Virginia’s Gun Law Under Fire in Courts: Cuccinelli

Virginia’s governing Democrats made it a crime to buy, sell, manufacture, or swap so-called assault weapons and high-capacity magazines that hold more than 15 rounds of ammunition. The law’s July 1 enactment, however, sits in a legal limbo as a wave of lawsuits moves through various courts.

Plaintiffs in four state jurisdictions have sued to have the law overturned. The lawsuits all claim that the gun law violates Article I, Section 13 of the state constitution, which reads, 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.”

Another case, filed in Fauquier County, makes that same legal argument, but adds that the law also violates the Second Amendment of the U.S. Constitution, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Former state Attorney General Ken Cuccinelli, lead counsel in the case filed in Spotsylvania County, told the Daily Signal why that case is unique.

“Our case is unique in that we are suing under the original militia clause. The ‘right to keep and bear arms’ language so familiar to people today was only added to Virginia’s State Constitution in 1971,” Cuccinelli said.

As the four cases moved ahead, Virginia Attorney General Jay Jones asked the state Supreme Court to consolidate them into one. On Monday, a three-judge panel in Charlottesville unanimously rejected that effort and held that the cases will all proceed separately. “While consolidation would have provided a single, uniform path for resolving these important legal questions, the Commonwealth remains steadfast in the constitutionality of these laws and optimistic they will be upheld upon final adjudication of the several cases,” Jones told local news outlet WSET. He has said he plans to appeal but hasn’t filed yet.

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Cuccinelli disagrees. “I expect to prevail for the simple reason that it is inconceivable that George Mason, Patrick Henry, and other Virginians could have conceived of the idea that their own state government could ban the most popular guns in America, the very guns that an ordinary citizen would show up with if called to militia service today,” he told the Daily Signal.

The cases have created a patchwork, with the new law potentially being enforced in some places and blocked in others. Two judges granted preliminary injunctions ahead of July 1, and another judge is still considering whether to grant an injunction. “The injunctions stop the defendants in those cases from enforcing the law,” Cuccinelli said. “That includes the state police and some of the commonwealth’s attorneys.”

Late Tuesday, a Washington County Circuit judge issued a statewide injunction that prevents law enforcement officers from implementing the law. Judge Jeffrey Campbell expanded his order, which had originally applied only to Virginia State Police and the localities of Washington County, Chesterfield County, Frederick County, York County, Giles County, and Chesapeake.

“The appeals by the Commonwealth of their preliminary injunction losses will get to the state Supreme Court relatively quickly,” possibly within months, Cuccinelli said.

One court case could end up overruling all the state decisions. On July 1, the U.S. Justice Department filed its own lawsuit in federal court to strike down the law on Second Amendment grounds. If the DOJ case prevails, the cases filed at the state level would be moot.