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Thread: VA courts have no power to restore gun rights to those convicted of misdemeanor DV

  1. #1
    Administrator John Pierce's Avatar
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    VA courts have no power to restore gun rights to those convicted of misdemeanor DV

    Earlier this year, I received an email from someone who claimed that they had successfully petitioned a circuit court to restore their firearm rights after having been convicted of misdemeanor domestic violence.

    There are three problems with this scenario:

    1) While a misdemeanor crime of domestic violence makes you a prohibited person under federal law, Virginia does not remove the firearm rights of those convicted of misdemeanor domestic violence;

    2) The jurisdictional grant of power in 18.2-308.2(C) to restore firearms rights only applies to those who are prohibited persons under Virginia law; and

    3) The federal courts have repeatedly held that states may not ‘restore’ that which was never taken away.

    In one of many cases to uphold this premise, United States v. Jennings, 323 F.3d 263 (4th Cir.), the court held that “restoration of a thing never lost … is a definitional impossibility.”

    This leaves a simple pardon as the only path by which those convicted of misdemeanor domestic violence in Virginia may currently seek to remove their federal disabilities.

    A court order from a Virginia court, purporting to restore rights never taken away by the State, will not serve as an effective defense against a federal firearms charge.

    Could the Legislature fix this? Sure they could. But it would require political courage. It would effectively require a pro-gun politician to introduce a bill which would appear on its face to be anti-gun and which would offer a vehicle to which actual anti-gun politicians could add poison pill amendments.

    In order to fix the trap which these misdemeanants fall into in Virginia, we would have to modify state law to make those convicted of misdemeanor domestic violence prohibited persons. We could then either make restoration automatic after a period of time or require them to petition in the same manner as felons.

    Senator Favola introduced such a bill in SB943 last session but it failed to make it out of committee. Next session will offer a fresh opportunity to correct his issue under state law.

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  2. #2
    Campaign Veteran MAC702's Avatar
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    We just passed this law in Nevada last month. And you are right. When we first read the bill, many of us were quite vocal against the misdemeanor "domestic violence" prohibition, and also remarked that it was unnecessary, even if a good thing, because of the federal Lautenberg amendment.

    I actually received a phone call from our most pro-freedom state assemblyman (well, technically from her husband) and he explained to me WHY they were doing it. It was complicated, but made sense overall. He then asked me not to spread around the reasons, because they didn't want the anti-gunners to get wind of the real plan, while they had their support because it was a line-item that added a prohibition.
    Last edited by MAC702; 07-04-2015 at 06:08 PM.
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    Administrator John Pierce's Avatar
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    Quote Originally Posted by MAC702 View Post
    We just passed this law in Nevada last month. And you are right. When we first read the law, many of us were quite vocal against the misdemeanor "domestic violence" prohibition, and also remarked that it was unnecessary, even if a good thing, because of the federal Lautenberg amendment.

    I actually received a phone call from our most pro-freedom state assemblyman (well, technically from her husband) and he explained to me WHY they were doing it. It was complicated, but made sense overall. He then asked me not to spread around the reasons, because they didn't want the anti-gunners to get wind of the real plan, while they had their support because it was a line-item that added a prohibition.
    That is exactly the scenario we face here. We don't want to be vocal about why it is needed because that will cause the antis to rally against it. But at the same time it otherwise will lead to people thinking the sponsor is betraying them.

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    @John Pierce

    Please check your PM in-box.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member WalkingWolf's Avatar
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    Maybe I am misunderstanding but the Lautenberg amendment is only for firearms, not antique firearms. IIRC VA has no disability for antique firearms.

    Sure it is still wrong to take away one's means of self defense for family, and themselves with a modern firearm. But a antique, or replica is better than a sharp stick.
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    Quote Originally Posted by WalkingWolf View Post
    Maybe I am misunderstanding but the Lautenberg amendment is only for firearms, not antique firearms. IIRC VA has no disability for antique firearms.

    Sure it is still wrong to take away one's means of self defense for family, and themselves with a modern firearm. But a antique, or replica is better than a sharp stick.
    But not nearly as good as a modern firearm that is not only far more reliable (how many antiques are going to reliably fire after the kind of torture test that Glocks and Sig's laugh off?), but also drop safe, faster to reload, etc, etc, etc.

    The anti-gunners are fond of saying the 2nd amendment only applies to those firearms that existed when it was written. Obviously, cap and ball is far better than flintlocks with their exposed pans. I can appreciate discussion of the quirks of gun laws not limiting guns made before 1899 (or whatever the magic date is before guns were possessed by the powers of Hades to turn decent men into raving murderous lunatics) in certain cases. But on a thread like this it seems a bit of a concession to the antis' specious claim that I know you don't accept or espouse. How is relegating oneself to antique guns any more respecting or defending of RKBA than getting a permit to carry a modern gun?

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    I know of a case going on right now in a circuit court in Virginia in which the petitioner is seeking a declaratory judgment against Virginia to the effect that his gun rights are unaffected by dicta in Castleman, and that his conviction for domestic assault did not involve a "crime of domestic violence". ("Dicta", a Latin word meaning "something said", refers to things stated in a judicial opinion that were not essential to the holding in the case. Castleman is a perfect example; the majority opinion quoted from factoids supplied in amicus curiae briefs that had absolutely nothing to do with the application of the Tennessee statute under consideration. J. Scalia's concurring opinion stated the holding and the rationale clearly without a lot of hogwash.)
    Last edited by user; 07-12-2015 at 08:14 AM.
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