Former Virginia AG files state constitutional challenge to assault weapons ban
Ken Cuccinelli, former Virginia Attorney General, sued to strike down Virginia's assault weapons ban by invoking the state constitution's Militia Clause instead of the U.S. Second Amendment. The lawsuit targets the ban directly in Virginia state court, using Virginia Constitution Article I, Section 13 as the legal foundation. This approach sidesteps federal courts and avoids relying on District of Columbia v. Heller or New York State Rifle & Pistol Association v. Bruen precedents.
Cuccinelli's strategy centers on Virginia's state constitutional text rather than federal Second Amendment analysis. The state ban prohibits semi-automatic rifles meeting specific feature criteria—capturing AR-15s, AK-pattern rifles, and similar platforms. Virginia's restriction ranks among the nation's strictest state-level bans.
Why It Matters for Gun Owners
Virginia residents who own AR-15s or other semi-automatic rifles currently face criminal liability under state law. A successful challenge using state constitutional grounds could reshape how courts evaluate gun rights claims across multiple jurisdictions. If Cuccinelli prevails, the precedent signals that state constitutions provide distinct protections beyond federal Second Amendment analysis.
Gun owners in other restrictive states pay close attention. California, New York, and Connecticut maintain comparable assault weapons bans. A favorable Virginia ruling could prompt identical legal challenges in these states, potentially creating a cascade of state constitutional litigation. The timing matters significantly: this lawsuit arrives after Bruen established stricter scrutiny for gun regulations, but federal courts have not definitively ruled on assault weapons bans themselves.
For daily carriers and rifle owners, the strategic pivot to state constitutions matters. Federal courts have avoided ruling directly on whether semi-automatic rifles qualify as protected "bearable arms." By filing in state court first, Cuccinelli forces Virginia judges to confront the issue using Virginia's own foundational text—terrain where gun rights arguments may gain traction faster than in federal proceedings.
Background
Virginia enacted its assault weapons ban in 2020 following Democratic electoral gains. The law defines prohibited semi-automatic rifles by feature sets similar to federal law language from the 1994 Clinton-era ban. Enforcement mechanisms include felony charges for possession and sales restrictions on future purchases.
Previous federal challenges to state assault weapons bans stalled in appellate courts, which declined to apply strict scrutiny under Bruen's framework. Judges claimed semi-automatic rifles fell outside traditional bearable arms, a dubious argument that nonetheless stuck. Cuccinelli's state constitution approach circumvents this federal judicial hesitation entirely.
The Militia Clause in Virginia's constitution states: "That a well regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; therefore, the right of the people to keep and bear Arms shall not be infringed." This language mirrors Second Amendment text but exists within Virginia's sovereign legal framework, giving state courts sole jurisdiction without immediate federal appellate review.
DownRange Bottom Line
Cuccinelli's state constitutional strategy represents a tactical shift in gun rights litigation. Rather than battling federal courts over Bruen's application to assault weapons, he's forcing Virginia to defend its ban using Virginia's own constitution. If successful, this approach works—creating precedent other states cannot easily dismiss as federal overreach. For gun owners in restrictive states, this lawsuit signals a viable new path forward outside federal court gridlock. Watch Virginia state courts closely; the outcome reshapes litigation strategy nationwide.
