What does the 2019 election mean to Virginia gun owners and FFLs?

What does the 2019 election mean to Virginia gun owners and FFLs?

Since the 2019 election, my phone has been ringing non-stop.  Gun owners and dealers have heard the Governor and the newly-elected majority bragging about their plans to decimate the right to keep and bear arms in the Commonwealth and they are rightfully concerned.  The question on everyone’s mind is “What does the 2019 election mean to Virginia gun owners and FFLs?

Many people have expressed an intent to move out of state.

Others are insisting that they will not comply with any new laws that infringe upon the rights of law-abiding gun owners.

Dealers are asking whether  it is worth it to keep their SOT or make new investments in their business.

Buyers are asking whether they should even bother completing Form 4s for newly purchased suppressors.

Other, more pragmatic, callers are asking focused questions about the scope of the proposed laws, whether there will be any grandfathering, or if there will be compensation for items banned.

But all of them share one thing in common … they want to understand just how bad the legal environment will be after the 2020 session and want advice on what to do.

I, as a gun owner myself, understand and share in these concerns.  While it is clear that gun-owners are going to be the stalking horse for all the problems faced by this administration, my short-term advice is this … “for now act as if nothing has changed.

Let me explain …

1)  The bills that were introduced during the special session were intended to make a political statement rather than to present actual effective legislation.  They were a kitchen-sink of gun control items to distract from the scandals plaguing the Governor and Lt. Governor and to secure the support of gun-control groups for the 2019 election.  We will certainly see the same proposals again but the ones that will be introduced in the Spring will almost certainly have key differences and until we see those differences, we cannot evaluate the effects and chances at passage.

2)  After the special session failed to yield any results, the Virginia State Crime Commission conducted hearings on the proposals to study what effect they each might have on actual crime in the Commonwealth.  The Virginia State Crime Commission is bi-partisan and should be counted upon to deliver advice that actually speaks to the real data concerning the various proposals.  For example, that suppressors do not ‘silence’ a firearm any more than a muffler silences a dump truck.  It merely reduces the sound so that hearing protection can more adequately protect a shooter’s hearing.

3)  There are those in the governor’s party who are ‘moderates’ (or who at least act moderate due pressure from their constituents) and who will not be willing to support some of the more draconian of his proposals.  Any findings from the Crime Commission will provide political cover to these ‘moderates’.  It is my hope that the proposed suppressor ban in particular may fall due to this combination.  I hope it may also be a stumbling block to the ‘assault firearm’ ban, at least in its current form.

4)  Even if some, or all, of the governor’s proposals are signed into law, the versions passed will of necessity almost certainly have elements of grandfathering, phase-in periods, etc., and will not take effect until July 1, 2020.  And even then, I fully anticipate that VCDL, NRA, GOA, and possibly other gun rights groups will be mounting legal challenges that may result in the laws being delayed in implementation.  All of this gives those who may wish to move their families or collections out of state plenty of time to react after we know the actual details of what we are facing and can craft appropriate solutions.

NOTE:  I have been asked several time whether these could be passed as Emergency Legislation and therefore go into effect prior to July 1.  The answer is a resounding “No”.

Pursuant to Article 4, § 13 of the Virginia Constitution as well as § 1-214 of the Code of Virginia, they would require a four-fifths vote of the members in each house of the General Assembly and they do not have anywhere close to that kind of support.

5)  If gun owners stop participating in the firearms economy now for fear of what might happen then they will end up destroying those businesses who have invested their lives in the industry.  It would be truly short-sighted for gun owners to destroy the industry by non-participation before any bills are even re-introduced.  Instead, support your local gun shop, add to your collection, stock up on accessories!

6) We are seeing a groundswell of localities that are passing “Second Amendment Sanctuary” resolutions which promise non-enforcement of unconstitutional laws. Given the number that have already adopted such resolutions and the number scheduled for debate, it is extremely likely that by January 8th when the session officially starts, over 75% of all localities will have passed such resolutions.  Politicians, even ideologues, respect only two things, money and numbers.  Such an unprecedented groundswell will give pause to all but the most ardent supporter of civilian disarmament.  See the latest map below:

Please understand that this advice is merely meant to answer the questions we are all facing in the days following the election.  I am not saying that gun owners should stick their heads in the sand.  Nor am I saying that things will be fine.  They most certainly will not be fine.  We are facing a focused attempt to destroy the traditions of shooting sports in the Commonwealth. However, we need to continue to fight within the political and legal channels available to us to try and minimize the impact.

I will update this post as more information becomes available.

Take Action in The Meantime

In the meantime, people want to know what they can do.  With the full disclosure that I am an unpaid member of the Board of Directors of VCDL, I suggest the following:

1) Join the Virginia Citizens Defense League (VCDL).

2) Sign up for the VCDL VA-ALERT email list.

3) Contact your Senator and Delegate and tell them you expect them to oppose these bills.

4) Do whatever is necessary to be at the VCDL Lobby Day on Monday January 20, 2020.

5)  Work to have your locality pass a Second Amendment Sanctuary resolution.  While the effect of these is largely symbolic, they send a powerful message to the incoming majority that any attempt at banning or confiscating firearms will run counter to the will of the majority of Virginians.  You may download the VCDL Model Resolution here.

6) Encourage your friends and family members do repeat these steps.

Posted in Age To Possess, AR-15, Assault Firearms, NFA Trusts, Virginia Law, Virginia Politics | Comments Off on What does the 2019 election mean to Virginia gun owners and FFLs?

May non-immigrant aliens buy firearms?

May non-immigrant aliens buy firearms?

In the United States, citizenship is a complicated issue and it becomes even more so when firearms are involved.  A very common question I am asked is “May non-immigrant aliens buy firearms?

The answer, as is often the case with legal questions, is “maybe.”  To fully answer the question, we need to further explore the details of a given client’s immigration status.

I should note that this particular article is focused on the issues faced by non-immigrant aliens and does not address green-card holders, who are generally treated like U.S. citizens where firearm laws are concerned.  I have a separate article on green card holders and firearms which goes into further detail.

Federal Law

Returning to today’s question of “May non-immigrant aliens buy firearms?”, we will first address federal law.  You start by asking whether or not the client is a ‘documented’ alien.   This means that they have one or more of the following (even those admitted under refugee status will have one or more of these):

  • A#- Alien Number
  • AR# – Alien Registration Number
  • USCIS# – United States Citizenship and Immigrations Services Number
  • I-94# – Arrival and Departure Record Number

If the client is undocumented, then they are not able to purchase, possess, or transport firearms in the United States until that requirement is satisfied.

If they have an appropriate identification number then the next key question is whether they were admitted under a Visa.

If they were NOT admitted  under a Visa (e.g. Visa Waiver Program) then they MAY purchase and possess firearms in the United States as long as they are not otherwise prohibited and do not require any further exceptions to qualify.  The ATF has a Q&A document available here with more details.

If they WERE admitted under a Visa (student, etc.) then they may only purchase and possess firearms under federal law if they meet one of the exceptions laid out in § 18 USC 922(y)(2).  It states:

An alien admitted to the United States under a non-immigrant visa is not prohibited from purchasing, receiving, or possessing a firearm if the alien:

(1) is in possession of a hunting license or permit lawfully issued by the Federal Government, a State or local government, or an Indian tribe federally recognized by the Bureau of Indian Affairs, which is valid and unexpired;

(2) was admitted to the United States for lawful hunting or sporting purposes;

(3) has received a waiver from the prohibition from the Attorney General of the United States;

(4) is an official representative of a foreign government who is accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States;

(5) is an official representative of a foreign government who is en route to or from another country to which that alien is accredited;

(6) is an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or

(7) is a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.

The first of these is by far the most common / important.  However, one should be careful not to assume that just any hunting license will suffice.  In this article from Arizona, we see that eight Chinese students were charged, and their firearms seized, due to their having a ‘resident’ hunting license which, under Arizona state law, they were not qualified to receive.  Therefore, the firearms they acquired using the license were considered to have been fraudulently and illegally obtained.  If they had acquired a non-resident hunting license then the entire affair could have been avoided.

State Law

Before you assume that you have a handle on all the permutations, do not forget that state law may impose additional restrictions beyond that imposed by federal law.  For example, in Virginia, a non-immigrant alien (of any status) cannot possess any firearm that meets the statutory definition of ‘assault firearm’.

§ 18.2-308.2:01. Possession or transportation of certain firearms by certain persons.

A. It shall be unlawful for any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence to knowingly and intentionally possess or transport any assault firearm or to knowingly and intentionally carry about his person, hidden from common observation, an assault firearm.

B. It shall be unlawful for any person who is not a citizen of the United States and who is not lawfully present in the United States to knowingly and intentionally possess or transport any firearm or to knowingly and intentionally carry about his person, hidden from common observation, any firearm. A violation of this section shall be punishable as a Class 6 felony.

C. For purposes of this section, “assault firearm” means any semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock.

Therefore, when asking the question “May non-immigrant aliens buy firearms?”, it is imperative that a non-immigrant alien understand not only the federal framework, but also any state limitations or prohibitions before they attempt to purchase, possess, or transport any firearms.

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 ATF, BATFE, Federal Law, Non-Immigrant Aliens, Prohibited Persons, Student Visa | Comments Off on May non-immigrant aliens buy firearms?

A spouse’s elective share in Virginia

Spouse's Elective ShareI recently prepared an estate plan for a client who had, for various reasons, never finalized her divorce with the father of her children.  In preparing her will, she wanted to have her estate divided between her children but was completely unaware that her estranged husband might have a spouse’s elective share claim.

What is a spouse’s elective share?

A spouse’s elective share is a portion of a decedent’s estate to which a spouse is statutorily entitled.  While the surviving spouse is not required to exercise this election, one cannot sever them from the right to do so unless there is a valid waiver in place specifically waiving the right such as a prenuptial or postnuptial agreement.  A surviving spouse may exercise this right if the decedent died intestate (without a will), left them out of the will entirely, or did not leave as much as they can claim under the elective share.

Recent Changes in Virginia’s spousal elective share

Historically, the laws governing a spouse’s elective share in Virginia were located at § 64.2-300, et seq. of the Code of Virginia.  Under that now-superceded version of the law, the spouse of a decedent was entitled to “(i) one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants.

In my client’s case, since she has surviving children, the old rules would have conceivably allowed her husband to claim one-third of her augmented estate.

During the 2016 legislative session House Bill 231 and Senate Bill 181 were passed, changing a number of provisions in this area of law.  These changes took effect on January 1, 2017.  The laws governing a spouse’s elective share are now located at § 64.2-308.1, et seq.

In the new version, a spouse is entitled to “take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

So in my client’s case, the new rules would conceivably allow her husband to claim one-half of the marital-property portion of her augmented estate.

What is an augmented estate?

This term is used in both the old and new versions of the elective share laws.  However, the list of those assets that comprise the augmented estate also changed on January 1, 2017.

A point-by-point comparison of the differences is beyond the scope of this article.  However, the important thing to note is that, under the new definition, the augmented estate includes the decedent’s non-probate transfers to others.  This would include assets passing outside of probate to the beneficiaries of revocable trusts, transfer-on-death deeds, and other assets with direct benificiary designations.

Complicating matters, there is a percentage allocation table which requires a couple to have been married 15 years in order for a surviving spouse to get credit for 100% of the value.

When is a surviving spouse not entitled to an elective share?

There are a number of defenses to a spousal election.  The first is that the right was somehow waived, perhaps in a prenuptial or postnuptial agreement, a separation agreement, or some other waiver standing alone.  The second occurs when the surviving spouse “deserts or abandons the other spouse and such desertion or abandonment continues until the death of the [decedent].

What does this mean to the average person?

It means that the legal framework surrounding each step in your life is important.

It means that you should consider a prenuptial agreement prior to marriage to insure that both parties fully understand how they are going to handle the financial aspects of their marriage and any possible separation or divorce.

If you are already married and wish to make such decisions then perhaps a postnuptial agreement is in order.

If you are going to separate but remain married, then you should consider adding language to the separation agreement addressing spousal elective share.

Finally, estate planning should be a part of your life at every stage, and should be revisited as your circumstances change (children born or adopted, marriage, divorce, and the passing of loved ones).  Make sure the assets you worked so hard to earn are left to those you truly want to receive them.

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 Estate Planning, Family Law, Postnuptial Agreements, Prenuptial Agreements | Comments Off on A spouse’s elective share in Virginia