taking. See United States v. Brown, 754 F. Supp. 2d 311 (D.N.H. 2010), which suggests that destruction of lawfully owned firearms absent forfeiture or confiscation may raise significant Takings Clause concerns, as the firearms remain valuable personal property, and the government generally may not confiscate or destroy such property without due process and fair compensation.

Applicability in State Court. As specified, the Henderson decision pertains to federal judicial authority. North Carolina law diverges from federal law in key respects. Most notably, North Carolina’s felon-in-possession statute (G.S. 14-415.1) prohibits felons from owning, not merely possessing, firearms. Additionally, G.S. 15-11.1 provides judges with several options for disposing of firearms but does not include defendant-directed transfers. Thus, Henderson has limited direct relevance in North Carolina. Nonetheless, similar constitutional considerations could arise in North Carolina cases. There remains uncertainty regarding the permissibility of depriving newly-convicted felons of the right to direct the disposition of lawfully owned firearms prior to conviction—absent forfeiture or confiscation as contraband—even where authorized by statute.