Virginia’s new “universal background check” law violates the constitutional rights of state residents between the ages of 18-20, according to a decision by a circuit court judge Monday afternoon granting a partial injunction against the law that took effect on July 1st. That means that at the moment, only 18, 19, and 20-year olds are exempt from the requirement to undergo a background check before a private or commercial gun sale.
More broadly, however, Judge F. Patrick Yeatts determined that the law requiring background checks on all gun sales does not facially violate the state constitution’s protection of the right to keep and bear arms, so while the case winds its way through the court system, the new law is likely to remain in place (though still nearly impossible to enforce).
Yeatt’s decision, which can be read in its entirety here, hinges on the fact that federal law prohibits the transfer of a handgun from an FFL to someone under the age of 21. Virginia state law, however, doesn’t prohibit possession of handguns for adults under the age of 21. Private sales and transfers, though, are really the only way those young adults can legally purchase a handgun. The state’s new background check law, according to Yeatts, amounts to a backdoor handgun ban for those under the age of 21.
As to the constitutionality of the background check law itself, the judge found that:
“Even though private sales and commercial sales are different, the Court is at a loss as to how the historical justifications of preventing felons and the mentally disabled from possessing firearms would allow conditions on commercial sales and not on private sales. So long as the background check is limited to preventing a longstanding prohibition on a historically justified category, it does not violate the right to keep and bear arms.”
The legal arguments against that portion of the judge’s ruling will be hashed out in the weeks and months to come, but Phillip Van Cleave, executive director of the Virginia Citizens Defense League, tells Bearing Arms that today’s ruling is a great first step in the fight to get the new law off the books, though he reminded Virginia gun owners that Threatt’s ruling is also subject to change on appeal.
Even with the law largely on the books for now, I would be shocked if Judge Threatt handles an actual case dealing with a violation of the state’s background check law in the next twelve months. It’s one thing for a law to be passed. It’s another thing entirely for it to be enforced.
It’s nearly impossible to police private transfers of firearms, and even if someone is caught with a gun in the commission of a crime, unless police can find some sort of sales receipt or text conversation about buying a gun without going through a background check, it’s going to be next to impossible to prove that the gun was sold and not simply transferred.
Yep, that’s right. All gun sales in the state of Virginia have to go through a background check, but you can still give someone a gun for free without having to conduct a background check. I’m unclear as to how the law works in cases of barter; three goats for a Glock, for instance. Is that a sale? A transfer? And again, how does law enforcement even become aware of such a transaction? Inquiring goat owners want to know.
While we try to figure out that pressing (to me, anyway) question, the lawsuit challenging the state’s universal background check law will continue. The state could appeal the portion of the judge’s decision blocking enforcement of the law against handgun purchasers under the age of 21, and the Virginia Citizens Defense League and Gun Owners of America, which filed the suit along with several individual plaintiffs, could also appeal the bulk of Threatt’s ruling. And all those appeals would deal simply with the request for a temporary injunction, leaving the broader question of the law’s constitutionality for future hearings. Today’s opinion, in other words, is likely to be far from the last word on the subject.