VA Code 18.2-308.2 Interpretation
Code 18.2-308.2 prohibits a convicted felon "to knowingly and intentionally possess or transport any firearm."
While the statute does not define firearm, the adjacent "instant check" statute, Code 18.2-308.2:2, provides "firearm means any handgun, shotgun or rifle which expels a projectile by action of an explosion."
Similarly, the plain dictionary meaning of "firearm" is:
"A weapon that expels a projectile (such as a bullet or pellets) by the combustion of gunpowder or other explosive." Black's Law Dictionary 648 (7th ed. 1999). Nothing in these or similar definitions bifurcates firearms into actual operational and not fully functional categories.
In Jones v. Commonwealth, 16 Va. App. 354, 356, 429 S.E.2d 615, 616, aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993), the defendant was convicted of violating Code 18.2-308.2 based on his possession of a BB handgun.
The Court looked to the legislature's purpose in enacting the statute and explained:
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 have the appearance of a firearm.
Therefore, we hold that the term "firearm" as used in Code 18.2-308.2 is used in its traditional sense. The statute does not seek to protect the public from fear of harm caused by the display of weapons; rather it is concerned with preventing a person, who is known to have committed a serious crime in the past, from becoming dangerously armed, regardless of whether that person uses, displays, or conceals the firearm....
Accordingly, Code 18.2-308.2 does not include a BB handgun, which is a device that propels a projectile by pneumatic pressure. 16 Va. App. at 357-58, 429 S.E.2d at 617.
In Williams v. Commonwealth, 33 Va. App. 796, 537 S.E.2d 21 (2000), the Court reversed the defendant's conviction for a violation of Code 18.2-308.2 because the Commonwealth failed to prove that "the weapon could be readily or easily restored to a condition of operability." Williams, 33 Va. App. at, 537 S.E.2d at 27.
In determining whether the item possessed by the defendant was a "firearm" proscribed under Code 18.2-308.2, we concluded that the statute "prohibits felons from possessing actual firearms that are presently operable or that can readily or easily be made operable or capable of being fired with minimal effort and expertise.
To that end, we agree with the reasoning used in Timmons v. Commonwealth, 15 Va. App. 196, 421 S.E.2d 894 (1992), and Rogers v. Commonwealth, 14 Va. App. 774, 418 S.E.2d 727 (1992), that a weapon does not cease to be a firearm merely because it has no present or immediate capacity to fire a projectile." Williams, 33 Va. App. at, 537 S.E.2d at 26.