Hearing Held In Challenge To Virginia's New Background Check Law

A Lynchburg, Virginia judge heard arguments for and against the constitutionality of the state’s new “universal background check” law on Thursday, one day after the new law took effect along with a half-dozen other gun control bills approved by the Democrat-controlled General Assembly earlier this year.


The challenge to the new background check law was brought by the Virginia Citizens Defense League, Gun Owners of America, and three individuals who say their right to keep and bear arms under the state constitution is being infringed by the new law, which requires background checks on all firearm sales in the Commonwealth. Attorney General Mark Herring, meanwhile, argues that the background check law “closes loopholes” that allow felons and other prohibited persons to acquire guns. As WSLS reported:

The lawsuit is different from the last one with Gov. Ralph Northam in April because he’s not mentioned in it. The complaint is against the superintendent of the Virginia Department of State Police, who will be responsible for enforcing this new background check law.

10 News was not allowed to record the video hearing. David Browne, the same attorney who represented Safeside Tactical in the lawsuit against the Northam’s executive order, is now representing three Lynchburg men who want to privately sell guns to one another.

The new law requires anyone who wants to buy a firearm from an unlicensed dealer at a gun show to go through a background check and pay the fees to do it.

Gun rights advocates say this infringes on their rights.

The Virginia Defense League and Gun Owners of America are also named on the complaint.

“It forces everybody, if they want to purchase a firearm, they have to go to a gun store submit to a background check, which put people’s name in the FBI database. That can result in delays,” said Erich Pratt, Senior VP of Gun Owners of America.


Thursday’s hearing was on a request for an injunction preventing the law from being enforced while it’s challenged. Even if the judge in the case refuses to grant the injunction, the case itself will likely continue. It’s worth pointing out that Judge F. Patrick Yeatts, who presided over Thursday’s hearing, did rule in favor of GOA and VCDL in an earlier challenge to the closure of an indoor range in Lynchburg under Gov. Ralph Northam’s coronavirus executive orders. Yeatts ruled that the governor overstepped his authority in ordering ranges to close, violating Virginia state statute in doing so. Northam didn’t appeal the judge’s decision, and shortly afterwards indoor ranges across the state were allowed to reopen with certain COVID-19 safeguards in place.

We’ll soon learn if Yates believes that Northam and Virginia Democrats have similarly overstepped the bounds of the state constitution with their background check law, but regardless of its constitutionality, Attorney General Mark Herring can’t and won’t defend its enforceability. I’ll be shocked if there are even a half-dozen charges for violating the background check law in the next year, because the law is simply nearly impossible to enforce.

As I mentioned, background checks are required on all private sales of firearms, but not private transfers. If you want to give your brother a shotgun for Christmas, no background check is needed. If you want to sell him a shotgun, on the other hand, you’re required to go through the background check process. I suspect that anybody who might be facing charges of selling or buying a gun without using a gun store and the NICS system will simply argue that it wasn’t a sale but a transfer. Unless prosecutors can prove that money changed hands, they simply won’t have a case.


Even if transfers were included, there’s no centralized registry of who owns what guns in Virginia, so there’s no way to know how many times a firearm might have changed hands once its been sold at retail. At some point, Democrats in the state will introduce a gun registration bill making that very argument, but even if it too passes, good luck trying to enforce compliance.

The biggest problem with the background check bill is that it approaches the issue of gun possession by prohibited persons completely backwards. Northam and his anti-gun buddies are trying to restrict the supply of guns to criminals, when they should be trying to restrict demand.

Keep in mind as well that Virginia already has one of the lowest violent crime rates in the country, and Northam’s new gun control laws have nothing to do with that. We’ve got a pretty small population of criminal offenders, and a pretty large body of armed citizens. It makes far more sense to target the relatively few number of people trying to illegally possess a firearm than the hundreds of thousands of legal Virginia gun owners in the hopes of ensnaring a few.

Under current law, possession of a firearm by a convicted felon is punishable by up to five years in prison. In reality, however, most people charged under the law are going to end up serving far less time, either through plea bargains or a judge handing down a sentence less than the maximum time allowed. The first thing the state should do is double the potential sentence to ten years, with a five year minimum term. That would bring state law more in line with federal law.


The next step is harder, but it’s even more important. For decades, criminal justice experts have generally agreed that the most effective way to reduce violent crime is to ensure that there are swift and certain consequences. If people think they can get away with something, they’ll do more of it, whether it’s jaywalking, dealing drugs, illegally possessing a gun, or shooting someone.

Increase the number of probation officers to allow for a greater focus on high-risk offenders, including unscheduled checks at home and at work. Make it clear to every inmate entering probation that illegal gun possession is the worst mistake they can make, and if they’re caught they will have their probation revoked and will serve the entirety of their sentence.

Make the possession of a firearm by a prohibited person a top priority for commonwealth’s attorneys. Stop pleading the charge away, especially if the previous felony or felonies included violent crimes.

Take the issue seriously, in other words. Virginia’s new background check law is completely unserious as a crime prevention tool. Its only use is to restrict the rights of Virginia’s legal gun owners, and its only benefit is to the campaign coffers of Virginia Democrats, who’ll be richly rewarded by the likes of Big Daddy Bloomberg for their efforts.


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