Firearm Possession by a Convicted Felon in Virginia: What You Need to Know

Can a convicted felon legally possess a firearm in Virginia?

The short answer is no—in almost every circumstance. Virginia has some of the strictest firearm possession laws for convicted felons, and a conviction can result in years of additional prison time.

If you have been charged with possession of a firearm by a convicted felon under Virginia Code § 18.2-308.2, it is critical to understand what the Commonwealth must prove, the potential penalties, and the defenses that may be available.

Virginia Law: Firearm Possession by a Convicted Felon

Virginia Code § 18.2-308.2(A) makes it unlawful for any person who has been convicted of a felony to knowingly and intentionally possess or transport any firearm or ammunition.

Unlike many criminal statutes, the Commonwealth does not have to prove that the firearm was used in another crime. Mere possession may be enough to support a conviction.

The statute generally applies regardless of whether the prior felony occurred:

• In Virginia;
• In another state;
• In federal court; or
• In another jurisdiction if the offense would have been classified as a felony in Virginia.

What Counts as “Possession”?

One of the most misunderstood aspects of Virginia firearm law is that possession does not necessarily mean holding a firearm in your hand.

Virginia recognizes two forms of possession:

Actual Possession

Actual possession occurs when the firearm is physically on your person, such as:

• In your waistband;
• In your pocket;
• In your hand; or
• Inside a backpack or bag you are carrying.

Constructive Possession

Many prosecutions involve constructive possession.

Constructive possession exists when the Commonwealth alleges that:

• The defendant knew the firearm was present; and
• The defendant exercised dominion and control over it.

Examples may include:

• A firearm found underneath the driver’s seat of a vehicle;
• A firearm inside a bedroom occupied by the accused;
• A firearm located in a safe or closet allegedly under the defendant’s control.

Simply being near a firearm is not automatically enough to establish constructive possession. The Commonwealth must prove knowledge and dominion or control beyond a reasonable doubt

Does Ammunition Count?

Yes.

Virginia Code § 18.2-308.2 prohibits possession of both firearms and ammunition.

A convicted felon can face prosecution even if law enforcement never recovers a firearm but instead finds prohibited ammunition.

Penalties Under Virginia Code § 18.2-308.2

Possession of a firearm by a convicted felon is generally a Class 6 felony.

However, the penalties increase significantly depending on the defendant’s criminal history.

Violent Felony Convictions

If the prior conviction is for certain violent felonies identified in Virginia law, the offense carries a mandatory minimum term of imprisonment of five years.

Mandatory minimum sentences are particularly serious because the sentencing judge cannot suspend that portion of the sentence.

Additional Charges

Many defendants are charged with more than one offense, including:

• Possession of ammunition by a convicted felon;
• Carrying a concealed weapon;
• Possession of a firearm while possessing controlled substances;
• Drug distribution offenses;
• Probation violations;
• Federal firearm offenses.

Each charge carries its own penalties and strategic considerations.

How Does the Commonwealth Prove the Case?

To obtain a conviction, prosecutors generally must prove beyond a reasonable doubt:

1. The defendant has a qualifying felony conviction;
2. The defendant knowingly and intentionally possessed or transported a firearm or ammunition; and
3. The possession occurred in Virginia.

The Commonwealth frequently relies upon:

• Police testimony;
• Body-worn camera footage;
• DNA evidence;
• Fingerprint evidence;
• Statements allegedly made by the accused;
• Social media evidence;
• Text messages;
• Vehicle ownership records.

Common Defenses

Every case depends upon its specific facts, but common defenses may include:

Lack of Possession

The firearm belonged to another person, and the Commonwealth cannot establish actual or constructive possession.

No Knowledge

A defendant cannot knowingly possess a firearm that he or she did not know existed.

Illegal Search and Seizure

If law enforcement violated the Fourth Amendment or the Virginia Constitution during the investigation, evidence may be subject to suppression.

Challenging the Prior Conviction

The prosecution must prove that the prior conviction legally qualifies under Virginia Code § 18.2-308.2.

Insufficient Evidence

Many cases rely entirely upon circumstantial evidence. If the Commonwealth cannot prove possession beyond a reasonable doubt, the defendant cannot be convicted.

Can a Convicted Felon Ever Regain Firearm Rights in Virginia?

Possibly.

Virginia law allows certain individuals to seek restoration of firearm rights after their civil rights have first been restored. Restoration is not automatic and generally requires a separate petition to the appropriate circuit court under Virginia Code § 18.2-308.2(C).

The availability of relief depends upon numerous factors, including the person’s criminal history and the restoration of civil rights.

Federal Law Also Applies

Even if Virginia law permits restoration under certain circumstances, federal firearm laws—particularly 18 U.S.C. § 922(g)—may also apply.

Anyone considering restoring firearm rights should consult an attorney to ensure compliance with both Virginia and federal law.

Frequently Asked Questions

Can a felon possess ammunition in Virginia?

No. Virginia Code § 18.2-308.2 prohibits possession of both firearms and ammunition by convicted felons.

Can I possess a firearm if it belongs to my spouse?

Not necessarily. If you exercise dominion or control over the firearm, prosecutors may argue you constructively possessed it.

What if the firearm was found in my vehicle?

Ownership of the vehicle alone is not enough for a conviction. The Commonwealth must still prove you knowingly possessed the firearm.

Is possession always a felony?

Yes. A violation of Virginia Code § 18.2-308.2 is a felony offense, and certain prior convictions carry mandatory prison sentences.

Charged with Possession of a Firearm by a Convicted Felon?

A firearm possession charge can have life-changing consequences. Because these cases often involve constitutional issues, search-and-seizure questions, and disputes over constructive possession, early legal representation is critical.

An experienced Virginia criminal defense attorney can evaluate whether the firearm was lawfully discovered, whether possession can actually be proven, and whether constitutional defenses may require suppression of the evidence.

Relevant Virginia Code Sections

• Virginia Code § 18.2-308.2 – Possession or transportation of firearms, firearms ammunition, stun weapons, or explosives by convicted felons.
• Virginia Code § 19.2-59 – Searches without a warrant generally prohibited.
• Virginia Code § 17.1-805 – Restoration of civil rights procedures (where applicable in conjunction with restoration efforts).

This article is provided for general informational purposes about Virginia law and does not constitute legal advice for any particular situation. If you are facing a criminal matter in Williamsburg, James City County, York County, Newport News, or elsewhere in Hampton Roads, speak with a criminal defense attorney promptly to discuss your specific circumstances.