The Volokh Conspiracy

Just last year, Justice Elana Kagan wrote for a unanimous Supreme Court in Smith & Wesson Brands v. Estados Unidos Mexicanos that "the AR–15 is the most popular rifle in the country," adding that such rifles are "both widely legal and bought by many ordinary consumers."  And while at the same time the Court denied cert in Snope v. Brown, Justice Brett Kavanaugh issued a statement that the Fourth Circuit "erred by holding that Maryland's ban on AR–15s complies with the Second Amendment" and predicted that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."

The Virginia General Assembly apparently doesn't want to be outdone by California and the few other outlier states testing the Supreme Court to see if it really means it, as it stated in Heller, that the Second Amendment protects (at a minimum) "arms 'in common use at the time' for lawful purposes like self-defense." Virginia enacted HB 217/SB 749, effective July 1, making the transfer or purchase of an "assault firearm" (defined to include popular semiauto firearms) and magazines holding over 15 rounds a Class 1 misdemeanor, punishable by incarceration for one year.  A second offense makes it unlawful to possess any firearm for three years.

In signing 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 correct to concede a point that will be used in litigation challenging the new law, as the Virginia Constitution protects the right to hunt.  I explain the origins 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 ignores that the banned firearms are also "frequently used" for training, target practice, and self-defense.  Besides being protected by the federal Second Amendment, the banned firearms are guaranteed under the Virginia 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 the above language without the final "keep and bear arms" clause, although Virginia demanded language similar to what became 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 arms right was considered fundamental by Tucker, who was Virginia's finest jurist at the Founding.

In 1964, the Virginia Senate, the House concurring, declared that the Second Amendment right is "an inalienable part of our citizens' heritage in this State," adding "that any action taken by the General Assembly of Virginia to interfere with this right would strike at the basic liberty of our citizens; that no agency of this State or of any political subdivision should be given any power or seek any power which would prohibit the purchase or possession of firearms by any citizen of standing for the purpose of personal defense, sport, recreation or other noncriminal activities…."  In 1970, that statement was relied upon by proponents in the legislature for amending the Virginia Constitution to add the "keep and bear arms" clause, which was overwhelmingly approved by the voters in 1971.  I trace 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, Va. 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 an aside, unlike the redistricting amendment that the Virginia Supreme Court found to be illegal on May 8 in Scott v. McDougle, the 1971 amendment had been voted for in two separate legislative sessions, with an intervening election in between.  And 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 "sensitive place" issues in that case.  Pertinent to the gun-ban issue here, the Court repeated Heller's dictum: "Individual self-defense is 'the central component of the right itself.'"

In 2020, bills that would have made it a five-year felony to possess an "assault firearm" failed to pass the General Assembly.  The proposals sparked a prairie fire by almost all Virginia counties, which passed resolutions reaffirming Second Amendment rights and refusing to enforce the unconstitutional proposals.  The Virginia Attorney General opined that these resolutions were meaningless, disregarding that priorities in law enforcement are left to local sheriffs and police and that prosecution is in the discretion of the Commonwealth 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.  Scores of Virginia jurisdictions, covering most of the state's land mass, have again passed Second Amendment Sanctuary resolutions.  It's the population center of Northern Virginia that dominates the legislature and has the power to rule the rest of the Commonwealth.  But don't hold your breath waiting for local sheriffs or prosecutors to ferret out who may have committed the crime of transferring a semiauto rifle with an adjustable shoulder stock.  To exemplify the situation, Rob Cerullo, Commonwealth 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 seeking to have the gun ban declared unconstitutional and enjoined.  McDonald v. Katz, filed in the U.S. district court for the Eastern District of Virginia, bases its challenge only 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.

Look for another challenge to be filed by the United States.  On April 10, Assistant Attorney General Harmeet Dhillon wrote Governor Spanberger about the pending bills: "This letter provides formal notice that the Civil Rights Division will commence litigation in the event the Commonwealth of Virginia enacts certain bills that unconstitutionally limit law-abiding Americans' individual right to bear arms."