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Gun Reports - News

UCLA Professor Eugene Volokh blogs on The Volokh Conspiracy legal website.

Can Housemates of Felons Own Guns?
Yes, then No

(GunReports.com) -- Earlier this month, UCLA Professor Eugene Volokh blogged on The Volokh Conspiracy legal website about United States v. Huet (3d Cir.), which considered if the Second Amendment protected the housemates of felons. From the TVC post:

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."

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. But an appeals court disagreed

Read the entire column here.

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Reader Comments

The article is confusing, but it seems the crux of the issue is who was the de facto firearm owner - was it really the girl, or her felonious boo?

Comment by: PVB | January 19, 2012

It's another Gonzo decision by a gonzo court. There was no evidence produced (at least per the article) that she didn't in fact own the gun. None that her BF ever used the gun, nor carried it, nor had her permission to EVER so much as touch it. She may have kept it in a locked safe. WHY the government alleges the BF had 'possession' or even potential possession of the gun is not stated. There seem to be some facts missing here - a common situation in both ATF actions, and journalistic reporting.

What the appeals court has done is to make battered spouses everywhere defenseless now. A woman can no longer buy a gun to defend from anyone who is prohibited from owning one because IF he gets his hands on her gun she will go to jail. So a vicious husband, a psycho stalker, a nut-case ex-BF - all of which justify her getting a gun - can all come into possession of a gun by grabbing her from behind. And by this logic, she then gets raped or beaten or whatever - at gunpoint - and if she survives she goes to jail for not killing the ass-wipe, because SHE provided him with possession of the weapon used against her.

I'm upset. This is wrong.

Comment by: david b | January 19, 2012

I was in this same situation a few years ago and an NRA lawyer told me as long as she was not touching or holding a gun I was alright. Of course I didn't live in the Peoples Republic of Kalifornia.

The more important point is why Constitutionally protected rights need a permit in the first place. Oh! Yeah! Kalifornia.

Comment by: Mister E | January 19, 2012

In spite of what Romney says in his attacks on other candidates, there is a legal pathway for a felon to get back his rights. It's called repatriation. This process is typically for felons that did something dumb in their youth and lived a good life afterwards. I had a friend that was carrying a bag across a boarder for an acquaintance. Turned out it was full of drugs...

Comment by: Mister E | January 19, 2012

I remember when G. Liddy who was at one time a firearms advocate but now is a convicted felon was asked about not being able to own firearms. His response was very brash/bravado and something like this: My wife is still allowed to own firearms. She just keeps her pistol in the side stand on my side of the bed. This is when the felon in the house laws started being written. I know a peace officer who cannot have an off or on duty weapon in her house. Her husband was convicted of felony drunk driving. She cannot respond armed to any emergency from her house. Nor protect her and her family should the bad guys find out where she lives.

Comment by: MSD | January 19, 2012

David - I agree with you. A decision like this means a batterer only has to get convicted, and then their "room mate" cannot own a gun, so they can continue the cycle unfettered. On the other side though, this story sounded like (at least to me) the cops entered the residence, found the firearm, and the girlfriend says "it's mine." If the cops were some of "the good guys," then perhaps indicators at the scene were it was his gun and she stated otherwise to keep him out of jail.

I guess what the court is also saying is, that as far as the Constitution is concerned, we are the company we keep. Our parents often cautioned us against that growing up, and here's a grown-up world example of that adage.

Comment by: PVB | January 20, 2012

The way most of these laws are written, the non-felon spouse can keep a gun as long as the felon spouse can't get their paws on it. For example. a gun in a lock-box or safe for which the felon has neither key nor combination might be acceptable. But I wouldn't want to trust my freedom to that thin string (Slim? Is that you walking out the door?). Better just not to have felons around you or guns around felons.

Comment by: Visigoth52 | January 20, 2012

P V B - I'm trying to read this as carefully as I can. I didn't see anything in there to indicate that she did not own the gun. I do think it curious that it says "After being informed of [a raid on her house....". THAT almost makes it sound like she wasn't home at the time, or didn't live in that house even if she owned it.

Regardless, the result is the same. Abused spouses have just been made completely defenseless by this court, with the law to enforce the woman accepting beatings at the risk of prison for self defense - unless she stabs the guy. What's more is that any person with a partner who is prohibited from having a gun (for drunk driving, e.g.) is now defenseless in general society too.

What's more, while this may be about the company she keeps, the decision can be read so as to provide jail time to any armed citizen who's firearm is stolen or taken by force by a prohibited felon.

I think there's a judge there that needs to be removed. Plain and simple.

Comment by: david b | January 20, 2012

It appears that a person may well be left with making a decision as to which of two rights they want to exercise. If they opt for the right to cohabitate with a felon, they forsake the Second Amendment right to keep and bear arms, and vice versa. It does seem somewhat murky, though, since the Second Amendment is plainly enumerated in the Bill of Rights, while the cohabitation with a felon is not that apparent unless we focus on the right to pursue happiness. This is a situation that most of us would likely not encounter, however since at least one of the posts above alludes to it, something does have to be enunciated to remove any ambiguity from the equation.

Comment by: canovack | January 20, 2012

Back when the second amendment was written, cohabitation was almost nonexistant. That might make true interpretation a little harder.

Comment by: Vernon R | January 20, 2012

Historically speaking, I'd imagine that at the dawn of our nation, there might have been married couples who could have been subject to this problem because a spouse might have been a felon. Also since large families were fairly common, it might have occurred that one member could have served some time as a felon. Would all other family members have to divest themselves of their firearms? I doubt it.

Comment by: canovack | January 20, 2012

Years ago I was listening to G. Gordon Liddy's radio show as he was discussing "aiming at their heads" if the jackboots were storming your house becuz of body armor. He went on to say that he of course, was NOT allowed to own guns...his wife however had LOTS of them... :)

Comment by: doughboy1960 | January 20, 2012

I've read in several places that at that "dawn of our nation" many couples did cohabit until they could be married - 20 miles out of Boston was frontier, and a preacher wasn't always available for a year or more. At that time, 20 miles was probably a 2 and perhaps 3 day coach ride. (In south Richmond, on old Rt.1, there is a place called the Half-way House, or there WAS last I knew. It was half way between Richmond and Petersburg, which are just about 20 miles apart. And it was the over-night stop for any coach traveling between the two cities - as late as the mid-1800s.) So cohabitation wasn't seen as such a big deal.

I could be wrong, but I believe a real 'felon' had to be sent to England by ship to be tried, and would have been imprisoned there. Most towns had a lock-up for bad behavior, but I've seem some of those and they were one room stone buildings with a single door. So it was not a place to keep a 'felon'. A miscreant, prior to dunking, stocks, or flogging sure, but felons, no. At least, that is what I've been able to gather from my reading and memory....

Also, with such places being frontier where hunting was required for eating meat, and raids by the natives were still possible, and some 'unconvicted felons' were still roaming about, nobody would have been without a gun by the orders of the 'town' government. Even women owned and used guns. Heck, an attempt to disarm them was what STARTED the first (and so far only) American revolution.

Comment by: david b | January 21, 2012