A series of lawsuits have just been filed in the Commonwealth of Virginia challenging the “assault firearms” ban signed into law by Governor Abigail Spanberger. Most Second Amendment coverage fixates on the federal track, and that track looks strong. But there is a second path too many people overlook, and it may be the faster route to killing this law: the Virginia state constitution. I want to make you the smartest person in the room on both.
The Federal Track Is Already Loaded
The federal posture has never been better. In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. ___ (2025), the Supreme Court ruled 9-0 — all nine Justices — that the AR-15 is the most popular rifle in the country and is widely legal and bought by many ordinary consumers. That is a binding, unanimous acknowledgment of common use, written by Justice Kagan herself.
Justice Brett Kavanaugh, in his statement respecting the denial of certiorari in Snope v. Brown on June 2, 2025, was direct: the Court “should and presumably will address the AR–15 issue soon, in the next Term or two.” My read is that Cheeseman v. Platkin (Nos. 24-2415, 24-2450, 24-2506), the Third Circuit’s en banc New Jersey AR-15 case, rules favorably by late July 2026. Paired with Barnett v. Raoul in the Seventh Circuit on Illinois’s ban, that creates the circuit split that puts this in front of SCOTUS. When cert is granted, we win. The open question is whether Chief Justice Roberts decides it’s time to spend the political capital.
The Overlooked State Track — and a Court That Already Proved It Has Spine
Virginia has its own explicit right to keep and bear arms in the state Bill of Rights, enforceable by the Virginia Supreme Court independent of anything the federal courts do. And just weeks ago, that same Virginia Supreme Court — the state court, not a federal tribunal — voted 4-3 to strike down a Democrat-favorable redistricting map that would have turned a closely divided congressional map into a 10-to-1 Democratic advantage. SCOTUS denied an emergency bid to reinstate it on May 15, 2026. This is a court that has shown it will enforce its constitution under pressure, and I’m cautiously optimistic it steps up here too.
Virginia’s Constitution: 1776 Roots, 1971 Teeth
Virginia’s right to keep and bear arms lives in Article I, Section 13, which reads:
“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; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
The Virginia Declaration of Rights was adopted June 12, 1776 — drafted by George Mason, and we are nearly at its 250th anniversary. The original text assumed the right to keep and bear arms as given. By the 1960s, a concerted push was underway to redefine the Second Amendment as a “collective right” tied to militia service — a theory that helped produce the Gun Control Act of 1968. Virginia’s response was unambiguous: voters ratified an amendment effective in 1971 that expressly added the individual right to keep and bear arms to Article I, Section 13. The collective-right theory ultimately failed at the federal level too — thank you, Heller — but Virginia made sure its own constitution left no room for that argument.
The Founders Who Wrote Virginia’s Legal DNA
Two figures from Virginia’s legal tradition give this provision its deepest roots.
St. George Tucker (1752–1827) was a patriot, lawyer, judge, and professor of law at the College of William & Mary. He produced the first major American edition of Blackstone’s Commentaries on the Laws of England — “Tucker’s Blackstone,” 1803 — doing for American law what Noah Webster did for the American language. Tucker wrote:
“The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
He called the right to keep and bear arms “the true palladium of liberty.” A Virginia lawyer, lecturing in Virginia, on the Virginia and federal constitutions.
Justice Joseph Story (1779–1845), appointed by President James Madison at age 32 — the youngest Justice ever — echoed Tucker in his Commentaries on the Constitution (1833), calling the right “the palladium of the liberties of a republic.” Two works, thirty years apart, same verdict.
This is not a modern NRA slogan. It is the founding consensus of Virginians who built American constitutional law.
Two Ways to Win — Don’t Lose Sight of That
Virginia is the founding home of the right to keep and bear arms — and it is now, insanely, ground zero for one of the most aggressive gun bans in the country, signed by a governor who is a former CIA official. Sheriffs across the Commonwealth are already on record saying Spanberger’s law violates both constitutions. I agree.
Gun rights ultimately depend on the ballot box, the judges we elect, and whether America keeps the founding civic culture that produced Tucker, Story, and the Virginia Declaration of Rights. That is the longer fight. But right now, we have two bites at this apple — federal and state — and I intend to use both.
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.