![\"\"](\"https:\/\/monachuslex.org\/wp-content\/uploads\/2012\/06\/Red_Ryder.jpeg\" "\\"Red_Ryder\\"")
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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. \u00a0Additionally, if they found the article by using a search engine, it shows me the search terms they used.<\/p>\n
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\u00a0Virginia BB gun laws,<\/em>\u00a0Virginia air gun laws, Virginia Airsoft laws, or Virginia paintball laws.<\/em><\/p>\n Apparently there is a lot of interest in this area of law from parents, children, and adult air rifle enthusiasts. \u00a0So\u00a0I 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.<\/p>\n Let’s Start With a Definition … \u00a0What Are “Air Guns?”<\/strong><\/span><\/p>\n That is a good question. \u00a0What kinds of firearms are encompassed by the term “air guns?” \u00a0In fact, the name is a bit misleading since the term covers not only those firearms that are powered by compressed air or CO2<\/sub><\/strong> but also those that are spring driven. \u00a0This includes what are commonly referred to as BB guns,\u00a0air rifles, paintball guns, and Airsoft guns.<\/p>\n The term also includes both handguns and rifles and\u00a0encompasses firearms that shoot traditional BBs, lead pellets, Airsoft pellets, and paintballs.<\/p>\n Purchase and Possession Under Federal Law<\/strong><\/span><\/p>\n Now that we know what we are talking about, let’s turn to the legal requirements to purchase air guns.<\/p>\n Generally, when we are talking about the purchase of firearms, we would have both federal and state law to contend with. \u00a0So … the first issue we will investigate is whether air guns are “firearms” under the meaning of federal law.<\/p>\n The definition of “firearms” for purposes of both the Gun Control Act of 1968 and the Brady Bill is codified at\u00a018 USC \u00a7 921(a)(3)<\/a> which reads in part:<\/p>\n (a) As used in this chapter\u2014 (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<\/strong>;<\/p><\/blockquote>\n Since air guns are powered by either compressed gas or spring action, they do not fall under this definition. \u00a0But wait …. \u00a0any air gun which fires a projectile greater than .50 caliber (or one-half inch) could potentially fall under the “destructive device” language in\u00a018 USC \u00a7 921(a)(4)<\/a>:<\/p>\n (4) The term \u201cdestructive device\u201d means\u2014 Fortunately for air gun owners, the BATFE has not pursued this option in the case of air guns … yet. \u00a0To make these determinations, the BATFE uses the discretionary language from the same statute which reads:<\/p>\n The term \u201cdestructive device\u201d 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.<\/p><\/blockquote>\n 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. \u00a0The 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.<\/p>\n But as of the moment, it appears that air guns are not federally regulated at all in regards to purchase and simple possession. \u00a0In fact, the BATFE agrees<\/a> with my assessment. \u00a0Under federal law, even convicted felons may possess air guns.<\/p>\n But wait … perhaps there are state law provisions we need to be aware of …<\/p>\n Purchase and Possession Under State Law<\/strong><\/span><\/p>\n 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? \u00a0Unfortunately, there is not a definitional statute to which we may turn for general application. \u00a0However, several statutes do provide definitions applicable only to their own code section.<\/p>\n For example, in\u00a0\u00a7 18.2-282<\/a>, they have both a definition of firearm and make a clear distinction between a “firearm” and an “air or gas operated weapon.”<\/p>\n A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon<\/strong> 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. In a similar fashion, \u00a7 22.1-277.07<\/a> also includes “pneumatic guns” as a distinct class of object separate from “firearms” and this pattern seems to repeat throughout the Code of Virginia. \u00a0In both \u00a7 18.2-287.01<\/a> which deals with firearms in air-carrier airport terminal buildings and \u00a7 18.2-283.1<\/a> which deals with firearms in courthouses,\u00a0the Legislature makes a distinction between “guns” and any “other\u00a0weapon designed or intended to propel a missile or projectile of any kind.”<\/p>\n These are all clues to the Legislature’s intent and\u00a0seem 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. \u00a0It 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.<\/p>\n But what I think doesn’t really matter. \u00a0It is the court’s interpretation of the statutes that will govern. \u00a0So … do the Virginia courts agree with this assessment? \u00a0Why 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.<\/p>\n In 1993, the court said in Jones v. Commonwealth<\/span> (429 S.E.2d 615) that:<\/p>\n Code \u00a7 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.<\/p><\/blockquote>\n This holding was followed in 1998 in Gregory v. Commonwealth<\/span> (504 S.E.2d 886) and again in 2000 in\u00a0Williams v. Commonwealth<\/span> (537 S.E.2d 21).<\/p>\n The currently controlling case is from 2001. \u00a0In\u00a0Armstrong v. Commonwealth<\/span>\u00a0(549 S.E.2d 641) the court made it very clear:<\/p>\n [T]here is no public policy or legislative intent to find a felon who possesses a\u00a0BB 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 \u00a7 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.<\/p><\/blockquote>\n 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. \u00a0In 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. \u00a0This rationale was explained in\u00a0Witeiner v. Commonwealth<\/span> (656 S.E.2d 418, 51):<\/p>\n [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.’<\/p><\/blockquote>\n The statutes to which this broader interpretation extend include \u00a7 18.2-53.1<\/a> (Use or display of firearm in committing felony) and\u00a0\u00a7 18.2-51<\/a> (Shooting, stabbing, etc., with intent to maim, kill, etc.).<\/p>\n 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.<\/p>\n So let’s turn to Virginia’s other purchase and possession provisions to see if any of them expressly apply to air guns.<\/p>\n \u00a7 18.2-308.2:2<\/a>\u00a0is the primary statute governing when background checks are required for the purchase and transfer of firearms. \u00a0And under this code section, we see a definition of “firearm” that that closely matches the definition from the Jones<\/span> case:<\/p>\n “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<\/strong>.<\/p><\/blockquote>\n 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. \u00a0But could there be other prohibitions on purchase that we need to look at even though there are no background checks? \u00a0Let’s keep looking.<\/p>\n \u00a7 18.2-308.1:1<\/a> governs purchase, possession, and transportation of firearms by anyone who has been acquitted of a crime by reason of insanity. \u00a0However, its prohibition only applies to “any firearm.” \u00a0Air guns are not covered under this statute.<\/p>\n \u00a7 18.2-308.1:2<\/a> governs purchase, possession, and transportation of firearms by anyone who has been adjudicated legally incompetent or mentally incapacitated. \u00a0And once again, the prohibition applies only to\u00a0“any firearm.”<\/p>\n \u00a7 18.2-308.1:3<\/a> governs purchase, possession, and transportation of firearms by anyone who has been involuntarily admitted or ordered to outpatient mental-health treatment. \u00a0The pattern continues here with the prohibition only applying to “a firearm.”<\/p>\n \u00a7 18.2-308.1:4<\/a> governs purchase and transportation of firearms by anyone subject to a protective order, and only during the period that the order is in effect. \u00a0And 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.<\/p>\n \u00a7 18.2-308.1:5<\/a> governs purchase and transportation of handguns<\/span> by anyone convicted of certain drug offenses within the\u00a0preceding\u00a036 month period. \u00a0Like 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).<\/p>\n What about legal and illegal aliens? \u00a0With the recent Dream Order by President Obama, there has been an interesting discussion about whether the new residents thusly created have Second Amendment rights<\/a>. \u00a0But until such time as the 4th Circuit Court of Appeals or the United States Supreme Court rules on such a question, Virginia code section\u00a0\u00a7 18.2-308.2:01<\/a>\u00a0will answer the question as far as Virginia is concerned. \u00a0And while I need not go into detail, the prohibitions here apply only to “assault firearms” and “any firearm” in turn. \u00a0Air guns are not prohibited to non-U.S. citizens.<\/p>\n In short, it appears that there are no statutory bars to the lawful purchase or possession of air guns in Virginia. \u00a0And it is good that Virginia has not attempted such controls because\u00a0it turns out that states are preempted by federal law from banning the sale of air guns, at least to adults. \u00a0 \u00a015 USC \u00a7 5001(g)(ii)<\/a>\u00a0states that:<\/p>\n (g) Preemption of State or local laws or ordinances; exceptions<\/p>\n … \u00a0no State shall\u2014<\/p>\n (ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B\u2013B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.<\/p><\/blockquote>\n This brings up a good point. \u00a0Localities 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.<\/p>\n Safe and secure in our ability to purchase and possess air guns, we will now move on to the issue of transportation.<\/p>\n Transportation<\/strong><\/span><\/p>\n Let us start this section by reiterating that Virginia is an open carry state. \u00a0What does this mean? \u00a0It 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. \u00a0This applies equally to handguns and long-guns.<\/p>\n Where bearing arms enters the realm of potential criminal liability is when the firearm is concealed. \u00a0The prohibition against carrying a concealed weapon is codified at \u00a7 18.2-308<\/a> which generally prohibits carrying any of the following concealed:<\/p>\n (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<\/strong>; (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<\/strong> as those enumerated in this subsection<\/p><\/blockquote>\n The clarifying text “by action of an explosion of any combustible material” was added in 2001 by House Bill H2130<\/a>. \u00a0According to Delegate McClure<\/a>, 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.”<\/p>\n 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.<\/p>\n 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? \u00a0The answer of course is “Yes.”<\/p>\n We will first start with K-12 schools. \u00a0\u00a7 18.2-308.1<\/a> \u00a0governs possession of firearms on school property, in school buses, and on\u00a0property used exclusively for school-sponsored functions. \u00a0This code section incorporates the definition of weapons from \u00a7 18.2-308<\/a> and also repeats the limiting phrase “designed or intended to expel a projectile by action of an explosion of a combustible material.”<\/p>\n On its face, the prohibition against weapons on school property does not appear to apply to air guns. \u00a0And this interpretation is borne out by the fact that in 2010, the Virginia Citizens Defense League<\/a> defeated an attempt by Senator Marsden<\/a> to add air guns to the list of prohibited weapons. \u00a0His change in Senate Bill SB 580<\/a>\u00a0would 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.”<\/p>\n But that does not mean that students are free to bring air guns onto school property, even after hours. \u00a0While the act may not give rise to criminal liability,\u00a0\u00a7 22.1-277.07<\/a> provides for a one-year expulsion for students who are proven to have:<\/p>\n … possessed a firearm on school property or at a school-sponsored activity as prohibited by \u00a7\u00a018.2-308.1<\/a>; 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 \u00a7\u00a015.2-915.4<\/a>\u00a0on school property or at a school-sponsored activity.<\/p><\/blockquote>\n 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. \u00a0A great example is a recent case in Culpepper<\/a>.<\/p>\n And there are other places where the prohibition is clear. \u00a0The 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. \u00a0This prohibition comes from \u00a7 18.2-287.01<\/a> and states in part that:<\/p>\n 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<\/strong> …<\/p><\/blockquote>\n Air guns are also prohibited in courthouse. \u00a0This prohibition is codified in\u00a0\u00a7 18.2-283.1<\/a> and features the exact same “designed or intended to propel a missile or projectile of any kind”\u00a0language as the prohibition on air carrier airport terminal buildings.<\/p>\n So we can’t carry at schools (under threat of expulsion and a whole lot of headaches), air carrier airport terminal buildings, and courthouses. \u00a0Other than that, transportation and carry of air guns seems to be relatively non-controversial.<\/p>\n However, there is one final point to make concerning transportation of air guns. \u00a0Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute, codified at\u00a0\u00a7 15.2-915<\/a>\u00a0does 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. \u00a0Note to self … this is a good area for a bill in the upcoming legislative session.<\/p>\n Moving on … Is there anything else we should look out for as we carry our air guns across the Commonwealth? \u00a0Why yes there is. \u00a0And that leads us to our next topic. \u00a0When and where may you legally use or discharge your air gun.<\/p>\n Discharge<\/strong><\/span><\/p>\n Let’s start with an important point of Virginia law. \u00a0Anyone with an air gun in their hand in a public setting runs the risk of being charged with brandishing. Governed by\u00a0\u00a7 18.2-282<\/a>, the crime of brandishing occurs when you:<\/p>\n … point, hold<\/strong> or brandish any firearm or any air or gas operated weapon or any object similar in appearance<\/strong>, 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. \u00a0<\/strong><\/p><\/blockquote>\n While this is an “objective” standard, the possibility of a brandishing charge always exists when an air gun is being used in public. \u00a0The obvious example of this is when groups of children play with Airsoft or paintball guns in public parks.<\/p>\n 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. \u00a0That 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). \u00a0You should keep them encased, slung, or holstered until ready to use and such use should only be in appropriate places.<\/p>\n So what places are appropriate? \u00a0Well let’s start with one of the\u00a0changes to Virginia law that occurred in 2011<\/a>. \u00a0Concerned that more and more localities were passing blanket bans on the discharge of air guns on private property, Senator Roscoe Reynolds<\/a> introduced Senate Bill SB 757<\/a>.<\/p>\n This change to \u00a7 15.2-915.4<\/a>\u00a0allows 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.<\/p>\n Other statutes, designed to govern the public discharge of actual firearms are also inapplicable. \u00a0These include \u00a7\u00a018.2-280<\/a>\u00a0(Willfully discharging firearms in public places) and \u00a7\u00a018.2-286<\/a>\u00a0(Shooting in or across road or in street).<\/p>\n Finally, I should note that\u00a0\u00a7 15.2-915.4<\/a>\u00a0does not prevent localities from passing ordinances governing discharge in public venues such as parks. \u00a0In 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.<\/p>\n Summary<\/strong><\/span><\/p>\n So what have we learned?<\/p>\n 1) \u00a0Federal law does not consider air guns to be “firearms” for purposes of federal law and even felons may purchase and possess air guns.<\/p>\n 2) \u00a0The BATFE does not consider paintball guns to be “destructive devices” despite the fact that they propel a projectile greater than .50 caliber.<\/p>\n 3) \u00a0Federal law preempts the ability of states to ban the sale of air guns to adults.<\/p>\n 4) \u00a0Virginia law generally does not impose restrictions on the purchase and possession of air guns when not engaging in other unlawful activity.<\/p>\n 5) \u00a0When 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.<\/p>\n 6) \u00a0There are places that are off limits including K-12 schools, courthouses, and air carrier airport terminal buildings.<\/p>\n 7) \u00a0Since air guns are not “firearms” under Virginia law, Virginia’s firearms preemption statute\u00a0does not apply and localities may have their own ordinances on where you may or may not transport air guns.<\/p>\n 8) \u00a0While 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.<\/p>\n 9) \u00a0Get to know your local ordinances. \u00a0Because 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.<\/p>\n Going Forward<\/strong><\/span><\/p>\n 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.<\/p>\n 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<\/span> and I will incorporate the change or addition into the guide.<\/p>\n DISCLAI<\/strong><\/em>MER<\/strong>: \u00a0Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship. \u00a0For legal advice, you should contact a member of your state\u2019s Bar association.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" 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. \u00a0Additionally, if they found the article by using a search engine, it shows me the … Continue reading ![\"\"](\"https:\/\/monachuslex.org\/wp-content\/uploads\/2012\/06\/Airgun_Ammo1.jpg\" "\\"Airgun_Ammo\\"")
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\n(3) The term \u201cfirearm\u201d means<\/p>\n
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\n(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<\/strong>, and which has any barrel with a bore of more than one-half inch in diameter<\/strong>;<\/p><\/blockquote>\n
\n…
\nC. 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<\/strong>.<\/p><\/blockquote>\n