Contesting Virginia firearm prosecutions sometimes needs to use the Second Amendment as a shield, says Fairfax criminal lawyer

Contesting Virginia firearm prosecution sometimes needs to draw on the protections of the Constitution’s Second Amendment. As a Fairfax criminal lawyer, I know that we Virginia criminal defense lawyers must not rely on Constitutional arguments of statutory invalidity alone in pursuing victory for our clients, but at the same time we must always consider adding arguments that the applicable statute is simply unconstitutional, whether facially or as applied. Substantial money, time, and brainpower have for years been devoted by all sides of the never-ending gun / firearms rights and gun control debate. I applauded when the Supreme Court last year breathed more life than ever into the Second Amendment’s protection for individual firearm possession (NYS Rifle & Pistol Assoc., et al., v. Bruen, et al., 597 U.S. —, 142 S.Ct. 2111 (2022)), not because I myself want to own a handgun, but because doing so shrinks our overgrown criminal prosecution system, and because that Supreme Court decision is faithful to the language of the Second Amendment, thus supporting courts being faithful to the language of the remainder of the Bill of Rights, so much of which is essential to the rights of criminal defendants, as well as to all people.

Must I relinquish my firearms when a Virginia protective order proceeding respondent?

Virginia law bars a protective order proceeding respondent from possessing a firearm unless and until the proceeding gets dismissed or a requested protective order gets denied, and to file with the court a signed Protective Order Firearm Certification that the respondent does not possess any firearms or has transferred such possession. “The willful failure of any person to certify in writing in accordance with this section that all firearms possessed by such person have been surrendered, sold, or transferred or that such person does not possess any firearms shall constitute contempt of court.” Va. Code § 18.2-308.1:4(C). The respondent has 24 hours between the time s/he is served a protective order and the time s/he no longer possesses any firearms.  Violating the foregoing prohibition is a Virginia Class 6 felony, and, therefore, is punishable by up to five years of imprisonment. On top of that, under certain circumstances, such a violation can also constitute a federal crime. U.S. Code § 922(g)(8). Contesting such prosecutions should take into consideration this article.

Why should my Virginia handgun and firearm rights be trampled on by the say-so of a protective order petitioner? How far will I get in contesting such a state of affairs?

The above question gets my sympathetic ear on a civil liberties and political basis, as well as in my role as a Fairfax criminal lawyer, for contesting such laws in and out of court. Yes, the law empowers protective order petitioner, usually ex parte, to appear before a judicial officer and not only to obtain a preliminary protective order (PPO) but also — automatically upon the issuance of a PPO for the respondent to lose their firearm possession rights upon being served the PPO. The foregoing arguments are a call to action for reforming the Virginia protective order law. Nonetheless, Virginia criminal defendants and potential criminal defendants need also to understand the realities of the current law, and as a Virginia criminal lawyer, I cannot tell people to disregard any laws before they are invalidated, amended or replaced.

Will the Supreme Court bar prosecutions for protective order respondents to possess handguns and other firearms?

In its pending 2023-24 term, the federal Supreme Court will decide to uphold, reverse or modify the Rahimi federal appellate opinion that wisely invalidates the federal law that criminalizes firearm possession by those subject to protective orders. The same reasons the federal circuit court articulated for invalidating this federal criminal law can also be used by a criminal defense lawyer in contesting a prosecution under Virginia’s analogous law. However, unless and until the Supreme Court affirms the foregoing federal appellate decision, do not automatically bank on beating such a prosecution through using similar Second Amendment arguments.

Is it Constitutional to bar me from purchasing a handgun merely because I was involuntarily committed to a mental institution?

Virginia statutory curbs on firearm possession do not stop with protective order respondents. While we should not expect the courts to say the Second Amendment invalidates firearm possession by convicted felons, ripe for Second Amendment arguments should be the Virginia and federal statutory criminal prohibitions against handgun purchases by those who have been previously involuntarily committed for mental health treatment. First, the mere fact of having been subject to an involuntary mental health commitment — particularly if the commitment was brief or by the decision of other than a reliable judicial authority — is not a sufficient nexus to barring the person from subsequently purchasing or possessing a firearm. Second, the reasons for committing a person involuntarily for mental health treatment can be so remote from dangerousness or not with firearms (for instance temporary serious depression or anxiety) that the mere commitment by itself would not justify barring access to firearms. Third, plenty of people do recover from mental health challenges or else do become functional through therapy and/or medication, thus also making suspect any blanked ban against handgun possession by a person who was involuntarily committed to a mental institution. Further food for thought is here in contesting such prosecutions.

What are the benefits of hiring a Virginia criminal defense lawyer who is devoted to robust Second Amendment weapons rights?

As a Fairfax criminal lawyer and civil libertarian (and the ACLU has let me down by opposing the expansion of Second Amendment rights in Rahimi), I have long believed in putting and keeping teeth into the Second Amendment and in contesting laws that do otherwise, if for no other reason than that by enforcing the Second Amendment, the courts are more likely also to enforce such amendments that are vital to criminal defendants as the Fourth, Fifth, and Sixth Amendments. When your Virginia criminal defense lawyer is on all fours for robust Second Amendment rights, your attorney is not hesitating to defend you to the hilt against prosecutions using laws that are written to curb your right to bear arms.

Fairfax criminal lawyer Jonathan Katz believes that the criminal prosecution system is overgrown to the detriment of our civil liberties and individual rights. Jon Katz knows he is on the side of the angels every time he defends a person accused of a crime. Call 703-383-1100 for your free initial in-person confidential consultation with Jon about your court-pending Virginia prosecution.