In a decision touching on the U.S. Constitution’s Second Amendment right to bear arms, the V.I. Supreme Court issued an opinion this week upholding St. Thomas resident Justin Sonson’s convictions for aiding and abetting unauthorized possession of a firearm and failing to report ammunition.
A jury convicted Sonson of the charges after a conflict where Sonson and another man, Douglas Forbes, went to the home of a person Forbes had been arguing with, knocked on the door and started a verbal altercation, during which Forbes "retrieved" a loaded sawed-off shotgun, according to the opinion.
Forbes pleaded guilty to failing to report the firearm and ammunition while being aided and abetted by Sonson.
Sonson argued that the V.I. law violated the second and 14th amendments to the constitution, citing the U.S. Supreme Court cases of Columbia V. Heller (2008) and McDonald v. City of Chicago (2010).
Because Sonson did not raise the constitutional issue at trial, the Supreme Court must review the lower court decision solely for "plain error" – a high threshold for overturning the lower court, according to the opinion written by Justice Ive Swan.
Swan said the V.I. Supreme Court addressed Sonson’s argument before, in Hightree v. Virgin Islands (2011), and that "Sonson presents no reason to alter our decision in that case."
"The facts remain the same that both Heller and McDonald only struck down statutes that placed complete bans on handgun possession. Both cases expressly authorized the regulation of handguns," Swan said.
However, the justices did not directly assert that the V.I. law is constitutional. Instead Swan wrote that "given Sonson’s failure to raise the issue of constitutionality … at trial, and any asserted error being neither clear nor plain under the current law, we decline to consider Sonson’s Second Amendment claim."
Sonson also argued that he could not be guilty of failure to report ammunition because there was no evidence he "purchased" or "obtained" the ammunition. The majority ruled that V.I. law does not require proof of purchase, nor actual, physical possession, but only of constructive possession – that he had ready access to it and could put it in his hand at will.
Since Sonson knew of and had ready access to the firearm and ammunition, he had actual possession of the ammunition and so had a legal obligation to report the ammunition immediately, according to the ruling.
In a partially concurring, partially dissenting opinion, Justice Rhys Hodge disagreed about the ammunition conviction. Hodge said the majority mistakenly concludes it does not matter if Sonson had actual, physical possession of the ammunition, his constructive possession means he had a legal obligation to immediately report it.
"Many courts to have considered the question have held, when a criminal statute refers to possession without referencing actual or constructive possession, that only actual possession is contemplated," Hodge said."Because the reporting requirements of (the law) apply only to individuals who actively possess ammunition – rather than constructively possess it – and because there is no evidence that Sonson actually possessed any ammunition, I would reverse his conviction" for the ammunition violation, he said.