Virginia's attorney general just told a court you have no individual right to keep and bear arms

The bottom line

Virginia Attorney General Jay Jones filed a motion to dismiss in Crump v. Katz arguing that Article I, Section 13 of the Virginia Constitution protects only a collective militia right and that the firearms SB 749 bans are not in common use for lawful self-defense. Both claims are false. The collective-right theory was buried in Heller in 2008, and the common-use claim is refuted by at least 20 to 30 million AR-15s in private hands across 41 states.

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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 Jones actually filed

Attorney General Jay Jones has submitted a motion to dismiss in Crump v. Katz, the Lancaster County Circuit Court challenge to SB 749, Virginia’s assault weapons ban that takes effect July 1, 2026. Cam Edwards flagged the filing at Bearing Arms on June 10. The case was brought by Gun Owners of America, Gun Owners Foundation, and VCDL on state constitutional grounds only, and it had a temporary restraining order hearing scheduled for June 12 that could have paused the law before it went live. That hearing was cancelled after Lancaster Circuit Judge John S. Martin stayed all proceedings on June 9 while a three-judge panel appointed by the Supreme Court of Virginia decides whether to transfer the county-level suits to a consolidated venue.

Before the stay, Jones filed his argument for why the case should be dismissed entirely. Read it, because it is the official legal position of Virginia’s top law enforcement officer on the gun rights of every person he serves.

The brief makes three moves. Section 13, Jones says, is a collective, militia-tethered right with no individual dimension. The guns SB 749 bans are not in common use for lawful self-defense. And even if some right were implicated, the Commonwealth’s public safety interest outweighs the burden on it.

All three are wrong. The first two aren’t close.

The text says what it says

Article I, Section 13 of the Virginia Constitution reads in full: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

The operative clause, “the right of the people to keep and bear arms shall not be infringed,” was added to the Virginia Constitution in 1971. Not 1791. 1971. It was added in direct response to federal and state proposals to restrict firearms in the wake of the political assassinations and urban unrest of the 1960s. The General Assembly had passed a resolution in 1964 affirming the inherent right of Virginians to own and bear arms. When the 1971 constitution was drafted, the delegates added it explicitly. They understood what they were doing.

Jones argues that the phrase “the right of the people” in Section 13 means something different from the same phrase in the Second Amendment, and that the militia prefatory clause controls the operative clause rather than announcing its purpose. The Supreme Court addressed that exact argument and rejected it in District of Columbia v. Heller in 2008. Even Justice Stevens, writing in dissent for the four justices who would have upheld DC’s ban, conceded the Second Amendment “protects a right that can be enforced by individuals.” The pure collective-right theory could not get a single vote at the Supreme Court eighteen years ago, and Jones is presenting it to a Virginia trial court as if it were live law.

Heller already killed this argument

Heller took up the collective-right interpretation directly. Justice Scalia’s majority walked through the meaning of “the right of the people” everywhere it appears in the Constitution and found that it consistently refers to individual rights. The prefatory militia clause announces a purpose; it does not limit the scope of what follows. The Court held the Second Amendment “protects an individual right to possess and carry weapons in case of confrontation.” McDonald v. City of Chicago in 2010 incorporated that holding against state governments.

And this is settled in Virginia specifically. The Supreme Court of Virginia held in DiGiacinto v. Rector and Visitors of George Mason University in 2011 that Article I, Section 13 is coextensive with the Second Amendment, and multiple Virginia circuit courts have read it the same way. The 1971 drafters used the same operative language as the federal constitution. Jones is asking a Lancaster County trial court to rule that identical words mean something different in the Virginia constitution than the Supreme Court has held they mean in the federal one, because otherwise Spanberger’s gun ban dies. He is reasoning backwards from the result he needs and asking a judge to bless it.

The common-use claim is the worse one

Jones’s brief states that the arms SB 749 regulates “are not in common use for lawful self-defense” and are “dangerous and unusual weapons that fall outside the constitutional right to keep and bear arms.”

I own an AR-15. So do tens of millions of other Americans. When the Supreme Court declined to hear Snope v. Brown on June 2, 2025, Justice Kavanaugh wrote a solo statement placing the number at 20 to 30 million AR-15s in private hands, legal in 41 of 50 states. Kavanaugh said directly that “petitioners have a strong argument that AR-15s are in ‘common use’ by law-abiding citizens and therefore are protected by the Second Amendment under Heller,” and that the Court should and “presumably will address the AR-15 issue soon, in the next Term or two.” A sitting Supreme Court Justice put his name on the argument that AR-15s satisfy the common-use test, and Jones is in court arguing the opposite.

The Caetano decision in 2016 is useful here, though with one clarification: the per curiam opinion vacated the Massachusetts stun gun ruling on narrower grounds, but Justice Alito’s concurrence, joined by Justice Thomas, took the common-use question head on. Alito looked at roughly 200,000 stun guns in circulation and found that sufficient. I don’t know exactly where the threshold sits, but I know that 20 to 30 million is not close to it.

And the AR-15 is only part of what SB 749 covers. The law sweeps in any semi-automatic rifle with a detachable magazine and at least one of five listed features. Any pistol with two or more features from a separate list. Any semi-automatic shotgun with a detachable magazine, which sweeps in the popular magazine-fed designs. Plus every magazine over 15 rounds, which catches the factory magazines that ship with most full-size pistols and nearly every modern sporting rifle. Count everything the feature tests and the magazine cap reach, and the number of regulated arms runs into nine figures. Telling a judge that none of those guns are in common use for lawful purposes is not a good-faith legal argument.

Interest balancing will not save this law

Jones’s fallback position is that even if Section 13 protects some individual right that SB 749 implicates, “reasonable consideration” of the Commonwealth’s public safety interest resolves in the law’s favor.

Bruen killed means-ends scrutiny in 2022. If the government wants to defend a gun regulation now, it has to show the law is consistent with this nation’s historical tradition of firearm regulation. A compelling public safety interest does not substitute for that showing, and the Court said so explicitly. Rahimi in 2024 didn’t walk that back. All nine justices in Rahimi applied Bruen’s framework. Nobody on the Court floated bringing interest balancing back. Jones citing it in 2026 is either deliberately misleading or evidence he hasn’t read the last four years of Second Amendment doctrine.

The interest-balancing argument also fails on its own terms. SB 749 covers whole categories of commonly owned firearms and attaches a Class 1 misdemeanor and a three-year firearm disability to a first conviction. That is not a modest burden. Spanberger herself recognized that when she sent down a hunting carve-out amendment this spring, which the legislature rejected at the April 22 reconvened session. You don’t need a carve-out for hunters if the law barely affects anyone.

What this filing actually means

The Commonwealth of Virginia, speaking through its Attorney General in a signed court filing, told a judge that its own citizens have no individual constitutional right to own the firearms SB 749 covers. That is what Jay Jones put his name on. Forget the doctrine for a second and just sit with that.

Fifteen Commonwealth’s Attorneys and at least nine sheriffs across Virginia have publicly said they will not enforce SB 749. Those officials read the same constitution as Jones and reached a different conclusion. I think they’re right. I think the courts will eventually say so too, though it could take years.

Crump v. Katz is one of four suits against this law. McDonald v. Katz is pending in federal court in the Eastern District of Virginia, a single-count Second Amendment case brought by the NRA, FPC, and SAF through Cooper and Kirk, built as a vehicle for eventual Supreme Court review with no preliminary injunction motion. Santolla v. Katz is in Washington County. Black v. Hook is in Fauquier County. GOA and VCDL are fighting the consolidation motion Jones filed in late May, trying to keep the state-constitutional challenge in Lancaster County where they filed it.

None of this gets resolved before July 1. Virginia gun owners will be living under an unconstitutional law while it all grinds through the courts. Jones making weak arguments probably helps the long-term outcome, because weak arguments lose. But they still cost years.

Spanberger signed this. Jones is defending it. The people of Virginia put both of them there. And now those same people are watching the state argue in court that their right to keep and bear arms is either a collective fiction or something that can be weighed against a policy preference and discarded.

The constitution says shall not be infringed. Not “shall not be infringed unless the attorney general has a good reason.”