Northam's New Background Check Law Challenged In Court

Next Wednesday, Gov. Ralph Northam’s gun control agenda takes effect in Virginia, with red flag laws, gun rationing, and several other pieces of legislation going into effect. One of the new laws requires background checks on all gun sales, and on Monday, the Virginia Citizens Defense League and Gun Owners of America filed suit in a state court challenging the new law on the grounds that it violates the state constitution.

The lawsuit, which will be heard in Lynchburg, Virginia, argues that the new law “significantly restricts” the rights of both gun sellers and gun purchasers protected by the Virginia state constitution, which says in Article I, Section 13 that “[t]hat a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed…”

While this might make the case ripe for a federal challenge, attorneys for the plaintiffs argue that courts in Virginia have long taken the point of view that the Second Amendment and the provisions in the state constitution protect the right to keep and bear arms, though they do note that:

“Virginia courts have not had occasion to expound on the meaning of either state or federal constitutional protections for the right to keep and bear arms, largely due to the Commonwealth’s historically strong protection for these rights. As one commentator put it, “[w]here a constitutional right is respected by the legislature, it would seem to be a virtue that few judicial decisions are necessary.”

The federal Fourth Circuit Court of Appeals, on the other hand, has taken a far different approach to considering the Second Amendment and has generally been more hostile to the right to keep and bear arms than state courts in Virginia. The plaintiffs point out that many federal courts have adopted “intermediate scrutiny” as the proper standard of review, and use a two-part “interest balancing” test that has been rejected by state courts in Virginia, and urge the court to reject any attempt by the State to argue for those tests and standard of review to be used in the current challenge.

Then the plaintiffs move on to their main argument:

…tells law-abiding Virginians that they cannot exercise their right to keep and bear arms until both the Commonwealth of Virginia and the federal government first have actively interceded and decided that it is permissible for them to do so…

In essence, the Act presumes that any and every person who wishes to obtain a firearm could be a prohibited person. The statute then places the onus on such a person to prove to the Commonwealth’s satisfaction that he is not a prohibited person by requiring him to complete a burdensome background check through an FFL, and to pay a fee for the privilege of doing so if he can even find an FFL willing to accept the statutory limit of $15.

Such requirements to demonstrate one’s purity before being permitted to keep and bear arms shifts the burden from the government to charge a person with a crime and thereafter prove to a jury that person is ineligible, to the gun owner to prove to the government that he is eligible. This prior restraint turns the very concept of any “right” on its head, especially a right that this Court has recognized as “the ‘true palladium of liberty’….”

From there, the plaintiffs then argue that the new universal background check law violates the rights of Virginians between the ages of 18 and 21. Under Virginia law, an 18-year old can possess a handgun, but under federal law, he’d need to be 21-years of age to complete a background check. Private sales of firearms to Virginians between 18 and 21 have been legal, and technically remain so, but any such sale will soon have to go through a background check, and those under the age of 21 will automatically be denied.

Although reportedly initially denying that the Act would restrict the ability of those 18-20 to obtain handguns, VSP [Virginia State Police] staff recently confirmed (June 16, 2020) via phone VSP’s understanding that those 18-20 will no longer be able to purchase handguns in Virginia.

The ATF agrees. According to ATF, “Private party firearm transfers conducted … underage persons (i.e., under 18 for all firearms, or 21 for firearms other than a shotgun or rifle), must comply with … age requirements under the Gun Control Act… and again states that facilitating a private transfer is “subject to the same rules and regulations as any other sale conducted by the FFL.

Were there any remaining doubt, the FBI NICS process also confirms the reality that those 18-20 no longer will be able to purchase handguns in Virginia. When information is submitted to the FBI’s NICS system in order to obtain a background check, both the buyer’s age, and also the proposed type of firearm to be transferred, i.e., “handgun,” are required. Thus, the FBI NICS system would automatically reject a dealer transfer of a handgun to someone under 21.

This new restriction violates Article I, Section 13, which protects the rights of “the people,” not just the people that the Commonwealth decides to trust with firearms. Those persons who are 18-20 years old clearly are adults and constitute members of the “class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

Not only does the new background check law violate Article I, Section 13 of the Virginia constitution by denying some adults the ability to purchase a handgun, claim the plaintiffs, but it also violates Article IV, Section 12 because nothing in the universal background check legislative language ever mentioned changing the law to raise the age to purchase a handgun to 21.

When entitling SB18, its drafters understood it necessary to include “age requirement” when raising the age to purchase firearms from 18 to 21. Yet when entitling SB70/HB2 (now the Act), which also raises the age for handguns from 18 to 21, the drafters did not include “age requirement” in the title, apparently content to enact the same change to the law, but in a surreptitious manner, concealing from the public the full effect of the proposed statute.

Article IV, Section 12 of the Constitution of Virginia states, in pertinent part, that “[n]o law shall embrace more than one object, which shall be expressed in its title.” The Supreme Court of Virginia has held that “the title of an act will be sufficient, within the meaning of the Constitution, if the things authorized to be done, though of a diverse nature, may be fairly regarded as in furtherance of the object expressed in the title. All that is required is that the subjects embraced in the statute, but not specified in the title, be congruous and have natural connection with or be germane to the subject expressed in the title. And the Constitution is to be liberally construed so as to uphold the law, if practicable.”

The lawsuit makes several other arguments related to the burden placed on FFL’s to conduct the transfers and concludes by asking the court for an immediate injunction to prevent the new law from taking effect.

The VCDL and GOA are also challenging the state’s new “one-gun-a-month” law with a suit filed in Goochland County. So far, we haven’t had a hearing on an injunction seeking to block that law from going into effect on July 1, but with just a week left before the new laws officially get put on the books, hopefully, the courts will move swiftly and safeguard our right to keep and bear arms while the cases work their way through the judicial system.