Embracing the 2nd Amendment Is Critical for the Criminal Defense
Embracing your firearm rights is a critical approach for the accused, says Fairfax criminal lawyer
Embracing your firearm rights is a very important approach of your attorney if you are accused of a crime in that category. As a Fairfax criminal lawyer, I strongly support giving full teeth and strength to your Second Amendment right to bear arms / firearms / weapons, because to not give full meaning to the Second Amendment risks weakening your other Constitutional rights, including the Fifth Amendment right of criminal defendants to remain silent, your Sixth Amendment right to an effective criminal defense lawyer, and your Fourth Amendment right against unlawful searches and seizures by police / law enforcement officers (LEO). I also believe in knowing firsthand about firearms. (The featured image for this article shows me recently firing a pistol, and here is my recent revolver shooting target.) Having personally shot a variety of firearms (with training from a top-flight instructor), I know their lethality and that responsible people can easily learn how to use weapons safely.
Virginia criminal defendants have personal weapons rights that need embracing
The Supreme Court in 2022 finally confirmed more teeth than ever before in the personal --rather than merely collective -- right to possess firearms. . NYS Rifle & Pistol Assoc., et al., v. Bruen, et al., 597 U.S. —, 142 S.Ct. 2111 (June 23, 2022). Pre-existing Bruen are the following firearm-curbing laws affecting Virginians that are ripe for challenge pursuant to Bruen and the Second Amendment: prohibition of firearm possession by those subject to emergency, preliminary and final protective orders (Virginia Code § 18.2-308.1:4) (and federal and Virginia law place limits on firearm possession for those with domestic violence convictions); bar against firearm possession by people who have been involuntarily and voluntarily committed for mental health treatment, as provided and prohibited under Virginia Code § 18.2-308.1:3 (unless those rights get restored as addressed in the foregoing statute); and firearm ban when having an unexpired substantial risk order (SRO) issued under Virginia Code § 19.2-152.14. On top of that, even if Bruen does not curb bans on handgun possession by convicted felons, Bruen certainly makes ripe for challenge Virginia's criminalization of falsely denying involuntary or voluntary mental health treatment under Virginia Code § 18.2-308.2:2. Embracing those challenges as appropriate is critical.
Should my Virginia criminal defense lawyer be prepared at once to present Constitutional, statutory and evidentiary challenges to my firearms prosecution?
The answer to the foregoing question is yes as part of embracing your full court criminal defense. As an example, I recently won a Virginia substantial risk order hearing where the Fairfax Circuit Court judge denied my Constitutional challenge to the statute as facially invalid, but proceeded to conclude that the assistant commonwealth's attorney / prosecutor had not met their burden to prove by clear and convincing evidence under Virginia Code § 19.2-152.14that my client was the shooter and "poses a substantial risk of personal injury to himself or to other individuals in the near future by such person's possession or acquisition of a firearm." Bonus: When Virginia prosecutors seek a substantial risk order in a case that parallels a current prosecution, your attorney at the SRO hearing can by cross-examination obtain information that can be critically helpful for your criminal defense in the parallel proceeding. If you proceed to an SRO hearing without a lawyer, you will be at risk of saying something you should not, and at risk of not being able to sufficiently argue in your defense.
What do the courts say about the Constitutionality of banning access to firearms for protective order defendants and those previously committed for mental health treatment?
The Supreme Court has heard arguments on (and will decide) whether the Second Amendment permits barring firearm possession by those with protective orders against them. U.S. v. Rahimi, Docket Number: 22-915 (argued November 7, 2023). A federal appellate court has held that permanent disarmament due to involuntary mental health commitment can violate the Second Amendment. Tyler v. Hillsdale, 837 F.3d 678 (6th Cir. 2016). Consequently, make sure your Virginia criminal defense lawyer will be embracing appropriate Second Amendment challenges to your firearm prosecution where applicable.
Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. A great start to your Virginia criminal defense is one call away at 703-383-1100 for your free initial in-person confidential consultation with Jon Katz about your court-pending case.
