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?
A secondary question/debate is the definition of “dominion and control.” All of the cases speak of the “ability” to possess the firearm. Is this a possessory ability or a de facto ability?
For example, suppose we are roommates and you leave your grandfather’s priceless pocket watch on the kitchen table. You leave for work. Do I have “dominion and control” over the watch?
In a way, I do. I have the ability to hold it, take it apart, look at it, even steal it and sell it at a pawn shop.
In a different way I do not, because any action I take with the watch is trespassory in nature and wrongful.
Is it your opinion that keeping your weapons locked up sufficiently that, say, your five year old child can’t get into them would be impossible to do without violating the ‘ready access’ rights granted by Heller?
Your “flaw”, as with many right wing conservatives when it comes to gun ownership issues, is that you repeatedly ignore the fact that any right, constitutionally mandated or not, can be curtailed if you break the law and show that it is dangerous or irresponsible for you to have that right.
To dispense with that rule is to create yet another gun ownership loophole that can be taken advantage of. “No, I don’t have a gun, but the person sleeping with me has one unlocked and available only ten feet away.”
WTF? Where in the hell does the “conservative” attack come from? When doing research for a client, I’ll argue the communist position if need be.
Anyways, the spouse has never committed a crime so her rights should not be “curtailed” in any way. Any freedom makes law enforcement harder. You might as well say that there should be no Fourth Amendment because felons can just hide guns in homes.
You’re not seeing it? I don’t see how it’s any different. Many states have laws that make it illegal for an adult to store a gun in a manner that makes it easily accessible to a child. Several states have made it so they must be locked in a safe or container of some sort or have gun locks on them.
I’m just wondering how absurd it is to claim that requiring a person to lock their drawer is illegal under Heller.
And also to point out that nobody is actually requiring the non-felon spouse to lock the drawer, any more than anybody is required* to keep their loaded handguns out of the hands of children. If the parent gives a fuck about their child, then they will lock up their guns, Heller or not, and the fact that they care about their child is not a violation of any rights granted by Heller.
Their decision to aid their spouse in complying with the law is, similarly, their choice. Unless you think they could be charge as an accessory to commit constructive possession?
*ETA: Okay, maybe parents ARE required to lock up their guns if they have kids. What does this say about the rights granted by Heller?
I’m not asking about best practices. Again, assume no children in the house so we don’t have to deal with who is a responsible parent and who is not. That isn’t the question.
Further, spouses are indeed charged with aiding and abetting a felon in possession and the courts are split regarding the level of knowledge required:
That’s the whole question in the OP. Yes the gun is technically “available” to the felon spouse, but the law says possession and not availability. It seems like it would be against public policy that if my spouse is convicted of a felony, I then have the choice of forfeiting my second amendment rights or divorcing my spouse.
That construction would also expose anyone in the house to possession of others’ prescription medication. Let’s say I have a prescription for oxycodone and the bottle is in the medicine cabinet. Is my wife in constructive possession of a controlled substance without a valid prescription? If I have beer in the fridge are my kids now minors in constructive possession of alcohol?
And I have no constitutional right to have oxycodone or alcohol.
Good point. It makes the gun lock laws when children live in the house a better example for the OP, unless someone can find an example where both parties were charged.
That’s your opinion; the courts disagree with you. Which would you like to discuss?
With children, yes. I bet know one will find a case where one has been charged with a crime fitting the example in the OP. Here’s an interesting case:
Post #10. If there was a law requiring “safe storage” in a home with a convicted felon, we could argue about the constitutionality, but I would agree with the analogy.
The analogy fails because in this instance it would be like having a state with no safe storage law, but finding that keeping a firearm in an unlocked nightstand provided “constructive possession” to a child and bringing a juvenile petition against the child for having a pistol while underage and charging the parent with aiding and abetting that possession.
The safe storage laws are not apt, nor are they constitutional. That’s not my opinion. See the direct quote from Heller I provided in post #10?
Okay. I stand corrected, although that seems as odds with Heller’s fundamental holding. How can you pass a law mandating “safe storage” of firearms yet have them available for “immediate” self-defense?
No matter, we are far afield here of my question in the OP. There is no “safe storage” law for people who live with felons. The spouse further has the right to keep firearms in the house for ready self-defense.
How does one do that without subjecting herself or her spouse to arrest?
Post 15 is a safe storage law for people who live with felons. And people who live with children. And people who live without children or felons. And people who live with polydactyl cats.
I didn’t know that there was a restriction on the gun ownership of spouses of convicted felons. I used to listen to G. Gordon Liddy’s radio show occasionally, and he would openly brag about all of “his wife’s guns.”