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

The ATF has pushed the date for 41P back yet again

Posted on June 3, 2015 by John Pierce

PostponedNot a single day goes by without someone asking me about ‘ATF banning the use of trusts.‘ I long ago started translating those words in my mind to ‘Please explain the details of 41p and regulatory rulemaking to me.‘

So what is the status of 41p now?

The ATF has once again pushed the proposed action date out into the future.  It is now showing as December of 2015. But that date is no more dependable than any of the others they have put forward since the end of the comment period in 2013.

And even if they were determined to stick to that date, there are a number of other questions still on the table.

  • When will the ATF actually finish addressing the comments that were submitted?
  • Did the comments raise legal issues that will scuttle the entire proposed rule?
  • Does the ATF still even want the proposed rule?
  • Will 41p face legal challenges if the ATF does eventually move forward?

While we do not know the answer to many of these questions at this time, we do know that industry groups continue to push back against 41p, and rightly so.

The National Shooting Sports Foundation (NSSF) had this to say in their April 27th newsletter:

“NSSF has confirmed with ATF that the bureau is unlikely to publish Notice 41P (NFA Trusts) as a Final Rule for quite some time. This is in part because EPS resources are being diverted to help process the 310,000 public comments received in response to the armor piercing ammunition framework proposal. In addition, it seems ATF has not prepared to revise the NFA database so that it can track ‘responsible persons’ for NFA trusts [as required by the proposed rule].”

So where does this leave us today?  I will reiterate the advice I give to my clients who ask me that question …

Even if 41p were to be promulgated as-written, trusts would continue to be the preferred vehicle for NFA ownership simply due to the usage and estate planning benefits.

And … having said that, I personally do not believe that 41p can be promulgated in its current form … not and survive the inevitable legal challenges in any case.

So do not let fear of 41p stop you from using an NFA trust, with all its benefits, to build your NFA collection.

Posted in 41P, Administrative Law, ATF, BATFE, NFA Trusts | Comments Off on The ATF has pushed the date for 41P back yet again

Crossing state lines with inherited and gifted firearms

Posted on April 20, 2015 by John Pierce

giftI received an email today from a client who had a question about receiving firearms from an out-of-state relative. He wanted to make sure that the transfer was conducted legally under federal law as well as the laws of both Virginia and the other state.

In his case, since neither the other state nor Virginia impose any legal requirements upon the private gifting of firearms (other than the recipient not be a prohibited person), we are just dealing with an issue of purely federal law.

However, his particular situation was complicated somewhat by the fact that the gift was occurring subsequent to the death of a family member.  His uncle had passed away and his aunt had offered to give him his uncle’s handguns.

When he called the state police in his aunt’s state of residence, they told him that he should just pick up the handguns and drive them back to Virginia.  They said that since this was an inheritance, federal law allowed a direct interstate transfer.

The problem?  This was not an inheritance!  His uncle had left his entire estate to his aunt.  His aunt, lacking interest in the shooting sports, was making a gift of the items to my client.  Therefore, the ‘inheritance exception’ to the federal prohibition on interstate transfers does not come into play.

So how should interstate gifts of firearms be handled?  Let’s start by looking at federal law.

18 U.S.C § 922 (a)(3) starts off by giving us the general rule that it is illegal “for any person, other than a licensed [party] to transport into or receive in the State where he resides … any firearm purchased or otherwise obtained by such person outside that State.“

However, there are a number of exceptions to the general rule.  The first exception is for “any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence … if it is lawful for such person to purchase or possess such firearm in that State.” 

This is the exception that my client initially believed might apply to his situation. However, this exception requires that the person acquire the firearm by ‘bequest or intestate succession‘ and neither was the case here.  A gift from an executor does not satisfy this requirement.

Therefore, to comply with the requirements of federal law, a person receiving a gift of firearms from out-of-state should have the person giving the gift ship the firearms to a Virginia FFL where the recipient can proceed with the transfer process.

A final note:  There is also an exception for rifles and shotgun which requires that the transfer “fully comply with the legal conditions of sale in both such States.”  Since an analysis of the various laws of all 50 states goes far beyond the scope of this article I will simply note that the exception exists.

Posted in Estate Planning, Federal Law, Gifting Firearms, Interstate Firearm Transfers, Interstate Travel, Virginia Law | Comments Off on Crossing state lines with inherited and gifted firearms

Is a background check required when picking up NFA items from a dealer for a trust?

Posted on March 24, 2015 by John Pierce

Yes-No-MaybeOver the last two days I have been asked this question multiple times.  It seems that there is a great deal of confusion over this issue among both NFA owners and dealers.

However, I do not say this to disparage those who are confused.  Many of those who believe that a background check is not required base that belief upon information provided by the ATF themselves.  For example, they clearly stated that background checks were not required in a 2008 FFL Newsletter.

08_FFL_Newsletter

However, since the publication of that newsletter, the ATF has drawn a nuanced legal distinction between an individual owner picking up an NFA item subsequent to an approved tax stamp and a trustee of a trust doing the same.

In March of 2014 the ATF explained the statutory and regulatory basis for this new distinction in the following letter to Dakota Silencer.  Pay specific attention to the first two paragraphs on the second page.

Download (PDF, 128KB)

In September of 2014 the Virginia State Police followed up with their own guidance to dealers.  While poorly worded it does reiterate and support the ATF’s logic from the Dakota Silencer letter.

VA_Trust_SP65

So … the answer is “Yes” … if the tax stamp for the NFA item you purchased using an NFA trust has been approved and you are heading down to the dealer to pick it up, you will have to complete both a 4473 and a SP-65 and undergo a background check.

Posted in 4473, ATF, ATF Guidance Letters, Background Checks, BATFE, Federal Law, FFL 03, FFL Issues, NFA Transfers, NFA Trusts, SP-65, Virginia State Police | Comments Off on Is a background check required when picking up NFA items from a dealer for a trust?