The Second Amendment to the Constitution of the United States guarantees the rights of the individual to own, possess and carry firearms. However, the government may revoke an individual’s right to possess and buy firearms based on an individual’s status or circumstances. For instance, an individual convicted of a felony may not possess or purchase a firearm in Virginia unless that individual has had his rights restored by a court of competent jurisdiction. Some other examples of persons restricted from the purchase or possession of a firearm are those who:
- Have been acquitted by reason of insanity (§ 18.2-308.1:1);
- Have been adjudicated incompetent or mentally incapacitated (§ 18.2-308.1:2);
- Have been involuntarily committed or ordered to a mental health facility on either an in-patient or out-patient basis (§ 18.2-308.1:3);
- Are listed as a respondent on an active Protective Order (§ 18.2-308.1:4);
- Citizens of foreign countries and not lawfully present in the United States (applies to “assault rifles”) (§ 18.2-308.2:01);
- Have been convicted of Domestic Assault & Battery (§ 18.2-308.1:8);
- Are subject to a Substantial Risk Order (§ 18.2-308.1:6); or
- Have been convicted of certain drug offenses (§ 18.2-308.1:5);.
Any person subject to the forgoing list who are identified by law enforcement while possessing a firearm are subject to conviction of a felony and could face a lengthy prison sentence. This is not an exhaustive list of firearms prohibitions and one who believes he or she may be subject to similar restrictions should consult with an attorney before purchasing or possessing firearms.
Many individuals convicted of one or more felonies in Virginia and who are subject to firearms prohibitions may take steps to have their right to bear arms restored as long as their rights were not revoked for a violent felony, and they are no longer subject to good behavior or probation terms as part of a felony sentence. Additionally, those who have been subject to civil commitment in a mental health facility may take similar steps. There is no guarantee that a Court will grant such a restoration, but in many cases, adequate preparation and sound legal counsel can make restoration a much more likely outcome.
The process comprises two main steps: First, you must receive a Governor’s Pardon or a Restoration of Civil Rights from the Governor of Virginia [LINK: https://www.restore.virginia.gov/ ]. Second, you must petition the Circuit Court in the jurisdiction where you reside for a full restoration of firearms rights and have that petition granted by the Court.
At Gardner & Burks, we have decades of experience in the local courts, and we believe in the individual’s right to keep and bear arms. Let us help you restore your natural right to self-protection. We will guide you through the rights restoration process and advocate before the court for your right to purchase and possess firearms.
Q: How long must I wait following a felony conviction before I can have my rights restored?
A: You must wait until all probation periods have terminated AND you are no longer subject to any period of good behavior.
Q: I received a document or certificate in the mail from the Governor of Virginia which says that my rights to vote and bear arms have been restored. May I purchase or possess firearms with that certificate in my possession?
A: No. Many people have assumed that the very official-looking documents from the Governor restore their rights to purchase and possess firearms. Some of these people have been arrested, charged and faced conviction as a result. Receipt of this document simply means that you are eligible for restoration, but until an order restoring your rights has been issued by the circuit court in the jurisdiction where you live, your rights have NOT been restored.
Q: I have not received anything from the Governor but I would like to have my rights restored. How do I take the first step to obtain such a document legitimately?
A: To request a restoration of your rights visit: https://www.restore.virginia.gov/ and follow the website instructions.
Q: Will I have to appear in Court to have my rights restored?
A: Probably. The Commonwealth Attorney of your jurisdiction has standing to oppose restoration of firearms rights and in most jurisdictions, the Commonwealth Attorney opposes restoration as a matter of policy. In such circumstances a hearing must be held to allow the Commonwealth to voice her objections to the restoration and to hear why your rights SHOULD be restored.
Q: How long does the restoration process take?
A: In most cases, one should expect to wait two to four months for the final order to be issued. This timeline will vary among jurisdictions due to differences in caseload, court days and the availability of necessary records.
