Next year, Democrats will control both houses of Virginia’s state Legislature as well as its governorship. On November 18, State Sen. Dick Saslaw introduced a bill that he will sponsor in the 2020 legislative session. That bill will outlaw not only the sale or transfer but also the possession of certain firearms.
Saslaw’s bill — SB 16 — provides that “It is unlawful for any person to import, sell, manufacture, purchase, possess or transport an assault firearm” and makes such actions a Class 6 felony. (In Virginia, Class 6 felonies are punishable by imprisonment for between one and five years.)
SB 16 provides that a wide range of center-fire rifles, pistols, and shotguns are included in the definition of to-be illegal firearms:
1. A semi-automatic center-fire rifle that expels single or multiple projectiles by action of an explosion of a combustible material with a fixed magazine capacity in excess of 10 rounds;
2. A semi-automatic center-fire rifle that expels single or multiple projectiles by action of an explosion of a combustible material that has the ability to accept a detachable magazine and has one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the rifle; (iii) a thumbhole stock; (iv) a second handgrip or a protruding grip that can be held by the non-trigger hand; (v) a bayonet mount; (vi) a grenade launcher; (vii) a flare launcher; (viii) a silencer; (ix) a flash suppressor; (x) a muzzle brake; (xi) a muzzle compensator; (xii) a threaded barrel capable of accepting (a) a silencer, (b) a flash suppressor, (c) a muzzle brake, or (d) a muzzle compensator; or (xiii) any characteristic of like kind as enumerated in clauses (i) through (xii);
3. A semi-automatic center-fire pistol that expels single or multiple projectiles by action of an explosion of a combustible material with a fixed magazine capacity in excess of 10 rounds;
4. A semi-automatic center-fire pistol that expels single or multiple projectiles by action of an explosion of a combustible material that has the ability to accept a detachable magazine and has one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) the capacity to accept a magazine that attaches to the pistol outside of the pistol grip; (v) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the pistol with the non-trigger hand without being burned; (vi) a manufactured weight of 50 ounces or more when the pistol is unloaded; (vii) a threaded barrel capable of accepting (a) a silencer, (b) a flash suppressor, (c) a barrel extender, or (d) a forward handgrip; or (viii) any characteristic of like kind as enumerated in clauses (i) through (vii);
5. A shotgun with a revolving cylinder that expels single or multiple projectiles by action of an explosion of a combustible material; or
6. A semi-automatic shotgun that expels single or multiple projectiles by action of an explosion of a combustible material that has one of the following characteristics: (i) a folding or telescoping stock, (ii) a thumbhole stock, (iii) a pistol grip that protrudes conspicuously beneath the action of the shotgun, (iv) the ability to accept a detachable magazine, (v) a fixed magazine capacity in excess of seven rounds, or (vi) any characteristic of like kind as enumerated in clauses (i) through (v).
Thus, every rifle of the common AR-15 design and a great many pistols and shotguns in common use for personal defense, target shooting, and hunting would be banned.
Not only would they be banned, but because SB 16 makes it illegal to possess such firearms, they also would have to be either surrendered to or seized by police authorities in the jurisdiction in which they are located.
In its 2008 decision in District of Columbia v. Heller (more about this later), the Supreme Court decided that the right to keep and bear arms belongs to everyone.
The 27 words of the Second Amendment state: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
SB 16, if enacted, would go much further than any previous American gun control law by making possession of the covered firearms illegal, rendering them subject to seizure from their owners.
The first major U.S. gun control legislation was the National Firearms Act of 1934. Enacted as a result of the use of automatic weapons — principally the Thompson submachine gun — by outlaw gangs, the act made illegal the possession of machine guns and short-barreled shotguns unless the owner of one paid for and was issued a government tax stamp for it. The law’s constitutionality was affirmed by the Supreme Court as late as 1991.
Again, SB 16 makes possession of “assault weapons” illegal outright, with no means for law-abiding citizens to retain their possession of such weapons in their homes, businesses, or in sporting avocations of hunting or target shooting.
If SB 16 is enacted by the Democrat-dominated Legislature and signed by Virginia’s gun-control-minded Gov. Ralph Northam, its effect will be blocked for months or years by legal challenges to its perfectly clear unconstitutionality.
In determining the constitutionality of that law, the courts will have to consider a long line of gun control decisions of the Supreme Court.
D.C. v. Heller ruled (in a brilliant decision written by the late Justice Antonin Scalia) that the Second Amendment is a personal right that is not limited by the prefatory phrase about well-regulated militias. In the decision, Scalia referred to historical sources, such as 18th-century dictionaries, to prove that the definition of “arms” included not only weapons of war but also all firearms. Scalia’s decision states specifically that
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
The decision also states that
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Because of that language, courts have decided that restrictions, such as prohibitions of sale — not possession — of so-called “assault weapons” are constitutional. If SB 16 were limited in that manner, it might be constitutional. But it is not so limited.
Like all gun control laws, SB 16 will limit the rights of the law-abiding, not the criminal or terrorist. About 20 years ago, one of my best friends and I were trained in the tactical use of pistols and shotguns by former Navy SEALs at a place that was then called Blackwater Lodge. In an email to a Virginia state senator stating his vehement opposition to SB 16, my friend proved (redundantly) that when seconds count, the cops are only minutes away. In his case, more than a half hour away:
In the early morning hours of a spring Monday an intruder of unknown intent attempted to break into my home. It took local police 31 minutes from the first 9-1-1 call to “rally support” and arrive to arrest the would-be intruder. For these 31 long minutes I was the only defense for my family and home. These ban laws will only weaken the ability of Virginians like me to protect themselves when no one else can.
Fortunately for my friend and his family, that incident ended without bloodshed because he shouted a warning to the would-be assailant that he would shoot through the door and kill him.
Virginia cannot constitutionally take away its citizens’ individual rights to self-protection. If enacted, SB 16 would do just that. Other states will try to do the same to you.
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