Virginia courts currently have no power to restore firearm rights to those convicted of misdemeanor domestic violence

Posted on July 4, 2015 by John Pierce

Cant_Do_ItEarlier this year, I received an email from someone who claimed that they had successfully petitioned a circuit court to restore their firearm rights after having been convicted of misdemeanor domestic violence.

There are three problems with this scenario:

1)  While a misdemeanor crime of domestic violence makes you a prohibited person under federal law, Virginia does not remove the firearm rights of those convicted of misdemeanor domestic violence;

2)  The jurisdictional grant of power in 18.2-308.2(C) to restore firearms rights only applies to those who are prohibited persons under Virginia law; and

3)  The federal courts have repeatedly held that states may not ‘restore’ that which was never taken away.

In one of many cases to uphold this premise, United States v. Jennings, 323 F.3d 263 (4th Cir.), the court held that “restoration of a thing never lost … is a definitional impossibility.”

This leaves a simple pardon as the only path by which those convicted of misdemeanor domestic violence in Virginia may currently seek to remove their federal disabilities.

A court order from a Virginia court, purporting to restore rights never taken away by the State, will not serve as an effective defense against a federal firearms charge.

Could the Legislature fix this?  Sure they could.  But it would require political courage. It would effectively require a pro-gun politician to introduce a bill which would appear on its face to be anti-gun and which would offer a vehicle to which actual anti-gun politicians could add poison pill amendments.

In order to fix the trap which these misdemeanants fall into in Virginia, we would have to modify state law to make those convicted of misdemeanor domestic violence prohibited persons.  We could then either make restoration automatic after a period of time or require them to petition in the same manner as felons.

Senator Favola introduced such a bill in SB943 last session but it failed to make it out of committee.  Next session will offer a fresh opportunity to correct his issue under state law.

Posted in Criminal Law, Domestic Violence, Federal Law, Gun Rights Restoration, Virginia Law | Comments Off on Virginia courts currently have no power to restore firearm rights to those convicted of misdemeanor domestic violence

A gun rights restoration order with conditions is effectively a denial

Posted on July 4, 2015 by John Pierce

Limited2Occasionally, during a gun rights restoration hearing, a Commonwealth’s Attorney will offer to drop their objection if certain conditions are placed upon the restoration.

For example, if the petitioner has stated that their primary reason for seeking a restoration is to go hunting then the Commonwealth’s Attorney might ask for a condition limiting the restoration to the possession of bolt-action rifles and single-shot or double-barrel shotguns.

While these offers may be made in good faith, the legal effect on the petitioner is far from innocent.

In the 1998 case of Caron v. United States, 524 U.S. 308 (1998), the United States Supreme Court held that while state gun rights restorations that restore all gun rights are effective in removing federal disabilities, a state gun rights restoration that imposes any conditions on the rights thus restored does not remove federal disabilities.

If you have received a gun rights restoration that places conditions upon your right to possess handguns or other categories of firearms then you are still a prohibited person under federal law.

It is always best to seek the advise of an attorney familiar with firearms law when seeking the restoration of your gun rights.

If you would like assistance in seeking to have your rights restored I invite you to contact me for a free consultation.

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Virginia Law | Comments Off on A gun rights restoration order with conditions is effectively a denial

Virginia now recognizes the gun rights restorations of all other states

Posted on July 3, 2015 by John Pierce

All_50_States_FlagsBack in August of last year I wrote an article entitled “Will Virginia honor a gun rights restoration from another state?”

In that article I noted that the answer was “unfortunately … a resounding ‘no!’”

But thanks to legislation introduced by Delegate Webert, and championed by the Virginia Citizens Defense League, that is no longer the case!

The bill, HB2286, adds “any person whose right to possess firearms or ammunition has been restored under the law of another state” to the list of those not prohibited from possessing firearms and ammunition following a disqualifying offense.

If you have had your right to possess firearms restored in another state and are now a resident of Virginia, this is great news!

You will need to submit a letter along with acceptable proof of the restoration from the other state to the Virginia State Police Firearms Transaction Center and ask that your record be flagged as no longer prohibited.

If you would like assistance in this process, feel free to contact me.

Posted in Background Checks, Gun Rights Restoration, Non Resident Issues, Virginia Law, Virginia State Police | Comments Off on Virginia now recognizes the gun rights restorations of all other states

Non-residents may now get their gun rights restored in Virginia

Posted on July 3, 2015 by John Pierce

Non-ResIn 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.

And now for the good news.  During the 2015 legislative session, the Legislature did just that.

Delegate Fowler introduced HB1666 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.  It went into effect on July 1st.

If you are a non-resident of Virginia who falls into this category, I will be happy to speak to you about petitioning for the restoration of your rights in Virginia.

Posted in Gun Rights Restoration, Interstate Move, Non Resident Issues, Virginia Law | Comments Off on Non-residents may now get their gun rights restored in Virginia

What to do if you inherit firearms located in another state

Posted on July 3, 2015 by John Pierce

A client contacted me recently and asked how a Virginia resident would legally take possession of firearms (non-NFA) that had been left to him in a will by someone who lived in another state.

He specifically asked whether or not an FFL needed to be involved in the transfer process or if he could simply drive to the other state, pick up the firearms, and return to Virginia.

The answer to this question involves the intersection of three different bodies of law; Virginia law, federal law, and the laws of the state in which the estate is being probated.

Let’s examine the case of a fictional client named Joe who has just been informed that his uncle passed away in another state leaving him a non-NFA firearms collection.  Since he seldom travels to the state where his uncle lived, Joe wants to know if he can pick up the firearms while he is attending his uncle’s funeral.

Let’s start with Virginia law.  Assuming that Joe is not disqualified from possessing firearms, there is nothing in Virginia law that would prohibit him from simply taking possession of the firearms.

Turning to federal law, where one might expect to find a prohibition, we find that 18 U.S. Code § 922(a)(3) generally does forbid “any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector [from] transport[ing] into or receive[ing] in the State where he resides … any firearm … obtained by such person outside that State.”

However, under the same code section they provide an exemption allowing “any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence [to] transport … the firearm into [his state of residence] if it is lawful for such person to purchase or possess such firearm in [his state of residence].”

So even federal law will allow Joe, who is not a prohibited person, to drive to the other state, pick up the firearms, and return to Virginia.

That leaves only the laws of the state where the firearms are located as a possible concern. We have two primary issues to research about that state; registration requirements, and transportation laws.

While there are relatively few states which have any kind of firearms registration requirement, if the state where the firearms are located does have such requirements then Joe may have to take steps to comply with their rules for disposition of firearms. The attorney handling the estate should be able to help him determine whether a given state has implemented such requirements and how to satisfy them.

Finally, Joe must comply with any transportation laws in the state where the firearms are located.  Having done so, the Firearm Owners’ Protection Act (FOPA), codified at 18 U.S. Code 926A, should protect Joe in the intervening states, so long as he complies with the specific requirements of FOPA.

  • The firearm must be unloaded
  • The firearm must in a locked container
  • The container cannot be within easy reach of the vehicles passengers
  • The journey must start in a state where the person can legally possess and carry the firearm
  • The journey must end in a state where the person can legally possess and carry the firearm
  • It must be an uninterrupted journey (only gas and bathroom stops)

In short … assuming that Joe does his homework, he should be able to bring his inheritance home with him without ever having an FFL involved.

NOTE:  The rules are quite different for interstate gifts of firearms..

Posted in Federal Law, Inheriting Firearms, Interstate Firearm Transfers, Interstate Travel, Virginia Law | Comments Off on What to do if you inherit firearms located in another state