Attorney Matthew Bergstrom served as one of the faculty in the 2nd Annual Firearms Law in Virginia Seminar on October 18, 2021. A recording of the program will be available through Virginia CLE--Continuing Legal Education by the Virginia Law Foundation.
The seminar agenda follows:
9:00 Announcements and Introductions
9:05 Virginia’s Constitutional Right to Bear Arms by Justice Steve R. McCullough, Virginia Supreme Court
The Virginia Bill of Rights, Art. 13, provides that “the right of the people to keep and bear arms shall not be infringed….” How has this been construed by the Virginia courts, and to what extent might the decisions of the U.S. Supreme Court be persuasive on the scope of the right and the standard of review?
10:15 Overview of Virginia Firearms Laws (New and Existing) by Judge Richard E. Gardiner, Fairfax County Circuit Court
Virginia has long regulated concealed weapons, provided for permits to carry handguns, banned firearms at schools, and restricted possession by felons; more recently, background checks have been expanded and handgun purchases are limited to one per month. The legal environment and practice pointers for prosecutors and defense attorneys will be discussed.
11:30 Gun Trusts by Matthew J. Bergstrom, Arsenal Attorneys
Planning and drafting gun trusts pose unique challenges for the practitioner. Gun trusts, while sometimes confused with conventional living trusts, must be specifically and carefully drafted to avoid causing inadvertent and accidental felonious behavior by grantors, trustees, and beneficiaries of such trusts. An overview of the law, practical tips, and ethical issues involving gun trusts will be covered.
1:00 Federal Firearms Laws by James P. Vann, Associate Chief Counsel, ATF
The federal Gun Control Act and the National Firearms Act amount to a complex array of regulation. Discussion will be led by an experienced counsel with the Bureau of Alcohol, Tobacco, Firearms and Explosives. This session will cover the most common aspects of federal firearms law for the practitioner, including:
• Gun Control Act and National Firearms Act
• Persons prohibited from possessing firearms, and how firearms rights can be restored
• Federal regulations of interstate commerce in firearms, including regulation of sales and transfers, and firearm dealer licensing
• Federal regulation of carrying and transportation of firearms
2:45 Use of Deadly Force in Self-Defense by Peter D. Greenspun, Greenspun Shapiro PC
Deadly force may be used in justifiable self-defense, but the rules differ depending on place and circumstance. One of Virginia’s preeminent criminal defense attorneys will survey the rules and give practical tips.
4:00 Ethics: The Lawyer as Advocate by Stephen P. Halbrook, Attorney and Author of Firearms Law Deskbook
Professional Responsibility Rule 3, Advocate, requires that claims be meritorious, but allows good faith arguments for reversal of existing law and to test the validity of a ruling. “Second Amendment sanctuaries” raise issues concerning the discretion of Commonwealth’s attorneys to decline to prosecute selected cases, and how counsel may advise public officials regarding whether to enforce laws deemed unconstitutional.
Arsenal Attorneys is a nationwide law firm headquartered in Fairfax, Virginia in the metropolitan Washington, DC. The firm offers serves clients in over 30 states in estate planning, criminal defense, civil litigation, business law, landlord-tenant disputes, real estate, firearms law, restoration of rights, carry permits, and the firm’s proprietary Arsenal Gun Trust. Matthew Bergstrom is the firm’s Managing Attorney, and he is licensed in California, Michigan, Nevada, Virginia, and the District of Columbia.
This blog is intended for informational purposes only and is not intended as legal advice.
As you have no doubt heard the US Supreme Court on April 26, 2021 decided to hear a major gun rights case, New York State Rifle and Pistol Association, Inc. v. Corlett. Corlett focuses on the second leg of the Second Amendment, the right to bear arms outside the home.
The Supreme Court’s 2008 Heller decision and its 2010 McDonald decision confirmed the right to keep or possess a functional firearm in the home. Since that time, the federal courts have disagreed concerning the right to possess and carry a firearm outside the home. Federal appellate courts in Illinois and the District of Columbia have held that the Second Amendment extends outside the home sufficiently to allow law-abiding persons to carry handguns for self-protection. Federal appellate courts in the Northeast and on the West Coast have ruled that to the extent the reach of the Second Amendment extends outside the home, the state can limit that right to persons showing a special need. Corlett could resolve this conflict between the federal courts.
The law at issue in Corlett is similar to gun-control measures in several other states such as California, Hawaii, Maryland and New Jersey. To receive a license to carry a concealed firearm outside the home, a person must show “proper cause,” meaning a special need for self-protection distinct from the population at large. Living in a crime infested neighborhood is not considered a “special need” under this and similar statutes of other jurisdictions. Two men challenged the law after a New York judge rejected their concealed-carry applications. The U.S. Court of Appeals for the 2nd Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.
Currently the vast majority of states allow firearm carry outside the home for personal protection without the requirement to show a special need, or despite having a “good reason” requirement, generally consider self-defense to constitute a good reason to issue a carry permit or license. Delaware is such an example of the latter.
After considering Corlett in three conferences, the justices agreed to hear the case. The Court instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. Some commentators have expressed concern that this signals that the Court is looking to make the narrowest ruling possible on the law. The case nonetheless has the potential to be a landmark ruling. It will be argued in the fall, with a decision expected sometime next year.
A favorable decision from the Court would likely doom the “may issue” permit licensing schemes followed by the handful of restrictive states such as Maryland, New Jersey and California. This would mean Maryland would likely become a shall issue jurisdiction like its neighbors in DC, Virginia, Pennsylvania, Delaware and West Virginia. A more far-reaching result of the case may be to resolve how the federal courts evaluate challenges to gun control restrictions in general.
Certain of the Justices, most notably Justice Thomas, have previously expressed their concern that the lower federal courts are declining to give appropriate deference to the Second Amendment. The two newest Justices, Barrett and Kavanaugh previously dissented in cases upholding gun restrictions when they were circuit court judges, Justice Kavanaugh in a DC case involving so-called assault weapons restrictions and Justice Barrett in a case challenging the per se prohibition on felons (even non-violent felons) possessing firearms and ammunition.
A favorable decision from the Supreme Court on Corlett could clarify what is called the standard of review for Second Amendment cases and possibly serve as a precedent for invalidation of so-called assault weapon prohibition laws and magazine capacity restrictions. The Court has previously declined to hear such cases.
One uncertainty is whether the New York defendants in the case might attempt to moot the controversy by reversing the decision to deny the unrestricted handgun licenses sought by the two individual plaintiffs in the case. In a previous case involving a New York City ordinance that restricted where handgun owners could transport their firearms, the defendants successfully avoided a Supreme Court decision by repealing the offending restriction. It remains to be seen whether New York will try a similar tactic to avoid a decision and whether the Supreme Court will countenance such an artifice.
Arsenal Attorneys is a nationwide law firm headquartered in Fairfax, Virginia in the metropolitan Washington, DC. The firm offers serves clients in over 30 states in estate planning, criminal defense, civil litigation, business law, landlord-tenant disputes, real estate, firearms law, restoration of rights, carry permits, and the firm’s proprietary Arsenal Gun Trust. Matthew Bergstrom is the firm’s Managing Attorney, and he is licensed in California, Michigan, Nevada, Virginia, and the District of Columbia. George Lyon is licensed to practice law in Virginia and the District of Columbia. He was one of the plaintiffs in Palmer v. District of Columbia which forced DC to begin issuing concealed carry licenses, and he was one of the initial plaintiffs in the US Supreme Court's landmark Second Amendment decision, Heller, which legalized handguns in Washington, DC. Mr. Lyon is licensed by the Metropolitan Police Department to teach the DC Concealed Carry License course including the renewal course and conducts the course monthly. Contact Mr. Lyon at gll[at]arsenalattorneys.com.
This blog is intended for informational purposes only and is not intended as legal advice.
By George L. Lyon, Jr
As you may have heard, the ATF on December 18, 2020, published a notice setting forth the factors it considers in classifying firearms equipped with a stabilization brace, sometimes called an arm brace. The importance of this classification is that it can mean the difference between a firearm equipped with such a brace being classified as a pistol and thus not subject to the National Firearms Act or as a short barrel rifle requiring registration and payment of a $200 tax. Violation of the requirements of the National Firearms Act (NFA) is a felony potentially subjecting the offender to several years in prison and permanent loss of firearms rights.
By George L. Lyon, Esq.
My clients and students frequently request my analysis of the various self-defense insurance type products on the market, some of which are not technically insurance per se. My knowledge of this topic has benefited by Recoil magazine’s occasional comparison of these products as well as an informative video by attorney Andrew Branca, author of the highly recommended book Law of Self Defense. I will give you the results of my own review of these products below. Bear in mind, policies often change, so I recommend you perform your own due diligence at the time of your decision. I recommend my analytical framework as a guide.
It is important to understand that basic homeowner’s insurance even with umbrella insurance does not cover a self-defense shooting. First, these insurance products do not defend you from a criminal prosecution, and, second, they do not cover you civilly because a self-defense shooting is considered an intentional act. Homeowner’s coverage would apply if it were alleged that you negligently shot someone on the premises of your home. Some plaintiffs have made such allegations specifically to try to get within the coverage of homeowner’s policies.
With respect to self-defense insurance or insurance like products, a number of companies offer this type of service. The ones I am going to discuss here are in alphabetical order: Armed Citizens Legal Defense Network (“ACLDN”); CCW Safe; Firearms Legal Protection (“Firearms Legal”) Second Call Defense (“Second Call”); United States Concealed Carry Association (“USCCA”) and U.S. Law Shield.
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