On Monday, the Supreme Court granted certiorari in Henderson v. United States, a case that the Eleventh Circuit decided earlier this year. Although the case comes from Florida, its outcome will impact the Sixth Circuit as well. The issue in the case centers around whether the rule that “seized property, other than contraband, should be returned to the rightful owner after . . . criminal proceedings have terminated” allows a convicted felon to transfer his nonpossessory interest in firearms to a third party, despite the blanket statutory prohibition on felons possessing firearms.

In a per curiam opinion, the Eleventh Circuit held that 18 USC § 922(g)—which forbids a convicted felon’s possession of firearms—and circuit precedent clearly prohibited even a sale of transfer of the felon’s nonpossessory interest in the firearms. In so holding, the Eleventh Circuit joined the Third, Sixth, and Eighth in their prohibition on transfers of a felon’s nonpossessory interest in firearms. The Sixth Circuit addressed this issue in the 2002 case of United States v. Headley, 50 Fed.App’x. 266 (2002), where a defendant convicted of tax evasion and student loan fraud sought the transfer of his fourteen firearms to his father. Citing persuasive but not binding precedent, the Sixth Circuit reasoned that “[b]ecause Headley lacks the power to lawfully possess the firearms himself, he also cannot delegate the authority to possess these firearms to another individual.”

However, the Seventh Circuit—per Judge Easterbrooke in 2009—held opposite the Sixth Circuit’s decision, reasoning that the felon’s constructive interest in the firearms (albeit not his possessory interest) continues after conviction despite § 922(g). The Second and Fifth Circuits agree.

Despite relatively short and simple opinions in these cases, the circuit split spanning several years has generated a controversy sizeable enough to concern the High Court. With the split almost evenly numbered, there is no clear indication as to which way SCOTUS will rule on the issue. But we will be sure to watch this petition as it works its way through the Court and ultimately to see whether the Sixth Circuit is indirectly affirmed or overturned.