There are now two injunctions blocking enforcement of the ban on so-called assault firearms and large capacity magazines set to take effect on July 1, after a judge in Washington County, Virginia sided with the National Rifle Association, Virginia Shooting Sports Association, and several individual gun owner and gun sellers who’d sued over the law.
Washington Circuit Judge Jeffrey Campbell handed down his ruling on Monday afternoon, delivering a big win to the plaintiffs and a stinging defeat to the defendants, including multiple Commonwealth’s Attorneys and Virginia State Police Col. Jeffrey Katz. The head of the VSP is already blocked from enforcing the law thanks to an injunction granted by a Lancaster County judge last week in a GOA/VCDL suit, but today’s injunction is broader in its scope… and according to the plaintiffs, applies statewide.
In his ruling, Campbell stated that, given the sweeping nature of the ban and the arms in question, the plaintiffs are likely to win their lawsuit on the merits.
See SB 749 language amending Section 18.2-308.2:2 definition of assault firearm:
2. A semi-automatic center-fire rifle that has the ability to accept a detachable magazine, not including an attached tubular device designed to accept and capable of operating only with .22 caliber rimfire ammunition, and that has one or more ofthe following characteristics: (i) a folding, telescoping, or collapsible stock; (ii) a thumbhole stock or pistol grip that protrudes conspicuously beneath the action of the rifle; (iii) a second handgrip…
The highest court in the land has made a finding that “The AR-15 is the most popular semi-automatic rifle” in America and is therefore undeniably “in common use today.” Heller v. District of Columbia, 670 F. 3d 1244, 1287, 399 U.S. App. D.C. 314 (CADC 2011). In the Bruen case, the U.S. Supreme Court held that the Second Amendment protects not only the carrying of weapons that are those “in common use at the time.”
The state of Virginia had pointed to several court decisions around the country upholding similar bans, including the federal Fourth Circuit Court of Appeals, which has previously upheld Maryland’s “assault weapons” ban and has jurisdiction over federal (but not state) litigation in Virginia. Judge Campbell was unimpressed.
This Court is unpersuaded by these cases because the determination in all matters involved findings that would conflict with this Court’s finding that these types of firearms and their component magazines are in common use and presumptively covered by the 2nd Amendment or, in the alternative, they remain pending in various states of unresolved appeals.
In upholding Maryland’s ban, the Fourth Circuit also engaged in something SCOTUS just said is a no-no. In Wolford, the majority clearly stated that, when the plain text of the Second Amendment is implicated, courts should start with the presumption that a law is unconstitutional. It’s up to the State to justify its law by pointing to “widespread… and well regarded” analogous that have similar “whys” and “hows” to the modern law in question. The Fourth Circuit didn’t do that with Maryland’s gun ban. Instead, it assumed from the outset that the banned arms aren’t even protected by the Second Amendment because they’re “unusually dangerous” and to akin to military arms to fall under the text of the Second Amendment.
That language in Wolford re-opens the door to a federal challenge to Virginia’s ban (and arguably Maryland’s as well), and it’s going to be much more difficult to justify an “assault weapon” ban going forward, in my opinion. The closest analogues that states like Virginia can point to are probably bans on the public possession of Bowie knives adopted by some states in the mid-1800s, but I doubt those laws were widespread enough to be accepted by SCOTUS. Even if they were, the vast majority of those restrictions did not impose a complete ban on their sale, manufacture, and transfer, as Virginia’s “assault firearm” ban does.
Virginia could try to point to the National Firearms Act, but again, that statute doesn’t prohibit the possession of NFA items. It just requires owners to pay a $200 tax and register the payment of that tax with the feds. The “why” may be close to the public safety arguments presented by the gun banners, but the “how” is notably different and less restrictive.
Attorney General Jay Jones is already appealing the Lancaster County injunction, and will surely do the same with the Washington County injunction as well. It is possible that these measures will be stayed by the courts, and I also wouldn’t be surprised if Jones tries to argue that FFLs are opening themselves up to civil litigation by his office if they continue to sell the affected magazines and firearms on July 1 and after. While it’s still unclear at this point what the practical impact of the injunctions will be, what the effect should be is pretty clear: no enforcement going forward, and a continuation of the status quo as of June 29.
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