The challengers in Curtis v. Katz — the state-court fight over Governor Abigail Spanberger’s assault-firearms ban, SB 749/HB 217, set to take effect July 1 — have advanced an argument that deserves a serious hearing and, in my judgment, a skeptical one. Brought in the Circuit Court of Spotsylvania County by former Virginia Attorney General Ken Cuccinelli on behalf of members of the Commonwealth’s unorganized militia, the complaint contends that Article I, § 13 of the Virginia Constitution does more than mirror the Second Amendment: that its militia language is a self-executing command entitling Virginians to weapons that match the military’s own. It is a bold theory. It is also one I do not think survives District of Columbia v. Heller, 554 U.S. 570 (2008), or the founding-era history on which any honest reading of the provision must rest.
A Command, Not a Preface
The Supreme Court held in Heller that the Second Amendment’s militia clause is prefatory — it announces a purpose without narrowing the operative right to keep and bear arms. The plaintiffs argue that Virginia’s militia language works differently: as an affirmative command that the body of the people stand ready as an unorganized militia, and therefore as a guarantee of arms fit for that role. In their words:
“Plaintiffs contend that the militia clause is not merely prefatory language but a self-executing constitutional command that independently prohibits the General Assembly from disarming the body of the people.”
The consequence they draw is sweeping:
“A militia cannot serve as the defense of the free state if it is equipped with weapons inferior to or fundamentally different from those employed by the military forces it must be prepared to supplement or resist.”
And the standard they propose is categorical:
“The arms protected by the militia clause are therefore those whose nature and characteristics bear a functional relationship to ordinary military equipment — the weapons with which the body of the people must be armed and trained to serve as an effective militia. This standard is not discretionary.”
Read for all it is worth, the theory would entitle Virginians to whatever the modern armed forces field.
What Heller Actually Said About the Militia
That is precisely the reading Heller foreclosed. The Court did not hold that the militia reference protects any arm that might be useful to a soldier today. It held that the right reaches the sort of common arms ordinary people keep — the weapons Americans of the founding era would have brought to militia service. To leap from that history to a constitutional right to buy shoulder-fired rockets because they carry a military application is an anachronism, and it is not an argument that will persuade many judges. A theory that proves a right to crew-served military hardware proves too much.
A Pre-Existing Right Is Defined by Its History
The deeper problem is conceptual. The right to keep and bear arms is a pre-existing right — older than the charter that secures it — and a pre-existing right is defined by its history, not by the precise words a given constitution uses to restate it. Virginia’s own Supreme Court has already gestured at this. In DiGiacinto v. Rector & Visitors of George Mason University, 281 Va. 127, 704 S.E.2d 365 (Va. 2011), the court held that Article I, § 13 is “co-extensive with the rights provided by the Second Amendment.” If the two provisions are co-extensive, the slightly different wording of Virginia’s clause cannot enshrine a materially different — and far larger — right than the one Justice Scalia traced in Heller. The Virginia justices will be reading the same pre-Revolutionary history the Supreme Court already examined, and I see little reason to expect they will find it more generous.
Every constitutional right, like every definition, includes some things and excludes others. The court will have to decide what the militia right covers and what it does not — and any workable answer must exclude both a five-year-old and a neighbor’s nuclear arsenal. Drawing that line is exactly the work history does. It is why an ancient, pre-existing right cannot be read as unlimited.
State Constitutions Can Go Further — But Not Here
None of this makes the plaintiffs’ instinct frivolous. State constitutions can and do secure rights broader than the federal floor. After the Supreme Court held in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), that there is no federal right to abortion, several states wrote that right into their own constitutions. A state charter is free to protect more.
But the question is always what a particular provision actually does, and here the text is nearly identical to the Second Amendment and the governing history is the same. The same co-extensiveness cuts both ways: it forecloses any claim that Article I, § 13 protects less than the Second Amendment, and it forecloses the plaintiffs’ claim that it protects more. The challengers are right that Spanberger’s ban is vulnerable. The surer ground is that the rifles and standard-capacity magazines SB 749 sweeps in are common arms in ordinary use — not the theory that the militia clause guarantees the people parity with the Army.
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.