THE SECOND AMENDMENT RIGHT TO BEAR ARMS & THE RIGHT TO SELF DEFENSE
The Second Amendment provides that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This is part of our Constitution, our basic guiding principles.
After some confusion on what this right really meant these days, in 2008, the Supreme Court in the monumental case of District of Columbia v. Heller, concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” The Supreme Court made a strong reinforcement as to the right to “self-defense,” which it described as “the central component of the right itself.” The Court labeled this “core right” as the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.”
Nonetheless, the Supreme Court described this Second Amendment right in District of Columbia v. Heller as “not unlimited.” As such, the Supreme Court ruled that “longstanding prohibitions on the possession of firearms by felons and the mentally ill” are “presumptively lawful” examples of 2nd Amendment regulations.
Hunting is not a guaranteed right at this time. The Supreme Court labeled the “core right” of the Second Amendment in Heller as the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” This is a clear self defense right, but is not directly related to hunting for food, materials, trade or recreation. Neither does the Second Amendment explain the nature or reason for the right to bear arms.
WHAT IS A DEADLY WEAPON IN VIRGINIA?
A deadly weapon is an instrument likely to produce death or great bodily harm from the way in which it was used – classic examples include a gun or a knife. A firearm is a deadly weapon without proof that it was operable or loaded. Anything can become a deadly weapons if it is employed in a particularly vicious and cruel way. Even a stationary object can be a deadly weapon if the victim is impelled into or against it.
WHAT IS A FIREARM IN VIRGINIA?
“An instrument which was designed, made, and intended to expel a projectile by means of an explosion. It is not necessary that the Commonwealth prove the instrument was “operable,” “capable” of being fired, or had the “actual capacity to do serious harm.” (Va Supreme Court 2002)
VIRGINIA SHOOTING CRIMES
Each shot fired or each discharge of a firearm creates a separate violation under Virginia law. Thus, firing two shots would be two counts of unlawful discharge. Additionally, shooting from a vehicle and shooting at a vehicle are each a separate offense as well – so firing two shots from one vehicle at another vehicle constitutes four statutory violations. Take a look at the code sections posted below for the many different ways you can violate Virginia law.
VIRGINIA RECKLESS HANDLING OF A FIREARM
Virginia law makes reckless handling of firearms a class 1 misdemeanor. The reckless handling must endanger person or property in order to qualify as a crime. This law is violated by any form of reckless handling which endangers someone or something. If the violation is committed while hunting or trapping, the civil penalty of license revocation may also be imposed. Recklessly allowing access to firearms to children is punished as a class 3 misdemeanor.
VIRGINIA CONCEALED WEAPON OFFENSES
Virginia law permits carrying of concealed weapons with a properly issued government permit. Without a permit, it’s a crime. The first such offense is a misdemeanor, while any subsequent offense is a felony. The weapons covered by the law are handguns, switchblade knives and some fixed blade knives, razors, slingshots, brass knuckles, spring sticks, throwing stars, ballistic knives, machetes, blackjacks, and nunchucks or fighting chains.
VIRGINIA GUN PURCHASING OFFENSES
Virginia law forbids any person who is not a licensed firearms dealer to purchase more than one handgun within any thirty-day period. A violation of this law is a class 1 misdemeanor offense. A “handgun” is defined as any pistol or revolver or other firearm originally designed, made and intended to fire single or multiple projectiles by means of an explosion of a combustible material from one or more barrels when held in one hand. An excuse to this law is replacing a lost or stolen handgun, or trading handguns with another person.
There are many other purchasing offenses listed below in the selected Virginia code sections.
VA Code § 18.2-308 prohibits the concealed carry of any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack … or any “weapon of like kind.” The first violation of this law is a Class 1 misdemeanor. A second violation is a Class 6 felony. A third or subsequent violation is a Class 5 felony.
A Butterfly knife is not a weapon of like kind enumerated in the code. Thus, the courts were left to interpret whether a butterfly knife is a weapon that cannot be concealed under the code section as the ones described above. In 2009, the Supreme Court of Virginia decided in the case of Thompson v. Commonwealth that it is insufficient as a matter of law to establish beyond a reasonable doubt that the butterfly knife at issue is “of like kind” to a dirk or any other weapon enumerated in Code § 18.2-308(A).
GAME / HUNTING OFFENSES
Virginia Law punishes various acts of hunting and poaching of game / wild animals. The laws are enumerated in Title 29.1 of the VA Code – “GAME, INLAND FISHERIES AND BOATING.” These crimes are generally punished as a misdemeanor offense, some carrying no jail time at all, while other offenses carrying up to a year in jail. Additionally, these violations may carry a loss or suspension of hunting license privileges altogether or for a period of a few years, and repayment to the government for replacement for an animal killed. These laws are enforced by game wardens of the Virginia Department of Game and Inland Fisheries.
HUNTING WHILE INTOXICATED
Hunting while intoxicated is punished the same as driving while intoxicated. Va Code 18.2-285 criminalizes hunting with firearms while under influence of intoxicant or narcotic drug. Any person who hunts wildlife with a firearm, bow and arrow, or crossbow in the Commonwealth of Virginia – while he is under the influence of alcohol, any narcotic drug, or any intoxicant or drug of whatsoever nature – to a degree that impairs his ability to hunt safely can face up to a year in jail and a $2,500 fine if found guilty of this class 1 misdemeanor charge.
LIST OF VIRGINIA WEAPONS OFFENSES:
- Reckless handling of firearms; reckless handling while hunting – Va. Code 18.2-56.1
- Carrying loaded firearms in public areas prohibited – Va. Code 18.2-287.4
- Discharging firearms or missiles within or at building or dwelling house – Va. Code 18.2-279
- Possession or transportation of certain firearms by persons under the age of 18 – Va. Code 18.2-308.7
- Pointing, holding, or brandishing firearm, air or gas-operated weapon or objects – Va. Code 18.2-282
- Personal protection; carrying concealed weapons without a Permit – Va. Code 18.2-308
- Receipt of / receiving stolen firearm – Va. Code 18.2-108.1
- Shooting at or throwing missiles, etc., at train, car, vessel, etc. – Va. Code 18.2-154
- Allowing access to firearms by children – Va. Code 18.2-56.2
- Willfully discharging firearms in public places – Va. Code 18.2-280
- Setting spring gun or other deadly weapon – Va. Code 18.2-281
- Selling or giving toy firearms – Va. Code 18.2-284
- Hunting with firearms while under influence of intoxicant or narcotic drug – Va. Code 18.2-285
- Shooting in or across road or in street – Va. Code 18.2-286
- Shooting from vehicles so as to endanger persons; penalty – Va. Code 18.2-286.1
- Carrying weapon in air carrier airport terminal – Va. Code 18.2-287.01
- Possession of firearm, stun weapon, or other weapon on school property – Va. Code 18.2-308.1
- Use or display of firearm in committing felony – Va. Code 18.2-53.1
- Wearing of body armor while committing a crime – Va. Code 18.2-287.2
- Purchase or transportation of firearm by persons subject to protective orders or convicted of drug offenses – Va. Code 18.2-308.1:4, 18.2-308.1:5
- Possession or transportation of firearms, stun weapons, explosives or concealed weapons by persons convicted of a felony – “felon in possession” – Va. Code 18.2-308.2
- Possession of firearms while in possession of certain controlled substances/drugs – Va. Code 18.2-308.4
- Manufacture, import, sale, transfer or possession of plastic firearm – Va. Code 18.2-308.5
- Possession of unregistered firearm mufflers or silencers – Va. Code 18.2-308.6
- Removing, altering, etc., serial number or other identification on firearm – Va. Code 18.2-311
- Possession or use of “sawed-off” shotgun or rifle – Va. Code 18.2-300
- Third conviction of firearm offenses – Va. Code 18.2-311.2
This article is for your personal information only and is not intended as legal advice. Nothing herein shall create an attorney – client relationship. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a lawyer. Always consult a licensed lawyer for your particular case. Call 703.870.6868 for a consultation.