Citation

Lisenby A. Estate planning and community property law journal ;; Sheridan Publishing ;; Texas Tech University S 2024; (CLE): 1-35.

Copyright

(Copyright © 2024)

DOI

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PMID

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Abstract

The Gun Control Act of 1968 criminalizes possession of firearms or ammunition by anyone belonging to a class identified in 18 U.S.C. Section 922(g) as a measure to reduce violent crime. Though people with a firearms disability lose the right of possession, such individuals still retain ownership rights and have a legal interest in property they may own. While the law arises from the Constitution's grant of congressional authority to regulate items transferred through interstate commerce, Section 922(g) violates due process by failing to provide a mechanism of legal compliance. The language of the statute and common law principles of possession leave people who still possess firearms at the time of their disability stuck between violating the law by either retaining actual possession of prohibited items or constructively possessing the property during a transfer. This oversight in the statute violates the property rights of those who still retain a legal ownership interest in prohibited items, and spouses without a legal disability lose the ability to manage property in jurisdictions recognizing community property.


This Comment proposes updating the statutory language to include two additional provisions: (1) a grace period during which a person in a prohibited class could legally manage their property after gaining a firearms disability and (2) a rebuttable presumption against possessory interests for future acquisitions of prohibited property. The proposed solution would serve the public interest of dispossession of firearms by people who commit serious violations of the law while protecting constitutionally guaranteed property interests. Additionally, the proposed solution would address inequities in enforcement of the current statute and prevent needless additional harm to those passing through the criminal justice system and their families.

https://epj.us/article/116982-dispossession-of-firearms-caught-in-the-crossfire-of-legal-impossibility

Language: en