Every Second Amendment lawsuit against Virginia's SB 749 runs straight into Fourth Circuit precedent that has already upheld Maryland's functionally identical…
The bottom line
Every Second Amendment lawsuit against Virginia’s SB 749 runs straight into Fourth Circuit precedent that has already upheld Maryland’s functionally identical ban. Curtis v. Katz is the one exception, building its case entirely on Virginia’s state militia clause rather than the federal Second Amendment, and the Second Amendment Foundation just joined as a plaintiff the same week the case had its preliminary injunction hearing scheduled in Spotsylvania County.
This article is based on analysis from Bearing Freedom. Watch the original video. This is commentary, not legal advice.
Five lawsuits, one wall
Virginia now has five separate lawsuits challenging SB 749, the assault firearms ban Abigail Spanberger signed on May 14, 2026, effective July 1. I covered the GOA/VCDL case (Crump v. Katz in Lancaster County) last week, including AG Jay Jones’s motion to dismiss arguing that Article I, Section 13 is a collective militia right with no individual dimension. There is McDonald v. Katz in the Eastern District of Virginia federal court, filed by NRA, FPC, and SAF through the Cooper & Kirk firm - a case the plaintiffs’ own lawyers describe as “foreclosed” by Fourth Circuit precedent, structured as a vehicle for eventual Supreme Court review rather than a realistic bid for pre-July-1 relief. Black v. Hook is in Fauquier County. Santolla v. Katz is in Washington County. All of them face the same structural problem.
In Bianchi v. Brown, decided en banc in 2024, the Fourth Circuit upheld Maryland’s assault weapons ban against a Bruen-based Second Amendment challenge. Kolbe v. Hogan before it reached the same result. The Fourth Circuit covers Virginia. Any federal Second Amendment claim in the Eastern District of Virginia proceeds under controlling circuit precedent that has already blessed a functionally identical law one state over. The McDonald plaintiffs know this and filed anyway, because you build a vehicle for SCOTUS review by losing in the lower courts with the strongest possible record. That is a legitimate strategy. It does not help Virginians on July 1.
Curtis v. Katz is doing something completely different.
The militia clause argument
The case was filed May 19 in Spotsylvania County Circuit Court by former Attorney General Ken Cuccinelli. Plaintiffs include Bob’s Gun Store, Mike Wood, Dustin Curtis (director of political affairs at the National Association for Gun Rights), and Daniel Hinkson, a certified firearms trainer. The Second Amendment Foundation announced on June 16 that it is joining as a named plaintiff.
The complaint does not cite Bruen. It does not cite Heller. It rests entirely on the Virginia Constitution.
Article I, Section 13 reads: “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.”
The Cuccinelli argument turns on “trained to arms.” If the Virginia Constitution guarantees that the body of the people will constitute a well-regulated militia trained to arms, that guarantee becomes empty the moment the state can prohibit citizens from acquiring the specific weapons to which they must be trained. The weapons SB 749 bans - semi-automatic rifles with standard features, certain pistols, magazines over 15 rounds - are precisely the weapons issued to members of the Virginia National Guard and U.S. armed forces. The brief puts it plainly: “The weapons banned by the act are the arms of the citizen militia.”
The argument is not that Virginians have a generalized right to own guns and SB 749 burdens it. The argument is that the militia clause creates an affirmative structural requirement: the state cannot destroy the institution it has constitutionally guaranteed to maintain by stripping citizens of the tools that institution depends on. That is a different kind of claim entirely, and it does not need Heller, Bruen, or any federal precedent to reach the result.
The defendant who filed for the plaintiffs
Ryan Mehaffey is the Commonwealth’s Attorney for Spotsylvania County. He is named as a defendant in Curtis v. Katz. By normal legal convention, his role is to stand beside the Attorney General and defend the law. Instead, Mehaffey filed a brief supporting the plaintiffs’ preliminary injunction request.
A sitting prosecutor, a named defendant in a gun ban lawsuit, looked at the Cuccinelli militia clause argument and concluded the gun owners should win. He put that conclusion in a signed court filing.
I do not want to overstate the procedural weight here. It is not dispositive. But when a government official who is supposed to be on the opposite side of the table writes a brief agreeing with the plaintiffs, it is evidence the legal theory has force beyond a press release argument. It matters.
Why the state court path is structurally different
The five cases look similar from a distance. They are not.
Federal courts in Virginia are bound by Bianchi on Second Amendment questions. A federal district judge who grants an injunction against SB 749 on Second Amendment grounds will be reversed by the Fourth Circuit on appeal. That is not speculative - it is what the circuit has already held in a factually parallel case from Maryland. The road from any federal Second Amendment win in Virginia leads through a Fourth Circuit reversal and then, if the Supreme Court grants cert (not guaranteed), to SCOTUS. That is years, at best.
State courts are not bound by Fourth Circuit precedent on questions of state constitutional law. A Spotsylvania circuit judge interpreting Article I, Section 13 answers to the Supreme Court of Virginia, not to the Fourth Circuit. The relevant Virginia precedent is DiGiacinto v. Rector and Visitors of George Mason University, the 2011 SCOVA decision holding that Section 13 is coextensive with the federal Second Amendment as construed in Heller. DiGiacinto cuts in different directions depending on how you read it, but Mark W. Smith makes the point that it actually supports the Curtis plaintiffs: if Section 13 is coextensive with the federal right, and the federal right under Heller protects commonly-used arms, then banning 20 to 30 million AR-15s violates both.
The militia clause argument goes further than DiGiacinto requires. It argues that regardless of coextensiveness with the Second Amendment, the militia structure in Section 13 independently requires citizens to be able to acquire the arms the clause references. That is a state constitutional question. SCOVA’s answer to it is final - the Supreme Court of the United States cannot review a state court’s interpretation of its own constitution’s meaning. A win in state court on state constitutional grounds is a win that cannot be appealed to a federal court that has already ruled the wrong way. That is the one path to a final, unreviewable ruling that actually protects Virginia gun owners.
The consolidation problem
The biggest threat to Curtis right now is not the merits. It is the three-judge panel the Supreme Court of Virginia appointed on June 3 to decide whether all four state-court cases should be consolidated before a single court. That panel already cancelled the preliminary injunction hearing in Crump v. Katz, the Lancaster County case. If they extend a stay to the Spotsylvania proceeding, the Curtis hearing scheduled for June 17 could disappear the same way.
AG Jones argued for consolidation on grounds the cases involve “largely identical constitutional questions.” The plaintiffs in Crump have pushed back, noting that the cases advance different legal theories with different plaintiffs and different factual circumstances, and that consolidation primarily serves the state’s interest in running out the clock to July 1. Which is accurate. Every day that passes without a ruling is a day closer to the effective date with no court order in place.
GOA and GOF filed a petition directly with the Virginia Supreme Court on June 16 seeking a writ of mandamus compelling the Lancaster court to immediately hear the injunction motion, or in the alternative asking SCOVA to issue a preliminary injunction directly. The petition states that the lower court’s indefinite pause “renders the constitutional challenge moot” if the ban takes effect before any court rules on the merits. That frames the problem correctly, and filing it two weeks before July 1 is the right call. Whether SCOVA actually acts on it is another question.
What the denial means and what is still live
The Curtis hearing did take place on June 17. The Spotsylvania judge denied the preliminary injunction on June 18, ruling that the plaintiffs had not demonstrated sufficient likelihood of success on the merits to warrant relief before trial. That is a disappointing but not unexpected outcome. Preliminary injunctions are high bars, and circuit court judges are not eager to be the person who blocked a law the governor signed.
The case is not over. The denial is on the preliminary injunction only. The merits claim - whether Section 13 actually prohibits this ban - is still live, and Curtis continues to trial. The militia clause argument has not been rejected on the merits, only on the threshold question of whether it is likely enough to succeed to justify halting enforcement before a full trial.
The federal case (McDonald v. Katz) had an emergency injunction hearing requested by June 19. The GOA SCOVA petition filed June 16 is still pending. The full landscape is not resolved. It is not good for Virginia gun owners who have to comply with a misdemeanor law starting July 1, but it is not over either.
What I keep coming back to is the militia clause argument itself. The Spotsylvania judge was not convinced it was likely to win at the preliminary stage. He may be right. But the argument has not been heard at full briefing and trial. When a court actually confronts the question of whether Virginia can ban the specific weapons the militia clause contemplates citizens maintaining, in a full merits proceeding with expert witnesses and complete briefing, I think the answer is genuinely uncertain. And uncertain is a lot better than the federal road, where the circuit has already answered the question and the answer was wrong.
Five cases. One of them bypasses the Fourth Circuit entirely and argues on ground Virginia’s government has not successfully contested in a real merits proceeding. That one matters. Watch it.
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