TheFriendlyMarksman said:
There is no statute that specifically answers this question, and the opinions mentioned above are just that, lower court opinions. The law on this matter is still unsettled....
It's only seldom that there's a statute which will, by itself, be the basis for the answer to a factually vague or complex question. Any answer, to the extent that there actually is an answer, will need to come from an analysis of the the application of relevant law, both statute and case law, to the facts.
For the purpose of this analysis we'll look only at federal law. To the extent state law is more lax than federal law, federal law will, under the Supremacy Clause (Article VI, Clause 2 of the Constitution) will control. If state law is stricter, it will apply (18 USC 927).
The statute we need to concern ourselves with is 18 USC 922(g):
(g) It shall be unlawful for any person—
[subparagraph (1) -- (9) list the classes of prohibited persons]
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
So we first consider what constitutes possession for the purposes of this statute. The legal meaning of "possession" is well understood under federal law (see
U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1, emphasis added)):
...The law recognizes two kinds of possession, actual possession and constructive possession.... Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...
In post 2 I cited two federal court of appeal decisions considering when access without actual physical possession nonetheless constituted possession for the purposes of an 18 USC 922(g) violation.
And here's what the courts have said about the interstate commerce issue under 18 USC 922(g):
- In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:
...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....
In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:
...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...
- In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:
...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...
In rejected Singletary's assertion, the court of appeal noted, at 200:
...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....
- In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:
... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...
So if a house guest who is prohibited from possessing a gun has any access to the host's gun, and if the host's gun was ever transported in interstate commerce. it's probable that the house guest could be charged and convicted of a violation of 18 USC 922(g), i. e., a prohibited person unlawfully in possession of a gun. There's also the possibility that the host could be charged and convicted of aiding and abetting that crime.
TheFriendlyMarksman said:
....I actually contacted one of the nation's leading legal scholars, Eugene Volokh, about this very question, some time ago.
This appears to be another of your cheap rhetorical tricks I've had occasion to comment on before. For your comment to be meaningful you will need to provide evidence of --
- Exactly what you asked him and in what context; and
- Exactly what his response was.
Also, since in my view based on your posting history you generally lack credibility, your evidence needs to be more robust than your merely telling us the answers.
, at least with a gun.