“A prosecutor who indicts you for possessing or carrying an AR-15 semi-automatic rifles carries the constitutional burden of proving that the rifle is dangerous AND unusual under the Supreme Court’s Heller precedent. Yet, each of the nine U.S. Supreme Court justices have already said AR-15s are commonly-owned firearms. Thus, a prosecution arising from possessing an AR-15 should be dead on arrival — and many Virginia prosecutors apparently know it.” – Professor Mark W. Smith, Four Boxes Diner Host
A legal rebellion is brewing in Virginia. As Governor Abigail Spanberger’s new “assault firearms” ban prepares to take effect, a growing roster of the Commonwealth’s Attorneys has announced they will not enforce it. The reason why is simple: the ban is unconstitutional under both the Second Amendment and Virginia’s own state constitution. According to the Virginia Citizens Defense League (VCDL), 10 prosecutors have now planted their flags — and they are correct to do so.
The Prosecutors Honoring Their Oath
Here are the heroes, as compiled by VCDL: Leslie Fleet (Appomattox), Matthew Bass (Clarke), John Lumpkins Jr. (Goochland), Phillip Blevins (Smyth), Dayna Bobbitt (Patrick), Rob Cerullo (Powhatan), Justin Griffith (Pulaski), Kyle Kilgore (Scott), Ryan Mehaffey (Spotsylvania), and John Bell (Warren).
Editor’s Note: The number of prosecutors who have announced they will not enforce Virginia’s “assault firearms” ban has risen to 13.
Here is number 13. I know that another two are on the way and will be announced soon! Watch for the VA-ALERT.
Page County Commonwealth Attorney, Chapman L. Good, Sr., is standing with the Constitution!https://t.co/RAcjOVKzDa
— Philip Van Cleave VCDL (@VCDL_ORG) June 2, 2026
Prosecutors in Virginia swear an oath to the United States Constitution — the supreme law of the land — and also to the Constitution of the Commonwealth of Virginia. A statute that violates either one is verboten, and prosecutors may not enforce it. Doing so would be in violation of the oath every prosecutor takes. These ten Virginia prosecutors recognize this dynamic.
Why the Gun Ban Law Fails — Text First, Then Historical Burden
Virginia’s Article I, Section 13 guarantees “the right of the people to keep and bear arms,” and the Second Amendment declares the same. Under District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), you begin with a linguistic analysis of those words — using founding-era dictionaries like Samuel Johnson’s and Noah Webster’s. Those sources teach us that “keep” means to possess, “bear” means to carry, and “arms” means any object that can be used offensively or defensively. Firearms are obviously weapons and AR-15s are obviously bearable arms under the plain text of the Second Amendment.
Banning the purchase and transfer of firearms necessarily implicates the text of the Second Amendment, because acquiring a gun is the prerequisite to keeping or bearing one. Once the plain text is implicated, the burden shifts — entirely — to the government.
In arm ban cases, the government bears the burden to show that the arm being banned is dangerous and unusual. That is a conjunctive test, spelled out in Heller and reinforced by Justice Samuel Alito’s concurrence in Caetano v. Massachusetts, 577 U.S. 411 (2016). Both prongs of the test must be met. The Supreme Court already engaged in the historical spade work in identifying the “dangerous and unusual” test as being the only historical tradition of firearms regulation that could justify an arms ban. The Court did this work and articulated the standard when deciding Heller in 2008 and, thus, finding that DC’s handgun ban violated the Second Amendment. Here, the semiautomatic rifles that Virginia’s statute bans are not unusual by any measure.
Nine SCOTUS Justices Have Already Conceded the Key Fact
In one form or another, every sitting Justice on the Supreme Court has acknowledged that semi-automatic firearms, including the AR-15, are commonly owned by Americans for lawful purposes. We see evidence of this in Smith & Wesson Brands v. Estados Unidos Mexicanos, 605 U.S. 280 (2025), and in Garland v. Cargill, 602 U.S. 406 (2024), the bump-stock case, where even the liberal justices referenced it. See also Staples v. United States, 511 U.S. 600 (1994) (distinguishing machine guns from semi-automatic firearms), and then-Judge Brett Kavanaugh’s dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (known as “Heller II”).
For a prosecution under Virginia’s assault firearms ban to succeed, the Commonwealth’s prosecutor bears the burden of demonstrating that the AR-style semi-automatic rifle owned by tens of millions law-abiding Americans is somehow unusual. The evidence runs overwhelmingly the other way. No prosecutor acting in good faith could meet that burden set forth by the U.S. Supreme Court. End of story.
Virginia Criminal Code is also on the Side of the Prosecutors
Virginia’s statutes empower criminal prosecutors with the prosecutorial discretion to refuse to commence or even walk away from a criminal prosecution. Section 15.2-1627(B) of the Virginia Code says that a Commonwealth’s Attorney “may in his discretion” prosecute Class 1, 2, and 3 misdemeanors. The language “may in his discretion” means that a prosecutor may choose not to prosecute. The assault-firearms violation is a Class 1 misdemeanor in that HB217 creates “a Class 1 misdemeanor for any person who imports, sells, manufactures, purchases, or transfers an assault firearm, as that term is defined in the bill with some exceptions…”
Section 19.2-265.6 of the Virginia Code, enacted in 2020, provides that upon the Commonwealth’s motion to dismiss a charge with the defendant’s consent, a court “shall grant the motion” unless it finds by clear and convincing evidence that the motion was the product of bribery or unlawful victim bias. That is not in play here since there are (presumably) no bribes and there are certainly no victims (since an AR-15 transfer ban is a victimless crime).
Between these two Virginia statutes, and the inherent authority prosecutors have in charging decisions, every one of these prosecutors stands on solid statutory ground.
Discretion Is Justice
Prosecutorial discretion has always been a part of our legal system. Prosecutors are supposed to do justice, and not merely prosecute statutes in a vacuum especially in cases where there are no victims. Instead, prosecutors should be laser-focused on convicting violent thugs — the murderers, rapists, robbers, and predators who commit crimes that are malum in se, evil in themselves. Banning a rifle sitting quietly in a closet is enforcing a malum prohibitum law: wrong only because a legislature arbitrarily said so.
Ironically, many of the anti-gun left have spent years refusing to enforce drug laws. Yet, the difference between Virginia’s assault firearms ban and the drug laws is obvious: there is no textual constitutional right to keep and bear cocaine. But there is a textual constitutional right to keep and bear arms in both the federal Constitution and in Virginia’s Constitution. That puts these ten prosecutors on far firmer legal and moral footing than prosecutors declining to charge drug offenses.
Our Founding Fathers anticipated a moment such as today’s attempt by a government to start disarming ordinary Americans. And that is one reason why our Founders enshrined the fundamental right to keep and bear arms into the Constitution, thus denying legislatures the authority to do so.
Virginia Defies Court Order: State Police Resume Unconstitutional Background Checks
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith hosts the Four Boxes Diner Second Amendment channel on Youtube and Rumble; is a member of the U.S. Supreme Court Bar; and his Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the U.S. Supreme Court. Professor Smith’s most recent book is ISRAEL DISARMED: What the October 7 Attack Teaches Americans about the Right to Bear Arms and he has lectured at Harvard Law School, Yale Law School, Princeton University, the Wharton School at U. Penn, and Oxford University. He is a frequent speaker at the Federalist Society’s Annual National Lawyers Convention in Washington, D.C.
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