Trump's Firearm Prohibition and the Legal Hurdle of U.S. v. Bean

Hey hey, TCPATalk! Taking a break from our normal TCPA-centric programming this week to write about an interesting legal nugget based on current events.

In a recent turn of events, former President Trump has been convicted of a felony, a development that carries significant legal repercussions, including a prohibition on firearm possession under 18 U.S.C. § 922(g). This statute categorically bars felons from possessing firearms, reflecting a broader federal mandate to enhance public safety by preventing individuals with serious criminal records from accessing weapons.

Under federal law, "possession" of a firearm encompasses both actual and constructive possession. Actual possession occurs when an individual has direct physical control over a firearm, such as holding it in their hand or having it on their person. Constructive possession, on the other hand, is defined more broadly. It refers to situations where an individual may not physically hold the firearm but has the power and intention to exercise control over it. This can include having firearms stored in one’s home or vehicle, in their spouse’s nightstand while sharing the same bed, etc., as long as the individual has knowledge of and access to them.

Given these definitions, the presence of Secret Service agents around Trump, who are armed for his protection, raises questions about whether this constitutes a violation of 18 U.S.C. § 922(g). Legal interpretations generally suggest that mere proximity to firearms held by others, such as law enforcement officers or Secret Service agents, does not automatically translate to possession. For a violation to occur, there must be evidence that Trump has control over or access to these weapons.

In practical terms, as long as Trump does not have direct control or the ability to access and exercise dominion over the firearms carried by his Secret Service detail, he likely will not be deemed in violation of the statute. The Secret Service’s role is to provide protection, and their firearms are not intended to be under the control or direction of the protectee. Therefore, under normal circumstances, the presence of armed Secret Service agents is unlikely to constitute a violation of Trump’s firearm prohibition under 18 U.S.C. § 922(g).

However, apart from a possible but unlikely pardon, there exists a potential pathway for Trump to regain his firearm rights under the provisions of 18 U.S.C. § 925(c). This statute allows individuals subject to firearm prohibitions to apply for relief by petitioning the Attorney General. The relief can be granted if the applicant demonstrates that they are not likely to act “in a manner dangerous to public safety” and that granting relief “would not be contrary to the public interest.”

Despite this legal avenue, Trump faces a formidable obstacle rooted in the landmark Supreme Court case of U.S. v. Bean, 537 U.S. 71 (2002). The case centered on the statutory requirement that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must “act” on a petition for relief before an individual can seek judicial review of the petition. In the early 1990s, Congress defunded the ATF's ability to process applications under Section 925(c), effectively putting a halt to any action on such petitions. In Bean, the Supreme Court unanimously held that without the ATF's action on a petition, courts lack the authority to review the application or provide relief. This decision underscored the critical procedural step that must be met: the ATF's consideration of the petition is a necessary precursor to any judicial intervention. And, because Congress has refused to fund ATF’s consideration of such petitions since the 1990s, the ATF’s hands are tied.

Given the current legislative and administrative landscape, where the ATF has not processed these applications for decades, Trump’s ability to lift the firearm prohibition under 18 U.S.C. § 925(c) remains highly improbable. The Supreme Court's ruling in Bean effectively locks the door to judicial review until such time as the ATF acts, leaving individuals like Trump in a legal limbo where the relief mechanism exists in theory but is inaccessible in practice.

As it stands, the firearm prohibition imposed by 18 U.S.C. § 922(g) will likely remain in place for Trump, highlighting a significant intersection of legislative action, judicial interpretation, and administrative policy in the realm of firearm regulations.