Virginia prosecutors are using their constitutional power to stop the assault weapons ban cold

The bottom line

A Marine veteran sitting as Commonwealth’s Attorney in Spotsylvania County sent a formal letter to his sheriff saying Spanberger’s assault weapons ban is unconstitutional and he will not prosecute anyone arrested under it. He is not alone. This is not civil disobedience. This is the constitutional architecture working exactly as designed.

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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 the prosecutors are actually doing

Spotsylvania County Commonwealth’s Attorney G. Ryan Mehaffey is a U.S. Marine Corps veteran. He won his office by earning the votes of the people he now represents. On May 24, 2026, he sent a formal written letter to Spotsylvania County Sheriff Roger L. Harris laying out his legal analysis in clear terms: SB 749, Virginia’s new assault weapons ban, is unconstitutional under both the federal Second Amendment and Article I, Section 13 of the Virginia Constitution, and “cannot be lawfully enforced.” His conclusion was unambiguous. Do not arrest people under this law. And if you do, I will not prosecute it.

Read that again. The man who controls whether a criminal charge becomes a criminal conviction looked at Spanberger’s prize legislation and said, “No. Not in my county.”

Mehaffey is not alone. Smyth County Commonwealth’s Attorney Phillip Blevins, an Air Force veteran, has adopted the same position. Powhatan County Commonwealth’s Attorney Rob Cerullo issued a public statement calling significant portions of SB 749 “facially unconstitutional,” citing New York State Rifle and Pistol Association v. Bruen (2022). Pulaski County Commonwealth’s Attorney Justin Griffith was direct about the absurdity of the situation: “I am not going to take law-abiding citizens as of June 30, 2026, and criminalize that same behavior on July 1, 2026, solely on the basis of this new law.” Scott County’s top prosecutor has also joined the list. As of this writing, at least five Commonwealth’s attorneys across rural Virginia have formally refused to prosecute violations of an assault weapons ban that doesn’t even take effect until July 1.

Why prosecutors, specifically, matter here

People who don’t follow criminal procedure closely sometimes treat the police and the prosecutor as interchangeable parts of the same machine. They are not. The police make arrests. The prosecutor decides what happens next.

In Virginia, the Commonwealth’s Attorney is an independently elected constitutional officer. The office traces back to colonial-era law. Under Virginia Code § 15.2-1627, the attorney for the Commonwealth “may in his discretion prosecute” or decline to prosecute. The Supreme Court of the United States addressed the scope of this kind of discretion in Wayte v. United States (1985), confirming that prosecutorial discretion “resides in the Executive Branch” and that charging decisions are generally unreviewable absent a showing of discriminatory purpose. The Virginia Supreme Court has recognized this principle as a bedrock feature of the state’s criminal justice system.

What this means in plain terms is that the Commonwealth’s Attorney has near-absolute authority over the charging decision. A sheriff can arrest someone. A state police trooper can arrest someone. The Governor can demand enforcement all she wants. But none of them can force Mehaffey, or Blevins, or Cerullo, or Griffith, or any other Commonwealth’s Attorney to file charges. If the Commonwealth’s Attorney declines to prosecute, the case is dead. Full stop. No trial, no conviction, no felony record.

This is not a loophole. It is intentional. The Founders understood that the executive power to prosecute was itself a form of government coercion, and that placing it in the hands of locally elected officials who answer to the community being governed was a check on tyranny from the center. Spanberger can sign whatever she wants in Richmond. She does not get to commandeer Mehaffey’s office and tell him what cases to bring.

The oath argument

Mehaffey grounds his refusal not just in legal strategy but in the oath he took. His argument is direct: the Second Amendment and Virginia’s Article I, Section 13 are the supreme law of the land. “Whatever law is passed by the General Assembly is not going to have the ability to supersede the Constitution.” SB 749 strikes “at the core of the militia system that existed in Virginia from its founding.” Virginia’s militia predates the Virginia Constitution, which was ratified in 1776, fifteen years before the federal Bill of Rights. The right to keep and bear arms is older than the state government that is now trying to gut it.

Article I, Section 13 is unambiguous: “the right of the people to keep and bear arms shall not be infringed.” Virginia courts and multiple federal courts have confirmed that provision is co-extensive with the Second Amendment. Both are superior law to anything the General Assembly passes.

Mehaffey’s position is that an elected official who takes an oath to uphold the Constitution and then enforces a law he believes violates it is not fulfilling his oath. He is violating it. The oath is not a formality. It is the condition under which government officials exercise power in the first place.

Why SB 749 is particularly vulnerable to this analysis

SB 749 uses a one-feature test for semi-automatic centerfire rifles with detachable magazines. Any single “covered feature” (a threaded barrel, a flash suppressor, a folding stock, a pistol grip, a thumbhole stock) makes the firearm an “assault firearm” illegal to buy, sell, or transfer after July 1. Violations are a Class 1 misdemeanor carrying up to twelve months in jail and a $2,500 fine.

The definition is so broad it captures Glock 17 and Glock 19 pistols with their standard factory magazines, common hunting firearms, and shotguns widely owned by rural Virginians. The law attaches the label “assault firearm” to a pistol you can buy in any free state in America. Under Heller (2008), the government cannot ban firearms “in common use” for lawful purposes. Under Bruen (2022), any regulation must be justified by a historical tradition of analogous laws from the Founding era. Virginia’s lawyers will not find an 1800 Virginia statute banning pistols with detachable magazines.

Mehaffey pressed the militia angle hard. The AR-15 is the infantry weapon in common civilian use today. Heller explicitly recognized the Second Amendment protects arms bearing “a reasonable relationship to the preservation or efficiency of a well regulated militia.” An AR-15 bears more than a reasonable relationship to that standard. You cannot hold up the militia as the core justification for the right and then let states ban the rifle the militia would carry.

This is not the first time Virginia has done this

In November 2019, Democrats took the General Assembly and Governor Ralph Northam started promising gun control. The Virginia Citizens Defense League organized a Second Amendment sanctuary movement that swept the state. By early 2020, 114 cities, counties, and towns had passed sanctuary resolutions, with participation eventually estimated at 95% of Virginia localities. The meetings overflowed school gymnasiums.

It did not stop the gun control bills that passed in 2020. But it established something critical: the enforcement layer of the state was not going to cooperate.

What is happening now is that the 2019 movement grew into something with real teeth. In 2019, the resolutions were political statements with no formal legal effect. In 2026, the prosecutors are not passing resolutions. They are issuing written non-prosecution policies governing the conduct of their offices. That has direct legal force. A Commonwealth’s Attorney’s written policy declining to charge a specific category of offense is an exercise of the discretionary authority the office holds. It is not a symbol. It is a charging decision made in advance, and it binds the office.

The patchwork problem, and why it’s still better than the alternative

I want to be honest about the real limitation here. What these prosecutors are doing creates a geographic patchwork. In Spotsylvania County, you will not be prosecuted for possessing an AR-15. In Fairfax or Arlington or Alexandria, where the Commonwealth’s Attorneys are aligned with Spanberger, the calculation is different. People in those jurisdictions are in genuine legal jeopardy beginning July 1 unless the courts step in.

But the alternative is uniform enforcement of a law that violates the Second Amendment. I will take a patchwork over that every time. The patchwork is imperfect. It is also the best outcome available to local officials who cannot by themselves strike the law from the books.

The courts are where this ends. Dual-track lawsuits from GOA and VCDL in state court and from the NRA and FPC in federal court are moving. The FPC complaint was engineered to reach the Supreme Court directly, bypassing the Fourth Circuit, which has been reliably hostile to Second Amendment claims. If the Court grants emergency relief before July 1, the patchwork becomes irrelevant.

Until then, every Commonwealth’s Attorney who puts a non-prosecution policy in writing is narrowing the area of real risk to Virginia gun owners and making it harder for Richmond to claim this law had institutional legitimacy across the state.

What Spanberger cannot do

The governor’s office can jawbone. The Attorney General Jay Jones can issue press releases threatening consequences. But there is no mechanism under Virginia law for the governor to remove an elected Commonwealth’s Attorney for exercising prosecutorial discretion. The Commonwealth’s Attorney answers to the voters of the county that elected him, not to Richmond.

What Mehaffey grasped, and what the anti-gun crowd consistently fails to understand, is that gun confiscation requires a complete chain of cooperation. You need the legislature to pass the law. You need the governor to sign it. You need law enforcement to arrest people. You need the prosecutor to charge them. You need a jury to convict them. Break any link in that chain, and the law does not function.

A Marine who swore an oath to the Constitution and then became the elected chief law enforcement officer for his county just broke the chain. He did it with a letter. He did it with his name on it. He is not hiding. He is standing in front of the Constitution and telling Spanberger: enforce this yourself.

She cannot.