Resisting the Gun Grabbers
by
Virginia Attorney General Mark Herring (YouTube screenshot)

The abject failure of anti-gun policies — in California, Chicago, New York, Baltimore, and wherever else they are enacted — never deters Democrats from pursuing them. Since they won control of the commonwealth’s Legislature, Virginia Democrats have been planning how they can most effectively make the Second Amendment a nullity.

In preparation for the Virginia Legislature’s session beginning in January, several state senators have introduced bills that will be reintroduced and that they will try to move to the desk of Democratic Gov. Ralph Northam, whose gun-control agenda they will satisfy, unless they are stopped.

A few weeks ago, I wrote about Senate Bill (SB) 16, which is nothing less than a plan to confiscate all “assault weapons” from Virginia’s citizens.

Never mind that only law-abiding citizens would be affected. All the Dems care about is taking guns out of our hands.

SB 16, introduced by State Sen. Dick Saslaw, would define the term “assault weapon” broadly to include many rifles, pistols, and shotguns commonly used for hunting, target shooting, and personal protection. It would also ban possession of those weapons after enactment, making everyone in Virginia who possesses one a felon. To comply with the law, a person would have to relocate the weapon outside of Virginia or turn it in to the police.

Another bill, SB 18, would make it illegal to sell guns to anyone under the age of 21 and for anyone to sell, transfer, or rent any firearm to another without a state police background check. (There are exceptions, including selling or giving a gun to members of an immediate family, meaning spouses, parents, siblings, and children.)

Gov. Northam later backed off the SB 16 confiscation mechanism, saying that he wouldn’t agree to a ban. But Northam’s position is that the legislation should require registration of all so-called “assault weapons” and that those who possess them without registering would become felons.

Since my article appeared on December 4 — and thanks to a groundswell of opposition from groups such as the NRA and the Virginia Civilian Defense League (VCDL) — 100 Virginia cities, counties, and local governments, including about 80 percent of Virginia’s 95 counties, have proclaimed themselves “Second Amendment sanctuaries.”

The Democrats’ response to the citizens’ opposition to their gun-grabbing schemes first appeared as threats. Congressman Donald McEachin (D-Va.) suggested that the governor could call out the National Guard to enforce the law and cut off state funds to the sanctuary jurisdictions.

What the National Guard could — or would — do is problematic. Many National Guard members themselves probably own AR-15s and other firearms that would be defined as “assault weapons” by SB 16. How many National Guard members are willing to be used to intimidate their friends and neighbors?

What could the National Guard do? They can’t violate the Fourth Amendment, forcing their way into peoples’ homes or businesses without a court-issued search warrant. The same goes for the state police.

The second reaction is from Virginia Attorney General Mark Herring, another die-hard Second Amendment opponent. A few days ago, Herring issued a legal opinion that said the Second Amendment sanctuary declarations have no force or effect. He said, “When the General Assembly passes new guns safety laws, they will be enforced, and they will be followed. These resolutions have no legal force, and they’re just part of an effort by the gun lobby to stoke fear.”

Herring’s opinion is based on the Virginia “Dillon rule,” which states that Virginia local jurisdictions can only make laws that the commonwealth’s general assembly permits them to make. (For example, a town can’t declare itself to be a city unless the Legislature enables it to do so.)

But Herring can’t force local jurisdictions to enforce laws they refuse to enforce. He is legally right, but the practical effect of his opinion has little meaning.

So where do we go from here?

Several groups, including VCDL, are organizing “lobbying days” for people to travel to Richmond by the busload to tell the state assembly and senate what they think about the proposed new laws.

I have my doubts about whether they can change any minds. Democrats are impervious to facts or to the words of the law-abiding citizenry.

More importantly, the text of the laws that the Virginia assembly passes will have to pass the test of constitutionality. They will be tied up in litigation for months, if not years, with the cases going first through the Fourth Circuit (which has become notably liberal) and eventually to the Supreme Court.

The constitutionality of SB 16, for example, would be highly doubtful if the possession of “assault weapons” is banned, but not for the reasons you would expect.

First, “taking” of private property by the government is permitted by the Fifth Amendment if due process is provided the person whose property is being taken. That, of course, requires notice and a hearing before an impartial officer (not necessarily a trial before a judge or jury).

Second, a new law banning possession of “assault weapons” isn’t an “ex post facto” law. If SB 16 were enacted as proposed, it wouldn’t make the event preceding the law’s enactment — the purchase of the “assault weapon” — illegal. It would make current and future possession illegal and thus probably fall outside the Constitution’s ban on ex post facto laws.

In sum, the Second Amendment is the only constitutional protection gun owners have. Because Northam has backed away from banning possession of “assault weapons,” and the new laws are still being written, it’s unknowable if they will be constitutional.

As I wrote on December 4, under the Supreme Court’s decision in DC v. Heller, Justice Scalia’s opinion protects not only weapons as they existed in 1789 when the Constitution was ratified but also modern weapons. Moreover, “laws imposing conditions and qualifications on the commercial sale of arms” are permitted. (The “qualifications” term used by the late Justice Scalia in the Heller decision does not refer to qualifications of the prospective buyer. It refers to a law’s qualifications — i.e., limits — on the sale of arms.)

The question then becomes whether or not the “conditions and qualifications” the new laws are imposing on the sale or possession of AR-15s and other “assault weapons” are too severe to be reasonable under the Constitution. And that will take years of litigation to resolve.

There is only a theoretical opportunity to ensure that Virginia’s new laws — and there will be some — don’t restrict our Second Amendment rights. Many people will go to Richmond on January 20 to tell the state legislators that SB 16 and SB 18 should not pass. They shouldn’t expect the Dems to pay any attention. The Dems are impervious to facts and do not recognize the rights the Constitution preserves.

If you’re a Virginia citizen, and if it might make you more comfortable, do write, call, and visit your state senators and assemblymen. Tell them that you’re opposed to these new laws because they will affect your right of self-defense. And tell them that, these days, self-defense isn’t just a right; it’s a duty.

The Democrats among the Virginia state legislators won’t listen. That’s why the courts will have to decide whether the new laws that are coming pass constitutional muster.

I remember a law school professor who began every class by saying, “People are no damned good. That’s why we have courts.” At the time, I thought he was just a grumpy old guy. He was right.

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