Firearms, Ammunition, and Criminal Convictions in Virginia

With the second amendment right to bear arms being important to Virginians, a criminal conviction for certain crimes will result in you losing this right.  Before pleading guilty to any crime, understand the consequences for purchasing and possessing a firearm or ammunition with a criminal conviction.

What is the definition of a firearm? 

Under the Gun Control Act (1968), firearms are “(A) any weapon, including a starter gun, which 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”.

Do different firearms fall under different laws?   

Both the Gun Control Act (which is the exercise of Congress’ authority under the Commerce Clause) and the National Firearms Act (IRS Title 26 taxing authority) set out different definitions and requirements for firearms.  It is important to comply with both sets of regulations when purchasing and possessing firearms.  For example, an antique firearm manufactured before 1898 is different under GCA than NFA.

What government agency or department oversees firearms laws and legislation?  

The Bureau of Alcohol, Tobacco, Firearms and Explosives and Alcohol and Tobacco Tax and Trade Bureau are responsible for all federal firearms laws, legislation and enforcement and the Virginia State Police are responsible for laws, legislation and enforcement within the Commonwealth of Virginia.

Do you need a permit to own a handgun in Virginia?   

The open carry of a handgun without a permit in Virginia is legal, as long as you are over the age of 18, do not have a legal order banning you from possessing a firearm, and ensure it is clearly visible and is not covered in any way, except where prohibited by statute.  You do not need a Concealed Handgun Permit (CHP) while transporting your handgun in a personal, private vehicle or vessel, as long as it is secured in a container or compartment.

Are there exceptions to the open carry of a handgun?   

Virginia laws prohibit the open carry and carry concealed of firearms in airports, courthouses, school grounds, places of worship.  Where Virginia law does not prohibit the carry of a handgun, there may be administrative regulations banning the carry of handguns in: parks, hospitals, sports arenas, gambling facilities, or polling places.

Further, in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Fairfax, Henrico, Loudoun, or Prince William, it is illegal to carry two types of firearms on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in certain cities.  In these Cities, it is illegal to carry:

• 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 that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock; or
• shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered.  Concealed handgun permit holders and individuals actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest are among the exceptions..

What is the difference between open carry and carry concealed? 

The open carry of a handgun allows you to visibly display your handgun, on your person.  However, should you put on a jacket and conceal your handgun, you will then be required to possess a Concealed Handgun Permit (CHP).  Failure to possess this Permit while it is hidden under your clothing is a crime.

Can I bring a firearm into a restaurant or night club? 

As of 2010, it became lawful in Virginia for concealed handgun permit (CHP) holders to carry firearms in any restaurant or club licensed to serve alcoholic beverages for on-premises consumption, as long as you do not consume alcohol on the premises.

What misdemeanor crimes will result in losing my rights to possess a firearm? 

Under federal law, you will lose your right to possess, ship, transport or receive a firearm or ammunition if you have been convicted of domestic assault on:

• a current or former spouse, parent or guardian of the victim; a person with whom the victim share a child in common,
• a person who was cohabitating with or had cohabitated with the victim as a spouse, parent or guardian; or
• a person who was cohabitating with or had cohabitated with the victim not as a spouse, parent or guardian.

You could also lose your right to purchase or possess a handgun for a 36 month period if you have been convicted under Virginia law in the last 5 years for a class 2 misdemeanor offense for Possession of a Controlled Substance or Possession of Marijuana.

What felony crimes will result in losing my rights to possess a firearm? 

Any felony conviction that falls under 18 U.S.C. § 922(g)(1) will result in losing your right to possess a firearm for life, without a Governor’s absolute pardon.

Is there a way to get my gun rights restored under Virginia state law?

Without a Governor’s absolute pardon, the only way to get your gun rights reinstated is through an expungement.   However, in Virginia, an expungement can only be obtained if: you are found not guilty by the court (dismissal); the charges are withdrawn (nolle prosequi) by the Court on a motion by the Commonwealth; or an individual’s name is used in error.  For more information, visit https://www.vsp.state.va.us/Firearms_Restoration.shtm.

Is there a way to get my gun rights restored under Federal law?

While the Alcohol, Tobacco and Firearms (ATF) bureau is legislated to restore federal gun rights, since October 1992, Congress has refused funding.  Therefore, without funding, the ATF cannot restore these rights.

Can I lose my right to possess, ship, transport or receive a firearm or ammunition if I am subject to a protective order? 

Yes, under Federal Law 18 U.S.C. § 922(g)(8), you will lose your right to possess a firearm while subject to a protective order.  Further, under Virginia state law § 18.2-308.1:4, you will lose your right to possess a concealed handgun while subject to a protective order.

Can I buy a gun with drug arrests on my record? 

This is not a simple answer.  Any felony conviction prohibits you from legal gun possession, but outside of felonies, there are several reasons to keep someone from being able to purchase a gun – one reason is being a drug addict.  If you have several drug arrests in past few years, this would support concerns of drug addiction.  However, you can write to the clerk of the county court where you were convicted to obtain a copy of your drug conviction(s) and find a local experienced criminal defense attorney who will likely give you a free consultation.

What do I do with my gun, if I have been convicted of domestic assault?

The Alcohol, Tobacco and Firearms (ATF) bureau advises to immediately and lawfully dispose of the firearm and/or ammunition by transferring to your attorney, local police agency or a federal firearms dealer.

I plead guilty to a Class 3 misdemeanor for abusive language. Can I legally own/purchase a firearm? 

Abusive language is not a domestic violence offense, and thus, should not prevent you from purchasing a gun in the future. You can obtain a copy of the charging document from the clerk in the county court where you appeared and take it to an experienced criminal defense attorney for a legal opinion.

What are the Sentencing Guidelines for possession of ammunition of a second time felon?  What is the maximum time you could receive?

Guidelines involve not just the current charge, but any prior convictions for misdemeanors and/or felonies, whether you served a jail sentence on any of those convictions, whether you have a juvenile record, whether you were on probation at the time the current offense was committed, etc. Your lawyer would be in a very good position to calculate the Guidelines for you. Just keep in mind that if this is a state offense (as opposed to a federal offense) and the Sentencing Guidelines are not mandatory, which means a judge can disregard them. It is not often done, but it does happen.

A judge declared me unstable and I was held in a hospital in for five days, which caused the state to revoke my conceal weapon permit. How do I fight that?

Virginia (and I understand many other states) are pushing to pass tougher gun laws with respect to folks having been declared (rightly or wrongly) to have mental health issues. You need to retain an experienced criminal defense attorney as soon as possible, because depending on the outcome of your mental evaluation, you can have your rights restored.

If a non-felon has a felon roommate living with them, can the non-felon have a gun? 

Technically, while you as a non-felon can absolutely have a handgun, your roommate could be arrested as a felon in possession of a gun that belongs to another person.  The key issue for the police is whether the convicted felon had access to the gun, so at the very least, you should keep the gun in a place that cannot be accessed, like a gun safe or outside of the house.

Can a felon possess a firearm that is either inoperable or without a firing pin? 

Under section 18.2-308.2, possession of a firearm by a convicted felon, and looking at relevant case law, the section’s language does not require direct evidence of operability of the firearm (Moore v. Commonwealth, No. 2755-95-3 (Ct of Appeals Dec. 31, 1996). Another case, Armstrong v. Commonwealth, No. 1388-99-3 (2000 Va. App. LEXIS 753) stands for the idea that a conviction under this section could occur where a firearm not previously operable could be readily or easily restored to operability. Therefore, making a gun inoperable or without a firing pin, could fall within the “easily restored to operability” situation. The short answer: no.

I was convicted of a second DUI four years, eleven months and one week ago.  I am trying to apply for Concealed Handgun Permit (CHP) but the application asks if I have I been convicted of a misdemeanor within the past 5 years and asks if my civil rights have been restored (including those to bear arms).  Any thoughts on what I need to do to proceed?

As you did not lose your right to bear arms on a misdemeanor DUI conviction, you do not need to seek a restoration of rights.  As you are three weeks away from the conviction being 5 years ago, why not hold off on the application until next month, so that your answer can go from “yes” to “no”?

If you want to explore your options in Susan Fremit filing a petition for expungement on your behalf from charges laid in Caroline, Culpeper, Fredericksburg, Goochland, Hanover, King George, Lancaster, Louisa, Northumberland, Richmond County, Orange, Spotsylvania, Stafford, or Westmoreland, Virginia, contact us now for a free consultation.

This information does not constitute legal advice and is meant for information purposes only.  Information provided is current as of May 2017 and is subject to legislative change at any time.  The author of this Guide is not responsible for providing updates when legislative changes occur.