909 S.E.2d 581
Va. Ct. App.2024Background
- Derek Wade Ginevan, previously convicted of several felonies—including a violent felony—was indicted for possession of a firearm by a felon under Virginia Code § 18.2-308.2.
- Ginevan was arrested after allegedly pointing a shotgun at a woman; he claimed it was for self-defense and admitted to his felon status.
- He filed a pretrial motion to dismiss, arguing that barring felons from firearms possession violated the Second and Fourteenth Amendments in light of recent Supreme Court precedent.
- The trial court denied his motion, finding the statute constitutional; Ginevan entered a conditional guilty plea and appealed.
- The appellate court was tasked with reviewing whether the statute’s application to Ginevan violates the Second Amendment, particularly after decisions in Heller, Bruen, and Rahimi.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Second Amendment protect felons’ gun rights? | "The people" includes all citizens, including felons; restriction overbroad | Felons are not "the people" for Second Amendment purposes | Assumed without deciding that Ginevan is included; moved to historical test |
| Are felon-in-possession laws inconsistent with the historical tradition? | No founding-era blanket ban on felons; federal/VA bans are recent | Historical tradition allows disarming those deemed dangerous | Tradition supports disarming violent/dangerous individuals |
| Is Code § 18.2-308.2 unconstitutional as applied to violent felons? | Statute lacks sufficient historical analogue; violates rights | Statute aligns with historical restrictions on dangerous persons | Statute is constitutional as applied to Ginevan, a violent felon |
| Did Bruen and Rahimi overturn the “presumptively valid” status of such bans? | Bruen demands historical analysis, conflicts with Heller dicta | Bruen preserves Heller’s position; bans still presumptively valid | Bruen altered analysis but did not undermine felon firearm bans |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (2008) (established individual gun rights but carved out exceptions for felons and the mentally ill)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporated Second Amendment protections to the states)
- New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (set out the framework for analyzing Second Amendment challenges based on text and history)
- United States v. Rahimi, 144 S. Ct. 1889 (2024) (upheld ban on gun possession by those subject to domestic violence restraining orders as consistent with historical tradition)