I use a WordPress plugin that allows me to monitor the number of visitors who have read each article and what website they came from. Additionally, if they found the article by using a search engine, it shows me the search terms they used.
I use this information to gauge what topics my readers might be interested in and on that note, hardly a day goes by that the list of search terms doesn’t include multiple entries for such topics as Virginia BB gun laws, Virginia air gun laws, Virginia Airsoft laws, or Virginia paintball laws.
Apparently there is a lot of interest in this area of law from parents, children, and adult air rifle enthusiasts. So I thought that it would be a good idea to put together a definitive guide to the laws governing air guns in the Commonwealth of Virginia.
Let’s Start With a Definition … What Are “Air Guns?”
That is a good question. What kinds of firearms are encompassed by the term “air guns?” In fact, the name is a bit misleading since the term covers not only those firearms that are powered by compressed air or CO2 but also those that are spring driven. This includes what are commonly referred to as BB guns, air rifles, paintball guns, and Airsoft guns.
The term also includes both handguns and rifles and encompasses firearms that shoot traditional BBs, lead pellets, Airsoft pellets, and paintballs.
Purchase and Possession Under Federal Law
Now that we know what we are talking about, let’s turn to the legal requirements to purchase air guns.
Generally, when we are talking about the purchase of firearms, we would have both federal and state law to contend with. So … the first issue we will investigate is whether air guns are “firearms” under the meaning of federal law.
The definition of “firearms” for purposes of both the Gun Control Act of 1968 and the Brady Bill is codified at 18 USC § 921(a)(3) which reads in part:
(a) As used in this chapter—
(3) The term “firearm” means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
Since air guns are powered by either compressed gas or spring action, they do not fall under this definition. But wait …. any air gun which fires a projectile greater than .50 caliber (or one-half inch) could potentially fall under the “destructive device” language in 18 USC § 921(a)(4):
(4) The term “destructive device” means—
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter;
Fortunately for air gun owners, the BATFE has not pursued this option in the case of air guns … yet. To make these determinations, the BATFE uses the discretionary language from the same statute which reads:
The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.
Paintball gun owners should take particular note of this potential future problem since paintball guns are the only member of the air gun family which traditionally shoot a projectile that is over .50 caliber. The standard paintball is .68 caliber whereas the copper BBs and lead pellets we all are familiar with from our childhood are only .177 caliber and the increasingly popular Airsoft BBs are generally 6 mm which equates to approximately .236 caliber.
But as of the moment, it appears that air guns are not federally regulated at all in regards to purchase and simple possession. In fact, the BATFE agrees with my assessment. Under federal law, even convicted felons may possess air guns.
But wait … perhaps there are state law provisions we need to be aware of …
Purchase and Possession Under State Law
Turning to state law, what does the Code of Virginia have to say about whether air guns are considered “firearms” for purposes of statutory application? Unfortunately, there is not a definitional statute to which we may turn for general application. However, several statutes do provide definitions applicable only to their own code section.
For example, in § 18.2-282, they have both a definition of firearm and make a clear distinction between a “firearm” and an “air or gas operated weapon.”
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.
C. For purposes of this section, the word “firearm” means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material.
In a similar fashion, § 22.1-277.07 also includes “pneumatic guns” as a distinct class of object separate from “firearms” and this pattern seems to repeat throughout the Code of Virginia. In both § 18.2-287.01 which deals with firearms in air-carrier airport terminal buildings and § 18.2-283.1 which deals with firearms in courthouses, the Legislature makes a distinction between “guns” and any “other weapon designed or intended to propel a missile or projectile of any kind.”
These are all clues to the Legislature’s intent and seem to imply that the general definition of a firearm under Virginia law is understood to closely mimic the federal definition in requiring some form of combustion. It appears that where the Legislature intended for air guns to be included in a statute, they are either expressly included or the definition of “firearm” in the code section excludes a combustion requirement.
But what I think doesn’t really matter. It is the court’s interpretation of the statutes that will govern. So … do the Virginia courts agree with this assessment? Why yes they do. In a series of cases that began in 1993, the question of whether or not a BB gun is a firearm for purposes of simple possession statutes has been definitively answered.
In 1993, the court said in Jones v. Commonwealth (429 S.E.2d 615) that:
Code § 18.2-308.2 prohibits a felon from possessing a device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion, and it is not concerned with the use or display of a device that may [merely] have the appearance of a firearm.
This holding was followed in 1998 in Gregory v. Commonwealth (504 S.E.2d 886) and again in 2000 in Williams v. Commonwealth (537 S.E.2d 21).
The currently controlling case is from 2001. In Armstrong v. Commonwealth (549 S.E.2d 641) the court made it very clear:
[T]here is no public policy or legislative intent to find a felon who possesses a BB gun, a squirt gun or a plastic toy gun to be in possession of a firearm. That is all the Jones decision held. When the General Assembly used the term “firearm” in Code § 18.2-308.2, it meant a “firearm” is a firearm under that statute if it was made to shoot bullets, not BBs or tap water.
I should note at this point that the courts have made one broad exception to this interpretive rule and that is in a case where an air gun is used to facilitate a crime of violence where victim perception is a factor. In any case where a “firearm” is being used in such a crime, the Virginia courts have adopted a broader definition that does include air guns. This rationale was explained in Witeiner v. Commonwealth (656 S.E.2d 418, 51):
[A]s a practical matter, a crime victim ‘cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during the commission of a felony.’
The statutes to which this broader interpretation extend include § 18.2-53.1 (Use or display of firearm in committing felony) and § 18.2-51 (Shooting, stabbing, etc., with intent to maim, kill, etc.).
But so far as mere purchase, possession, or lawful-use is concerned, the Virginia courts agree with my assessment that the term “firearm” does not include air guns and only those provisions which expressly apply to air guns will affect the legality of their use.
So let’s turn to Virginia’s other purchase and possession provisions to see if any of them expressly apply to air guns.
§ 18.2-308.2:2 is the primary statute governing when background checks are required for the purchase and transfer of firearms. And under this code section, we see a definition of “firearm” that that closely matches the definition from the Jones case:
“Firearm” means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.
The fact that this section does not reach air guns is the reason that you may buy air guns in retail stores without a background check. But could there be other prohibitions on purchase that we need to look at even though there are no background checks? Let’s keep looking.
§ 18.2-308.1:1 governs purchase, possession, and transportation of firearms by anyone who has been acquitted of a crime by reason of insanity. However, its prohibition only applies to “any firearm.” Air guns are not covered under this statute.
§ 18.2-308.1:2 governs purchase, possession, and transportation of firearms by anyone who has been adjudicated legally incompetent or mentally incapacitated. And once again, the prohibition applies only to ”any firearm.”
§ 18.2-308.1:3 governs purchase, possession, and transportation of firearms by anyone who has been involuntarily admitted or ordered to outpatient mental-health treatment. The pattern continues here with the prohibition only applying to “a firearm.”
§ 18.2-308.1:4 governs purchase and transportation of firearms by anyone subject to a protective order, and only during the period that the order is in effect. And while it is intellectually interesting to note that mere possession is not disturbed by a protective order, for our purposes here it matters little since it too only applies its prohibition to “any firearm” and does not include air guns.
§ 18.2-308.1:5 governs purchase and transportation of handguns by anyone convicted of certain drug offenses within the preceding 36 month period. Like the code section governing protective orders, this prohibition does not reach to mere possession, and in fact only applies to an even more limited class of weapons (handguns).
What about legal and illegal aliens? With the recent Dream Order by President Obama, there has been an interesting discussion about whether the new residents thusly created have Second Amendment rights. But until such time as the 4th Circuit Court of Appeals or the United States Supreme Court rules on such a question, Virginia code section § 18.2-308.2:01 will answer the question as far as Virginia is concerned. And while I need not go into detail, the prohibitions here apply only to “assault firearms” and “any firearm” in turn. Air guns are not prohibited to non-U.S. citizens.
In short, it appears that there are no statutory bars to the lawful purchase or possession of air guns in Virginia. And it is good that Virginia has not attempted such controls because it turns out that states are preempted by federal law from banning the sale of air guns, at least to adults. 15 USC § 5001(g)(ii) states that:
(g) Preemption of State or local laws or ordinances; exceptions
… no State shall—
(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B–B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.
This brings up a good point. Localities may, under both federal and state law, impose restrictions on the sale of air guns to minors but may not impose such restrictions on adults.
Safe and secure in our ability to purchase and possess air guns, we will now move on to the issue of transportation.
Let us start this section by reiterating that Virginia is an open carry state. What does this mean? It means that any person who is not otherwise prohibited by law from possessing a firearm may openly bear such firearm as she goes about her business. This applies equally to handguns and long-guns.
Where bearing arms enters the realm of potential criminal liability is when the firearm is concealed. The prohibition against carrying a concealed weapon is codified at § 18.2-308 which generally prohibits carrying any of the following concealed:
(i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection
The clarifying text “by action of an explosion of any combustible material” was added in 2001 by House Bill H2130. According to Delegate McClure, the bill sponsor, this change was made specifically to clarify “that in order to be a weapon the propulsion of the missle [sic] must be by action of an explosion of combustible material.”
And this seems to have largely resolved the issue in favor of the interpretation that one cannot be prosecuted for carrying an air gun concealed when one is otherwise engaging in lawful activity.
So now that we know we can transport our air guns if we are not engaging in any criminal activity, are there any specific places where air guns may not be taken? The answer of course is “Yes.”
We will first start with K-12 schools. § 18.2-308.1 governs possession of firearms on school property, in school buses, and on property used exclusively for school-sponsored functions. This code section incorporates the definition of weapons from § 18.2-308 and also repeats the limiting phrase “designed or intended to expel a projectile by action of an explosion of a combustible material.”
On its face, the prohibition against weapons on school property does not appear to apply to air guns. And this interpretation is borne out by the fact that in 2010, the Virginia Citizens Defense League defeated an attempt by Senator Marsden to add air guns to the list of prohibited weapons. His change in Senate Bill SB 580 would have added a prohibition for “weapon[s] designed to expel a projectile at a speed of more than 250 feet per second by action of compressed air or gas, including but not limited to an airsoft gun.”
But that does not mean that students are free to bring air guns onto school property, even after hours. While the act may not give rise to criminal liability, § 22.1-277.07 provides for a one-year expulsion for students who are proven to have:
… possessed a firearm on school property or at a school-sponsored activity as prohibited by § 18.2-308.1; to have possessed a firearm or destructive device as defined in subsection E, a firearm muffler or firearm silencer, or a pneumatic gun as defined in subsection E of § 15.2-915.4 on school property or at a school-sponsored activity.
And just because a student may ultimately prevail in a criminal matter does not mean that an ill-informed prosecutor may not press charges, forcing the student’s parents to spend money on legal defense. A great example is a recent case in Culpepper.
And there are other places where the prohibition is clear. The first place in the Code of Virginia where air guns appear to be legitimately prohibited is in air carrier airport terminal buildings when not checking the guns with customs or the airlines. This prohibition comes from § 18.2-287.01 and states in part that:
It shall be unlawful for any person to possess or transport into any air carrier airport terminal in the Commonwealth any (i) gun or other weapon designed or intended to propel a missile or projectile of any kind …
Air guns are also prohibited in courthouse. This prohibition is codified in § 18.2-283.1 and features the exact same “designed or intended to propel a missile or projectile of any kind” language as the prohibition on air carrier airport terminal buildings.
So we can’t carry at schools (under threat of expulsion and a whole lot of headaches), air carrier airport terminal buildings, and courthouses. Other than that, transportation and carry of air guns seems to be relatively non-controversial.
However, there is one final point to make concerning transportation of air guns. Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute, codified at § 15.2-915 does not apply and localities may have their own ordinances on where you may or may not transport air guns that are stricter than state law. Note to self … this is a good area for a bill in the upcoming legislative session.
Moving on … Is there anything else we should look out for as we carry our air guns across the Commonwealth? Why yes there is. And that leads us to our next topic. When and where may you legally use or discharge your air gun.
Let’s start with an important point of Virginia law. Anyone with an air gun in their hand in a public setting runs the risk of being charged with brandishing. Governed by § 18.2-282, the crime of brandishing occurs when you:
… point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.
While this is an “objective” standard, the possibility of a brandishing charge always exists when an air gun is being used in public. The obvious example of this is when groups of children play with Airsoft or paintball guns in public parks.
The way to avoid potential liability under this statute is to always treat air guns with the same respect for safety you would give to real firearms. That means you should never point them at anything that is not a target and certainly should never point them at other people (with the obvious exception of paintball guns and properly equipped opponents in appropriate settings). You should keep them encased, slung, or holstered until ready to use and such use should only be in appropriate places.
So what places are appropriate? Well let’s start with one of the changes to Virginia law that occurred in 2011. Concerned that more and more localities were passing blanket bans on the discharge of air guns on private property, Senator Roscoe Reynolds introduced Senate Bill SB 757.
This change to § 15.2-915.4 allows someone on private property to be able to discharge an air gun as long as they have permission from the property owner to do so and reasonable care is taken to ensure that the projectile does not cross the bounds of the property. Any local ordinances to the contrary, which many localities have adopted, are preempted.
Other statutes, designed to govern the public discharge of actual firearms are also inapplicable. These include § 18.2-280 (Willfully discharging firearms in public places) and § 18.2-286 (Shooting in or across road or in street).
Finally, I should note that § 15.2-915.4 does not prevent localities from passing ordinances governing discharge in public venues such as parks. In fact, most localities have done so and you should take care when discharging any air gun outside of private property to insure that you are not violating some local ordinance.
So what have we learned?
1) Federal law does not consider air guns to be “firearms” for purposes of federal law and even felons may purchase and possess air guns.
2) The BATFE does not consider paintball guns to be “destructive devices” despite the fact that they propel a projectile greater than .50 caliber.
3) Federal law preempts the ability of states to ban the sale of air guns to adults.
4) Virginia law generally does not impose restrictions on the purchase and possession of air guns when not engaging in other unlawful activity.
5) When you are not engaging in other unlawful activity, you are generally not subject to a charge of carrying a concealed weapon based upon an air gun.
6) There are places that are off limits including K-12 schools, courthouses, and air carrier airport terminal buildings.
7) Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute does not apply and localities may have their own ordinances on where you may or may not transport air guns.
8) While Virginia prevents localities from regulating discharge of air guns on private property under most circumstances, localities may, and often do, ban air guns in parks and other public venues.
9) Get to know your local ordinances. Because federal and state law are generally silent on the issues surrounding air guns and preemption does not apply except in sale and discharge on private property, local ordinances will largely govern the field.
I will attempt to keep this guide up-to-date as there are federal or state changes that affect the rights of air gun owners in Virginia.
If you are aware of any issues I have failed to address or think that I may be incorrect on a point of law, then feel free to leave a comment along with a cite to authority and I will incorporate the change or addition into the guide.
DISCLAIMER: Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship. For legal advice, you should contact a member of your state’s Bar association.
© 2012, John Pierce. All rights reserved.