Bill Text: VA HB1406 | 2017 | Regular Session | Prefiled
Bill Title: Firearms; restoration of right to person convicted of a nonviolent felony to possess, etc.
Spectrum: Partisan Bill (Republican 17-0)
Status: (Introduced - Dead) 2017-02-07 - Left in Courts of Justice [HB1406 Detail]
Download: Virginia-2017-HB1406-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§18.2-308.09 and 18.2-308.2 of the Code of Virginia are amended and reenacted as follows:
§18.2-308.09. Disqualifications for a concealed handgun permit.
The following persons shall be deemed disqualified from obtaining a permit:
1. An individual who is ineligible to possess a firearm pursuant to §18.2-308.1:1, 18.2-308.1:2, or 18.2-308.1:3 or the substantially similar law of any other state or of the United States.
2. An individual who was ineligible to possess a firearm pursuant to §18.2-308.1:1 and who was discharged from the custody of the Commissioner pursuant to §19.2-182.7 less than five years before the date of his application for a concealed handgun permit.
3. An individual who was ineligible to possess a firearm pursuant to §18.2-308.1:2 and whose competency or capacity was restored pursuant to §64.2-2012 less than five years before the date of his application for a concealed handgun permit.
4. An individual who was ineligible to possess a firearm under §18.2-308.1:3 and who was released from commitment less than five years before the date of this application for a concealed handgun permit.
5. An individual who is subject to a restraining order, or to a protective order and prohibited by §18.2-308.1:4 from purchasing, possessing, or transporting a firearm.
6. An individual who is prohibited by §18.2-308.2 from
possessing or transporting a firearm, except that a
permit an order
may be obtained or such individual's
right to possess or transport a firearm may be restored in
accordance with subsection C of that section.
7. An individual who has been convicted of two or more misdemeanors within the five-year period immediately preceding the application, if one of the misdemeanors was a Class 1 misdemeanor, but the judge shall have the discretion to deny a permit for two or more misdemeanors that are not Class 1. Traffic infractions and misdemeanors set forth in Title 46.2 shall not be considered for purposes of this disqualification.
8. An individual who is addicted to, or is an unlawful user or distributor of, marijuana, synthetic cannabinoids, or any controlled substance.
9. An individual who has been convicted of a violation of § 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application, or who is a habitual drunkard as determined pursuant to §4.1-333.
10. An alien other than an alien lawfully admitted for permanent residence in the United States.
11. An individual who has been discharged from the armed forces of the United States under dishonorable conditions.
12. An individual who is a fugitive from justice.
13. An individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others. The sheriff, chief of police, or attorney for the Commonwealth may submit to the court a sworn, written statement indicating that, in the opinion of such sheriff, chief of police, or attorney for the Commonwealth, based upon a disqualifying conviction or upon the specific acts set forth in the statement, the applicant is likely to use a weapon unlawfully or negligently to endanger others. The statement of the sheriff, chief of police, or the attorney for the Commonwealth shall be based upon personal knowledge of such individual or of a deputy sheriff, police officer, or assistant attorney for the Commonwealth of the specific acts, or upon a written statement made under oath before a notary public of a competent person having personal knowledge of the specific acts.
14. An individual who has been convicted of any assault, assault and battery, sexual battery, discharging of a firearm in violation of § 18.2-280 or 18.2-286.1 or brandishing of a firearm in violation of §18.2-282 within the three-year period immediately preceding the application.
15. An individual who has been convicted of stalking.
16. An individual whose previous convictions or adjudications of delinquency were based on an offense that would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories. For purposes of this disqualifier, only convictions occurring within 16 years following the later of the date of (i) the conviction or adjudication or (ii) release from any incarceration imposed upon such conviction or adjudication shall be deemed to be "previous convictions." Disqualification under this subdivision shall not apply to an individual with previous adjudications of delinquency who has completed a term of service of no less than two years in the Armed Forces of the United States and, if such person has been discharged from the Armed Forces of the United States, received an honorable discharge.
17. An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15.
18. An individual who has received mental health treatment or substance abuse treatment in a residential setting within five years prior to the date of his application for a concealed handgun permit.
19. An individual not otherwise ineligible pursuant to this article, who, within the three-year period immediately preceding the application for the permit, was found guilty of any criminal offense set forth in Article 1 (§18.2-247 et seq.) or former §18.2-248.1:1 or of a criminal offense of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance, under the laws of any state, the District of Columbia, or the United States or its territories.
20. An individual, not otherwise ineligible pursuant to this article, with respect to whom, within the three-year period immediately preceding the application, upon a charge of any criminal offense set forth in Article 1 (§18.2-247 et seq.) or former §18.2-248.1:1 or upon a charge of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance under the laws of any state, the District of Columbia, or the United States or its territories, the trial court found that the facts of the case were sufficient for a finding of guilt and disposed of the case pursuant to §18.2-251 or the substantially similar law of any other state, the District of Columbia, or the United States or its territories.
§18.2-308.2. Possession or transportation of firearms, firearms ammunition, stun weapons, explosives or concealed weapons by convicted felons; penalties; petition for order; 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.
B. The prohibitions of subsection A shall not apply to (i) any
person who possesses a firearm, ammunition for a firearm, explosive material or
other weapon while carrying out his duties as a member of the Armed Forces of
the United States or of the National Guard of Virginia or of any other state,;
(ii) any law-enforcement officer in the performance of his duties,;
(iii) any person who has been pardoned or whose political disabilities have
been removed pursuant to Article V, Section 12 of the Constitution of Virginia
provided the Governor, in the document granting the pardon or removing the
person's political disabilities, may expressly place conditions upon the
reinstatement of the person's right to ship, transport, possess or receive
firearms,;
(iv) any person whose civil
rights have been restored pursuant to
Article II, Section 1 of the Constitution of Virginia; (v)
any person whose right to possess firearms or ammunition has been restored
under the law of another state subject to conditions placed upon the
reinstatement of the person's right to ship, transport, possess, or receive
firearms by such state,; or (v) (vi) any person adjudicated
delinquent as a juvenile who has completed a term of service of no less than
two years in the Armed Forces of the United States and, if such person has been
discharged from the Armed Forces of the United States, received an honorable
discharge and who is not otherwise prohibited under clause (i) or (ii) of subsection
A.
C. Any person prohibited from possessing, transporting, or
carrying a firearm, ammunition for a firearm, or a stun weapon under subsection
A may petition the circuit court of the jurisdiction in which he resides or, if
the person is not a resident of the Commonwealth, the circuit court of any
county or city where such person was last convicted of a felony or adjudicated
delinquent of a disqualifying offense pursuant to subsection A, for a permit an
order to possess, transport,
or carry a firearm, ammunition for a firearm, or a stun weapon; however, no
person who has been convicted of a violent
felony shall be qualified to petition for such a
permit an order
unless his civil rights have been restored by the Governor or other appropriate
authority. A copy of the petition shall be mailed or delivered to the attorney
for the Commonwealth for the jurisdiction where the petition was filed who
shall be entitled to respond and represent the interests of the Commonwealth.
The court shall conduct a hearing if requested by either party. The court may,
in its discretion and for good cause shown, grant such petition and issue a permit an
order. However,
any person who has been convicted of any felony,
other than a violent felony, whose
civil rights have been restored pursuant to Article II, Section 1 of the
Constitution of Virginia is not required to petition for an order to possess,
transport, or carry a firearm, ammunition for a firearm, or a stun weapon, and
such person's right to possess, transport, or carry a firearm, ammunition for a
firearm, or a stun weapon shall be restored automatically upon the restoration
of such person's civil rights. The provisions of this
section relating to firearms, ammunition for a firearm, and stun weapons shall
not apply to any person who has been granted a
permit an order
pursuant to this subsection or whose
civil rights have been restored pursuant to Article II, Section
1 of the Constitution of Virginia.
C1. Any person who was prohibited from possessing, transporting or carrying explosive material under subsection A may possess, transport or carry such explosive material if his right to possess, transport or carry explosive material has been restored pursuant to federal law.
D. For the purpose of this section:
"Ammunition for a firearm" means the combination of a cartridge, projectile, primer, or propellant designed for use in a firearm other than an antique firearm as defined in §18.2-308.2:2.
"Explosive material" means any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion; the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, smokeless gun powder, detonators, blasting caps and detonating cord but shall not include fireworks or permissible fireworks as defined in §27-95.
2. That this act shall become effective January 1, 2019, contingent upon the passage of amendments to the Constitution of Virginia on the Tuesday after the first Monday in November 2018 amending Article II, Section 1 and Article V, Section 12 of the Constitution of Virginia providing for the automatic restoration of the civil rights of a person who has been convicted of any felony, other than a violent felony.
