Gun Rights After a Virginia Conviction or Protective Order

The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed Virginia attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.

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The right to possess firearms under both Virginia and federal law can be affected by a wide range of criminal convictions, protective orders, and other legal events. Many people are surprised to learn that certain misdemeanor convictions, not just felonies, can trigger a permanent prohibition on firearm possession. Understanding how these rules work is important for anyone who legally owns firearms and is facing criminal charges or a protective order, and for anyone who wants to understand their current status under the law.

Federal Firearms Prohibitions: 18 U.S.C. § 922(g)

Federal law establishes the baseline prohibitions on firearm possession that apply nationwide. 18 U.S.C. § 922(g) makes it unlawful for certain categories of persons to possess, purchase, or transport firearms or ammunition in interstate commerce. The relevant categories include:

• Convicted felons: Any person convicted of a crime punishable by imprisonment for more than one year (which includes all felonies under Virginia law)
• Domestic violence misdemeanants: Any person convicted of a “misdemeanor crime of domestic violence” (the Lautenberg Amendment, discussed below)
• Persons subject to qualifying protective orders: Any person subject to a qualifying final protective order involving domestic violence
• Unlawful drug users: Any person who is an unlawful user of or addicted to a controlled substance
• Persons adjudicated as a mental defective or committed to a mental institution
• Fugitives from justice
• Persons with dishonorable discharges
• Undocumented persons
• Persons who have renounced U.S. citizenship

Violation of § 922(g) is a federal felony carrying up to 10 years in federal prison.

Virginia’s Felon in Possession Statute: Va. Code § 18.2-308.2

In addition to the federal prohibition, Virginia has its own firearm restriction. Virginia Code § 18.2-308.2 prohibits any person who has been convicted of a felony under Virginia law or the laws of any other jurisdiction from possessing, purchasing, or transporting any firearm.

A violation of § 18.2-308.2 is a Class 6 felony, carrying 1 to 5 years in prison, or at the jury’s discretion, up to 12 months in jail and a $2,500 fine.

Virginia’s prohibition mirrors the federal prohibition for felons. Both apply. A person who is prohibited under federal law is also typically prohibited under Virginia law, and a person prohibited under Virginia law is typically also prohibited under federal law (since Virginia felonies are punishable by more than one year).

The Lautenberg Amendment: Domestic Violence Misdemeanors

The provision of federal law that surprises people most is the Lautenberg Amendment (18 U.S.C. § 922(g)(9)), which prohibits firearm possession by anyone convicted of a “misdemeanor crime of domestic violence.”

A “misdemeanor crime of domestic violence” is defined under federal law as a misdemeanor that:

• Has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon
• Was committed against a current or former spouse, parent, child, cohabitant, or person with whom the defendant shares a child

A conviction under Va. Code § 18.2-57.2 (assault and battery of a family or household member) qualifies as a misdemeanor crime of domestic violence. This means a person convicted of this misdemeanor offense in Virginia permanently loses the right to possess firearms under federal law.

This prohibition applies retroactively to convictions entered before the Lautenberg Amendment was enacted in 1996. It applies even if the person was not informed of this consequence at the time of the plea, and even if the conviction resulted in a suspended sentence with no incarceration.

Law enforcement officers, active-duty military personnel, and others who carry firearms as part of their job are disqualified from doing so upon a qualifying domestic violence misdemeanor conviction.

Protective Orders and Firearm Prohibitions

A final protective order involving domestic violence also triggers a federal firearms prohibition under 18 U.S.C. § 922(g)(8). To trigger this prohibition, the order must:

• Have been issued after a hearing where the respondent had notice and opportunity to participate
• Restrain the respondent from harassing, stalking, or threatening the intimate partner or child of an intimate partner
• Include a finding that the respondent represents a credible threat to the physical safety of the protected party, or prohibit the use, attempted use, or threatened use of physical force

A qualifying final protective order prohibits the respondent from possessing firearms for the duration of the order. In Virginia, a final protective order also requires the respondent to surrender any firearms in their possession under Va. Code § 18.2-308.1:4.

An Emergency Protective Order or Preliminary Protective Order (issued ex parte, without a full hearing) does not trigger the § 922(g)(8) prohibition because the due process requirement of notice and opportunity to be heard has not been met. The prohibition attaches only upon a final order issued after a qualifying hearing.

Impact of a Misdemeanor vs. a Felony

As the foregoing makes clear, the distinction between a misdemeanor and a felony is not always the key dividing line for firearm rights.

Situation	Virginia Law	Federal Law
Felony conviction (any)	Prohibited (§ 18.2-308.2)	Prohibited (§ 922(g)(1))
Domestic violence misdemeanor conviction	Not separately prohibited by Va. law	Permanently prohibited (§ 922(g)(9))
Final domestic violence protective order	Prohibited during order (§ 18.2-308.1:4)	Prohibited during order (§ 922(g)(8))
Drug misdemeanor conviction	Not automatically prohibited	Potentially prohibited if “unlawful user” (§ 922(g)(3))

A person with a domestic violence misdemeanor conviction faces a permanent federal prohibition even though the offense was a misdemeanor. A person convicted of a non-domestic violence misdemeanor typically retains firearm rights under both Virginia and federal law.

Restoration of Rights After a Virginia Conviction

Felony Convictions

A person convicted of a felony in Virginia loses the right to vote, serve on a jury, and run for public office, in addition to losing firearm rights. These civil rights may be restored by the Governor of Virginia. Restoration of civil rights, however, does not automatically restore firearm rights.

Restoration of firearm rights after a Virginia felony conviction requires a separate petition under Va. Code § 18.2-308.2, which allows the circuit court to restore firearm rights in limited circumstances. The process involves a petition to the circuit court, and restoration is not guaranteed. Federal law also continues to apply, and a restoration of rights under Virginia law does not automatically satisfy federal law requirements. A person seeking restoration of firearm rights should consult both Virginia and federal law requirements.

Domestic Violence Misdemeanor Convictions

The Lautenberg Amendment has no restoration mechanism comparable to what exists for felon prohibitions. There is no federal process to petition for restoration of firearm rights lost under § 922(g)(9). Expunging the conviction under state law may affect the federal prohibition in some circumstances, but the law in this area is complex and jurisdiction-specific.

Practical Implications for Firearm Owners

If you legally own firearms and are facing any criminal charges, particularly charges involving family or household members, you should inform your defense attorney of this fact early in the representation. The potential impact on firearm ownership rights is a significant consideration in evaluating plea options. A plea that results in a domestic violence misdemeanor conviction may permanently and irreversibly affect firearm rights in ways that far outlast any criminal sentence.

Residents of Christiansburg, Blacksburg, Radford, and throughout the New River Valley who own firearms and face criminal charges should discuss this aspect of their situation specifically with their attorney before entering any plea.

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This article is general information only and is not legal advice. Do not rely on this article to make decisions about your specific situation. Contact Valley Legal or another licensed Virginia attorney to discuss your case. Attorney advertising.

Valley Legal, PLLC is located at 107 Pepper St SE, Christiansburg, Virginia 24073, and serves clients throughout the New River Valley of Virginia, including Montgomery County, Blacksburg, Radford, Pulaski, and surrounding communities.