MI: Three Judge Panel in Sixth Circuit: Right to Keep Arms applies to Possession of Arms

In the case of Novak, et al. v Federspiel, Saginaw County Sheriff’s Office seized fourteen guns from a cabin where a domestic violence event occurred. The cabin’s owners waited until the domestic violence case was completed. Then the owners of the cabin, who are relatives of the person charged, asserted the guns belonged to them and asked the Sheriff to return them. The guns were first taken in 2017.

The Sheriff refused to do so, saying, in part, the owners had not provided proof they owned the guns. Some of the guns were manufactured pre-1968 and were not made with serial numbers. The guns were older, and the owners did not have copies of receipts. Novak and Wenzel have filed affidavits stating they own the firearms.

Novak and Wenzel filed several state and federal cases against Sheriff Federspiel in his official and personal capacity, including claiming violation of their Constitutional rights under the  Fourth, Fifth, Fourteenth, and Second Amendment rights, in various permutations. Eventually, the lawsuits were dismissed at the state and federal level and the plaintiffs filed an appeal to the three judge panel of the Court of Appeal for the Sixth Circuit.

The three judge panel heard the case and reversed the District Court on summary judgement for a Fifth Amendment takings claim against Sheriff Federspiel, to allow a trial court to sort out those claims.

The three judge panel upheld the dismissal of due process claims.

The three judge panel examined the Second Amendment claims. They vacated the District Court’s summary judgement against the plaintiffs and sent the case back to the District Court. From the opinion bold added:

The right to keep or bear firearms would mean little if an individual lacked any presumptive right to keep or bear his own firearms. See Frein v. Penn. State Police, 47 F.4th 247, 254 (3d Cir. 2022). In that event, one might ask, whose firearms would one keep or bear? The district court, for its part, said the Second Amendment did not apply here because Federspiel had not interfered with Novak’s or Wenzel’s ability to buy or own other guns. But that reasoning has neither any limiting principle nor any basis in the caselaw; to the contrary, it conflates Bruen’s two steps into one.

The right to keep or bear one’s own firearms is quintessentially conduct that falls within the text of the Second Amendment. The relevant questions here, rather, are twofold. First whether these plaintiffs in fact owned these guns. And second, if so, whether Federspiel’s possession of them has been “consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. The district court can address those questions as necessary on remand. 

We vacate the district court’s grant of summary judgment to Federspiel on the official-capacity Second Amendment claims.3

This is an important precedential case. While this case includes disputes about proof of ownership, confiscation of arms found during a criminal investigation is common. Around the country, this correspondent often sees officials promiscuously confiscating arms which have nothing to do with the crime which was committed. To treat firearms as contraband is to treat the Second Amendment as a second class right.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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