Possession of a Firearm by Felon

If you are a convicted felon, it is unlawful for you to possess a firearm unless your right to do so has been restored by a court. So if you have a felony record, and a police officer realizes you are in possession of a firearm, the officer will almost certainly arrest you and seize the gun as evidence.

Firearm by Felon in Virginia

possession of firearmThis crime is defined by Virginia Code Section 18.2-308.2.  As with all crimes, in order for you to be convicted of this the Commonwealth will have to prove each element of the crime. This crime has 2 basic elements:

That you were previously convicted of a Felony;  OR that on some date after July 1, 2005, while you were a juvenile, you were adjudicated delinquent (like “found guilty” but for juveniles) for Murder, Armed Robbery by gun, or Rape; OR that you are under the age of 29, and were adjudicated delinquent as a juvenile 14 years of age or older for any felony.


That you knowingly and intentionally possessed or transported, or knowingly and intentionally carried about his person, hidden from common observation, any Firearm, Stun gun, or explosive material.

Possession of a Firearm by Felon is a Class 6 Felony in Virginia

Any person who was previously convicted of a “violent felony” will be sentenced to a minimum mandatory of 5 years imprisonment.

Any person who was previously convicted of a felony within the past 10 years will be sentenced to a minimum mandatory of 2 years imprisonment.

If neither of those applies, the sentence could include time in jail or prison up to 5 years, as applies with all Class 6 Felonies in Virginia.

Defenses for Possession of a Firearm by Felon

The virginia law provides some exceptions to this law. You may have a good defense to being charged under this particular statute if any of the following apply to you:

  1. You only possessed a Stun Gun, and were at or very near your own residence.
  2. You were carrying out your duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state.
  3. The governor of Virginia restored your gun rights previously.
  4. Your right to possess firearms or ammunition has been restored under the law of another state.
  5. The evidence against you was unlawfully obtained in violation of your Fourth Amendment Rights.
  6. The evidence against you was unlawfully obtained in violation of your Miranda rights.

Illegal Search and Seizure in Possession of a Firearm by Felon Cases

Even when you were possessing a firearm unlawfully, the Commonwealth and Police still must not violate your Constitutional Rights in obtaining the evidence against you.  The Virginia Court of Appeals, in Minter v. Commonwealth (2014), recently considered a case where the Defendant had been charged with this crime, and his attorney moved to suppress the evidence of the gun, because police had violated the defendant’s rights.

In that case, the Defendant, a felon, was carrying a concealed gun when officers saw him walking in a public parking lot. While they drove their unmarked vehicle slowly past, the defendant appeared very interested in their vehicle and began to walk away faster, crossing a muddy pool of water to get away. Officers stopped their vehicle and asked to speak to him and he agreed. The defendant appeared very nervous and was shaking and stammering over his words. The defendant reached into his pockets twice and after the officers had told him to keep his hands out of his pockets. Officers conducted a pat-down and asked the defendant if he had any weapons. He stated that he did, and they located a handgun on his person.  At the defendant’s trial, the evidence of the gun was allowed and he was convicted.  But the Defendant appealed that decision.

On his appeal, the Court of Appeals held that the Defendant had been “seized” by the police officers at the moment they did the frisk, or “pat-down”. And when they did that, they did not have reasonable suspicion to believe the Defendant had been committing a crime, and they had no other reason to believe he was carrying a weapon.  Because they did the pat-down without reasonable suspicion, the gun should not have been admitted into evidence at the Defendant’s trial. As a result, the Defendant’s conviction was reversed.

The point is this:  Officers have to follow the rules, and if they haven’t followed the rules in your case, an experienced attorney who has handled firearm cases should be able to help you get a good result.  Many of these same principles apply to various drug charges as well.

Can I get my Gun Rights Restored?

Maybe.  You can petition to have your right to possess a firearm restored. That petition is usually made in the Circuit Court, and a firearm law attorney should be able to help you with the process. The Virginia State Police have provided some good information regarding Restoration of Gun Rights.