Displaying items by tag: 2nd amendment

By George L. Lyon, Jr, Esq.

Although, the Second Amendment guarantees the right of the people to keep and bear arms, that right is not absolute. A person can lose his or her firearm rights in a number of ways. These include conviction of a felony, an involuntary commitment to a mental hospital, conviction for a domestic violence offense, or being subject to a domestic abuse restraining order. There are a number of other prohibited categories not pertinent to this discussion.

If you have been convicted of a felony by a Virginia state court or subject to an involuntary commitment to a mental health facility in Virginia, there are procedures whereby we can help you obtain your firearms rights back. We need to emphasize, however, that if you have been convicted of a felony in federal court, these procedures will not work for restoring your firearm rights. At this time only a presidential pardon can do that. Additionally, these procedures will not work for a domestic abuse conviction.

If your conviction resulted from a plea agreement, in which you pled guilty to a lesser offence in exchange for a lighter sentence, you might not have realized that you lost your Second Amendment rights as part of your plea deal. If your facing criminal charges, it’s important to be represented by competent legal counsel who is also sensitive to your wish to preserve your rights.

Restoring Rights from a Virginia State Felony Conviction

In Virginia, anyone convicted of a felony will lose his or her firearm rights. However, Virginia law allows restoration of firearm rights following a felony conviction. It is a two-step procedure. The first step, following service of the sentence and any period of probation, is to seek restoration of civil rights from the Governor. This can be accomplished via the Virginia Secretary of the Commonwealth’s web site. The applicant will be sent an executive order from the Governor restoring his or her civil rights, except for the right to possess and ship firearms. The applicant will then need to petition the Circuit Court in the county or city where he or she lives to restore his firearms rights. Arsenal Attorneys™ can assist you with this process.

We will ask to obtain records relating to your conviction and other documents supporting your rehabilitation to include in the petition, including your employment history, community involvement, and letters of recommendation from persons in the community. We then submit the petition to the court and to the local Commonwealth’s Attorneys office. Often the Commonwealth’s Attorney will agree to the proposed order to restore gun rights. If not, the Court will schedule a hearing to decide whether to grant the petition.

Restoring Rights from an Involuntary Mental Health Commitment

The procedure for restoration of rights from a mental health commitment is slightly different. A petition is filed with the District Court where the petitioner resides rather than the Circuit Court, and it is served on the Commonwealth’s Attorney. The Court will schedule a hearing on the petition.

The petition for restoration from a mental health commitment contains similar information as a petition for restoration from a felony conviction. But rather than providing information concerning a conviction, the petition includes information concerning the original commitment, including, if possible, notes from the treating facility. We also strongly suggest including a current evaluation from a mental health profession, such as a psychologist or psychiatrist. We have doctors who are knowledgeable of gun issues to whom we refer our clients. We also recommend including other documents such as employment history, driving record, and letters of recommendation.

If you have been previously convicted of a felony in a Virginia court or involuntarily committed in Virginia and would like to explore restoration of your firearm rights, we offer a complimentary consultation to explore whether you are a good candidate to apply for restoration of your firearms rights. Please contact Arsenal Attorneys to learn how we can help you restore your rights.

Arsenal Attorneys’ George Lyon is licensed to practice law in Virginia and the District of Columbia. He was one of the plaintiffs in the Palmer v. District of Columbia case that forced DC to begin issuing concealed carry licenses and in the Heller case that legalized handguns in Washington, DC. Mr. Lyon is licensed by the Metropolitan Police Department to teach the DC concealed carry course including the renewal course and conducts the course monthly. His next class is November 16 in Arlington, Virginia. To sign up for his course, contact Mr. Lyon at gll[at]arsenalattorneys.com or at 703-291-3312.

This blog is for educational purposes only and is not intended as legal advice or to create an attorney-client relationship.

By George L. Lyon, Jr, Esq.

Arsenal Attorneys frequently advises clients in the concealed carry of firearms, including licenses to carry in the District of Columbia by residents and nonresidents alike. After helping win the battle for these rights, I now help clients renew their carry licenses. This blog provides a summary of the license renewal procedure. But first, some history.

Two years ago, on September 28, 2017, the Federal DC Circuit Court of Appeals declined to overturn the ruling of its three-judge panel in Wrenn v. District of Columbia finding DC’s ‘may issue’ concealed carry licensing scheme unconstitutional. Since that time, DC has been a ‘shall issue’ concealed carry jurisdiction.

As a result of the court’s ruling, DC concealed carry licenses have increased from 123 in September 2017 to 3,339 as of the end of August 2019. Despite DC’s lamentations that shall issue conceal carry would threaten public safety, the record shows that DC’s concealed carry license holders have been exceedingly law abiding. Since June of 2014, when the courts first forced DC to issue concealed carry licenses, only two concealed carry licenses have been revoked for criminal violations and these were not for violent crimes, but rather for violation of one of DC’s myriad, complex weapons offenses, e.g., possessing a firearm in DC the license holder had not registered.

Nor have DC concealed license holders set off gun fights in the street. There has been just one reported shooting by a DC concealed carry license holder. It occurred when the license holder fired in self-defense when attacked by two would be robbers. No charges were filed against the licensed carrier.

Given that DC requires its concealed carry licenses to be renewed every two years and that quite a few people applied for carry licenses soon after DC went shall issue in September of 2017, we thought we would review the procedure for renewing DC carry licenses. The good news is that unlike the rather complex and time-consuming process for receiving the initial carry license, the renewal process has been greatly streamlined.

Although the initial mandatory training for the DC carry license is 16 hours of classroom instruction and two hours of range training, the renewal training requirement is just four hours of classroom training plus a two-hour range session. The renewal training requirement is mandatory and not waivable. A DC-licensed firearm instructor will provide you a certificate documenting proof of your training which you must submit with your renewal application. The Metropolitan Police Department (MPD) has a portal on its website allowing you to pay the $75 fee and submit the renewal application and training certificate online. It can be accessed at this link. If your renewal is submitted online, your renewed license will be mailed to you in about a week.

Be advised that for reasons unknown the portal is sometimes unreliable. Alternatively, you may submit the application and training certificate at MPD’s firearm registration office at 300 Indiana Avenue to submit your application, training certificate, and $75 renewal fee. When submitting in person, your renewed license will be issued to you after about an hour’s wait.

Remember, a carry license holder may only carry a firearm that has been registered in DC. There is no requirement to re-register the guns that you carry. In a later blog, we will explain which firearms are legal to possess and register in Washington.

Arsenal Attorneys’ George Lyon is licensed to practice law in Virginia and the District of Columbia. He was one of the plaintiffs in the Palmer v. District of Columbia case that forced DC to begin issuing concealed carry licenses and in the Heller case that legalized handguns in Washington, DC. Mr. Lyon is licensed by the Metropolitan Police Department to teach the DC concealed carry course including the renewal course and conducts the course monthly. His next class is November 16 in Arlington, Virginia. To sign up for his course, contact Mr. Lyon at gll[at]arsenalattorneys.com or at 703-291-3312.

This blog is for educational purposes only and is not intended as legal advice or to create an attorney-client relationship.

Arsenal Attorneys and our Arsenal Gun Trust services will be featured in an upcoming online seminar on August 20 for lawyers concerning estate planning for firearms entitled, "Firearms in Estate Administration: Legal Issues, Executor Liability, Transferring Title I and II Guns, Penalties -- Understanding Gun Legal Designations, In-State and Out-of-State Transfers, Use of Gun Trusts."

This CLE webinar will guide estate planners and administrators on managing the legal challenges of firearms in estate and trust administration. The panel will discuss federal gun laws and firearm designations, issues for beneficiaries inheriting guns, in-state and out-of-state transfers and legal ownership, use of trusts and other entities to legally transfer guns, and best practices to avoid mishaps in the administration of estates or trusts holding firearms.

The administration of an estate holding firearms can cause increased expenses, fees, taxes, and potential liability if mishandled. Managing guns within an estate requires an in-depth knowledge of a myriad of federal and state regulations to adhere to in order to avoid excessive fines and criminal liability.

The National Firearms Act (NFA) encompasses strict prohibitions and restrictions on the transfer of certain firearms. Prohibited possession can be actual or constructive with zero tolerance for inadequate processes in the acquisition. Also, state laws will apply to transfers or sales of firearms within their jurisdictions. If there is an out-of-state transfer or sale of a gun, compliance with federal and state laws becomes more complicated.

Estate planners and executors must be mindful of the possibility that some beneficiaries may be ineligible to receive firearms and consider alternative methods to align with a client's intent, such as naming alternate recipients or by creating a gun trust. Trusts can legally hold the firearms and allows a trustee to lawfully possess the firearms and minimize administration issues regarding the transfer or sale of firearms during probate.

The panel will discuss the classification, ownership, and transfer rules applicable to firearms, and the creation and use of guns trusts and other planning methods to ensure the proper administration of an estate holding firearms.

Seminar Topics will also include:

• Firearm classification, ownership, and transfer rules
  
• Federal and state gun laws
  
• Title I vs. Title II firearms
  
• In-state and out-of-state transfers
  
• Handling the estate administration of firearms
  
• Key considerations for gifts and bequests
  
• Valuation
  
• Legal ownership
  
• Potential penalties and liability
  
• Gun trusts
  
• Liability issues
• Sale or transfer of estate-held firearms
• Best practices for estate planners and administrators

For more information, contact Arsenal Attorneys using the contact form at our website.

ATF recently relaunched its online system allowing the public to submit ATF Form 5320.1, also known as “Form 1 - Application to Make and Register a Firearm.” Previously, the online system, often referred to as eFile, provided extremely fast approvals. The new ‘eForm’ system already appears to be slashing the wait time for tax stamps compared to ordinary paper applications.

A Form 1 is submitted by an applicant wishing to make a firearm regulated under the National Firearms Act (“NFA”). NFA firearms include machine guns, silencers, short barrel shotguns, and short barrel rifles (“SBR”). The most popular NFA firearm applicants wish to make by submitting a Form 1 is an SBR. A Form 1 may not be submitted to build full auto firearms. 

Under the NFA, a trust may be the registered owner or manufacturer of NFA firearms, but not for manufacturing for commercial purposes, which would require Federal Firearms License (“FFL”). A trust offers numerous benefits. Most notably, it could authorize possession of an NFA firearm by multiple people, and it could create an estate plan for the distribution of firearms outside of the probate court system.

Arsenal Attorneys™ have served thousands of clients nationwide using our proprietary Arsenal Gun Trust™ design, and we have taught this area of law for the American Bar Association and the Federal Bar Association among others.

To submit an eForm Form 1 in the name of a trust, follow these steps:

1. Create an eForms account by registering at https://eforms.atf.gov/EForms

2. Select the option to submit a Form 1, formally identified as ATF Form 5320.1.

3. Complete all required fields—remember the applicant’s name would be the name of the trust. All specifications for the firearm to be made must be specific. ATF no longer accetps responses like ‘multi’ to describe caliber, barrel length, etc.

4. Complete a ‘Responsible Person Questionnaire’ (Form 5320.23, known as ‘Form 23’ or the 'NFARPQ') for each ‘responsible person’, who would be required to provide fingerprints and a photograph (the Arsenal Gun Trust design helps clients submit NFA applications involving only a single ‘responsible person’). You must provide a photo for each responsible person identified in a Form 23. After submitting your application, ATF will provide directions for the fingerprinting (see #9 below).

5. Upload supporting documents, particularly the trust document (typically the ‘trust agreement’ and any amendments).

6. Identify your local Chief Law Enforcement Officer (‘CLEO’), who is typically your Sheriff.

7. Use the link to Pay.gov to make the $200 tax payment.

8. Submit the completed Form 1.

9. Check your email for a confirmation of your application from ATF, which should include two attachments. The first is a cover letter to use when mailing your completed FD-258 fingerprint cards to ATF. The second is the copy of your application you must mail to your CLEO. It is your responsibility to provide the CLEO this notification of your application. It is best to mail or ship that document to the CLEO with some sort of delivery/receipt confirmation. 

Here is a list of the most Frequently Asked Questions about completed a Form for a Trust--REMEMBER, always confirm you are using the most up-to-date version of any ATF Form because they do change.

Box 2: Remember, the applicant's name is the name of your trust. The address should be the location where this firearm will be located. It should be an address in the same state as your state of residence. If your trust documents include an address that is no longer correct, Arsenal Attorneys can prepare an amendment to make that correction or completely revise your trust by means of a 'restatement' to match the Arsenal Gun Trust design.

Box 3a: Insert your own name and home address as the responsible person of this trust. If there is additional responsible person in your trust, he/she would be identified on a Form 23. The new Arsenal Gun Trust design includes forms customized for you to remove such people so they are excluded from this process and the fingerprinting and photographs. Later, you may appoint a responsible person to your trust, and such a person would not need to provide fingerprints or photographs if he/she were not appointed to your trust in the capacity of a responsible person while an NFA application is in process with ATF.

Box 4b: If you are making an NFA firearm using a firearm previously made by another manufacturer, such as a stripped lower receiver to be built as a new SBR, you must provide the name and location of the original manufacturer identical to how that information appears on the existing firearm/receiver. For an imported item, be careful not to confuse the engraved name of the importer, if any, with the name of the manufacturer. If you are not using an existing firearm to make your new NFA firearm, you must identify your trust as the manufacturer. This would be the case for an 80% lower or a new silencer you wish to make. 

Box 4c: You must provide the model identical to how it appears on the existing firearm you are using. Like 4b, if you are not using an existing firearm, you should provide a new model name of your own creation.

Box 4d: As mentioned above, you may not claim 'multi' as the caliber. Specifiy the single caliber which will initially be used for the new firearm to be built. 

Box 4e: Always double check you have reported the exact serial number appearing on the existing firearm to be used in making the new NFA firearm. If none, then you may create one of your choosing.

Box 5: Identify the CLEO for the jurisdiction matching the address you provided in Box 3a. 

It is hoped that if this new eForms system proceeds smoothly, it will lead to the launch of an eForm 4, to submit ATF Form 5320.4 for the transfer of NFA firearms, such as required in a retail purchase of an NFA firearm like a suppressor.

In the words of one of Arsenal Attorneys’ favorite FFLs, these online systems could bring ATF from 1940s level of technology used for the traditional paper applications and fingerprints toward the 21st century.

Arsenal Attorneys serve clients in the area of firearms law. The firm serves clients across America from its headquarters in the metro-Washington, DC area. The firm is particularly renowned for its Arsenal Gun Trust, a solution helping clients in the registering, handling, and estate planning of firearms, particularly those regulated under the National Firearms Act. Arsenal Attorneys' team includes lawyers licensed to practice law in nearly every state where NFA firearms are lawful to possess.

Most NFA firearms, like silencers, are legal in the following states: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

This information is provided for informational purposes only, and it is not legal advice, nor does it establish an attorney-client relationship.