Can a Collectivist Argument Secure an Individual Right to Own Banned Firearms?

So far, the answer is now, but the plaintiffs and their attorney in a case making its way through the Virginia court system right now is hoping their argument will find favor with the Commonwealth’s judiciary. 

The case Curtis et.al. v. Katz et.al. challenges the newly signed semi-automatic and magazine ban in the Commonwealth of Virginia. On June 18, 2026 a judge issued an opinion to not enjoin the law that’s set to take effect on July 1 while litigation persists. Attorney Ken Cuccinelli held a virtual press conference on June 19 and addressed a press pool on the case and opinion. Cuccinelli discussed some of the legal strategy as well as fielded questions from those in attendance.

The Curtis case utilizes Virginia’s law concerning the militia to go after the ban. Cuccinelli describes the conventional bodies that make up for Virginia’s defense as the “organized militia.” In contrast, the remaining people not affiliated with any of the Virginia defense forces, the “reserve pool of manpower,” Cuccinelli says is the “unorganized militia.” The term unorganized militia he says is an early 1900s term, however Mason described the unorganized body as “the people.”

“What makes this case different, is that we’re advocating for individual rights to obtain and gain proficiency with and use for any lawful purpose arms appropriate to militia use,” Cuccinelli says. “We argued that the civilian analogs to the basic security forces of Virginia weapons — and we had agreed facts from the Sheriff’s Department that those are in his department — The P320 Sig Sauer, they use a 17-round magazine. It’s also available at 21 as a standard, which … it’s the civilian version of that sidearm used by the National Guard.” The Sig Sauer M400 carbine Cuccinelli argues would also be protected for civilian ownership.

This militia argument hinges around a very simple precept. Should the unorganized militia be called to serve in the defense of the Commonwealth, how would individuals report?

“If people were showing up today and all they were told to bring is a good rifle, what would they be showing up with?” Cuccinelli mused. “They’d be showing up with an AR-platform semi-automatic rifle, as described in the ‘assault weapons’ ban, and that is comprehensively banned by the use of features, so indirectly banned under the Virginia assault weapons ban, and that they’d be showing up with magazines that hold 30 rounds, not 15.”

This is a novel approach attacking the law through Virginia’s protections of the militia. Consider these arguments in contrast to the rejected collectivism pigeon hole that some modern legal scholars tried to smash the Second Amendment into on a federal stance while dealing with the militia question. Through precedent set forth in Heller, McDonald, Caetano, and Bruen, the collectivist interpretation being presented as a non-individual right has been rejected.

Cuccinelli argues it must be an individual right in order to fulfill any potential call to arms.

If there’s any apprehension about using a collectivist-leaning argument to prove individual protection, such as via any militia clause, Cuccinelli addressed this when queried. Whether or not these arguments would weaken other arguments concerning arms being protected for self-defense purposes, Cuccinelli said, “I don’t want to say it’s an invalid concern.” He stipulated that rulings in one area of the law on the same legal foundation could of course affect others.

“Our main thrust here is that, as Scalia noted in Heller, yes, self-defense is what they called the core right, but the purpose, the primary purpose for the writing down of the Second Amendment was the militia purpose,” Cuccinelli said. “And we carry that into Virginia with more, frankly, more robust history than they have in the Second Amendment, because a lot of the reason for the Second Amendment was so James Madison could get the votes to get the Constitution ratified in the Virginia Convention, and then New York followed with a 31-28 vote with a similar approach of demanding amendments.”

While it’s disappointing that the law is not going to be preliminary enjoined at this stage of the filing, Virginians should still remain hopeful. The matter of the new so-called “assault weapons” ban and magazine capacity limitations are being attacked on multiple fronts by multiple individuals and organizations.

As for Curtis v. Katz, Cuccinelli said that he’ll not be holding one-on-one individual press events and/or interviews on the topic. However, he will continue to keep the public and press pool apprised of the status of the case when there are updates. It’s not yet known if there’s going to be an appeal in Curtis on an interlocutory basis while the case is being litigated.

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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