(DCNF)—Former Republican Virginia Attorney General Ken Cuccinelli explained to the Daily Caller News Foundation why he chose to use a state constitutional provision that invoked the militia to challenge his state’s ban on modern semiautomatic firearms.
Democratic Virginia Gov. Abigail Spanberger signed the ban on so-called “assault weapons,” SB 749, into law on May 14, drawing immediate suits from pro-Second Amendment organizations, including the National Rifle Association (NRA), Second Amendment Foundation (SAF) and the Firearms Policy Coalition (FPC). SAF also backed a separate suit by Cuccinelli, who used the militia clause of the state constitution’s right to bear arms provision to challenge the ban in what he called a “case of first impression” in oral arguments before a Spotsylvania County judge Wednesday.
“That means no one has had a legal dispute that will turn on the questions that this case will turn on before,” Cuccinelli explained to the DCNF in a phone interview shortly after the hearing. “And the main question is, ‘Does the militia clause of Article 1, Section 13 protect the rights of individual Virginians to buy, sell, own, shoot, practice with, et cetera, firearms?’”
Article 1, Section 13 of Virginia’s constitution says, “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.”
Cuccinelli explained why the state-level challenge was important, even as other litigation challenging the Spanberger semi-auto ban has cited United States Supreme Court decisions, including Heller v. District of Columbia (which struck down Washington, D.C.’s ban on handguns on Second Amendment grounds), McDonald v. Chicago (which invalidated Chicago’s ban on handguns on Second and Fourteenth Amendment grounds) and New York State Rifle and Pistol Association v. Bruen (which threw out New York’s “good cause” requirement for concealed carry permits on Second Amendment grounds).
“All of the Second Amendment case law you’re familiar with, Heller, Bruen, et cetera, Miller, is merely persuasive authority,” Cuccinelli said. “It is not controlling on the Virginia courts.”
Cuccinelli provided details on Wednesday’s oral arguments, which lasted for four hours, outlining the arguments lawyers from Democratic Virginia Attorney General Jay Jones’ office presented to the judge.
“I started, particularly here at the 250th anniversary [of Virginia’s constitution being adopted], by reflecting on sections one, two, and three of the Declaration of Rights, which were adopted at the same time as Section 13,” Cuccinelli said. “And the back half of Section 3 in particular claims the right for the people, not the militia, the people to throw off a tyrannical government.”
“So fast forward over to Section 13. Who are the militia?” Cuccinelli added. “And famously, Mason said, we are the militia. They are the whole people, and that was never disputed in that time period and the Commonwealth didn’t dispute that. They really didn’t take us on [over] a lot of these things because they’re resting on a determination of collective rights.”
The “collective rights” theory holds that the Second Amendment was intended to prevent state militias (which is now viewed as the National Guard) from being disarmed, and that there is no individual right to own a firearm. Both federal law (10 USC 246) and Virginia law (sections 44-1 and 44-4 of Chapter 1 of Title 44) recognize an “unorganized militia.”
“The emphasized clause was added in 1971 and did not exist in any prior Constitution of Virginia. Rather than placing it in a free-standing section, the drafters embedded it inside the militia provision, joined to the militia clause by the conjunctive adverb ‘therefore,’” Jones’ office claimed in a response to a lawsuit filed by pro-Second Amendment groups in Lancaster County Circuit Court. “That structure tied the new clause to the language that preceded it, making the right-to-bear-arms clause a consequence of the militia clause, not a free-standing guarantee.”
Cuccinelli took issue with Jones’s office’s legal theory, noting how George Mason, one of the Founding Fathers, defined the militia when the ratification of the United States Constitution was debated in Virginia.
“The unorganized militia, and we talked a little bit about the phrase today, comes from the early 1900s federal law, and we use that framing because that’s the current legal framing,” Cuccinelli told the DCNF. “But Mason’s framing was the people, and in the Virginia Ratification Convention, when he asked the question, who are the militia? We all are. It’s the entire people, minus a few public officers, meaning what would have then been the equivalent of the National Guard and the activated militia.”
“One of the things Mason was concerned about, and it came out of the Stuart era that led into the Glorious Revolution and the right to bear arms being broadly spread out, was the Stuarts’ use of select militias,” Cuccinelli continued. “Well, and I argued strenuously that if today’s Commonwealth government can disarm the people, but not the National Guard, then they have themselves a Stuart-era select militia.”
Jones and Spanberger did not respond to requests for comment from the DCNF.
In a ruling issued Thursday, Spotsylvania County Circuit Judge William Glover denied a preliminary injunction, accepting the argument from Jones’ office that there was no individual right to own a “military style” firearm.
“I anticipate appealing the denial of the [preliminary injunction],” Cuccinelli told the DCNF.
“We are disappointed that the court decided not to enjoin this constitutionally problematic new bill and we are reviewing the opinion and weighing our options for potential future appeal,” SAF Senior Director of Legal Operations William Sack told the DCNF.
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