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Thread: VA Supreme Court rules on felons and guns

  1. #1
    Regular Member paramedic70002's Avatar
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    VA Supreme Court rules on felons and guns

    http://hosted.ap.org/dynamic/stories...MPLATE=DEFAULT

    RICHMOND, Va. (AP) -- The state Supreme Court ruled Friday the courts have the sole discretion in Virginia whether felons who have served their time can have their firearm rights restored.
    The justices wrote that Kaine and McDonnell correctly exercised their constitutional authority in restoring political rights, and properly referred the question about the rights on firearms to circuit courts.
    The justices said the lower courts erred in concluding that the governors' actions precluded them from acting on rights involving firearms.
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    Campaign Veteran skidmark's Avatar
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    I wonder how the Supremes would feel about the Governor's power to issue pardons? An absolute pardon is not a restoration of rights in the sense that a general or conditional pardon are. An absolute pardon is essentially a declaration that you were not guilty when the court improperly convicted you, thus your 2A rights (and all other civil rights) were improperly forfieted under the Code of Virginia. I just do not see how they could structure an argument other than that.

    Many of those who have been convicted of a felony offense seem aware that black powder rifles and pistols are not firearms under the law. They do have to petition for restoration of the right to hunt, but if they are satisfied with BP season only they may skip asking for the restoration of firearms rights. Many courts are of the opinion that felons should never have firearms rights restored, but seem to have no heartburn over them BP hunting.

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    http://www.commonwealth.virginia.gov...estoration.cfm

    If you have lost the right to vote as a result of a felony conviction in a Virginia court, a U.S. District or a military court, you must have your rights restored in order to qualify for voter registration. The restoration of rights restores the rights to vote, to run for and hold public office, to serve on juries and to serve as a notary public. It does not include the right to possess or transport any firearm or to carry a concealed weapon

    ttp://www.commonwealth.virginia.gov/judicialsystem/clemency/pardons.cfm.
    There are three types of pardons:
    1. A Simple Pardon is a statement of official forgiveness. While it does not expunge (remove the conviction from) the record, it often serves as a means for the petitioner to advance in employment, education, and self-esteem. Evidence of good citizenship is required, as are favorable recommendations from the officials involved in the case and from the Virginia Parole Board.
    2. A Conditional Pardon is available only to people who are currently incarcerated. It is usually granted for early release and involves certain conditions; if you violate these conditions, you could be put back in prison. There must be extraordinary circumstances for an inmate to be considered for such a pardon.
    3. An Asolute Pardon is rarely granted because it is based on the belief that the petitioner was unjustly convicted and is innocent. An absolute pardon is the only form of executive clemency that would allow you to petition the court to have that conviction removed from your criminal record.
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    Skid, I believe the state considers a bp firearm a firearm in the case of felons. Yes the felon can purchase most wo a background check but I believe VA considers bp a no go. I knew a guy that only bowhunted for that reason.


    edit. by purchase i mean since no one is asking or doing a background check a felon can purchase just not legally.
    Last edited by 67GT390FB; 09-17-2012 at 11:52 AM.

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    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by 67GT390FB View Post
    Skid, I believe the state considers a bp firearm a firearm in the case of felons. Yes the felon can purchase most wo a background check but I believe VA considers bp a no go. I knew a guy that only bowhunted for that reason.
    Cite?
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." - George Washington

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by roscoe13 View Post
    Cite?
    It'll take some time to dig out but Joe is right.
    I ran across the case years ago by accident.

    The case involved a fellow who was on parole for a felony and wanted to start hunting again.
    He asked his parole officer who said it was fine to hunt with BP.
    He asked the local Sheriff who said it was OK and even asked the Commonwealths Attorney. All OK with it.

    I believe it was a Game Warden who arrested him for having a firearm but it came to court and he was convicted.

    He appealed it and this is why I remember the case.

    The court said yes it was a firearm "Because it Fires" the courts words, not mine......Here's the interesting part.
    The court tossed out the conviction because this was the rare exception where ignorance of the law was an excuse. According to the court, he had exhausted every means at his disposal to find out if it was legal, and had been given their blessing every time.

    I'll dig around tomorrow and see if I can find the case.

    It is odd though. They're exempt from Federal law, even inlines, and exempt from Va law as far as a short barrel shotgun or rifle, but are considered firearms for concealment and possession by a felon.
    Last edited by peter nap; 09-17-2012 at 12:23 AM.

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    Quote Originally Posted by peter nap View Post
    It'll take some time to dig out but Joe is right.
    I ran across the case years ago by accident.

    The case involved a fellow who was on parole for a felony and wanted to start hunting again.
    He asked his parole officer who said it was fine to hunt with BP.
    He asked the local Sheriff who said it was OK and even asked the Commonwealths Attorney. All OK with it.

    I believe it was a Game Warden who arrested him for having a firearm but it came to court and he was convicted.

    He appealed it and this is why I remember the case.

    The court said yes it was a firearm "Because it Fires" the courts words, not mine......Here's the interesting part.
    The court tossed out the conviction because this was the rare exception where ignorance of the law was an excuse. According to the court, he had exhausted every means at his disposal to find out if it was legal, and had been given their blessing every time.

    I'll dig around tomorrow and see if I can find the case.

    It is odd though. They're exempt from Federal law, even inlines, and exempt from Va law as far as a short barrel shotgun or rifle, but are considered firearms for concealment and possession by a felon.
    thanks peter, i knew i was right just didn't have the ability or time to look it up last night on the phone. I will point out you do need a ffl check on a BP TC Encore as it can go from BP to Centefire/rimfire with a barrel and forearm swap.



    cite for sheriff coltrane:

    1. easiest place stated in non legalese english is the VDGIF website:

    "•Virginia law specifies that it shall be unlawful for any person who has been convicted of a felony to knowingly and intentionally possess or transport any firearm. A muzzleloading firearm is considered a firearm under Virginia law. Any person prohibited from possessing, transporting, or carrying a firearm under this law may petition the circuit court of the jurisdiction in which he resides for a permit to possess or carry a firearm." http://www.dgif.virginia.gov/hunting...ns/general.asp

    2. 18.2-308.2. Possession or transportation of firearms, firearms ammunition, stun weapons, explosives or concealed weapons by convicted felons; penalties; petition for permit; when issued.

    A. It shall be unlawful for (i) any person who has been convicted of a felony; (ii) any person adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of 18.2-31 or 18.2-32, kidnapping in violation of 18.2-47, robbery by the threat or presentation of firearms in violation of 18.2-58, or rape in violation of 18.2-61; or (iii) 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 those felonies set forth in clause (ii), whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm or ammunition for a firearm, any stun weapon as defined by 18.2-308.1, or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of 18.2-308. However, such person may possess in his residence or the curtilage thereof a stun weapon as defined by 18.2-308.1. Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

    definition from 18.2-308.1:

    B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material


    last time a checked BP and its substitutes expel a projectile by action of an explosion of a combustible material thus under VA law a BP firearm is considered a firearm when posessed by a felon. actually since BP is considered an explosive the posession of BP alone by a felon is prohibited in another part of the code.
    Last edited by 67GT390FB; 09-17-2012 at 11:28 AM.

  7. #7
    Campaign Veteran skidmark's Avatar
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    Learn new stuff every day. Thanks for the opportunity and the means to do so.

    stay safe.
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    The case is Miller v. Commonwealth, 492 S.E.2d 482 (Va.App. 1997). Martin Miller sought advice from the ATF, the VDGIF, and his parole officer to determine whether he as a convicted felon, could possess a muzzleloading rifle. They all assured him he could, so he did. During a unrelated search by police at his house, they discovered the muzzleloader and charged him with possessing a firearm as a convicted felon.

    At trial, it appears as if the defense relied on two points. (1) The muzzleloader was not a "firearm" as defined by the statute, and (2) he relied on the advice given in good faith. For whatever reason, Miller abandoned his first point, and the Court of Appeals declined to address it, writing that "...Miller has now abandoned that contention. Thus, for purposes of this appeal, we will assume without deciding that Miller's muzzle-loader was a 'firearm' within the meaning of Code 18.2-308.2." Id. at 484.

    The rest of the opinion then discusses the issue of good faith reliance, and is now mostly cited for that. The court did not settle the question as to whether the muzzleloader is a firearm, but explicitly avoided it.

    Interestingly enough, Miller won on appeal because he relied on the advice of his parole officer. Neither the ATF, nor the VDGIF "was charged by law with responsibility for defining permissible conduct under Code 18.2-308.2." Id. at 490. His parole officer, however, did have that responsibility, since he or she was responsible for Miller's conduct while under probation. Had Miller not asked his parole officer, but instead relied on the ATF and VDGIF, it appears, based on the opinion, that he would have been sunk.

    As an aside, this whole episode underscores why relying on law enforcement officers for legal advice is a bad idea.

  9. #9
    Accomplished Advocate peter nap's Avatar
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    So much for my photographic memory. Thanks!

    So aside from common sense, the issue of a black powder muzzle loader being a firearm...has not been decided?

    Whether it was in Miller or possibly another case, I remember the "Because it fires" comment.

  10. #10
    Accomplished Advocate peter nap's Avatar
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    Well now, my memory isn't as bad as I thought

    Miller testified that he "talked to everyone who [he] thought might know the answer." He spoke with his probation officer, who told him he could have a muzzle-loading rifle. He also inquired of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) and the Virginia Department of Game and Inland Fisheries (VDGIF), and representatives from each, who knew Miller was a convicted felon, told him he could have a muzzle loader. Miller acknowledged that no one told him he could possess a "firearm" and that a muzzle loader was "in a sense" a firearm because "it fires." Relying on the interpretation provided by the government officials contacted, Miller purchased a muzzle loader and obtained a license to hunt with it. In short, Miller, a convicted felon, knowingly and intentionally possessed a muzzle-loading rifle.

    The defense Miller advances has been characterized as "`a narrow exception to the general principle that ignorance of the law is no defense,'" e.g., United States v. Aquino-Chacon, 109 F.3d 936, 938 (4th Cir. 1997) (quoting United States v. Etheridge, 932 F.2d 318, 321 (4th Cir. 1991)), which should be applied with "`great caution.'" United States v. Abcasis, 45 F.3d 39, 45 (2d Cir. 1995) (quoting United States v. Corso, 20 F.3d 521, 528 (2d Cir. 1994)).
    3

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    Accomplished Advocate peter nap's Avatar
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    Getting a little closer to finding a definition.


    H. Meaning of "possession" of bow, crossbow, or firearm and definition of "loaded crossbow" and "loaded firearm." For the purpose of this section, the word "possession" shall include, but not be limited to, having any bow, crossbow, or firearm in or on one's person, vehicle or conveyance. For the purpose of this section, a "loaded firearm" shall be defined as a firearm in which ammunition is chambered or loaded in the magazine or clip when such magazine or clip is engaged or partially engaged in a firearm. The definition of a loaded muzzleloading firearm will include a muzzleloading firearm that is capped, or has a charged pan, or has a primer or battery installed in the firearm. The definition of a "loaded crossbow" is a crossbow that is cocked and has either a bolt or arrow engaged or partially engaged on the shooting rail or track of the crossbow, or with a "trackless crossbow" when the crossbow is cocked and a bolt or arrow is nocked.

    Statutory Authority
    29.1-501 and 29.1-502 of the Code of Virginia

  12. #12
    Regular Member TFred's Avatar
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    Quote Originally Posted by Lawyer with a Gun View Post
    The case is Miller v. Commonwealth, 492 S.E.2d 482 (Va.App. 1997). Martin Miller sought advice from the ATF, the VDGIF, and his parole officer to determine whether he as a convicted felon, could possess a muzzleloading rifle. They all assured him he could, so he did. During a unrelated search by police at his house, they discovered the muzzleloader and charged him with possessing a firearm as a convicted felon.

    At trial, it appears as if the defense relied on two points. (1) The muzzleloader was not a "firearm" as defined by the statute, and (2) he relied on the advice given in good faith. For whatever reason, Miller abandoned his first point, and the Court of Appeals declined to address it, writing that "...Miller has now abandoned that contention. Thus, for purposes of this appeal, we will assume without deciding that Miller's muzzle-loader was a 'firearm' within the meaning of Code 18.2-308.2." Id. at 484.

    The rest of the opinion then discusses the issue of good faith reliance, and is now mostly cited for that. The court did not settle the question as to whether the muzzleloader is a firearm, but explicitly avoided it.

    Interestingly enough, Miller won on appeal because he relied on the advice of his parole officer. Neither the ATF, nor the VDGIF "was charged by law with responsibility for defining permissible conduct under Code 18.2-308.2." Id. at 490. His parole officer, however, did have that responsibility, since he or she was responsible for Miller's conduct while under probation. Had Miller not asked his parole officer, but instead relied on the ATF and VDGIF, it appears, based on the opinion, that he would have been sunk.

    As an aside, this whole episode underscores why relying on law enforcement officers for legal advice is a bad idea.
    I would suggest that he may not have necessarily been sunk, but he surely would have jumped into the other boat (1), since boat (2) was in fact sinking...



    TFred

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