It is pretty well known that in addition to actual possession of a firearm by a conviction felon, he can also be convicted for what is known as “constructive possession” in that he knew: 1) that the firearm was present, and 2) he had the ability to exercise dominion and control over it…
It is well established, for example, that a gun in the nightstand of a couple, one a felon, the other not, will be deemed in the constructive possession of the felon.
Further, when a spouse of a felon owns firearms, she is frequently advised to keep them locked up with the only key in her possession so that her spouse is not charged with this constructive possession.
If anyone dispute the above, I will be happy to provide cites. Here is my question/argument:
Has anyone ever argued the Second Amendment rights of the spouse/right to marry? Let’s agree with these principles:
- Spouse has a fundamental right to marry the person of her choice. See Loving, Obergefell, etc.etc.
- Spouse has a Second Amendment right, per Heller, to own firearms.
- Spouse further has the right to keep them loaded in the house in an area where they can readily be employed for self defense, again per Heller.
Given these as true, if she chooses to exercise her rights, she will be exposing her felon spouse to arrest and imprisonment despite no action being taken on his part.
Since Heller, has anyone argued that the constructive possession doctrine as applied is unconstitutional? If it has not been argued, is there a flaw in my argument?