The challengers in Curtis v. Katz — the state-court fight over Governor Abigail Spanberger’s assault-firearms ban, SB 749/HB 217 — have advanced an argument that deserves a serious hearing. 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.
A Command, Not a Preface
The Supreme Court held in Heller that the federal 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 state Constitution’s militia language works differently: specifically, that the state Constitution serves 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. I like it. But I am guessing many Virginia judges won’t.
What Heller Actually Said About the Militia
Although the Virginia Constitution provides a different source of individuals than does the federal Second Amendment, the practical reality is that Virginia judges are likely to interpret the two right to keep and bear arms provisions coterminously. In Heller, the Supreme 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 or typical 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 probably going to be a heavy lift with modern judges.
A Pre-Existing Right Is Defined by Its History
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 both the text used in the Constitution as well as any relevant history that might define the scope of the right. 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.” Assuming the Virginia judges agree with this statement, then presumably the state judges will review the same 18th century history that the U.S. Supreme Court did in deciding Heller in 2008. So, it is unclear why the history reviewed would generate a fundamentally different answer to a gun ban question than did Justice Scalia’s opinion in Heller.
Every constitutional right, like every definition, includes some things and excludes others. Virginia’s courts will have to decide what the militia right covers and what it does not. And I strongly suspect that any workable answer must exclude a neighbor’s private nuclear arsenal. Drawing that line is exactly the work history does. It is why an ancient, pre-existing right (like any other right) cannot be read as unlimited.
State Constitutions Can Go Further — But the VA Constitution Does Not Appear to Do So
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 constitution is free to protect more individual rights beyond what the federal constitution protects.
But the question is always what a particular provision actually does, and here the state constitutional text is nearly identical to the Second Amendment. And the governing history is presumptively the same. The same co-extensiveness cuts both ways: it forecloses any claim that Article I, § 13 protects less than the Second Amendment — though it might arguably foreclose an argument that it protects more. The challengers are right that Spanberger’s ban is legally vulnerable. In the end, I suspect that the surer ground is that the modern semi-automatic rifles and standard-capacity magazines, which SB 749 sweeps in, are common arms in ordinary use by law-abiding Americans for lawful purposes — 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.