As a longtime red state that is home to the National Rifle Association headquarters, Virginia was once a haven for gun owners. But the commonwealth rapidly trended from purple to blue over the last 15 years as the growing population of the liberal Washington suburbs overwhelmed its more conservative rural parts. Now that Democratic Gov. Ralph Northam survived his blackface scandal and his party has gained complete control of the legislature, he believes that it’s open season on gun rights.
The Democrat-controlled state Senate has already advanced bills enacting so-called universal background checks, a “red flag” gun confiscation law, a provision allowing gun bans on government property, and a cap on handgun purchases to one per month. They’re also likely to advance a ban on the sale of certain “assault” weapons.
Collectively, these efforts would make a mockery of due process and create more barriers for law-abiding citizens to exercise their Second Amendment right to purchase guns without actually making residents any safer.
The idea of “universal background checks,” for example, sounds sensible on the surface but is poorly conceived. Roughly 9 out of 10 gun purchases already involve background checks, and all federally licensed gun sellers are required to run them for purchases. The only cases where background checks are not required involve private, intrastate gun sales conducted within certain states that haven’t already enacted universal background checks. We have never found a single case in which a gun lawfully acquired in this manner was ever used in a mass shooting — not even one.
So the expansion of background checks is unlikely to reduce mass shootings. As for more common crimes, a 2019 Department of Justice study found that only 10% of prison inmates who had possessed firearms had obtained them from a retail source such as a store. In other words, background checks don’t stop mass shooters without prior records from getting guns, and criminals who can’t pass background checks find other illegal means of obtaining guns.
Thus, the thought of preventing friends from exchanging guns with one another without going through a time-consuming and expensive check seems as if it would require extraordinary effort and accomplish nothing.
The Virginia Democrats’ “red flag” proposal starts with a premise that sounds reasonable. Many shooters exhibit warning signs of potentially violent behavior well before acting out, so there should be a way of proactively preventing them from getting their hands on lethal weapons. But taking away somebody’s constitutional right is no small matter. As designed, this law is an affront to due process.
It would allow government officials, such as law enforcement officers, to obtain permission from judges to confiscate the guns of an individual somehow suspected to be dangerous. The evidentiary standard in such cases is the lowest possible in court — “preponderance of the evidence” or 51% certainty.
The use of preemptive policing is inherently troubling, even where it is necessary or justifiable. After all, we are talking about a law that would deprive people of constitutional rights. Surely, we could have an evidentiary standard tight enough to prevent flagrant harassment of gun owners by people who personally dislike them — or even by neighbors who don’t want to live near a gun owner. Virginia’s legislators don’t seem to have thought this through very carefully.
Finally, the bill limiting the number of gun purchases is blatantly unconstitutional. The Supreme Court has established an individual right to gun ownership under the Second Amendment. In 2015, the U.S. District Court of Appeals struck down a similar law in Washington, D.C. The majority decision read that “taken to its logical conclusion,” the reasoning behind the cap “would justify a total ban on firearms kept in the home.”
Although the legislature has not yet passed from committee a ban on so-called “assault” weapons, it is likely to do so in the near future. These bans are the dumbest ones of all, as they define “assault weapon” in a haphazard and arbitrary way. Because there is a wide range of functionally similar guns, the distinction drawn is cosmetic, often amounting to a ban on “scary-looking guns.” The United States had a federal ban on assault weapons under President Bill Clinton. It expired in 2004, and experts almost universally agree that it had no significant impact on violent crime.
Given our strong opposition to these proposals and their threat to constitutional rights, we laud the many individuals and groups taking to Virginia’s Capitol in peaceful protest, such as the planned pro-Second Amendment march scheduled for Monday.
