Spanberger and Jones respond to the prosecutor revolt, and they've got nothing

The bottom line

Governor Abigail Spanberger and Attorney General Jay Jones have responded to the growing wave of Virginia prosecutors and sheriffs refusing to enforce SB 749, and the response is mostly hot air. Neither of them has any reliable legal mechanism to force an independently elected Commonwealth’s Attorney to prosecute a case she or he has decided not to bring. The response tells you exactly how much leverage they actually have: none.

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This article is based on analysis from Bearing Freedom. Watch the original video. This is commentary, not legal advice.

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What they actually said

Prosecutors in Spotsylvania, Smyth, Powhatan, Pulaski, and Scott counties started publicly announcing they would not enforce the assault weapons ban Spanberger signed on May 15. The state establishment had to respond.

Jay Jones, Virginia’s new attorney general, issued a statement to Virginia Scope: “Gun violence is a key driver of violent crime and the leading cause of death for young people in our Commonwealth. The general assembly passed and the governor signed critical legislation to reduce violent crime and protect our communities. Commonwealth’s attorneys are elected to enforce our laws, which is what we expect them to do when these laws take effect July 1st.”

Spanberger’s spokesperson added that the governor “believes that firearms designed to inflict maximum casualties do not belong on Virginia streets.”

That’s the full response from the two most powerful law enforcement officials in Virginia. A recycled gun-violence statistic that deliberately conflates homicide and suicide. A pablum phrase about “maximum casualties.” A sentence informing elected local prosecutors of what is “expected” of them. No mention of any legal mechanism to actually compel enforcement.

Who Jay Jones is

Before taking seriously anything Jay Jones says about the rule of law, you should know who he is.

Jones was elected Virginia’s attorney general in November 2025, defeating incumbent Republican Jason Miyares. He is the first African American to hold the office. He is a former delegate from Norfolk’s 89th district and a former assistant attorney general for Washington, D.C. He is also a person who, in August 2022, sent text messages fantasizing about Republican House Speaker Todd Gilbert receiving “two bullets to the head” and wishing that Gilbert’s children would “die in their mother’s arms.”

This came out in October 2025, right before the election. His own running mate Abigail Spanberger condemned the messages. So did Lieutenant Governor nominee Ghazala Hashmi. So did Mike Johnson. Jones won anyway, because Virginia’s suburban vote swallowed it.

I’m not bringing this up as a distraction. Jones is now positioning himself as the defender of the rule of law against local officials who refuse to enforce a gun ban. This is the same man who in private fantasized about shooting a political opponent. He won his office in an election where even his own running mates said he should step aside. And now he’s lecturing prosecutors about their duty to enforce laws they believe are unconstitutional. That’s quite a perch to preach from.

The legal reality of what they can do

Spanberger and Jones cannot force these prosecutors to act, and the reasons go all the way down to how Virginia’s government is structured.

Commonwealth’s Attorneys in Virginia are independently elected constitutional officers. They are not employees of the governor. They are not subordinate to the attorney general. Under Virginia Code § 2.2-511, the Attorney General has no authority to institute or conduct criminal prosecutions in circuit courts except in a few narrow enumerated categories: violations of the alcoholic beverage control act, election laws, certain motor vehicle offenses, state fund theft, child pornography, and the unauthorized practice of law. Gun law violations are not on that list. The AG cannot simply step into a jurisdiction and prosecute SB 749 cases because the local Commonwealth’s Attorney won’t.

The only way the AG gets into a criminal prosecution outside those categories is if the Governor specifically requests it in a particular case. That is a cumbersome, case-by-case mechanism. It is not a systemic override. And even if Jones got that authorization, he would need to do it jurisdiction by jurisdiction, case by case, for every SB 749 charge that a local Commonwealth’s Attorney declines to bring.

What about the circuit courts appointing a special prosecutor? Under Virginia Code § 19.2-155, a circuit court judge can appoint a replacement attorney for the Commonwealth when the elected official is disqualified, unavailable, or has a conflict. That provision is designed for situations like recusal or incapacity. It is not a tool for the state to override prosecutorial discretion policy decisions. A court appointing a special prosecutor because the elected Commonwealth’s Attorney made a considered policy judgment about constitutional law would be on very questionable legal footing.

The Governor could theoretically try to remove a Commonwealth’s Attorney from office. Under § 24.2-233, a circuit court can remove an elected officer for neglect of a clear ministerial duty, misuse of office, or incompetence. But prosecutorial discretion is not a clear ministerial duty. It is, in fact, the opposite: it is the discretionary core of what a prosecutor does. Courts have never held that choosing not to prosecute a specific charge equals “neglect of a clear ministerial duty.” Spanberger could spend years in removal litigation and lose.

The state has the Virginia State Police, which can technically make arrests even where local officials won’t prosecute. But arrest without prosecution is pointless. The police arrest; the Commonwealth’s Attorney charges. If she has already said she will nolle prosequi any SB 749 case that lands on her desk, arresting someone burns state resources, alienates the local community, and generates the kind of story that makes the administration look vindictive. Which, granted, it is.

The Northam own-goal

This is the part of the story I genuinely enjoy.

The reason Spanberger and Jones have such limited options over recalcitrant prosecutors is partly because of a law Virginia Democrats themselves created.

In 2019 and 2020, when Democratic Commonwealth’s Attorneys in Fairfax, Arlington, and Norfolk were announcing they would no longer prosecute misdemeanor marijuana possession cases, they ran into a problem: Virginia courts held that judges could reject a prosecutor’s nolle prosequi motions. This threatened the liberal prosecutors’ ability to exercise the discretion they wanted. So Governor Ralph Northam signed legislation requiring that courts grant a motion to dismiss filed by a Commonwealth’s Attorney, unless the court finds by clear and convincing evidence that the motion resulted from bribery or bias against a victim.

Democrats passed a law specifically to protect Commonwealth’s Attorneys’ power to decline prosecution, because they wanted their urban prosecutors to be able to drop marijuana charges without judges overruling them. That law applies to every criminal charge in Virginia, not just marijuana. It now protects the conservative rural prosecutors who are declining to bring SB 749 cases.

Democrats set up the rules. The rules now apply symmetrically. When your Fairfax County prosecutor wants to drop marijuana cases, the law protects her. When the Smyth County Commonwealth’s Attorney wants to drop assault weapons ban cases, the same law protects him. The howling you are now hearing from Spanberger’s office is the sound of a political machine stepping on a rake it installed.

What the response actually tells us

Pay attention to what Spanberger and Jones did not say. They did not argue that these laws are constitutional. They did not cite Heller. They did not cite any historical tradition of firearms regulation. They did not engage with the prosecutors’ constitutional reasoning at all. What they said was: the legislature passed these laws, we signed them, local officials should follow them.

That is not a constitutional argument. It is a political one, the argument you make when you cannot win on the law. And it is revealing, because if Spanberger’s team thought SB 749 was on solid constitutional footing, they would have led with that.

Bruen requires the government to demonstrate that a firearm regulation is consistent with the historical tradition of firearm regulation at the founding. The AR-15, the most commonly owned rifle in the country, sitting in 20 to 25 million American homes, is in common use for lawful purposes under Heller. There is no founding-era tradition of banning the most widely owned rifle pattern in the country. Both their legal teams know it. The NRA filed suit within 24 hours of Spanberger’s signature for a reason.

When your answer to a constitutional challenge is “we expect compliance,” you have already given up on winning the argument on the merits.

The posturing is the point

Spanberger and Jones know they cannot force these prosecutors to act. What they are doing is political theater.

Say nothing, and the story becomes “Virginia’s gun ban collapses on contact with reality.” Issue stern statements, and they can point to toughness for a left-leaning base that supported SB 749, even if those statements are unenforceable. The sternness is for the donor class. On the ground, multiple Commonwealth’s Attorneys are still publicly refusing to prosecute, and that is not changing.

Virginia has 95 independent cities and counties, each with its own elected Commonwealth’s Attorney. Northern Virginia prosecutors might happily file SB 749 charges. Most of the rest of the state will not. Richmond can bluster all it wants, but it cannot staff 95 jurisdictions with its own people.

The Second Amendment Foundation, Gun Owners of America, the NRA, and the Firearms Policy Coalition are all in court simultaneously. At least one of those lawsuits is going to reach a federal judge who applies Bruen honestly, and when that happens, SB 749 is gone. The prosecutors refusing to enforce it are buying time for the courts to catch up, and making something else clear in the process: in their counties, you are not getting prosecuted for owning a rifle that was perfectly legal six weeks ago.

Spanberger and Jones can keep announcing their expectations. Expecting something and being able to make it happen are different things. In most of Virginia right now, the people doing the actual enforcing are the sheriffs and prosecutors who looked at this law, looked at Bruen, and said no.