Do I lose my gun rights if I voluntarily seek mental health treatment?

Posted on March 22, 2017 by John Pierce

The criteria for which types of mental health issues might give rise to a gun rights prohibition under either state or federal law is staggeringly complex.

For the average citizen, unfamiliar with researching and parsing legal language, the task of understanding this area of law can span the spectrum from daunting to impossible.

Perhaps even worse, it can lead to a proliferation of misunderstandings and misinformation which has the real possibility of criminal charges being filed against a confused applicant for answering one of the questions on a state or federal background check form incorrectly.

Because of this, I would encourage anyone who is uncertain about a given event in their past to contact me for a free consultation during which we can discuss the issue and determine what steps we need to take to clarify the situation.

However there are a few questions which remarkably have a clearly defined answer and one of the most common is this:

“If I voluntarily admitted myself to get mental health treatment, have I lost my gun rights?”

The answer is “No.  Not if you sought voluntary treatment entirely on your own.”  I have to add that caveat to the answer because, under state law, voluntarily admitting yourself for treatment after being held on a temporary detention order (TDO) still results in a prohibition.

However, if a TDO is not involved and a person admits themselves for treatment voluntarily (and is not subsequently committed or ruled to be mentally incompetent or incapacitated by a board, authority, or magistrate) then this does not trigger a prohibition under state or federal law.

The ATF provides a guidance sheet covering federal law which I have embedded below.  I have highlighted the relevant portion.

Download (PDF, 114KB)

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer is specific to Virginia.  Other states may and do have laws which differ from this analysis.  In those cases you should consult an attorney licensed to practice law in that specific state.

Posted in 4473, ATF, ATF Guidance Letters, BATFE, Criminal Law, Federal Law, Mental Health, Purchasing Firearms, Virginia Law | Comments Off on Do I lose my gun rights if I voluntarily seek mental health treatment?

The ATF is effectively reversing their position on stabilizing braces once again

Posted on March 21, 2017 by John Pierce

In the Fall of 2014, I wrote about a series of actions on the part of the ATF that lead me to believe that they were attempting to modify their interpretation of the stabilizing brace issue.

On January 16, 2015 the ATF issued an open letter in which they confirmed my fears.  In that letter, they put forward the position that merely shouldering a pistol equipped with a stabilizing brace constituted a ‘redesign’ of the firearm resulting in an unregistered short-barreled rifle (SBR).

That left owners and manufacturers of stabilizing braces in a state of uncertainty. Thankfully, several players in the industry challenged the open letter. On January 5, 2017, the counsel for SB Tactical, LLC sent a letter to ATF Acting Director Thomas Brandon requesting reconsideration of the position taken in the January 16, 2015 open letter.

The ATF officially responded to this request on March 21, 2017 in a letter in which they claimed they were not reversing their previous position but in effect did just that. The entire letter is embedded below but the key elements from the letter are:

“With respect to stabilizing braces, ATF has concluded that attaching the brace to a handgun as a forearm brace does not ‘make’ a short-barreled firearm because … it is not intended to be and cannot comfortably be fired from the shoulder.”

“Therefore, an NFA firearm has not necessarily been made when the device is not re-configured for use as a shoulder stock — even if the attached firearm happens to be fired from the shoulder.”

“To the extent the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational ‘use’ of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute a ‘redesign,’ such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which it has historically been enforced.”

They did go on to add that actions which would still constitute re-design include taking affirmative steps such as:

  • Permanently affixing the brace to the end of a buffer tube at a length that would not allow its use as an arm brace;
  • Removing the arm strap; or
  • Otherwise undermining its ability to actually be used as an arm brace.

I encourage my clients to read the entire letter below so they understand the limits of what I hope is the ATF’s final position.  But as of now, the stabilizing brace is once again a viable alternative for occasionally shouldering your AR pistol.

Download (PDF, 154KB)

Posted in Administrative Law, AR Pistols, ATF, ATF Guidance Letters, BATFE, SBR, Short Barreled Rifles, Stabilizing Brace | Comments Off on The ATF is effectively reversing their position on stabilizing braces once again

Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

Posted on March 19, 2017 by John Pierce

In 1994, Paul Anthony Leone was convicted of felony possession of marijuana in Virginia.  This conviction stripped him of both his political rights and his right to possess firearms.

Years later, in 2012, Mr. Leone, now living in North Carolina, successfully applied to Governor McDonnell for a restoration of his political rights.  Having done so, he then petitioned the Virginia Beach Circuit Court for  a restoration of his firearm rights.

Over the objections of the Commonwealth’s Attorney the court granted his petition.  The Commonwealth subsequently appealed and the Supreme Court of Virginia ultimately reversed the order on the grounds that the clear text of 18.2-308.2(C) only allows petitioners to “petition the circuit court of the jurisdiction in which he resides.”

Since Mr. Leone admittedly was no longer a resident of the Commonwealth, the court held in Commonwealth v. Leone, 286 Va. 147, 747 S.E.2d 809 (Va., 2013), that the Legislature had “ limited the territorial jurisdiction of circuit courts to adjudication of petitions for restoration filed by persons who reside within the territorial jurisdiction of the circuit court.”

In short, the court held that non-residents need not apply.  At least not unless the Legislature were to revisit the issue.

During the 2015 legislative session, the Legislature did just that.  Delegate Fowler introduced HB 1666 to allow non-residents of the Commonwealth who were originally convicted in a Virginia court to petition the circuit court in “the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent of a disqualifying offense” for restoration of their firearm rights.

The bill passed the House and Senate and was signed by the Governor on March 16th, 2015 and it went into effect on July 1st, 2015.

Unfortunately, Delegate Fowler’s bill only addressed gun rights restoration in the circuit courts for those suffering from a prohibition based upon a felony conviction.  However, that is not the only restoration mechanism in Virginia law.

Under  sections 18.2-308.1:1, 18.2-308.1:2, and 18.2-308.1:3 of the Code of Virginia, those who have lost their right to possess firearms based upon different types of mental health issues may also petition for restoration of those rights in the general district court of the jurisdiction where they reside.  As you can see, these sections suffer from the same jurisdictional language flaw as that which existed in  § 18.2-308.2(C) prior to July 1, 2015.

This year I drafted a bill to make the same correction to these three sections that Delegate Fowler’s bill made to  § 18.2-308.2(C) in 2015.  My local delegate Israel O’Quinn was kind enough to carry the bill despite my bringing it to him at the very last moment.  Thanks to his assistance, HB 2429 passed both the House of Delegates and the Senate with unanimous votes and was signed into law by the Governor on March 16th.

It will go into effect on July 1, 2017 and will allow non-residents whose mental health prohibition originated in Virginia to petition the general district court in the jurisdiction where their most recent mental health disqualifying event occurred.

You may be asking yourself why the anti-gun members of the House and Senate voted for a bill that can be categorized as pro-gun.  I believe it is because this bill does nothing to change the broad discretion that judges have when evaluating such cases.  It merely gives non-residents the ability to petition for a hearing on the matter.  This bill is not pro-gun so much as it is pro-due process and I suspect that is how it was seen by even anti-gun legislators.

Having said that, gun rights restorations based upon mental health dis-qualifiers are granted in far fewer cases than those based upon felony convictions and I do not anticipate this bill changing that in the slightest.  To maximize a petitioner’s chance of success, it will continue to be critical that they are represented by someone with a detailed knowledge of the process and the factors a judge will consider when making this important public safety decision.

If you are a Virginia resident or non-resident with a Virginia-based prohibition, I will be happy to speak to you about your chances for petitioning for the restoration of your rights in Virginia.

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Mental Health, Virginia Law | Comments Off on Governor signs bill allowing non-residents with a VA mental health prohibition to petition for gun rights restoration

Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Posted on February 5, 2017 by John Pierce

In my last post I answered the question of whether or not an FFL is required if one is only manufacturing and selling AR-15 uppers.

Almost immediately I was asked a follow-up question about whether or not a person who is only manufacturing uppers (and therefore not subject to the requirement of holding an FFL) would still need to register with ITAR.

For those of you unfamiliar with ITAR, I have a detailed article on the registration requirements of ITAR for those holding a manufacturing FFL.  However, here we are talking about manufacturing uppers without holding an FFL of any kind.

To evaluate this unique question, we start with the regulation which governs the registration requirements or the International Traffic in Arms Regulations (ITAR) which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA).  The relevant section (emphasis added) is as follows:

Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.

As for what constitutes ‘defense articles’, 22 CFR 121.1 contains a complete listing under what is known as The United States Munitions List (USML).  The relevant section is contained in Category I of the list in subsections g and h (with reference to subsection a):

(a) Nonautomatic and semi-automatic firearms to caliber .50 inclusive (12.7 mm).

…

(g) Barrels, cylinders, receivers (frames) or complete breech mechanisms for the articles in paragraphs (a) through (d) of this category.

(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.

The short answer is that, despite not requiring an FFL, those seeking to manufacture uppers for the AR-15 platform are required to register for ITAR and pay the registration fee.

So … how bad is this fee?  It’s pretty bad.  If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant.  Therefore you would only have to pay the lowest possible fee.

A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.

I understand that this registration requirement imposes a significant barrier to entry into the firearms industry.  However, until we see federal action on the issue I will continue to educate my clients on the ITAR requirements.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in AR-15, ATF, BATFE, Federal Law, ITAR, Manufacturing, Uppers | Comments Off on Do you have to register for ITAR if you are only manufacturing AR-15 uppers?

Do you need an FFL to manufacture and sell AR-15 uppers?

Posted on February 5, 2017 by John Pierce

I was recently asked whether an FFL is required to manufacture and sell AR-15 uppers.

The answer is ‘no‘ but I want to caution readers that this would not necessarily be the case if the upper in question was for a different firearm.

In the AR platform, the lower is the serialized item (the actual firearm), whereas uppers are considered merely accessories and are not serialized.  Therefore, manufacturing and selling only the upper would not require an FFL (Federal Firearms License) since you are not dealing with an item considered to be a ‘firearm’ or ammunition.

This analysis would not be the same on certain other platforms.  For example, in the FN-FAL and Bushmaster ACR designs (to name just a few) the upper is the serialized ‘firearm’ and therefore an FFL would be required to manufacture or sell uppers for those designs.

Disclaimer:  Please note that this analysis is specifically focused on whether an FFL is required.  Individual states may place additional restrictions or requirements upon the manufacture of firearms components.

Posted in AR-15, ATF, BATFE, Federal Law, FFL Issues, Manufacturing, Uppers | Comments Off on Do you need an FFL to manufacture and sell AR-15 uppers?