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 Curtis 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
Editor’s Note: AmmoLand has updated this article to reflect the updated case name.
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.
Militia arms are those in ordinary use by the military, which the militia (all able bodied citizens) must have access to buy, own and train with to be an effective or “well regulated” fighting force. Included, of course, are select fire M4’s, 50 cal Barret sniper systems, grenades, mines, suppressors, SBR’s and SBS’s and all other bearable arms that comprise the terrible implements of the soldier. The founders who authorized the federal and state Constitutions just finished defeating the greatest known military in the world, and were not referring to hunting or mere self-defense. They wrote what they did to… Read more »
The banned arms they speak of shouldn’t be AR’s or M16’s and we shouldn’t need a mother may I card for an SBR or Fully Auto or a suppressor. So, since we are limited to weapons that do not meet the requirements of a weapon used in war, this is my Christmas wish for everyone! May your stockings be filled with FRT’s, 80% lowers CNC machines and 100 round mags for Christmas. We don’t have what our military has and we need to make sure they know that! Make OreGONEistan OreGUN again! Special thanks to Ted Nugent for getting on… Read more »
Not relevant! Virginia’s constitution acknowledges that the people have a “right to keep and bear arms.” The existence of a militia relies on the right. Nothing about the militia clause suggests that if there is no militia then the right upon which it relies evaporates into thin air. It must remain with the people if for no other reason that they may decide to revive the militia in the future. Rights do not expire or disappear because their purposes have gone extinct. They may no longer be necessary, but this is not the same as being extinguished. We have many… Read more »
Important record correction
The Crump case also notes:
After reading it, I’m disappointed, as it is self-defeating and concedes select fire arms completely, settling for analogous arms … the AR instead of M4. The argument is that We the People are the militia and thus cannot be deprived ordinary military hardware, then immediately concedes full auto arms. That is wrong!
It is not Mehaffey’s position to determine what arms will be protected because they do or do not have some reasonable relationship to the preservation or efficiency of a well regulated militia. That is the prerogative of the militia.
HLB
Hats off to Ryan Mehaffey. That is one heck of an impressive brief and very bold to take the right position given his government-paid role. His points seem so obviously sensible to me. As I have opined in other comments, the dem version of “common sense” is common only to them, is FAR from sensible and I’m glad I don’t have it.
My biggest worry about this argument, is that the anti-gun politicians will see and use the limitations on the militia, to ban firearms from those under the age and over the age of being in the militia, or any other limitations they can dream up..
I see this “militia only” being tied up in the courts forever, with We the People hung out in the wind.
Thank you for keeping us abrest of things, Mr Codrea. I have been enjoying your column in Firearms News, too. Had I know, I would have subscribed earlier.
Come and get them, at your own peril.