Gun control rights

The Second Amendment to the United States Constitution gives individuals the right to bear arms. However, states have broad discretion in regulating who can own, use, or otherwise handle firearms, the scope of these privileges, and how to regain these privileges if they have been lost.

When Your Right to Own a Gun May Be Taken Away and How to Get it Back

The main provisions disqualifying individuals in Virginia from gun possession, use, or handling are concentrated in Virginia Code §§ 18.2-308.1 through 18.2-311. In certain circumstances, the Commonwealth of Virginia may take away your right to own or use a firearm because of:

Criminal Convictions

A state felony conviction is a common way to lose firearm privileges. The felony did not have to involve guns for your sentence to include losing the right to own or use a gun. Once your gun rights are taken away, you may have them restored if the governor restores your civil rights and the Circuit Court finds that there is good cause to restore your gun rights.

Your gun rights may also be limited if you are convicted of two or more drug-related misdemeanors within 36 months. In this case, you may be ineligible to “purchase or transport a handgun.” There is no limitation on using or continuing to own handguns that you already have or on other types of guns, such as rifles or shotguns. The restriction will be automatically removed five years after your last conviction. Different rules apply after federal felony convictions.

Mental Health Issues

It may surprise you to find out that you do not even have to be convicted of a crime to lose your right to possess a firearm. Virginia Code § 18.2-308.1:1 through § 18.2-308.1:3 all deal with situations involving mental health issues. For example:

  • If a person is acquitted of a crime by reason of insanity at the time the offense was committed, they cannot own a firearm.  
  • If someone was involuntarily committed or declared incompetent, they cannot possess, use, or otherwise handle a firearm.  

A violation of any of these provisions can be punished as a class 1 misdemeanor.

If you have lost the ability to possess a firearm for a reason concerning your mental competence, you can seek to regain those rights. A person who falls into this situation must seek reinstatement from the General District Court for the jurisdiction in which they live or, if the person is not a Virginia resident, in the General District Court for the jurisdiction that last heard a matter concerning the proceedings that led to disqualification. The person seeking reinstatement of their rights must show to the Court that they “will not be likely to act in a manner dangerous to public safety and that the [reinstatement of rights] would not be contrary to the public interest.” (See Virginia Code § 18.2-308.1:1). In deciding whether restoration is appropriate, the Court must consider the individual’s criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence.

Protective Order

Another way an individual may lose the right to possess, use, or otherwise handle a firearm is by having a protective order in place. Protective orders, which are civil cases, have the ancillary consequence of depriving individuals of the right to possess, use, purchase, or otherwise handle firearms. Violating this law can lead to a class 1 misdemeanor conviction.  

There is no way to restore the right to possess a firearm while a protective order is in place. However, upon expiration of the protective order, the right to possess, use, or otherwise handle firearms is automatically restored.

Illegal Presence in the United States

In Virginia, a person who is not legally present in the United States cannot possess, use, or otherwise handle a firearm. If a person who is here illegally possesses a firearm, they can be convicted of a class 6 felony.

Protect Your Gun Rights

Our experienced Fairfax criminal defense lawyers can advise you if you currently face a situation where your gun rights may be taken away, or you want your gun rights restored. We will thoroughly explore all of your legal options and provide you with honest and reliable advice so that you know what to expect next.

Call us or complete our online contact form today to learn more.