Nonviolent felons need to assert their Second Amendment rights when charged in Virginia for being a felon in possession of a firearm, says Fairfax criminal lawyer

Nonviolent felons (NF or NF’s) have available in Virginia courts an argument that the the Constitution’s Second Amendment bars convicting them for being a convicted felon in possession of a firearm. As a Fairfax criminal lawyer I know that this argument is preserved by the Virginia Court of Appeals in Ginevan v. Commonwealth of Virginia, ___ Va. App. ___, 2024 WL 5126890 (Dec. 17 2024). Ginevan does not benefit here, because Ginevan finds it Constitutional to bar handgun and other firearm possession to violent felons, points out that Ginevan has a conviction for being a felon in possession of ammunition, and permits enacted legislation to classify what is a violent felony (for which his foregoing ammunition conviction counts). Ginevan‘s language leans towards okaying barring those convicted of a NF also from possession of firearms. Nonetheless, if Ginevan seeks en banc (full court) review of this three-judge opinion or seeks Virginia Supreme Court review, such a highly-charged issue is likely to get granted one or both types of review, and possibly a different spin than in Ginevan as to possession of a firearm by a person convicted of such a NF as possession of a Schedule I or II controlled substance (a felony in Virginia), or a fraudulent financial transaction.

Fairfax criminal lawyer says that seemingly farfetched arguments for Virginia defendants are not always farfetched

As a Fairfax criminal lawyer, I know that seemingly farfetched arguments for the accused in Virginia are not always farfetched. As recently as twenty-five years ago, plenty of well-educated and well-informed people may have thought it unlikely that the federal Supreme Court would finally enunciate wide-ranging Second Amendment firearms rights to individuals rather than buckling under the argument of gun control advocates to interpret the amendment’s “right of the people” to only be a collective right. (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. Amend. II.) Then, in relatively quick succession — compared to the decades of virtual silence from the Supreme Court — came three earth-shattering federal Supreme Court decisions that widened and reinforced the right of individuals to bear arms at home and ultimately to be permitted to protect themselves with firearms beyond only their homes. D.C. v. Heller, 554 U.S. 570 (2008); NYS Rifle & Pistol Assoc., et al., v. Bruen, et al., 597 U.S. 1 (2022); and U.S. v. Rahimi, 602 U.S. 680 (2024). On top of that, Virginia has historically been among the most hospitable of places for gun rights. (Keep in mind that the foregoing court cases can also be used to defend against prosecutions for knives and other non-firearm weapons. Commonwealth v. Canjura, 494 Mass. 508 (2024). Read on about particular arguments that can be made in favor of those convicted only of nonviolent felonies. 

If your felony conviction is for a nonviolent felony, seek a Virginia criminal lawyer ready to argue the matter if prosecuted for being a convicted felon in possession of a firearm

The Virginia Code criminalizes as a Class 6 felony (carrying imprisonment up to five years) being a convicted felony in possession of a firearm, firearm ammunition, and concealed defined dangerous weapons. This prohibition does not apply to those whose firearm rights have been restored under Virginia law. Clearly intending this statute to apply to all felony convictions, the Code says that a violation of this statute for those convicted of designated felonies “shall be sentenced to a mandatory minimum term of imprisonment of five years.” Virginia Code § 18.2-308.2. Declining to address whether certain or all nonviolent felony convictions are protected by the Second Amendment from being convicted under the foregoing statute, Ginevan addresses who can be removed from the phrase “the people” in the Second Amendment (for instance those convicted of violent felonies), and says: “it is not surprising, against this backdrop, to find a budding split in the circuits on the felon-in-possession question among the federal courts of appeals.12 The question of whether non-dangerous felons can be stripped of their gun rights, however, is a debate into which we need not wade because Ginevan is not simply a felon—but has been adjudicated a violent felon by virtue of his previous 2018 conviction for possessing ammunition as a convicted felon in violation of Code § 18.2-308.2. See Code § 17.1-805(C).” Ginevan (emphasis added).

Ask your potential Virginia criminal lawyer what they think about Second Amendment weapons rights, and whether they have ever fired a weapon

A drug defendant does not need a lawyer who has used and enjoyed illegal drugs, and the drug laws apply to lawyers as equally as to everyone else. Firearms are different from drugs, permitted for possession and use within the confines of the law. If your potential Virginia criminal laywer is a strong gun control advoacate, you want to know whether that will cause your lawyer to go full guns for your criminal defense, whether your alleged crime is violent or nonviolent. I believe strongly in robust Second Amendment, firearms and weapons protection under the law, in order to give teeth to the plain meaning of the Second Amendment and the rest of the Bill of Rights, to shrink the overcriminalization of society by state and federal statutes, and to protect innocent people against those who commit criminal violent acts. I first fired a weapon at the age of nine (a single-shot rifle) and continued doing so for several years, and recently graduated to firing (with laser sighting) an AR-15, a popular military rifle, two pistols with magazines, and a revolver, ultimately hitting the heart four times and the lung twice in my target. When your Virginia criminal defense lawyer stands before your judge and jury, you want your lawyer to know what the judges and jurors who have used firearms know, which is that they are scary in the wrong hands, pack a wallop (for starters) and are very sobering to shoot when feeling the recoil, smelling the gunpowder, and hearing the loudness of each shot.This all fits in well with my strong belief in learning self defense, correctly, and why I have been practicing martial arts for over thirty years. With that backdrop, I welcome fully defending against all weapons prosecutions.

Fairfax criminal lawyer Jonathan Katz fully believe in your right to a fully effective defense against Virginia DUI, felony and misdemeanor prosecutions. You will be convinced of the same early in your free in-person initial consultation with Jon Katz about your court-pending case. Call 703-383-1100, Info@BeatTheProsecution.com and (text) 571-406-7268 to secure your consultation with Jon.