On June 10, 2026, Virginia’s attorney general filed the Commonwealth’s state constitutional brief in Crump v. Katz — the state-court challenge to SB 749/HB 217, Governor Abigail Spanberger’s assault-firearms ban set to take effect July 1. Having reviewed that brief, my conclusion is direct: Virginia’s arguments cannot survive the Virginia Supreme Court’s own precedent. The case is still in an early procedural posture — the Supreme Court of Virginia appointed a three-judge consolidation panel on June 3 under the Multiple Claimant Litigation Act to determine whether Crump and three related cases should be coordinated, and the Lancaster County Circuit Court has stayed proceedings pending that decision. No court has ruled on the merits. But the legal theory the Commonwealth has now committed to paper is both historically untenable and foreclosed by binding Virginia authority.
The Standing Argument Misses the Mark
The Commonwealth’s opening salvo is that the organizational plaintiffs — Gun Owners of America, Gun Owners Foundation, the Virginia Citizens Defense League, and the Virginia Citizens Defense Foundation — lack standing because Virginia does not recognize traditional federal associational standing.
This argument is weaker than it looks. An organization forced to redirect personnel, staff additional phone lines, and expend funds to advise members on compliance with a sweeping new firearms law suffers a direct pecuniary injury that should satisfy standing under any reasonable interpretation of Virginia doctrine. And the state does not contest that lead plaintiff John Crump, a Virginia resident, has individual standing. The organizational challenge is a preliminary obstacle, not a dispositive one.
What DiGiacinto Actually Holds
The weightier defect in the Commonwealth’s brief is its treatment — or avoidance — of DiGiacinto v. Rector & Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 (Va. 2011). In DiGiacinto, the Supreme Court of Virginia addressed a challenge to GMU’s campus weapons regulation and held that Article I, § 13 of the Virginia Constitution is “co-extensive with the rights provided by the Second Amendment” and that the Virginia provision is “substantially identical” to the federal text. The court further stated that “provisions of the Constitution of Virginia that are substantially similar to those in the United States Constitution will be afforded the same meaning.”
That is binding precedent from the highest court in the Commonwealth. As DiGiacinto notes, citing Professor A. E. Dick Howard, the Virginia General Assembly deliberately incorporated the specific language of the Second Amendment into Article I, § 13. Virginia’s own Supreme Court has already resolved the textual equivalence question — in favor of an individual right.
Virginia’s Voters Buried Collective-Rights Theory in 1971
The Commonwealth’s brief leans on a militia-tethered, collective-rights reading of Article I, § 13 — the very theory Virginia’s own voters repudiated by referendum more than fifty years ago. The original 1776 Virginia Declaration of Rights contained only a militia clause. When collective-rights theorists gained academic traction in the 1960s, Virginia’s political branches responded explicitly. In 1964, the Virginia Senate declared the right to keep and bear arms an “inalienable part of our citizens heritage” and resolved that any General Assembly interference “would strike at the basic liberty of our citizens.”
As Second Amendment scholar Stephen P. Halbrook documents in Liberty University Law Review, Vol. 8, No. 3 (2014), that declaration was invoked when the legislature voted in 1970 to amend the Virginia Constitution. Voters ratified the amendment 576,776 to 226,219 — adding “the right of the people to keep and bear arms shall not be infringed” to Article I, § 13, effective 1971. The Commonwealth is now pressing, in state court, the exact collective-rights theory that Virginia’s electorate rejected by nearly three-to-one.
The Girardoni Rifle and Virginia’s Founding History
My read of the historical record cuts deeper still. Because both Article I, § 13 and the Second Amendment were drafted to codify a pre-existing right, courts interpreting either provision look to the same late-eighteenth-century history. And that history is uniquely favorable to Virginians who own rifles capable of feeding standard-capacity magazines.
The Girardoni air rifle — designed by Austrian gunsmith Bartolomeo Girardoni around 1778 — was a military-grade repeating arm capable of firing more than twenty rounds per reservoir charge. It entered American constitutional history when Meriwether Lewis (born Albemarle County, Virginia) and William Clark (born Caroline County, Virginia) carried one on the expedition commissioned by President Thomas Jefferson — himself a Virginian — to survey the Louisiana Purchase. At the founding, Virginians were familiar with a repeating firearm that made the magazine-capacity threshold in SB 749 look modest by any historical measure.
Miller Backfires on the Commonwealth
The brief also invokes United States v. Miller, 307 U.S. 174 (1939), as though it supports a militia-tethered right. This reading was authoritatively rejected in District of Columbia v. Heller, 554 U.S. 570 (2008). If Miller had truly held that only militia members possess Second Amendment rights, the entire opinion could have been a single paragraph: Jack Miller is not a member of any organized militia; he has no standing; case dismissed. Instead, the Court analyzed whether a short-barreled shotgun bore a reasonable relation to militia service — an analysis that presupposes individual right-holders. Since DiGiacinto holds that Article I, § 13 is co-extensive with the Second Amendment, Heller’s definitive reading of Miller applies with full force in the Virginia state-court proceeding.
The consolidation panel will resolve whether these cases proceed jointly or separately. However that question lands, the Commonwealth has staked out a merits position — collective-rights, militia-dependent, Miller-reliant — that runs directly into a fifteen-year-old Virginia Supreme Court opinion it cannot distinguish.
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.