Legal Process for Overturning State Laws That Disregard U.S. Constitution?

When the State of Virginia passes a version of Senate Bill 16, and if the ratified law bans a broad class of firearms for law-abiding residents, what is the legal recourse for challenging the new law as “Unconstitutional”? Will it take years to reach the Supreme Court?

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Not a lawyer but it is my understanding that any “law” can be challenged in court and move through the system at the system’s pace. I think that other than a massive public demonstration against (which is occurring) that will be the only option to forestall the implementation of it. Whether it is suspended or ruled “in violation” the other side has the same right of appeal. My hope is that there is enough public opposition and legal opposition to keep it from going into effect until the next election cycle and then, well, we’ll see what happens.

I think this one might fail the sniff test as it bans “all firearms that accept a detachable magazine”. There is a 10 round clause, but if a magazine is manufactured for that platform that holds more than 10 rounds the GUN is banned. Welcome @Jeff-A1!!!

Cheers,

Craig6

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Yeah that’s pretty much all semiauto pistols and a big majority of rifles.

@MikeBKY can fill us in on the details, but I’m not sure if the law can be challenged until there is a person who’s rights have been violated by it. There is a mechanism to get an order restricting enforcement until a case is heard, once one is filed, at least in some states. (We saw this with other laws in California). Given that these are state laws, I’d guess that the state’s process applies until it gets referred to the federal level. Hopefully Mike will be able to educate us some.

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Craig6 - Thank you for the warm welcome!

By the proposed definition of “Assault Firearms” in 18.2-308.8 4.(iv), the mere possession of 1911 could be punishable by a Class 6 felony? I do want to maintain the ability to protect my family and myself. If the bill gets passed into law, what legal recourse does a Virginia resident have to his/her property? Will there be a delay between the law getting passed then enacted? Can I transport my firearm to a trusted relative out-of-state that can legally posses it until this can get legally resolved? Will I have to show proof-of-transfer? Will self-defense using a revolver be permissible? So many questions…

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As I understand it we would have until July 2020 to have the guns out of state, turned in or destroyed. Essentially we will be down to Revolvers, Derringers, Dbl Barrel Shotguns, Bolt Guns with fixed magazines, Pump Guns and Lever Guns.

I can see a new pop up business model for NC, TN & W.VA. VA illegal gun & magazine storage, with an on sight range

Here is the whole proposed mess

Here is the text of HB 4021. Read 18.2-308.8 through the end so you know how VA may define and ban assault firearms come 2020. 18.2-308.9 defines the magazine ban and 18.2-308.10 defines the silencer ban.
Since this bill is not yet law, it is subject to change. That said, it is a good starting point to inform us what the 2020 VA assault weapon, magazine, and silencer ban may look like.

https://lis.virginia.gov/cgi-bin/legp604.exe?192+ful+HB4021

§ 18.2-308.8. Importation, sale, possession, etc., of assault firearms prohibited; penalty.
A. For purposes of this section:
“Assault firearm” means:

  1. A semi-automatic center-fire rifle that expels single or multiple projectiles by action of an explosion of a combustible material with a fixed magazine capacity in excess of 10 rounds;
  2. A semi-automatic center-fire rifle that expels single or multiple projectiles by action of an explosion of a combustible material that has the ability to accept a detachable magazine and has one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the rifle; (iii) a thumbhole stock; (iv) a second handgrip or a protruding grip that can be held by the non-trigger hand; (v) a bayonet mount; (vi) a grenade launcher; (vii) a flare launcher; (viii) a silencer; (ix) a flash suppressor; (x) a muzzle brake; (xi) a muzzle compensator; (xii) a threaded barrel capable of accepting (a) a silencer, (b) a flash suppressor, © a muzzle brake, or (d) a muzzle compensator; or (xiii) any characteristic of like kind as enumerated in clauses (i) through (xii);
  3. A semi-automatic center-fire pistol that expels single or multiple projectiles by action of an explosion of a combustible material with a fixed magazine capacity in excess of 10 rounds;
  4. A semi-automatic center-fire pistol that expels single or multiple projectiles by action of an explosion of a combustible material that has the ability to accept a detachable magazine and has one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) the capacity to accept a magazine that attaches to the pistol outside of the pistol grip; (v) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the pistol with the non-trigger hand without being burned; (vi) a manufactured weight of 50 ounces or more when the pistol is unloaded; (vii) a threaded barrel capable of accepting (a) a silencer, (b) a flash suppressor, © a barrel extender, or (d) a forward handgrip; or (viii) any characteristic of like kind as enumerated in clauses (i) through (vii);
  5. A shotgun with a revolving cylinder that expels single or multiple projectiles by action of an explosion of a combustible material; or
  6. A semi-automatic shotgun that expels single or multiple projectiles by action of an explosion of a combustible material that has one of the following characteristics: (i) a folding or telescoping stock, (ii) a thumbhole stock, (iii) a pistol grip that protrudes conspicuously beneath the action of the shotgun, (iv) the ability to accept a detachable magazine, (v) a fixed magazine capacity in excess of seven rounds, or (vi) any characteristic of like kind as enumerated in clauses (i) through (v).
    “Assault firearm” includes any part or combination of parts designed or intended to convert, modify, or otherwise alter a firearm into an assault firearm, or any combination of parts that may be readily assembled into an assault firearm. “Assault firearm” does not include (i) a firearm that has been rendered permanently inoperable, (ii) an antique firearm as defined in § 18.2-308.2:2, or (iii) a curio or relic as defined in § 18.2-308.2:2.
    B. It is unlawful for any person to import, sell, transfer manufacture, purchase, possess, or transport an assault firearm. A violation of this section is punishable as a Class 6 felony.
    C. The provisions of this section shall not apply to (i) any government officer, agent, or employee, or member of the Armed Forces of the United States, to the extent that such person is acquiring, possessing, transferring, or transporting an assault firearm within the scope of his official duties; (ii) the manufacture of an assault firearm by a firearms manufacturer for the purpose of sale to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees, provided that the manufacturer is properly licensed under federal, state, and local laws; or (iii) the sale or transfer of an assault firearm by a licensed dealer to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees.
    § 18.2-308.9. Import, sale, possession, etc., of certain firearm magazines; penalty.
    A. For purposes of this section, “large-capacity firearm magazine” means any firearm magazine, belt, drum, feed strip, or similar device that has the capacity of, or can be readily restored or converted to accept, more than 10 rounds of ammunition, including any such device with a removable floor plate or end plate if the device can be readily extended to accept more than 10 rounds of ammunition. “Large-capacity firearm magazine” does not include (i) a magazine, belt, drum, feed strip, or similar device that has been permanently altered so that it cannot accept more than 10 rounds of ammunition or (ii) an attached tubular device designed to accept and only capable of operating with .22 caliber rimfire ammunition.
    B. It is unlawful for any person to import, sell, transfer, manufacture, purchase, possess, or transport any large-capacity firearm magazine. A violation of this section is punishable as a Class 6 felony.
    C. The provisions of this section shall not apply to (i) any government officer, agent, or employee, or member of the Armed Forces of the United States, to the extent that such person is acquiring, possessing, transferring, or transporting a large-capacity firearm magazine within the scope of his official duties; (ii) the manufacture of a large-capacity firearm magazine by a firearms manufacturer for the purpose of sale to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees, provided that the manufacturer is properly licensed under federal, state, and local laws; or (iii) the sale or transfer of a large-capacity firearm magazine to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees.
    § 18.2-308.10. Import, sale, possession, etc., of silencers; penalty.
    A. For purposes of this section, “silencer” means any device for silencing, muffling, or diminishing the report of a firearm, including any part or combination of parts designed or intended for use in assembling or fabricating such a device.
    B. It is unlawful for any person to import, sell, transfer, manufacture, purchase, possess, or transport a silencer. A violation of this section is punishable as a Class 6 felony.
    C. The provisions of this section shall not apply to (i) any government officer, agent, or employee, or member of the Armed Forces of the United States, to the extent that such person is acquiring, possessing, transferring, or transporting a silencer within the scope of his official duties; (ii) the manufacture of a silencer by a firearms manufacturer for the purpose of sale to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees, provided that the manufacturer is properly licensed under federal, state, and local laws; or (iii) the sale or transfer of a silencer to any branch of the Armed Forces of the United States or to a law-enforcement agency in the Commonwealth for use by that agency or its employees.
    § 18.2-308.11. Import, sale, possession, etc., of trigger activators prohibited; penalty.
    A. For the purposes of the section, “trigger activator” means any device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of any semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.
    B. It is unlawful for any person to import, sell, transfer, manufacture, purchase, possess, or transport any trigger activator. A violation of this section is punishable as a Class 6 felony.
    § 18.2-308.12. Surrender, etc., of prohibited assault firearm, firearm magazine, silencer, and trigger activator.
    Any person who legally owns an assault firearm, as defined in § 18.2-308.8; large-capacity firearm magazine, as defined in § 18.2-308.9; silencer, as defined in § 18.2-308.10; or trigger activator, as defined in § 18.2-308.11, on November 1, 2019, may retain possession of such assault firearm, large-capacity firearm magazine, silencer, or trigger activator until July 1, 2020. During this time period, such person shall (i) render the assault firearm, large-capacity firearm magazine, silencer, or trigger activator permanently inoperable; (ii) remove the assault firearm, large-capacity firearm magazine, silencer, or trigger activator from the Commonwealth; (iii) transfer the assault firearm, large-capacity firearm magazine, silencer, or trigger activator to a person outside the Commonwealth who is not prohibited from possessing the assault firearm, large-capacity firearm magazine, silencer, or trigger activator; or (iv) surrender the assault firearm, large-capacity firearm magazine, silencer, or trigger activator to a state or local law-enforcement agency. The provisions of § 15.2-915.5 shall not apply to any assault firearm, large-capacity firearm magazine, silencer, or trigger activator surrendered to a local law-enforcement agency pursuant to this section.
    § 19.2-386.28. Forfeiture of weapons that are concealed, possessed, transported or carried in violation of law.
    Any firearm, stun weapon as defined by § 18.2-308.1, or any weapon, magazine, silencer, or trigger activator concealed, possessed, transported, or carried in violation of § 18.2-283.1, 18.2-287.01, 18.2-287.4, 18.2-308.1:2, 18.2-308.1:3, 18.2-308.1:4, 18.2-308.2, 18.2-308.2:01, 18.2-308.2:1, 18.2-308.4, 18.2-308.5, 18.2-308.7, or 18.2-308.8, 18.2-308.9, 18.2-308.10, or 18.2-308.11 shall be forfeited to the Commonwealth and disposed of as provided in § 19.2-386.29.
  7. That there is hereby appropriated from the balance of the general fund in fiscal year 2020 the amount of $50,000. The Director of the Department of Planning and Budget shall allocate such appropriation among the agencies and programs impacted by this act.
  8. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.

Cheers,

Craig6

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Craig6,

Succinct summation on your part! Never thought wheel-guns and lever-actions would make it back into service. The proposed laws are very onerous to citizens accepting the responsibilities of self-protection. I pray our legislators have a change of heart… have already started contacting those that represent my district.

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Good thing to be doing, and get your other firearms owning friends doing that too.

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Thank you, Zee.

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Wow. VA, one of our 2A bastions is slipping fast into the great abyss.
@Jeff-A1 welcome to the Community! SB 16 is definitely troubling and fighting it is likely going to be a long, drawn out and expensive legal battle. The last assault weapons ban case the US Supreme Court considered taking was Friedman v. City of Highland Park, IL 136 S. Ct. 447 (2015). A majority of the justices declined to hear the case over a very stern objection by Justice Clarence Thomas.
There is currently a 2A case being considered by the Court, New York State Rifle and Pistol Association v. City of New York, is currently being reconsidered because NYC repealed the offensive law that was being reviewed after the Court agreed to hear the case and the State enacted a preemption statute to prevent similar laws from being enacted. As it stands now, it is unknown whether SCOTUS will hear the case or dismiss it as moot. An opinion is expected in June of 2020. This case was originally filed in the United States District Court for the Southern District of New York in 2013. That court found in favor of the NYC in 2015 and the case was then appealed to the US Court of Appeals for the Second Circuit. The Second Circuit affirmed in February, 2018. The part that sucks here, assuming the court decides it is moot, is that peoples rights have potentially been violated for the last 6 years and are left without recourse. If you look at SCOTUS in 2013 and 2015, it would have likely been Justice Kennedy deciding the case. Now, with Kavanaugh taking his place, there appears to be a friendlier court to hear this case for the Plaintiffs.

So, to answer your questions, if the bill becomes law, yes it can be challenged. This is obviously something that you want NRA and/or state/local gun rights advocates to pursue. You should expect that it will take years for the challenge to make it to the Supreme Court and there is no way, assuming it takes 5-10 years to be decided what the makeup of the court will be and how it would be decided.

It may also be able to be challenged at the state level. I have no idea how Section 13 of the VA Constitution and the right to bear arms has been interpreted or how VA courts would react to such laws and infringements of state constitutional rights. That might be the first place to start the battle or to run concurrent with a federal attack as well.

I did not read the statute to ban any weapon that can accept a magazine greater than 10 rounds, but bans weapons that can accept a detachable magazine AND have any type of prohibited add ons that incidentally have no effect whatsoever on the lethality of the weapon.

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MikeBKY,

Thank you for your considered opinion. Many years ago I had an acquaintance in the Navy that would supplement his income by playing in Chess Matches in Chicago. He memorized volumes on specific strategies from the worlds best players. When we played for entertainment I never got past the 5th move without a checkmate. The current environment has that consistency. Seems time for everyone to keep a level head and plan those future moves without losing at the beginning of this current challenge.

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You’re welcome. Things could have been very different if 44’s nomination to the Supreme Court had been confirmed and Justice Kennedy did not retire, giving Trump the opportunity to replace the court’s last “swing vote” with a conservative voice. The court is now a relatively firm 5-4 conservative voice, but had things been different, Scalia would have been replaced with a more left leaning judge making the court 5-4 liberal before Trump took office.
And for the record, I hate how the big argument about the Supreme Court is that it is a lifetime appointment. ALL Article III judges are lifetime appointments. Kavanaugh would be a judge for life regardless of whether was confirmed for SCOTUS. He had a lifetime appointment to the US Court of Appeals for the DC Circuit since 2006.

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My guess is that if/when the law passes a judge will put an injunction on it to suspend the law going into effect while it works its way through the court system. This was the strategy against Deerfield IL’s gun ban.

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I agree with that statement @MikeBKY I was running off memory when posting that and obviously it was flawed.

That said if you have any left over parts laying around …

It looks like someone did their homework about all the work around’s from the 1994 AWB.

Cheers,

Craig6

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I admire Justice Kavanaugh’s resolve. Will 4th district be an intermediary court for issues arising in VA? Their composition is interesting but not favorable to the 2A. Could VA be a critical piece in this national match? The state does have an overall strategic importance to the nation.

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^^^^^^That right there is pure genius! Any border-adjacent gun shop or range should be looking into converting or building space for “gun locker rooms”. For a few bucks a month (or additional membership fee) a Virginian could refugee their newly illegal weapons/accessories to a safe storage area until the courts work things out.

Ideas like this are now entrepreneurs get rich.

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I’ve actually seen that strategy deployed. When we were in California, I had a gun in for repair. The day I went to pick it up the ATF, homeland security, and the FBI had the gun shop’s entire inventory laid out on sheets on the sidewalk and the whole area taped off. They were raiding the place and were looking for anything they could prosecute. In the gunsmithing area, the guy had three 55 gallon drums of metal scrap and broken gun parts he had been accumulating over probably 20 years. They went through Every Single Scrap Part and were able to find enough broken spares to convert ONE semi-auto rifle to full auto… IF the parts were re-welded and refitted. And they used that one scrap out of 165 gallons of broken parts to prosecute him. :scream: :angry:

Fortunately for me, I had the claim check and registration for my gun so I got it back.

Unfortunately for him, he spent 6 or 7 months in jail before they dropped the case against him.

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That was one of the things that occurred to me too… a whole sub-industry for 2A Refugees. Missouri has good, sane neighbors so it’s not for us, but someone should be doing it.

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@Zee That’s a very sad testimony for a once great state. Very sickening Zee.
Liberalism is a mental disease.
*if my comment is against our code please let me know. I really don’t think it is according to Community Guidelines it’s not

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This is criminal and unconstitutional with what the Dems are proposing in VA. They are shooting for the moon and know they wont get everything but that’s the point. Since they are asking for everything 2A people will feel like they won since it all will not pass but they loose if anything passes. The very sad part is they will at least pass what California was allowed to pass and it will stick.

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