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

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?

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?

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?

Can felons hunt with crossbows in Virginia?

I have written before about the rampant confusion surrounding the issue of whether or not felons can possess, and hunt with, black powder firearms in Virginia.

But there is a separate question that comes up almost as often and that is whether or not felons can possess, and hunt with, crossbows.

I believe that part of the confusion is based upon the fact that crossbows were not allowed to be used for hunting by anyone in Virginia until 2005, except in the case of hunters “whose physical disabilities prevent[ed] them from hunting with conventional archery equipment.

Because of this, many people seem to mentally separate crossbows from conventional bows and assume that they are regulated more like firearms (which are prohibited to felons whose gun rights have not been restored).  But is that correct?

As always, when we are discussing an issue of ‘firearms’ law, we have to examine both state and federal law.  So let’s start by looking at federal law.

Federal law, at 18 U.S.C. § 921(a)(3), defines a firearm as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

So … since crossbows use stored potential energy to propel an arrow rather than the action of an ‘explosive’ (or rapidly burning propellant), they are not prohibited to felons under federal law.

But we still have state law to consider.

I will start by noting that there are no statutes which specifically prohibit crossbows to felons in the Code of Virginia.  So we need to determine if they are swept into the state definiton of ‘firearms’.

In Virginia, the definition of ‘firearm’ is contained in a number of statues, including those governing when a background check needs to be performed (§ 18.2-308.2:2).  Under this code section, we see a definition of “firearm” that closely matches the federal definition.

“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

Once again we find that crossbows do not meet this definition.  But we are not done yet. As always, we end our analysis by looking at case law.

After reviewing the holdings of the Virginia Supreme Court, Court of Appeals, and Circuit Courts, I am unable to find any case law which could even tangentially be read to imply that crossbows are considered ‘firearms’ under Virginia law or that they are denied to those convicted of a felony.

In summary, it appears that, in Virginia, there are no statutory bars to the lawful purchase or possession of crossbows by convicted felons.  This would include their use for lawful hunting.

NOTES:  The one caveat I must add is that, for those still on supervised probation, there may be conditions of probation which would change this analysis.

If you are a convicted felon who wishes to regain his or her right to possess firearms then I will be glad to discuss representing you in petitioning the court for restoration of your rights.

If you have any other questions feel free to contact me for a free consultation.


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.

Posted in Bows, Criminal Law, Crossbows, Federal Law, Felons, Gun Rights Restoration, Virginia Law | Comments Off on Can felons hunt with crossbows in Virginia?

You no longer need to print ATF Form 1’s and Form 4’s double-sided

I received an email today from a client who had noticed that the latest downloadable versions of both the Form 1 and the Form 4 now have new instructions regarding the printing of the forms.

Prior versions of both forms (including the initial versions released for the implementation of 41F) required that the forms be printed double-sided at the risk of disapproval of the application.

The specific instruction on the old versions of both forms stated:

Photocopies or Computer Generated Versions.   After downloading or copying and printing this form from the ATF website, ensure that the front and back are on the same sheet of paper. The NFA Branch will not approve the application if the front and back are on separate sheets of paper.

The new version specifically disavows this requirement.  The new instruction states:

Photocopies or Computer Generated Versions.  The form may be copied or downloaded (for example, from the ATF website (www.atf.gov)). The form does not have to be printed front to back.

My guides to completing both forms have been updated accordingly.

Posted in 41F, ATF, BATFE, Form 1, Form 4, NFA Transfers | Comments Off on You no longer need to print ATF Form 1’s and Form 4’s double-sided