by When a gun control law is challenged in the United States in either state or Federal court, the challenge is more often than not based upon the 2nd and 14th Amendments or the state’s equivalent protection for the right to keep and bear arms. A common secondary challenge might be based upon the the Administrative Procedures Act or the state equivalent.
In a state like Texas which lies within the 5th Circuit, this would be a winning argument. However, challenging the new Virginia assaults weapons ban and magazine restrictions using the right to keep and bear arms is more difficult because it lies within the 4th Circuit. The misguided judges of the 4th Circuit Court of Appeals have held in cases like Bianchi v. Brown (2024) that the 2nd Amendment doesn’t apply to state level assault weapons bans. Virginia is already arguing in Crump v. Katz that their state’s constitution doesn’t protect an individual right to keep and bear arms. Indeed, a hearing on a preliminary injunction scheduled for today has been stayed by the Circuit Court of Lancaster County. I fear this will be the norm for all the cases brought in Virginia based upon the right to keep and bear arms.
However, what if the lawsuit challenging the new gun control laws was based not upon rights but on responsibilities as a member of the militia? Moreover, what if this challenge was solely on a state constitutional provision that could not be moved to a Federal court other than perhaps the US Supreme Court which probably would refuse to take it?
That is the whole premise behind Curtis et al v. Katz et al which is being tried in the Circuit Court of Spotsylvania County, Virginia. The argument is that the new laws violate the militia clause of the Virginia Constitution because these laws prohibit the acquisition of arms to which the plaintiffs must be trained a members of the militia. It challenges the law principally upon these grounds. The plaintiffs note that if the court should decide to not recognize the militia clause as an independent source of constitutional authority, historical precedent would hold that the new gun control laws could not survive scrutiny under the remainder of Article 1, Section 13, who guarantees a right to keep and bear arms. As the complaint states, “Under any analytical framework—whether the militia clause is treated as independently operative or as the definitional predicate for the individual right—the Act is unconstitutional because it prohibits the body of the people from acquiring the very arms that the militia clause identifies as constitutionally essential.”
The lawsuit is brought on behalf of two members of the Virginia unorganized militia – Dustin Curtis and Michael Wood, firearms dealer Bob’s Gun Shop, and certified firearms trainer Daniel Hinkson. Both Curtis and Wood are within the age parameters (Ages 16-55) of Va. Code § 44-1 which defines the unorganized militia. They are represented by former Virginia Attorney General Ken Cuccinelli, a Republican, who was the 46th Attorney General of Virginia.
Article 1, Section 13 of the Virginia Constitution begins, “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.” These words were drafted by George Mason in 1776 prior to the Declaration of Independence and have remained a part of the Commonwealth’s Constitution ever since.
As the complaint notes:
They are not a preamble. They are not a recital. They are operative constitutional text, continuously in force for two hundred and fifty years.
The breadth of that guarantee is remarkable. Article I, Section 13 speaks of “the body of the people”—without qualification as to sex, age, or other condition. The Virginia Constitution thus embeds the militia concept at its most expansive: not a narrow demographic slice, but the people themselves, armed and trained for the defense of the free state. George Mason, who authored these words, confirmed their sweep on June 4, 1788, at the Virginia Ratifying Convention: “I ask, Who are the militia? They consist now of the whole people, except a few public officers.”
The complaint goes on to note that the firearms and magazines banned under the new Virginia gun control laws are the civilian equivalents of those used by the Armed Forces of the United States and the Virginia National Guard. In other words, they are the very firearms and magazines that militia members must obtain and be trained in if they are to fulfill their responsibilities as members of the militia.
The intellectual foundation for this lawsuit comes from the work of Dr. Edwin Vieira, Jr. His exhaustive research on state militias is found in The Sword and Sovereignty: The Constitutional Principles of “the Militia of the Several States”.
In every era, this has meant the weapons that bear a functional relationship to those issued to the organized military forces of the Commonwealth and the nation. As Dr. Edwin Vieira, Jr. has documented, this is a fixed constitutional principle, not a matter of legislative grace: the arms suitable for militia service must be no less current and effective than those carried by the members of the regular armed forces.
This concept is reinforced in US v. Miller where the US Supreme Court said the 2nd Amendment protects weapons bearing “some reasonable relationship to the preservation or efficiency of a well regulated militia” and those that are “part of ordinary military equipment” or “could contribute to the common defense.” While the US Supreme Court found that Jack Miller’s sawed-off shotgun didn’t qualify as a militia weapon, I think that court would have found AR-15s which share the majority of their parts along with the same cartridge as the M-16 bear that reasonable relationship.
The plaintiffs are asking for both a declaratory judgment that the law is unconstitutional and for permanent and preliminary injunctions to stay its enforcement. The hearing on the preliminary injunction is next Wedneday, June 17th. Interestingly enough, the Commonwealth’s Attorney for Spotsylvania County, G. Ryan Mehaffey, is fully in support of a preliminary injunction being issued and has asked the court to grant it.
Donations are needed to support this case. Rights Watch International, a North Carolina-based 501(c)3, is working with our fellow patriots in Virginia to help raise money for the litigation. All donations, whether $5 or $5,000, will be used to support this fight. Given this is for civil rights litigation and Rights Watch is a 501(c)3 organization, your donations are tax deductible. Thank you in advance for your generosity.
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There is a move to consolidate all the four state-level cases. It will remain to be seen whether Curtis will be exempted from this move to consolidate as it is arguing very different grounds to invalidate the new assault weapons ban and magazine ban.
You can read the whole complaint below: