# Person with gun in home, spouse is a felon, and Heller **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [September 19, 2018, 6:16pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591 "2018-09-19T18:16:03Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 19, 2018, 8:19pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/21 "2018-09-19T20:19:58Z")
> [@UltraVires](#): > > 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? I think the question has been answered. The courts have not found a conflict between the right to have access to a firearm and restrictions on denying access to people that shouldn’t have access, such as minors or felons. The courts seem to feel that if firearms are stored in a locked container that’s uninfringed enough for Second Amendment purposes. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 19, 2018, 8:22pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/22 "2018-09-19T20:22:27Z")
> [@UltraVires](#): > > Further, spouses are indeed charged with aiding and abetting a felon in possession and the courts are split regarding the level of knowledge required: > > [http://ia801407.us.archive.org/34/items/gov.uscourts.pawd.86847/gov.uscourts.pawd.86847.144.0.pdf](http://ia801407.us.archive.org/34/items/gov.uscourts.pawd.86847/gov.uscourts.pawd.86847.144.0.pdf) I didn’t read all of that, but skimming through it I found this (bolding mine): > [@](#): > > At defendant Hall‟s guilty plea hearing, which is a matter of public record, government counsel stated that: > Mr. Hall lived with . . . Melissa Huet, (who) had no prior record of which we are > aware, but . . . **bought firearms in her name for (sic)** Morgan Jones, who on the side sold firearms. . . **Miss Huet would allow Mr. Hall to have access to those firearms.** In essence, that‟s the very basis of the charge against Mr. Hall to which he is pleading guilty today. It doesn’t seem relevant to the OP. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 19, 2018, 8:23pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/23 "2018-09-19T20:23:04Z")
> [@UltraVires](#): > > 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. > [@UltraVires](#): > > There is no “safe storage” law for people who live with felons. This seems to be a contradiction. ---
**Author:** ![Quercus](https://avatars.discourse-cdn.com/v4/letter/q/7ab992/32.png) [@Quercus](https://boards.straightdope.com/u/Quercus)\ **Post date:** [September 19, 2018, 9:27pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/24 "2018-09-19T21:27:46Z")
I’m not sure that making a 2nd Amendment right argument is necessarily a winner. One can analogize to other rights, e.g. the Fourth amendment, too. In general, if there’s no probably cause that I’m involved in a crime, I have my 4th Amendment right to not have my nightstand searched by the police. But if I’m married to, and living with, someone where there’s a mountain of probable cause that they possess evidence of a crime, my own innocence isn’t going to keep my nightstand from being searched (absent evidence that it’s locked and my spouse never had access to it… but that gets back to the key part of the OP, doesn’t it?). Or, in general, I have the right to travel within the United States and hang out with whomever I want. But if my spouse is a convicted felon (particularly on parole), their rights to do so may be limited. I don’t think it’s a violation of my right to marry if we can’t travel together anywhere we wish. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 20, 2018, 1:07am UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/25 "2018-09-20T01:07:32Z")
> [@UltraVires](#): > > 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? I doubt there are any cases where there have been charges like that. I know that there are cases where someone under 21 has been charged with constructive possession of alcohol, but not when they’re apparently as innocent as the oxycodone and beer examples above. You wrote in the OP: > [@](#): > > 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. > > … > If anyone dispute the above, I will be happy to provide cites. Can you provide cites where someone has been found to be in the constructive possession of a firearm in equally innocent situations? ---
**Author:** ![Grestarian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/grestarian/32/3227_2.png) [@Grestarian](https://boards.straightdope.com/u/Grestarian)\ **Post date:** [September 20, 2018, 1:38am UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/26 "2018-09-20T01:38:19Z")
> [@UltraVires](#): > > 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? The final quotes for #15 and #16 above would suggest the felon’s spouse must either keep the firearm in direct bodily possession or, when choosing not to have direct control of the owned firearm(s), store it (them) in a container which is not accessible by the felon. There are plenty of storage devices constructed and sold specifically to limit access to firearms either via key, digital combination, or biometric sensor locks. The felon’s spouse would be advised to purchase one or more of such storage devices and utilize it, with further admonition to keep the key, code, or biometric programming set-up unavailable to the felon. * * * My mother-in-law’s neighbor had such a situation to deal with: Her younger son went to jail and she bought a gun fearing his ‘friends’ might come around to harass her. When the son got out of jail, he insisted on living ‘at home again’ until he could get on his feet with a job and his own place. She could not divorce him and would not force him to live homeless in the mountainous regions of New Mexico. In fact, she was worried he would be sent back to jail just for living in a house where there was a gun present. She started noticing that, whenever she came home from work, a different box in the garage seemed to have been opened (years of dust was no longer covering it). She told her son she no longer had the gun and that she had lied when she told him she had bought it, knowing he would tell his friends – who never did come around to harass her – but he spent months picking through the garage before moving out on his own. –G! ---
**Author:** ![Sloe\_Moe](https://avatars.discourse-cdn.com/v4/letter/s/8797f3/32.png) [@Sloe\_Moe](https://boards.straightdope.com/u/Sloe_Moe)\ **Post date:** [September 20, 2018, 2:57am UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/27 "2018-09-20T02:57:42Z")
“If that be the eyes of the law then the Law’s a bachelor!” ---
**Author:** ![Ambivalid](https://avatars.discourse-cdn.com/v4/letter/a/a5b964/32.png) [@Ambivalid](https://boards.straightdope.com/u/Ambivalid)\ **Post date:** [September 20, 2018, 4:34am UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/28 "2018-09-20T04:34:26Z")
> [@UltraVires](#): > > 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? It sounded like they said that while the “right to keep firearms in the house for ready self-defense” was burdened by these “safe storage” laws, the burden of their legality wasn’t catastrophic and was outweighed by the greater good coming from it. The fact that the laws allow on-the-person posession of guns to be ready for immediate use seemed to be the justification for upholding the legality sufficient not to infringe upon 2nd Amendment rights. (This is actually responding with the understanding that there are in fact safe storage laws in place for spouses of felons) ETA: IAdefinitelyNAL :o ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 20, 2018, 2:03pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/29 "2018-09-20T14:03:03Z")
> [@Little\_Nemo](#): > > This seems to be a contradiction. It’s not. There are no affirmative laws which require “safe storage” from felons. There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay. That is different than an affirmative law which says that if you do X, then you are legit. To analyze it to the First Amendment, such ill-defined standards cause a “chilling effect” on Second Amendment rights because a spouse must temper her Second Amendment rights in an unknown fashion. Further, as noted above, the law is not applied like a safe storage law for children. I am not charged as an aider and abetter nor are my children charged with constructive possession of my guns, alcohol, and prescription medication even though they can access them. ---
**Author:** ![x-ray\_vision](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/x-ray_vision/32/351_2.png) [@x-ray\_vision](https://boards.straightdope.com/u/x-ray_vision)\ **Post date:** [September 20, 2018, 7:33pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/30 "2018-09-20T19:33:20Z")
> [@Folly](#): > > Heck, Heller disagrees with him about safe storage laws being constitutional. > > > [@](#): > > > > Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Heller, supra at 632, 128 S.Ct. 2783 That’s not “Heller” disagreeing with the OP; that’s a dissenting judge making a claim regarding “our analysis” and not judgement. I’m not so sure all the other judges would agree with him. > [@UltraVires](#): > > There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay. Can you post examples? Court decisions don’t allow anything. They do, however, set examples for future court cases regarding how laws are interpreted. It is the laws that allow or disallow things. Let’s take a look at these court cases so we can discuss. ---
**Author:** ![Folly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folly/32/3219_2.png) [@Folly](https://boards.straightdope.com/u/Folly)\ **Post date:** [September 20, 2018, 7:39pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/31 "2018-09-20T19:39:00Z")
> [@x-ray\_vision](#): > > That’s not “Heller” disagreeing with the OP; that’s a dissenting judge making a claim regarding “our analysis” and not judgement. I’m not so sure all the other judges would agree with him. Incorrect. It is in section E IV of the main opinion as delivered by Scalia. In that section he is talking about the dissenting opinions. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [September 20, 2018, 11:51pm UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/32 "2018-09-20T23:51:02Z")
> [@UltraVires](#): > > 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. You’re delimiting your options either too narrowly or too broadly (I’m not a law-talking guy, so I don’t really know which adverb applies). A marriage does not _have_ to be dissolved in order for the partners to domicile separately. Conversely, it does not _have_ to remain intact in order for them to remain domiciled together. As to the “forfeiture” of your second amendment rights per Heller, maybe this “gotcha” you seem to believe you’ve discovered is more of an indicator that the decision handed down in Heller was too narrowly (or broadly) written. 😃 ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 21, 2018, 2:48am UTC](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591/33 "2018-09-21T02:48:08Z")
> [@UltraVires](#): > > It’s not. There are no affirmative laws which require “safe storage” from felons. There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay. > > That is different than an affirmative law which says that if you do X, then you are legit. To analyze it to the First Amendment, such ill-defined standards cause a “chilling effect” on Second Amendment rights because a spouse must temper her Second Amendment rights in an unknown fashion. > > Further, as noted above, the law is not applied like a safe storage law for children. I am not charged as an aider and abetter nor are my children charged with constructive possession of my guns, alcohol, and prescription medication even though they can access them. Are you saying people have been arrested for having a gun in the house when there are no laws prohibiting this? Because I find that surprising and would like to see some cites. [Previous page](https://boards.straightdope.com/t/person-with-gun-in-home-spouse-is-a-felon-and-heller/821591.md?page=1)