The General Assembly tests the courts to see what it can get away with.
Only a year ago, Justice Elena Kagan authored a unanimous Supreme Court opinion in Smith & Wesson Brands v. Estados Unidos Mexicanos noting that the AR–15 stands as the most popular rifle in the nation and that such firearms are widely lawful and purchased by many ordinary consumers. And although the Court declined to hear Snope v. Brown, Justice Brett Kavanaugh commented that the Fourth Circuit had erred in ruling that Maryland’s AR–15 ban complies with the Second Amendment, adding that the Court should, and presumably will, tackle the AR–15 question soon, perhaps in the next Term or two.
The Virginia General Assembly does not appear content to let California and a handful of other outlier states test the Court’s willingness to live up to its ruling in Heller, which held that the Second Amendment protects (at a minimum) “arms in common use at the time” for lawful ends like self-defense. Virginia enacted HB 217/SB 749, effective July 1, which makes the transfer or purchase of an “assault firearm” (a category that includes popular semi-automatic rifles) and magazines holding more than 15 rounds a Class 1 misdemeanor, punishable by up to one year behind bars. A subsequent offense elevates the restriction to three years without possessing any firearm.
When he signed the bill on May 14, Governor Abigail Spanberger stated: “While the General Assembly chose not to adopt my amendment that specifically carves out certain firearms frequently used for hunting, I will work with the patrons to clarify this language.” The governor is right to recognize a point that will figure in legal challenges to the measure, since the Virginia Constitution protects the right to hunt. I examine the roots of that recognition in “The Constitutional Right to Hunt: New Recognition of an Old Liberty in Virginia,” published in William & Mary Bill of Rights Journal (2010).
But the governor overlooks that the prohibited firearms are also “frequently used” for training, target shooting, and self-defense. In addition to protection under the federal Second Amendment, these firearms are safeguarded by Virginia’s Constitution, Art. I, § 13, which provides in part: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed….”
The Virginia Declaration of Rights of 1776 included that language but not the final “keep and bear arms” clause, although Virginia pressed for wording akin to the Second Amendment when it ratified the U.S. Constitution in 1788. As I show in St. George Tucker’s Second Amendment, Tenn. J. of L. & Pol’y (2007), the right to bear arms was treated as a fundamental liberty by Tucker, who stands as Virginia’s premier jurist of the Founding era.
In 1964, the Virginia Senate, with the House concurring, declared that the Second Amendment right is “an inalienable part of our citizens’ heritage in this State,” adding that any action by Virginia’s General Assembly to interfere with this right would strike at the core liberty of its people; no state entity or subdivision should be empowered to prohibit the purchase or possession of firearms by any citizen for purposes of personal defense, sport, recreation, or other noncriminal activities….” In 1970, that statement was used by proponents in the legislature to push for amending the Virginia Constitution to add the “keep and bear arms” clause, which voters overwhelmingly approved in 1971. I recount this history in The Right to Bear Arms in the Virginia Constitution and the Second Amendment, Liberty U. L. Rev. (2014). See also now Justice on the Virginia Supreme Court Stephen R. McCullough, “Article I Section 13 of the Virginia Constitution: Of Militias and an Individual Right to Bear Arms,” U. Richmond L. Rev. (2013).
As a side note, unlike the redistricting amendment that the Virginia Supreme Court found unconstitutional in Scott v. McDougle, the 1971 amendment had passed in two separate legislative sessions, with an intervening election between them. Fully two-thirds of Virginia’s voters approved it.
In DiGiacinto v. Rector & Visitors of George Mason University (2011), the Virginia Supreme Court held that “the protection of the right to bear arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights provided by the Second Amendment of the United States Constitution” concerning the case’s “sensitive place” issues. Relevant to the gun-ban issue here, the Court repeated Heller’s dictum that “Individual self-defense is ‘the central component of the right itself.’”
In 2020, proposals to make possession of an “assault firearm” a five-year felony failed to pass the General Assembly. The measures provoked a groundswell of support from virtually every Virginia county, which adopted resolutions reaffirming Second Amendment rights and declining to enforce the unconstitutional proposals. The Virginia Attorney General opined that these resolutions were meaningless, ignoring that law-enforcement priorities lie with local sheriffs and police and that prosecution rests with Commonwealth’s Attorneys. I addressed that issue in “Virginia’s Second Amendment Sanctuaries: Do They Have Legal Effect?” Regent U. L. Rev. (2020-2021).
And now it’s déjà vu all over again. Dozens of Virginia jurisdictions, spanning most of the Commonwealth, have again adopted Second Amendment Sanctuary resolutions. It is the population center of Northern Virginia that dominates the Legislature and can steer the rest of the state. Yet don’t count on local sheriffs or prosecutors to ferret out who may have committed the crime of transferring a semi-automatic rifle with an adjustable stock. To illustrate the situation, Rob Cerullo, the Commonwealth’s Attorney for Powhatan County, issued a directive stating that “my office will decline prosecution of criminal cases arising from violations of these sweeping bans until a court of competent jurisdiction rules on their legality.”
Three lawsuits have already been filed to have the gun ban declared unconstitutional and enjoined. McDonald v. Katz, brought in the U.S. district court for the Eastern District of Virginia, challenges the measure solely on the Second Amendment. The other two rely on both the Second Amendment and Virginia’s Art. I, § 13 — Black v. Hook, filed in Fauquier County circuit court, and Crump v. Katz, filed in Lancaster County circuit court.
Expect another challenge from the United States. On April 10, Assistant Attorney General Harmeet Dhillon notified Governor Spanberger that, should the Commonwealth enact certain bills, the Civil Rights Division would initiate litigation to protect law-abiding Americans’ right to bear arms.
