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Restoration of Firearm Rights

On Behalf of | Mar 25, 2020 | Firm News |

Va. Code § 18.2-308.2 prohibits a person who has been convicted of a felony from possessing or transporting a firearm. Likewise, if you were adjudicated delinquent as a juvenile 14 years of age or older at the time of an offense of murder, kidnapping, robbery by the threat or presentation of firearms, or rape you cannot possess a firearm. In addition, any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than murder, kidnapping, robbery by the threat or presentation of firearms, or rape cannot possess a firearm.

You may, however, have your right to possess a firearm restored. The prohibition to possession a gun in Virginia under Va. Code 18.2-308.2 does not apply to a felon who has had his “political disabilities” removed by the Governor “pursuant to Article V, Section 12 of the Virginia Constitution provided the executive order granting the pardon or restoring the person’s civil rights contains no express conditions limiting the reinstatement of the person’s right to ship, transport, possess or receive firearms. However, when you apply to the Governor’s office for a restoration of civil rights, the rights that will be restored are limited to the right to register to vote, hold public office, serve on a jury, and serve as a notary public. The restoration of rights does not restore the right to possess a firearm.

To restore the right to possess a firearm, a felon must petition the appropriate circuit court pursuant to Va. Code §18.2-308.2. To regain state firearms privileges, a felon may apply to the Circuit Court of his residence for a permit to possess or carry a firearm. The court “in its discretion and for good cause shown” may grant the petition. While the Governor has the authority to restore state firearms privileges expressly by a pardon or though restoration of political rights, he does not customarily do so.

For purposes of determining whether or not a felon is eligible to possess a gun under federal law, the predicate felony conviction is determined under the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside, or for which a person has been pardoned, or has had civil rights fully restored is not a predicate felony conviction for purposes of lawfully possessing a firearm. Felonies, for purposes of understanding whether or not a felony conviction prohibits firearm possession under federal law, does not include certain business and white collar crimes.

Under 18 U.S.C. § 921(a)(20), a crime punishable by imprisonment for a term exceeding one year does not include any Federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.

Misdemeanor crimes of domestic violence present a unique issue. Because it is a misdemeanor, there is no denial of state civil rights nor is there a restriction on the possession of a firearm. It appears the only remedy that may available in cases of misdemeanor domestic violence convictions is to seek a pardon. Recently, however, the Fourth Circuit decided that the Virginia statute defining assault and battery would not necessarily be a misdemeanor crime of domestic violence under federal law. As a result of the decision in this new case, it may be, in certain cases, that a loss of one’s right to possess a firearm cannot be denied by the federal government.

Under federal law, a person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws. The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. A person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.
There’s a problem with this scheme, however. The Attorney General delegates the review of the restoration petitions to the Bureau of Alcohol, Tobacco and Firearms (BATF). Since 1992, Congress, in its annual appropriations, has explicitly barred BATF from expending funds to investigate or act on applications by individuals. Consequently, BATF has not been processing applications. The U. S.Supreme Court has held that BATF inaction on applications does not constitute a “denial” under the law thus an applicant cannot go on to the federal court to seek judicial review to regain their firearm privileges. For the time being, a federal felon’s sole option is to seek, and hope for, a presidential pardon.