Information on lawfully owning, transporting and using a machine gun in Virginia
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The ownership, transportation & use of machine guns is generally legal, but tightly regulated in Virginia. Below are links to information that concern significant information on ownership, transportation & use of machine guns as well as short barreled shotguns, AOW, suppressors and Destructive Devices in Virginia.
This information is for reference and is not legal advice.
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A primary source of confusion about machine guns, and other title 2 firearms in Virginia is the "Virginia Uniform Machine Gun Act". Without a doubt, one of the more confusing and ambiguous sections of law created by man. What makes the laws that comprise the Virginia Uniform Machine Gun Act even more confusing is that often times the words don't "mean" what a casual reader might think they mean. Even when you read the language in "plain English" they're ambiguous. But compounding this is what the courts call the "rules of statutory construction". This will be addressed in subsequent paragraphs. The case law on violations of the Virginia Uniform Machine Gun Act is practically non existent so the first thing to cover is the statutory law of the Virgnia UMGA.
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The Virginia General Assembly
§ 18.2-288. Definitions. - defines machine gun, person and crime of violence; these are used throughout the act. § 18.2-289. Use of machine gun for crime of violence. - Using the previous definitions, this law criminalizes machine gun use for a crime of violence. It's interesting to note that going back to the definitions, burglary and larceny are included, but this is a combination of having/using a machine gun and the crimes outlined in this section. Now here's where things get interesting. § 18.2-290. Use of machine gun for aggressive purpose. Aggressive purpose? What's that? Read on. § 18.2-291. What constitutes aggressive purpose. - This is probably the worst of them all. § 18.2-292. Presence prima facie evidence of use. - This section criminalizes not just you, but everyone around you in your vicinity should you be in possession of a machine gun for an aggressive purpose. § 18.2-293. What article does not apply to. - Not really, this section just makes sure the government actors can legally have machine guns. § 18.2-293.1. What article does not prohibit - This section carves out some narrow exceptions and mandates registration. § 18.2-294. Manufacturer's and dealer's register; inspection of stock - self explanatory. § 18.2-295. Registration of machine guns. - gives 24 hours to submit a notarized registration. § 18.2-296. Search warrants for machine guns § 18.2-297. How article construed. - purpose and intent. § 18.2-298. Short title of article. - all the way at the end.
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Executive Branch
There is still more to say on the matter. As if it was not confusing enough already, we haven't covered what the other branches of Virginia Government have to say. Significant court cases are nonexistent for the UMGA, but the Executive branch is not silent on the matter.
First up, probably the least obtrusive is the Virginia State Police. They handle the registration. Note that the law and VSP state that "all machineguns" must be registered, and it makes no distinction about ownership by person, corporation etc. This will be touched on briefly later. Another item of concern is that "all machine guns must be registered within 24 hours of acquisition". This is for all practical purposes impossible! The Firearms transaction center (at least the contact information provided on VSP's website) is 8-5, M-F. By law, the application must be notarized and the only method of delivery of your application is by US Mail. The fastst turnaround I have knowledge of is 6 days door to door.
When you drop the application in the mail, have you "registered"? Conventional wisdom is that you keep an application for registration until you receive the green registration from VSP. I've never gotten the impression VSP was obfuscating the process and all dealings I'm aware of on the issue have been handled promptly and professionally. Nevertheless, the old adage 'an ounce of preparation is worth a ton of cure' is applicable. Why risk confiscation for a minor infraction when all you need to do is get notarized, make copies and mail - get receipts for the mail, express delivery if you're inclined.
What of non-Virginia residents? Excellent question, and it is not settled law. The act requires all machine guns in the Commonwealth to be registered and notarized. As previously indicated, this is practically impossible due to VSP's processes. Obviously you have 24 hours 'from acquisition' to register, but what of the 23 hours & 59 minutes prior. 18.2-295 does not account for this, or week plus turnaround time from VSP. More importantly, VSP apparently will not make an entry for a non resident. While there is nothing in law which prevents VSP from making a registration entry in the Machine Gun Registry, nothing compels them either. Thus, if you are transiting Virginia in lawful possession of a machine gun and you have a mechanical breakdown in your vehicle, get snowed in, etc. the question becomes what to do. Again, this is not settled law.
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Another Executive Branch department with input on the Virginia Uniform Machine Gun Act is the Office of the Attorney General. In Virginia, the AG is a Constitutional Officer, elected and serves as the "lawyer for the Commonwealth and it's actors". They are a "government only" law office that opine on the applicability of a statute or rule, and how it may be interpreted. A guide, if you will, on how the Executive Branch should enforce the law. Periodically, a Commonwealth actor such as the Governor, member of the General Assembly, Superintendent of the State Police, etc. is presented with a vexing question. One which either raises an "issue of first impression", or because the scenario is ambiguous, confusing, complex, they will write the Attorney General and ask for an advisory opinion. The effect and weight of an AG opinion is a subject best discussed with a lawyer, but suffice it to say they are significant. The Attorney General of Virginia has issued 4 separate and distinct opinions on the Virginia Uniform Machine Gun Act, as follows:
1977: On what is meant by aggressive and offensive as used in the UMGA. Reprinted from Westlaw with permission of Thomson/West. 1982: On the presumption of the act; a Constitutionally rebuttable presumption. Reprinted from Westlaw with permission of Thomson/West." 2002: On the legality of transporting and discharging a machine gun. 2004: On the legality of displaying machine guns.
The usefulness of an AG opinion is also that it lays out not only the conclusion, but the reason why via the "rules of statutory construction. These rules lay out the foundation for how a court is to interpret what the General Assembly has said in the law. There are several and sometimes their application leads to a conclusion that defies rational common sense. That's the nature of the law anyway since it is after all created by man...
Here is an excellent breakdown and example of the rules of statutory construction at Virginia1774.org. Here you can see cases in which the rules are applied significantly and how the court reasons the outcome with them.
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What are these rules of statutory construction and what do they have to do with machine guns?
The 'rules' are what the courts use in their constitutional role to interpret the laws. Much of what you read in a court ruling will be citations, or cites of either precedent or a previous similar ruling. One reason they might refer to a previous ruling is to produce a ruling consistent with previous court holdings. This is where things get incredibly complicated to follow. A cite to a previous case will likely be to either cherry pick 1 or more "holdings" or reasoning to compare to the existing case. If the cases are similar enough they may simply say "we previously held in ______ vs. Commonwealth that..." and that will be it.
Virginia Appeals and Supreme Court cases can be searched here
A word of caution on statutory construction. After reading enough court cases you'll probably notice that the 'rules' aren't always applied consistently. That's a correct observation. The facts of any 2 cases aren't identical. Even when they're as close as possible, no matter who prevailed previously often times you will be able to observe in an Appeals or Supreme Court the willingness to bend over backwards for the Commonwealth. If it doesn't make sense, or you have questions, it's time for an attorney!
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Unless defined in a law, words & phrases should get their common meanings.
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This is not an all inclusive list, but is enough to address the point here. For further clarification - if you can call it that - of statutory construction rules, see Virginia1774.
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So, now knowing the laws and existing interpretations we have this general prohibition on possessing & using a machine gun for an offensive or aggressive purpose. Next we have the definition of aggressive purposes as:
(1) When the machine gun is on premises not owned or rented for bona fide permanent residence or business occupancy by the person in whose possession the machine gun may be found; (2) When the machine gun is in the possession of, or used by, a person who has been convicted of a crime of violence in any court of record, state or federal, of the United States of America, its territories or insular possessions; (3) When the machine gun has not been registered as required in § 18.2-295; or (4) When empty or loaded shells which have been or are susceptible of use in the machine gun are found in the immediate vicinity thereof.
Check out numbers 1 & 4. Basically, when you're out in public, and when there is either ammunition or empty shells in your immediate vicinity. An AG opinion from 2002 sidestepped that question but pointed out the similarity of immediate vicinty to "Leith vs. Commonwealth". The AG goes on to muse: when the ammunition and machine gun are "‘readily accessible for use or surprise if desired,’" and could pose an immediate danger to the general public.
Leith was a 'first impression' case dealing with a loaded handgun in a locked center console. The court found Leith guilty because they reasoned it was "readily accessible" by Leith. The court's holding is of course a ridiculous contortion of logic since it was nowhere near readily accessible for the purposes of use; Leith would have had to produce the key, and unlock the console to even have access.
Given this, everything sure appears illegal... That's because this is a "general prohibition" and the ACT as a whole is considered to create a "rebuttable presumption of guilt". In other words, you are not innocent until proven guilty if you have a machine gun; rather, you must rebut the presumption that you are guilty through one of the exceptions. This operates much in the same way as Virginia's Concealed handgun permit law, 18.2-308. A general prohibition is established on carrying a concealed weapon. Later on in the statute narrow exceptions are carved out. This way if anyone is caught with a concealed weapon they may also be presumed guilty, and may rebut that presumption with a permit.
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there are no provisions that criminalize the discharge or firing of a machine gun in the Commonwealth for nonaggressive or nonoffensive purposes. The mere presence of "empty or loaded shells … in the immediate vicinity" of a machine gun, however, creates the presumption of an offensive or aggressive purpose. A person that elects to discharge or fire a machine gun must rebut the presumption contained in § 18.2-291(4) of the Act, or face conviction should he be charged with a violation of the Act - From the 2002 AG opinion linked above.
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So 18.2-291 sets up the presumption of guilt conditions. 18.2-293.1 then says 'Nothing in this article shall prohibit or interfere with...possession of a machine gun for scientific purposes...not usable as a weapon and for a purpose manifestly not aggressive or offensive.'
From the '77 AG opinion: ... In addition, the term "aggressor" has been defined by the Supreme Court of Virginia in Perkins v. Commonwealth, 186 Va. 867, 876, 44 S.E.2d 426, 430 (1947), as follows: "One who begins a quarrel or dispute; one who brings on a conflict or affray by some overt act or demonstration calculated to precipitate the difficulty or conflict; one who provokes a difficulty."
Thus, the ordinary meaning of "aggressive" is tending toward a forceful unprovoked act toward others, and the meaning of "offensive" is tending toward the attack as opposed to the defensive.
Once you take a close look at the Virginia UMGA historically it has only outlawed actions that could accurately describe the bold section above with a machine gun.
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