While four Second Amendment-based cases challenging Virginia’s semiautomatic gun and magazine ban are on hold pending a decision by a three-judge panel on whether they should be consolidated, another case, taking a different approach, is still “scheduled to be argued next Wednesday, June 17th at 9am,” Counsel for Plaintiffs Kenneth T. Cuccinelli stated in a June 10 “Non-client specific case update” email.
The Holloway v. Katz complaint (see embedded document, below), filed in the Circuit Court of the County of Spotsylvania, asks for declaratory judgment and injunctive relief against SB 749 / HB 217 because the “ban provisions of the Act violate the militia clause of Article I, Section 13 of the Constitution of Virginia.”
That’s where the important difference from the other challenges comes in:
“Plaintiffs challenge these prohibitions solely under the militia clause of Article I, Section 13 of the Constitution of Virginia. They do not rest their case on the Second Amendment to the United States Constitution, nor on the individual right to keep and bear arms also embodied in Article I, Section 13. Their argument is simpler and more fundamental: the militia clause guarantees the existence of a “well regulated militia, composed of the body of the people, trained to arms.” That guarantee is self-executing. It necessarily presupposes that the body of the people may acquire and possess the arms with which they must be trained. The General Assembly cannot, consistent with that guarantee, prohibit the body of the people from acquiring the very weapons with which they must be prepared to serve as that militia.”
Simply put, as noted in the Statement of Facts, “The weapons banned by the act are the arms of the citizen militia.”
Along with the update email came a welcome bonus.
“The Commonwealth Attorney Defendant in our case, Ryan Mehaffey, filed a blockbuster brief in our case arguing that WE should get our preliminary injunction,” Cuccinelli informed. “It’s a good piece of work and a very pleasant surprise. I’ve attached it for your reading pleasure (merged in the embed below).
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While Mehaffey was named in the complaint because he is the Commonwealth’s Attorney of Spotsylvania County, it should be noted he is one of the brave Virginia prosecutors who has gone on record saying he will not enforce the ban. (While his brief is, indeed, “a good piece of work” his contention that “a sawed off shotgun is not protected because it does not have some reasonable relationship to the preservation or efficiency of a well regulated militia” is historically arguable, as is what some of us might see as overreliance on limiting small arms to those that “are lawfully in common use today,” which suggests bans on machineguns and limiting developing technologies to the standing army would be consistent with Founding intent instead of potentially rendering the Second Amendment moot. That said, the brunt of Mehaffey’s brief is outstanding and educational.)
“I will let you all know if I hear anything about consolidation or our case schedule,” Cuccinelli advised his email recipients. “If you don’t hear from me, that means we’re still on the schedule above.”
Gun owners who agree that this unique and innovative approach merits pursuing and want to support the case can donate via Rights Watch.
Also see:
- Virginia Judge Stays Crump v. Katz Hearing as July 1 Gun Ban Deadline Looms
- Ignoring Core Purpose Makes 2nd Amendment More Vulnerable to Infringements: The Militia Aspect, Part 1, Part 2
Virginia Judge Stays Crump v. Katz Hearing as July 1 Gun Ban Deadline Looms
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
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