- Virginia Code section 18.2-308.2:5 was amended to add the requirement of a background check on all firearm sales.
- Virginia Code section 19.2-152.14 created an Emergency Substantial Risk Order, which allows for law enforcement to temporarily separate a person from their firearms when they represent a danger to themselves or others.
- Virginia Code section 18.2-308.2:2 was amended to reinstate the one-handgun-a-month rule. The code reads, “It shall be unlawful for any person who is not a licensed firearms dealer to purchase more than one handgun within any 30-day period . . . a violation of this subsection is punishable as a Class 1 misdemeanor.” Calling it a one-handgun-a-month rule is a bit deceiving because it really is one handgun every thirty days. So, you cannot buy one handgun on June 25th and then go buy another on July 6th of the same year because they are within 30 days of each other, even though they are different months.
- Virginia Code section 18.2-287.5 creates a requirement that gun owners report their lost or stolen firearms to any local law enforcement agency within 48 hours after said gun owner discovers the loss or theft. A violation of this section shall be a civil penalty of not more than $250.00.
- Virginia Code section 18.2-56.2 was amended to increase the penalty for leaving a loaded firearm near a child from a Class 3 misdemeanor to a Class 1 misdemeanor. The code reads, in part, “It shall be unlawful for any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of fourteen.”
Two of these new laws are more interesting to me than the others. Virginia Code section 18.2-308.2:5 was amended to say:
“No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check . . . and that a determination has been received . . . that the prospective purchaser is not prohibited under state or federal law from possessing a firearm . . .”
This is what they are calling the “Universal Background Check.” It is supposed to close the so-called “Gun Show Loophole.” Prior to this law going into effect there were few restrictions related to a private individual selling a single firearm to another private individual who was lawfully entitled to own a firearm.
Clearly, this law will prevent many people from selling their firearms to their friends, family, or strangers they meet at gun shows. But it does not prevent anyone from giving their firearm as a gift to another person that may lawfully own a firearm. So, you can give your non-felon spouse or child a gun for Christmas or their birthday without fear of violating this law. Also, it does not prevent you from leaving your firearms to another person in your Last Will and Testament or Trust. This law could have been far more restrictive and made the lives of gun owners far more difficult had the legislature used the word “transfer” rather than “sell.” Had they prohibited “transfers” then you may not have been permitted to gift or bequest your firearms.
The other new law that I find to be interesting is Virginia Code section 19.2-152.13 which creates “Substantial Risk Orders.” Prior to this law being enacted there was no real mechanism in place to take away a person’s firearm unless they had committed a crime or were subject to a protective order. Repeatedly, we saw shootings where the gunman had previously raised concerns about his own mental health through his actions and words. However, since he had not committed a crime the police had no recourse but sit and wait for him to commit a crime, or worse, kill someone. These Red Flag laws, or Emergency Substantial Risk Orders, are the Virginia Assembly’s response to that situation.
The Virginia Code sections dealing with these new Red Flag laws read in part:
Upon the petition of an attorney for the commonwealth or a law enforcement officer, a judge… upon a finding that there is probable cause to believe that a person poses a substantial risk of personal injury to himself or others in the near future by such person’s possession or acquisition of a firearm, shall issue an ex parte emergency substantial risk order. Such order shall prohibit the person who is subject to the order from purchasing, possessing, or transporting a firearm for the duration of the order . . . No petition shall be filed unless an independent investigation has been conducted by law enforcement…
upon service of an emergency substantial risk order, the person who is subject to the order shall be given the opportunity to voluntarily relinquish any firearm in his possession. . . An emergency substantial risk order issued pursuant to this section shall expire at 11:59 P.M. on the fourteenth day following issuance of the order. . . emergency substantial risk order issued pursuant to this section is effective upon personal service on the person who is subject to the order.
Section 19.2-152.14 continues;
“Not later than 14 day after the issuance of an emergency substantial risk order pursuant to 19.2-152.13, the circuit court for the jurisdiction where the order was issued shall hold a hearing to determine whether a substantial risk order should be entered. . . The Commonwealth shall have the burden of proving all material facts by clear and convincing evidence. If the court finds by clear and convincing evidence that the person poses a substantial risk of personal injury to himself or other individuals in the near future by such person’s possession or acquisition of a firearm, the court shall issue a substantial risk order. Such order shall prohibit the person who is subject to the order from purchasing, possession, or transporting a firearm for the duration of the order. . . If the court issues a substantial risk order pursuant to subsection A, the court shall (i) order that any firearm that was previously relinquished pursuant to 19.2-152.13 from the person who is subject to the substantial risk order continues to be held by the agency that has custody of the firearm for the duration of the order. . . The substantial risk order may be issued for a specified period of time up to a maximum of 180 days.
As a gun owner, I am deeply suspicious of any law that may limit my right to own a firearm for personal defense. I had serious concerns about this Red Flag law until I read it. In reading the foregoing, I noticed several key factors:
- Only a Commonwealth attorney or law enforcement officer may petition the court for the emergency order. Your angry neighbor or rival may not petition to take away your firearm.
- Law enforcement must conduct an investigation prior to submitting evidence to a judge.
- There must be a showing of probable cause before the 14-day substantial risk order is put in place.
- The order does not go into effect until the subject of the order receives service (is notified by authorities of the order’s existence).
- The temporary emergency order automatically expires at the end of 14 days.
- Upon notice to the subject of the order there shall be a full hearing before a Circuit Court where the Commonwealth must prove his case with material facts by a clear and convincing standard. Clear and Convincing is not quite Beyond a Reasonable doubt, but it is a very high standard. While Clear and Convincing is not defined in the Virginia Code, typically it means that a fact is “highly probable” to be true or that a Court should be about 80% sure that the facts being presented are true.
While it is true that law enforcement and courts make mistakes and innocent people get convicted of crimes they did not commit, I feel that this law has been written succinctly enough that it will not be used to take away the firearms of people that do not pose a danger to themselves or others. I want all mentally sound, law abiding citizens to be able to own and possess firearms. However, I would like for the courts, after a full hearing, to be able to remove firearms from the home of a person that has overtly demonstrated that he is mentally unstable and likely to turn those firearms on his neighbors or a classroom full of children. I believe that this law strikes that delicate balance of preserving my right to own a firearm while allowing the courts to deprive people of firearms that have been proven to be mentally unstable. Obviously, no law is perfect, this law will not stop all shootings, but it will at least give law enforcement an opportunity to take away the means of a deeply troubled person to inflict harm on himself or others.
There were at least two bills proposed during the 2020 legislative session that would have, if passed, prohibited Virginians from owning certain semi-automatic firearms and magazines that hold over ten rounds. A semi-automatic firearm is one that fires a single bullet each time the trigger is pulled. The first semi-automatic rifle was invented in 1885, and most of the firearms sold in the USA today are semi-automatic. The bills that would have prohibited the ownership and possession of certain semi-automatic firearms failed to pass. Currently, Virginians can still legally possess most semi-automatic firearms.
