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Is that a firearm in your pocket, or just a replica?

Reviewing years of debate over whether various guns can be considered “firearms” when used in felonies, a divided Virginia Court of Appeals panel this week determined that a “John Wayne replica” gun was close enough when it contained all the working parts of the original gun except a firing pin.

The decision in Startin v. Commonwealth means a conviction for Duane Startin for using the Franklin Mint-produced replica of the venerable .45-caliber military Model 1911 handgun in two drug store robberies.

Criminals have shown remarkable imagination over the years in their choice of weaponry, with varying results in the courtroom.  Courts decreed that a toy gun was not a “firearm,” but a rusted inoperable revolver would suffice, as would a BB-gun replica of a more potent weapon.  Even saying you have a gun while holding your hands in your pockets can earn you a use-of-firearm conviction.

Here, Judges Cleo Powell and Randolph Beales agree this non-firing replica of a handgun “retains enough of its original parts that it has not lost its identity as a firearm.”  Judge Larry Elder dissents, saying that where you have the actual gun in hand, the critical issue is whether the thing is capable of firing a projectile.  Since the John Wayne replica was not, Elder writes, the conviction should be reversed.

By Peter Vieth

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