Jay Jones is bluffing: the statute itself protects the 16 prosecutors defying the gun ban

The bottom line

Virginia now has sixteen elected Commonwealth’s Attorneys who say they will not prosecute anyone under Abigail Spanberger’s assault weapons ban, and Attorney General Jay Jones has started leaning on them to fall back in line. Here is his problem. The statute Jones would have to wave at them is the same one that hands these prosecutors the discretion to walk away. Felony prosecution in Virginia is a duty. Misdemeanor prosecution is a choice. SB 749 makes a first offense a misdemeanor, which means the sixteen are not defying the law. They are using it exactly as it was written.

---

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

---

What the Code of Virginia actually says

Most of the coverage of this revolt treats it as an act of nullification, a bunch of rural prosecutors thumbing their noses at a duly enacted law. That framing is wrong, and the people pushing it either have not read the statute or are hoping you will not.

Virginia Code section 15.2-1627 spells out what a Commonwealth’s Attorney has to do and what he gets to decide. The attorney for the Commonwealth is charged with the duty of prosecuting every felony in his jurisdiction. That word, duty, is mandatory. But the same section says he “may in his discretion” prosecute Class 1, 2, and 3 misdemeanors. May. In his discretion. The General Assembly drew a hard line between the felonies a prosecutor must pursue and the misdemeanors he is free to decline.

Now look at what Spanberger signed. A first violation of SB 749 is a Class 1 misdemeanor. Up to twelve months in jail, a fine that tops out at $2,500, and a three-year stripping of your right to own, buy, or even transport any firearm at all. That last piece is monstrous and I will come back to it. For now the only thing that matters is the classification. First offense, Class 1 misdemeanor, which is the precise category the Code marks as discretionary.

So when sixteen Commonwealth’s Attorneys announce they will not bring charges under this law, they are exercising a charging power the statute hands them in plain text. There is no felony here for anyone to ignore, only a misdemeanor the legislature marked as the prosecutor’s to decline. This is not lawlessness dressed up as principle. It is the law working the way the law is written.

Jay Jones is demanding something he has no power to compel

Jones knows all of this, which is what makes his posturing so cynical. He has said he expects these prosecutors to do their jobs and enforce the statute when it takes effect on July 1, and he reached for the tired line about gun violence being the leading cause of death for young people, as if a talking point creates legal authority it does not have.

Here is the authority Jones actually possesses over an elected Commonwealth’s Attorney. None. A Commonwealth’s Attorney is not a clerk for Richmond and not an employee of the Office of the Attorney General. The office is written into the Constitution of Virginia. Each one is elected by the voters of a single county or city and answers to those voters, not to the governor and not to Jones. He cannot fire them. He cannot order them to file a charge. He cannot override a charging decision that the Code of Virginia places inside their discretion in the first place.

Watch what he has not done. For all the threats, not a single removal petition has been filed against any of the sixteen, and no bar complaint has gone anywhere. He has no grounds. You cannot discipline a prosecutor for using a discretionary power the statute handed him in the first place. Jones is making noise because noise is the only tool he has left, and he is betting that most people will not check whether the threat behind it is real.

The discretion they are using is the tool the left built

The part that should make Spanberger and Jones grind their teeth is where this discretion came from as a live political practice.

For a decade the progressive prosecutor movement ran on exactly this idea. Steve Descano in Fairfax and Parisa Dehghani-Tafti in Arlington won their offices in 2019 promising to stop prosecuting whole categories of low-level crime, and one of the first things they did was announce they would no longer bring simple marijuana possession cases. The Democratic majority in the General Assembly cheered it, then decriminalized possession and legalized it outright by July 2021. The entire enterprise rested on the premise that an elected prosecutor gets to look at a charge, decide it does not serve justice in his community, and refuse to bring it.

That premise was correct. It is still correct. The same discretion that let a Northern Virginia prosecutor decline a marijuana charge in 2020 lets a Pulaski or Lynchburg prosecutor decline an SB 749 charge in 2026. The mechanism does not change because the politics flipped. Democrats spent years building the norm that charging is a moral choice and not an assembly line, and now that norm is shielding the gun owners they wanted to put in a cage. They wrote the rule. They do not get to suspend it the moment it protects the wrong people.

Lynchburg is the tell

The sixteenth name on the list is the one to watch. Bethany Harrison is the Commonwealth’s Attorney for Lynchburg, and Lynchburg is an independent city, not one of the rural sanctuary counties that anchored the early refusals. In a letter to Lynchburg Police Chief Kenneth Edwards she wrote that her office will not enforce these laws because, in her opinion, they are unconstitutional under Bruen, Heller, and Miller, and she pointed out that the constitutional challenges already filed will end up at the Supreme Court no matter what Virginia’s own courts do. She is right on every count.

A city prosecutor joining changes the texture of this. Virginia has roughly 120 Commonwealth’s Attorneys, and sixteen is not a majority. I am not going to pretend it is. But the geography is widening past the obvious places, and that matters for a reason people keep missing. SB 749 is functionally a purchase ban, since what you already own is grandfathered. The enforcement risk lives at the gun counter. If a federal firearms dealer can operate inside a jurisdiction whose prosecutor has promised not to charge buyers, then Virginia stops being a place where the ban actually disarms anyone. A buyer drives to a friendly county or city, completes a lawful transaction, and faces no realistic prospect of prosecution. Every new office on the map adds another address where the ban is a dead letter.

Why sixteen grows

There is a real cost to putting your name on that list, and every prosecutor on it knows it could follow them into the next election. The first one to stand up, Spotsylvania’s Ryan Mehaffey, was genuinely out on a limb by himself. The seventeenth will barely feel the wind. That is how a refusal cascade works. Each new name lowers the cost for the next one, and right now they are coming in at a clip of one or two a day with two weeks still on the clock before July 1.

Strip away Jones and his threats and the thing underneath is not complicated. The AR-15 is the most common rifle in America, owned by the millions, which under Heller makes it precisely the kind of arm that cannot be banned. These prosecutors read the same Constitution Jones swore to defend, measured this law against it, and gave the only honest answer. The Attorney General can hold press conferences until July 1. He cannot make a county prosecutor file a charge the Code of Virginia says is his to refuse. The law is on their side, and so are the rest of us.