Governor Abigail Spanberger signed HB40 into law on April 10, 2026, making Virginia the latest state to ban so-called “ghost guns” — the political shorthand for privately made firearms that lack government-issued serial numbers. The law prohibits building, importing, selling, transferring, or possessing an unserialized firearm or unfinished frame or receiver in the Commonwealth. It also requires that any existing privately made firearm be taken to a federal firearms licensee to have a serial number applied and recorded.
Stripped of its public safety branding, HB40 is a registration mandate. And under the Heller–Bruen analytical framework, it almost certainly cannot survive constitutional scrutiny.
The Plain Text Gets You There
The Second Amendment protects “the right of the people to keep and bear arms.” As the Supreme Court has explained, “keep” means to possess, and “bear” means to carry. But both presuppose a logically prior right: the right to acquire arms. You cannot keep or bear what you were never permitted to obtain. And acquisition comes in only a few flavors — purchase, inheritance, or manufacture.
HB40 directly burdens the manufacturing path. It does not outright prohibit a Virginian from building a firearm at home, but it conditions that activity on submission to a federal regulatory apparatus: take your finished product to an FFL, have it serialized, and allow it to be recorded in books subject to government inspection. For a person who is not in the business of selling firearms and is not engaged in any commercial transaction, that is a substantial regulatory imposition on conduct the plain text of the Second Amendment protects.
Registration Is the Real Target
The serialization requirement is the mechanism, but registration is the purpose. As then-Judge Brett Kavanaugh explained in his Heller II dissent in 2011, the historical record shows that firearms registration has been essentially forbidden throughout American history. The founding generation understood that registries are precursors to confiscation — and they wanted no part of it.
HB40 accomplishes through indirection what a direct registry would accomplish openly. By requiring every privately made firearm to pass through an FFL’s books, the law creates a de facto government record of who owns what. The FFL’s bound book is not a private diary; it is subject to ATF inspection and, presumably under Virginia’s new statutory framework, review by Virginia State Police.
America’s Tradition of Private Gunmaking
Under the Bruen methodology, once the plain text is implicated, the burden shifts to the government to identify a historical tradition of analogous firearms regulation from the founding era. Virginia will find no such tradition.
The most thorough scholarly treatment of this history is Joseph G.S. Greenlee’s article “The American Tradition of Self-Made Arms,” published in Volume 54 of the St. Mary’s Law Journal in 2023. Greenlee, who also filed an amicus brief for the NRA in the VanDerStok litigation at the Supreme Court, documents in painstaking detail that the founding generation not only tolerated private gunmaking — they actively encouraged it. Colonial governments promoted gunsmithing among ordinary tradesmen, lawyers, and shopkeepers because an armed citizenry depended on a domestic supply chain the British could not cut off.
The great American firearms inventors were, almost to a man, tinkerers working outside any licensing regime. Joseph Belton pitched his repeating flintlock to the Continental Congress in 1777. Samuel Colt was a serial entrepreneur. John Browning revolutionized firearm design from a small Utah workshop. Eugene Stoner developed the AR-15 platform as a private-sector engineer. None of them operated under a regime that required serialization and government registration of privately made arms.
The Only Historical Analogue Proves the Opposite
The technology to mark metal existed in the late 18th century, and some firearms were in fact marked — but only in narrow, private contexts. Militia organizers like George Washington would stamp numbers on government-owned muskets so they could track which militiaman had which weapon and retrieve it afterward. That was property management, not regulation. No law required it.
The one genuine historical example of compelled serialization and registration comes from Ireland, where the English Crown forced Irish Catholics to etch and register the few firearms they were permitted to own. The purpose was not public safety — it was suppression of a subjugated population. The founding generation knew this history well and explicitly rejected it. As historian Clayton Cramer and others have documented, the American project was built in part on the determination never to become the Irish under English rule.
Where This Goes
Harmeet K. Dhillon, the Assistant Attorney General for Civil Rights, wrote to Governor Spanberger on April 10 warning that the Department of Justice is reviewing Virginia’s slate of new gun laws for potential constitutional violations. HB40 should be high on that list. It imposes a registration requirement with no historical pedigree, burdens the clearly protected right to manufacture arms for personal use, and draws its only historical parallel from a regime of colonial oppression the founders repudiated.
Virginia’s ghost gun ban is not just bad policy. Under the framework the Supreme Court has prescribed, it is almost certainly unconstitutional.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.