There are four separate lawsuits challenging Virginia’s ban on “assault firearms” and “large capacity” magazines in state court at the moment, and the Virginia Supreme Court has established a three-judge panel to decide if the cases should be consolidated and, if so, where the consolidated cases should be heard.
The plaintiffs in these cases have argued that each of the lawsuits raise different objections about the gun and magazine ban and its relationship to Article 1, Section 13 of the Virginia Constitution. One of them, for example, raises a direct challenge to the law by claiming that it violates the militia clause in Article 1, Section 13.
The argument is fundamental: the militia clause guarantees the existence of a “well regulated militia, composed of the body of the people, trained to arms.” That guarantee is self-executing. It necessarily presupposes that the body of the people may acquire and possess the arms with which they must be trained. The General Assembly cannot, consistent with that guarantee, prohibit the body of the people from acquiring the very weapons with which they must be prepared to serve as that militia.
While Attorney General Jay Jones has argued in response to other lawsuits like Crump v. Katz at AR-15s and other “assault firearms” can be banned because they’re too close to those arms carried by the military, the plaintiffs in Curtis v. Katz (including National Association for Gun Rights Director of Political Affairs Dustin Curtis) argue that’s the main reason why these guns and magazines cannot be prohibited under state law.
The arms that the body of the people must possess are those suitable for militia service—arms whose nature and purpose make them capable of contributing to the common defense. In every era, this has meant the weapons that bear a functional relationship to those issued to the organized military forces of the Commonwealth and the nation. As Dr. Edwin Vieira, Jr. has documented, this is a fixed constitutional principle, not a matter of legislative grace: the arms suitable for militia service must be no less current and effective than those carried by the members of the regular armed forces, because a militia equipped with obsolete or inferior weapons cannot serve as the “proper, natural, and safe defense of a free state” that the Constitution demands.
This standard finds direct support in United States v. Miller, 307 U.S. 174, 178 (1939), which held that the Second Amendment protects weapons bearing “some reasonable relationship to the preservation or efficiency of a well regulated militia” and those that are “part of ordinary military equipment” or “could contribute to the common defense.” The Miller Court further observed that militia members were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The semi-automatic centerfire rifles and pistols, and the standard-capacity magazines banned by the Act are precisely such weapons: they are the civilian analogs of the standard service rifles issued to the Virginia National Guard and the active-duty armed forces of the United States. The General Assembly’s implicit concession that law-enforcement officers need these very weapons (and are therefore exempted from the Act) only confirms the point.
Jones will undoubtably try to rely on the federal Fourth Circuit Court of Appeals decision upholding Maryland’s ban on “assault weapons” in his defense of the Virginia law, but doing so amounts to nothing more than a legal “nuh uh.” The federal appellate court held that the guns banned in Maryland aren’t protected by the Second Amendment because they’re “excessively dangerous” and “are military-style weapons designed for sustained combat operations.”
That last phrase actually bolsters the plaintiffs’ arguments in Curtis, who raise no challenge under the Second Amendment at all. Their position is that the militia clause isn’t anachronistic or a legal dead letter. The body of the people in Virginia still make up the militia, and as such need to be able to train on those arms that most resemble those used in the military.
Former Virginia Attorney General Ken Cuccinelli is representing the plaintiffs in this case, and the parties are still scheduled to meet in a Spotsylvania County courtoom on Wednesday morning for a hearing. The Lancaster County Judge in charge of Crump v. Katz cancelled a hearing on a request for a preliminary injunction last week citing the state Supreme Court’s efforts to decide whether the separate cases should be consolidated, but so far the judge overseeing Curtis is sticking to his schedule. With a little more than two weeks to go until the gun and magazine ban kicks in, Curtis is one of the best opportunities to put the new law on hold before it can do untold damage to Virginians’ right to keep and bear arms.
In fact, the Second Amendment Foundation has announced that it’s now supporting Curtis v. Katz in addition to its own lawsuit (McDonald v. Katz) challenging the ban in federal court.
In a statement, SAF Executive Director Adam Kraut, said “When it comes to vindicating the rights of our members, we will pursue every viable legal option. We are thrilled to have been given the opportunity to support this state court challenge with Mr. Cuccinelli and think it complements our ongoing federal challenge very nicely.”
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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