A legal rebellion is brewing in Virginia, and I could not be happier about it. As Governor Abigail Spanberger’s new “assault firearms” ban prepares to take effect on July 1, a growing roster of Commonwealth’s Attorneys has announced they will not enforce it — because the law is plainly unconstitutional under both the Second Amendment and Virginia’s own constitution. According to the Virginia Citizens Defense League, ten of these prosecutors have now planted their flag. I want to walk you through why they are not just brave, but legally correct on every level.
The Ten Honoring Their Oath
Here are the heroes, as compiled by VCDL: Leslie Fleet (Appomattox), Matthew Bass (Clarke), John Lumpkins Jr. (Goochland), Phillip Blevins (Smyth), Dayna Bobbitt (Patrick), Rob Cerullo (Powhatan), Justin Griffith (Pulaski), Kyle Kilgore (Scott), G. Ryan Mehaffey (Spotsylvania), and John Bell (Warren).
When you are sworn in as a prosecutor, you swear an oath to the United States Constitution — the supreme law of the land — and to the Constitution of the Commonwealth of Virginia. A statute that violates either one is verboten. You are not allowed to enforce it. Doing so would break the very oath that put you in office. These ten understand that.
Why the Law Fails — Text, Then Burden
Start with the text. Virginia’s Article I, Section 13 guarantees “the right of the people to keep and bear arms,” and the Second Amendment says the same. Under District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), you begin with a linguistic analysis of those words — using founding-era dictionaries like Samuel Johnson’s and Noah Webster’s. “Keep” means to possess. “Bear” means to carry. “Arms” means weapons used offensively or defensively.
Banning the purchase and transfer of firearms necessarily implicates that text, because acquiring a gun is the prerequisite to keeping or bearing one. And once the plain text is implicated, the burden shifts — entirely — to the government.
Here is the point too few people in Virginia are emphasizing: the government bears the burden to show the banned arms are dangerous and unusual. That is a conjunctive test, spelled out in Heller and reinforced by Justice Samuel Alito’s concurrence in Caetano v. Massachusetts, 577 U.S. 411 (2016). Both prongs must be met. And the arms Virginia banned are not unusual by any measure.
Nine Justices Already Conceded the Point
Write this down: in one form or another, every sitting justice has acknowledged that semi-automatic firearms, including the AR-15, are commonly owned by Americans for lawful purposes. Look at Smith & Wesson Brands v. Estados Unidos Mexicanos, 605 U.S. 280 (2025). Look at Garland v. Cargill, 602 U.S. 406 (2024), the bump-stock case, where even the liberal justices referenced it. Look at Staples v. United States, 511 U.S. 600 (1994). And look at then-Judge Brett Kavanaugh’s dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) — Heller II.
So picture a Commonwealth’s Attorney indicting Joe Schmo for possessing a common rifle. That prosecutor must stand up and prove to a court that a rifle owned by the tens of millions is somehow unusual. The evidence runs overwhelmingly the other way. No prosecutor acting in good faith can meet that burden. You would be dead meat trying to litigate one of these cases.
The Statutes Are on Their Side Too
Set the Constitution aside for a moment, because Virginia’s own statutes hand these prosecutors the discretion to walk away. Section 15.2-1627(B) of the Virginia Code says a Commonwealth’s Attorney “may in his discretion” prosecute Class 1, 2, and 3 misdemeanors. The assault-firearms violation is a Class 1 misdemeanor. “May in his discretion” means he may also choose not to.
And it gets stronger. Section 19.2-265.6, enacted in 2020, provides that upon the Commonwealth’s motion to dismiss a charge with the defendant’s consent, a court “shall grant the motion” unless it finds by clear and convincing evidence the motion was the product of bribery or victim bias. That is not in play here. Between these two statutes, every one of these prosecutors stands on rock-solid statutory ground.
Discretion Is Justice
Prosecutorial discretion has been part of our system forever. Prosecutors are supposed to do justice, not merely process statutes. They should be laser-focused on violent thugs — the murderers, robbers, and predators who commit crimes that are malum in se, evil in themselves. Banning a rifle sitting quietly in a closet is malum prohibitum: wrong only because a legislature arbitrarily said so. There is no moral component to the length of a barrel.
And spare me the outrage from the left, which has spent years refusing to enforce drug laws. The difference is simple: there is no constitutional right to keep and bear cocaine. There is a textual right to keep and bear arms — in the federal Constitution and in Virginia’s. That puts these ten prosecutors on far firmer legal and moral footing than anyone declining to charge low-level drug offenses. The Founders anticipated exactly this moment, which is why they enshrined our right where no legislature could reach it.
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.