VIRGINIA’S UNCONSTITUTIONAL WEAPONS AND MAGAZINE BAN CHALLENGED ON TWO FRONTS 24 HOURS AFTER SPANBERGER SIGNS IT INTO INFAMY
INTRODUCTION AND HOW WE GOT HERE
On June 2, 2025, the United States Supreme Court dealt a serious blow to law-abiding gun owners. Justice Kavanaugh, joined by Justices Alito, Gorsuch, and Thomas, commented on the denial of certiorari—a long-awaited opportunity to recognize AR-15-style firearms as protected by the Second Amendment—but did not secure the four votes needed to review a case affecting Virginians. Justice Thomas dissented from the denial of review. Justice Kavanaugh appears to have preferred waiting for additional appellate decisions. For Virginians, that delay came too late. In Snope v. Brown, 145 S. Ct. 1534 (2025), the Court declined to review the consolidated appeal of Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024), in which the Fourth Circuit, the federal appeals court that covers Virginia, upheld Maryland’s broad “assault weapons” ban. I discussed that ruling in the August 12, 2024 edition of this blog. It is linked here. I predicted that Virginia would, when obtaining a Democrat majority and a Democrat Governor, go down this path, and the Don and Weezy Show certainly produced a historic and unconstitutional ban. They used this case, the Supreme Court dropped the ball on, as cover. This ban, signed into law last week, had its aim of bringing into horrific reality the campaign promises of Northern Virginia hacks who carry the water for the DNC and know nothing about firearms or the history and tradition of the Second Amendment as embodied in the Virginia and United States Constitutions.
Last week, in a two-front attack, individual plaintiffs and gun organizations filed suits in Virginia state court and in the United States District Court for the Eastern District of Virginia challenging these laws on several grounds. I will briefly discuss both below.
THE FEDERAL CASE
In McDonald v. Katz, Civil Action No. 1:26-cv-01305 filed in the Eastern District of Virginia on May 14th, the Second Amendment to the United States Constitution is invoked to seek invalidation of the Virginia state laws. It can be viewed here. However, in paragraph 6 defeat is already admitted because the District Court is bound by the Fourth Circuit decision I discussed above and in an earlier critique, which I linked to this article. In validating Maryland’s similar exercise, the Fourth Circuit held:
The assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self-defense. Moreover, the Maryland law fits comfortably within our nation’s tradition of firearms regulation. It is but another example of a state regulating excessively dangerous weapons once their incompatibility with a lawful and safe society becomes apparent, while nonetheless preserving avenues for armed self-defense.
For these reasons, we decline to wield the Constitution to declare that military-style armaments, which have become primary instruments of mass killing and terrorist attacks in the United States, are beyond the reach of our nation’s democratic processes. In so holding, we offer no view on how a state should regulate firearms. Nor do we do anything to impose Maryland’s regulations upon other states. We do hold, however, that Maryland was well within its constitutional prerogative to legislate as it did. We therefore reject the challenges of appellants and affirm the judgment of the district court.
The harm was compounded by Justice Kavanaugh’s apparent refusal to be the fourth vote to review this wrongly decided case, and he attempted to reassure the law-abiding gun owners of this country with his “Statement” on why they declined review. In it he implies that AR-15-style weapons are protected but allowed Maryland to keep its ban while providing cover for Virginia to do what Spanberger signed into law. He wrote:
This case primarily concerns Maryland’s ban on the AR-15, a semi-automatic rifle. Americans today possess an estimated 20 to 30 million AR-15s. And AR-15s are legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR-15s are something of an outlier. See Staples v. United States, 511 U.S. 600, 612, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (stating that AR-15s “traditionally have been widely accepted as lawful possessions”).
Given that millions of Americans own AR-15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR-15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller. See Heller v. District of Columbia, 670 F.3d 1244, 1286-1288 (CADC 2011) (Kavanaugh, J., dissenting). If so, then the Fourth Circuit would have erred by holding that Maryland’s ban on AR-15s complies with the Second Amendment.
Under this Court’s Second Amendment precedents, moreover, it can be analytically difficult to distinguish the AR-15s at issue here from the handguns at issue in Heller. AR-15s are semi-automatic, but so too are most handguns. (Semi-automatic handguns and rifles are distinct from automatic firearms such as the M-16 automatic rifle used by the military.) Law-abiding citizens use both AR-15s and handguns for a variety of lawful purposes, including self-defense in the home. For their part, criminals use both AR-15s and handguns, as well as a variety of other lawful weapons and products, in unlawful ways that threaten public safety. But handguns can be more easily carried and concealed than rifles, and handguns—not rifles—are used in the vast majority of murders and other violent crimes that individuals commit with guns in America.
He then went on to say that eventually the Court would rule on the issue, but for us in Virginia it was of no comfort. This case filed last Thursday is seen as a challenge that will eventually find its way to the Supreme Court or, prior to that, the Court will settle the issue once and for all—what weapons and magazine capacities are protected—which ruling will be in place to deter future Don and Weezy’s from disarming Virginians. No real relief from this filing at this time. That Court is bound by the Fourth Circuit travesty in Brown.
THE STATE CASE
Article I, Section 13, of the Virginia Constitution states as follows:
“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 …”
I have continually urged both readers and listeners that while the United States Constitution is the supreme law of the land, that we in fact live under a broad Virginia Constitution which sets forth protections at the limits of due process and is a framework for governance which, of late, saved us from draconian redistricting that reflected political mischief over constitutional integrity. In the arena of firearm rights and Virginia’s protection of same in its own Constitution, there is vast room for seeking a ruling from the Virginia Supreme Court unless Don and Weezy get to pack it when they replace Justice Kelsey next year. In fact, a sitting Virginia Supreme Court Justice, the Hon. Stephen R. McCullough, has written extensively on the Virginia Constitution and lectures frequently on its provisions, including the right to bear arms. He has authored an article set forth below, and another by Stephen Halbrook are considered authoritative on the topic:
- Stephen P. Halbrook, The Right to Bear Arms in the Virginia Constitution and the Second Amendment, 8 LIB. U. L. REV. 619 (2014)
- Stephen R. McCullough, A Vanishing Virginia Constitution? 46 U. RICH L. REV. 347 (2011)
Well, in a burst of genius, a suit based PURELY on the Virginia Constitution was filed in Lancaster County Circuit Court on behalf of gun owners and gun rights organizations last week. It can be viewed here. It will be well received, as it is extremely detailed in dismantling the legislative malpractice that Spanberger signed into law last week. It is non-removable to federal court, where it would die a quick death, and is in a venue that will be receptive to these claims. It uses Virginia’s excellent declaratory judgment procedures, which allow a court to declare the rights of the parties who are at issue. The plaintiff’s establish prospective harms by stating their intentions to purchase banned firearms and magazines after July 1st, 2026, when this garbage becomes law. I believe that there is standing and hope that this is quickly ruled upon. My gratitude and respect for the counsel who took up this task and the manner in which the battle plan was drawn. We will follow it.
CONCLUSION
Justice Kavanaugh could have been the fourth vote that might have reversed the Brown case and prevented the mess created in Virginia. He can reverse this by voting to take a case that was set for conference on Friday—Duncan v. Bonta No. 25-198—and which challenges a California ban on magazines over ten (10) rounds and which also requires confiscation. If the case is approved for review, it may gut the Virginia legislation, but a ruling on protected firearms is needed. This may come in the form of a grant of certiorari in Grant v. Higgins No. 25-566, a challenge to Connecticut’s AR-15 and other semi-automatic weapons ban. Both were set for conference Friday. Both need to be heard. It is time we had a final ruling to fully and finally state what law-abiding Americans may own consistent with a fundamental right. Blue state Democrats need to be stopped. These laws protect nothing but the electability of leftist cranks and have no relationship to the protection of civil society writ large. Bloods and Crips don’t go to your friendly neighborhood gun store to buy their guns. I bet many vote Democrat.
Mike Imprevento
May 18th, 2026
