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Dom Vio & Gun Rights

Previously under Virginia law, if you were convicted of a Misdemeanor Domestic Assault, in violation of Virginia Code Section 18.2-57.2, you would not lose your right under Virginia law to possess a firearm (or ammunition).  (If you are convicted of a Felony Domestic Assault, you will lose your right under Virginia law to possess a firearm because that is a consequence, out of many, to being convicted of a felony.)

CURRENT LAW in Virgnia is now different for an offense that occurred on or after JULY 1, 2021. Now, if you are CONVICTED of a Misdemeanor Domestic Assault (also referred to as an "assault and battery of a family or household member") you will not be able to purchase, possess, or transport a firearm. However, THREE YEARS following the date of the conviction, such "person shall have his firearms rights restored, unless such person receives another disqualifying conviction, is subject to a protective order that would restrict his rights to carry a firearm, or is otherwise prohibited by law from purchasing, possessing, or transporting a firearm." Va. Code Section 18.2-308.1:8. This new change in the law only applies to domestic assaults between a person and his spouse, ex-spouse, or the individual with whom he has a child in common. Another twist, therefore, is that if a Domestic Assault is between, for example, a boyfriend and girlfriend that live together without children, the PREVIOUS law will likely still apply. This is because 18.2-308.1:8 defines "family or household member" more narrowly than it is defined in Virginia's domestic relations code that applies to the crime of domestic assault under 18.2-57.2. See Va. Code Section 16.1-228 for the broader definition of "family or household member" applicable to the charge of domestic assault. 

(If you are subject to a permanent protective order (related to domestic family abuse or otherwise), under Virginia law, you may not possess a firearm while the protective order is in effect; Federal law prohibits possessing a firearm if you are subject to a permanent protective order and the petitioner is an intimate partner, child of an intimate partner, or your child.  An intimate partner could be a spouse, former spouse, person you share a child in common with or person you cohabit or cohabited with.  Click here to read about Protective Orders.)   

Under Federal law, the law is quite different.  United States Code Section 922 of Title 18 states, in pertinent part: 

  • "It shall be unlawful for any person...who has been convicted in any court of a misdemeanor crime of domestic violence" to possess a firearm or ammunition "in or affecting [interstate] commerce."

18 USC Section 921 defines "misdemeanor crime of domestic violence" as any misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."  

Therefore, even if you are not prohibited from possessing a firearm (or ammunition) under PREVIOUS Virginia law, you may be prohibited from doing so under Federal law.  And, to be convicted of a "misdemeanor crime of domestic violence" as defined under Federal law does not even require that you be convicted of a violation of Virginia Code Section 18.2-57.2 under Virginia law - though that is typically the case.  The federal definition of domestic violence/assault is broader.  

In terms of having your rights "restored" so that you may possess a firearm under Federal law at some future point, because PREVIOUS Virginia law did not revoke your rights for misdemeanor domestic assault under 18.2-57.2 in the first place, there are no rights to be "restored." Therefore, you cannot possess a firearm under federal law even if you are able to lawfully do so under Virginia law. Under CURRENT Virginia law, your right to possess a firearm after a misdemeanor conviction of Domestic Assault will be restored in 3 years, assuming no other disqualifying status is in effect. It would follow that this restoration would permit you to possess a firearm lawfully under federal law because Virginia restored your rights. The apparent peculiar result is that those convicted of Domestic Assault before July 1, 2021, did not lose their Virginia right to possess a firearm but did lose their federal right to do so.....and had no way of "restoring" their rights federally because the state did not take any right away. Now, when one is convicted, they lose their right to possess a firearm under Virginia law, but only for 3 years. And when their rights are "restored", their federal disability ought to go away as well.  

The bottom line: There are two sovereigns you must deal with regarding the possession of firearms: state and federal. Virginia law and federal law may not necessarily function in harmony and odd and unintended results may apply in your particular situation. Gun control is a hot topic and correcting these anomalies is probably not a high priority for state and national politicians. If you have been prosecuted for any type of assault against anyone that could even remotely be considered a partner, family member, or otherwise somebody you had a special relationship with, you should consult your lawyer to make sure you understand your firearm rights, or the lack thereof.

If you are facing a Domestic Assault allegation, or if you are uncertain whether your offense would qualify as Domestic Assault under federal law, contact Fairfax Criminal Defense Attorney George Freeman today.  He will gladly discuss your case with a free consultation.

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