Former Virginia Attorney General Ken Cuccinelli spoke to the Daily Caller News Foundation about his decision to leverage a provision in the state constitution, enabling militia groups to contest Virginia’s ban on modern semi-automatic weapons.
This ban on what’s termed “assault weapons” was signed into law by Democratic Governor Abigail Spanberger on May 14, leading to immediate legal challenges from groups advocating for Second Amendment rights, including the NRA and the Second Amendment Foundation (SAF), among others. SAF is also backing a separate lawsuit. During a recent hearing in Spotsylvania County, Cuccinelli utilized the state constitution’s militia clause regarding the right to bear arms to argue against the ban, labeling it a “case of first impression.”
Cuccinelli remarked, “This is significant because it raises unique questions that haven’t been addressed in previous legal disputes.” He posed the core question: “Does the Militia Clause in Article I, Section 13 safeguard the rights of individual Virginians to buy, sell, own, and use firearms?”
According to Article 1, Section 13 of the Virginia Constitution, it states that “the right of the people to keep and bear Arms shall not be infringed,” suggesting a well-regulated militia is vital for a free state’s defense. It cautions against standing armies during peacetime, emphasizing that armed forces should be controlled by civil authority.
Cuccinelli underscored the significance of this state-level challenge, despite other lawsuits referencing U.S. Supreme Court cases like Heller and McDonald, which struck down certain handgun bans on Second Amendment grounds. “The existing case law is merely persuasive,” he lamented, “and I believe Virginia courts are going off track.”
He also shared insights from Wednesday’s four-hour oral arguments, detailing the points argued by lawyers from Democratic Attorney General Jay Jones’s office.
Reflecting on Virginia’s constitutional history, Cuccinelli noted, “I began this case timed to the 250th anniversary of our constitution. The rights declared align with the Declaration of Rights, particularly emphasizing the people’s right to challenge oppressive governments.”
He raised a critical point regarding who constitutes a militia, quoting George Mason: “We are the militia; it’s the whole people.” This perspective highlights a broader interpretation of collective rights, he argued.
Citing the “collective rights” theory, which posits that the Second Amendment serves to protect state militias, Cuccinelli contested the notion that individual rights to firearm ownership are limited. Both federal and Virginia state laws recognize “unorganized militias,” he pointed out.
Cuccinelli disagreed with the Attorney General’s office’s legal interpretation, arguing that the framers’ intent was to view the militia as the general populace. He referred to historical concerns during the Stuart era regarding the disarming of citizens by a government-controlled militia.
Requests for comment from Jones and Spanberger went unanswered.
In a recent decision, Spotsylvania County Circuit Court Judge William Glover denied a preliminary injunction that would have blocked the ban, siding with the Attorney General’s argument against the individual right to possess “military-style” firearms.
Cuccinelli has indicated he intends to appeal this ruling. He expressed disappointment that the court opted not to impede what he views as a constitutionally dubious law, stating that options for further appeals are being considered.
