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minorgunWe previously wrote about a denied gun buyer at auction and their right(s) subsequent to the denial.

We held that the contract for sale (transferring title and possession) is void in these cases and therefore the gun still belongs to whoever it belonged to prior to the auctioneer announcing, “Sold!” Our thoughts on that specific situation can be read here: https://mikebrandlyauctioneer.wordpress.com/2015/06/22/gun-buyer-at-auction-is-denied/

Some claim that in the above circumstance, the buyer gains title but not possession and then can direct a follow-up auction of this gun to someone else, being enriched by the second sale’s net proceeds.

We disagreed. Contracts formed at auction necessarily include both title and possession unless at the time of auction, title without possession is specifically put up.

However, what about a felon or minor who already has title to a gun, but not possession? For example, in an estate, a minor or other prohibited person inherits (title) a gun with the probate court holding the gun (possession.)

Can such a person direct — or profit from — the sale of this gun at auction? It appears so, as long as the transfer doesn’t constitute actual or constructive possession of the seller.

This principle was made law in the United States by the Supreme Court of the United States case Henderson v. United States

Per the Supreme Court, actual possession would involve the prohibited person from gaining possession himself, and constructive possession would be a spouse or other close associate who would likely be essentially acting as a proxy for the prohibited person.

In summary if a gun buyer at auction is denied, the gun still belongs to the seller. If a prohibited gun owner otherwise acquires title to a gun, but not possession, that gun can be sold for that owner, so long as it is sold to a permitted buyer who doesn’t constitute a constructive possessor for any prohibited owner.

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Adjunct Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.