The Virginia House of Delegates has passed House Bill 217 (HB217), a sweeping ban on so-called “assault firearms” — meaning, in plain English, ordinary semi-automatic centerfire rifles. The companion measure in the Senate is Senate Bill 749 (SB749), carried by Sen. Saddam Azlan Salim. Both bills target the same class of arms with an effective date of July 1, 2026. Under current Supreme Court precedent, this legislation is flatly unconstitutional — and I want to walk through exactly why, step by step.
What the Bill Actually Does
The statutory definition Virginia is using — “assault firearm” — covers a semi-automatic centerfire rifle that accepts a detachable magazine and has one or more of a list of features: a folding, telescoping, or collapsible stock; a thumbhole or pistol grip; a second handgrip; a grenade launcher; or a threaded barrel. A fixed-magazine rifle over 15 rounds also qualifies. Certain semi-automatic shotguns fall under the definition as well. The .22 rimfire exemption is the only carve-out.
The penalty for importing, selling, manufacturing, purchasing, or transferring such a firearm is a misdemeanor — but a conviction strips you of your right to possess any firearm for three years. That is not a minor regulatory inconvenience. That is a rolling firearm disability imposed on law-abiding Virginians for the act of buying a common rifle.
The Heller Common-Use Test Kills This Law
Start where the Supreme Court tells us to start: the plain text of the Second Amendment. “The right of the people to keep and bear arms shall not be infringed.” A semi-automatic centerfire rifle is a bearable arm — you can obviously carry it. It falls squarely within the plain text. That triggers the Bruen framework: the burden shifts to the Commonwealth of Virginia to demonstrate that restricting these rifles is consistent with the historical tradition of firearm regulation in the United States.
The Supreme Court answered this question definitively in District of Columbia v. Heller, 554 U.S. 570 (2008). Drawing on United States v. Miller, 307 U.S. 174 (1939), Justice Scalia’s majority opinion held that the only arms historically subject to prohibition are those that are dangerous and unusual — a conjunctive test. Both elements must be satisfied. Dangerous and unusual.
Then the Court did something elegant: it defined what “unusual” means by reference to common use. If an arm is in common use by Americans for lawful purposes, it cannot be unusual. And if it cannot be unusual, the government cannot satisfy the dangerous-and-unusual test. Game over.
Semi-automatic centerfire rifles are owned by tens of millions of Americans. They are the best-selling rifle category in the country. Common use is not a close call here — it is the most obvious factual predicate in Second Amendment litigation. Virginia cannot show these arms are unusual, which means Virginia cannot possibly win under Heller.
Kavanaugh’s Heller II Dissent Points the Way
The Fourth Circuit is where Virginia litigation will land first, and that court’s track record on the Second Amendment is poor. But there is a path forward. In Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) — commonly called Heller II — then-Judge Brett Kavanaugh wrote a dissent arguing that assault-weapons bans are unconstitutional precisely because such rifles are in common use. His reasoning mapped directly onto the Heller framework: common use equals constitutional protection, period.
Justice Kavanaugh sits on the Supreme Court now. His 2011 dissent is sitting there as a ready-made majority opinion waiting to be written. My read is that the Court will take an AR-15 ban case — likely in the October 2026 term — and that dissent becomes the decision. When it does, it will be an unambiguous win.
The DOJ’s Role and the Bigger Picture
I am cautiously optimistic that the Department of Justice under Attorney General Pam Bondi and Assistant Attorney General Harmeet Dhillon — who stood up a dedicated Second Amendment Rights Section within the Civil Rights Division — will engage here. Whether DOJ files its own suit, files a statement of interest, or submits an amicus brief supporting Virginia gun owners, federal weight behind the challenge would matter enormously, especially in front of the Fourth Circuit.
There is also a practical point worth making for those watching from other states. Virginia is not an isolated experiment. Del. Dan Helmer’s floor argument — that weapons “similar to those I carried in Iraq and Afghanistan have no place in our communities” — is the same argument being made in California, Illinois, Maryland, and every other state that has enacted or is contemplating an assault-weapons ban. If Virginia’s law survives, that argument migrates. If it falls, it falls everywhere. What happened in Boston in 1775, as George Washington understood, was never just a local problem — the same principle applies today.
Where This Stands
The bill has cleared the House. The Senate companion is moving. Governor Abigail Spanberger has given every indication she will sign it. If she does, lawsuits will follow immediately, and the clock will run toward a Supreme Court showdown.
The constitutional analysis is not complicated. Semi-automatic centerfire rifles are in common use. Common use forecloses the dangerous-and-unusual exception. Virginia’s ban fails Heller on its face. The legal fog exists only because the Fourth Circuit has made a habit of ignoring Supreme Court precedent on the Second Amendment. The remedy for that is a Supreme Court that is ready and willing to say so — loudly, and for the last time.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.