I Declared May 15
G. Ryan Mehaffey
Spotsylvania County · Commonwealth's Attorney
I'm an enforce-the-law prosecutor, but I can't enforce a law that's unconstitutional.
Will not prosecute
Sixteen elected Commonwealth's Attorneys have read Spanberger's assault weapons ban, measured it against the Constitution they swore to defend, and answered with one word. No. They will not prosecute their neighbors for owning what was legal the day before.
On May 14, Governor Abigail Spanberger signed SB 749 into law. It creates a new crime called an "assault firearm" and bans the sale, transfer, manufacture, and import of the most common rifles in America, along with any magazine that holds more than 15 rounds. It takes effect July 1.
The people who already own these guns are told they may keep them. That promise is thinner than it sounds. Carrying one loaded in public is banned across the most populous third of the commonwealth, and every lawful channel to buy one, sell one, or hand one down to your own son is shut. The law does not reach for criminals. It reaches for the law-abiding.
A Class 1 misdemeanor: up to 12 months in jail, a $2,500 fine, and a three-year ban on owning, buying, or even transporting any firearm at all. Not on the second conviction. The first. These prosecutors were handed the job of hanging that around the neck of a machinist, a deer hunter, a single mother who bought the wrong rifle.
A Commonwealth's Attorney is not a clerk for Richmond. The office is written into the Constitution of Virginia, elected by the people of each county and city, answerable to them and not to the Governor or the Attorney General. And Virginia law is explicit about what the job allows.
Felony prosecution is a duty. Misdemeanor prosecution is a choice. The statute says a Commonwealth's Attorney "may in his discretion" prosecute misdemeanors. A first offense under SB 749 is a Class 1 misdemeanor. So declining to charge it is not defiance of the law. It is the exercise of a discretion the General Assembly itself wrote into the code. Lynchburg's Bethany Harrison grounded her refusal in this exact section.
And no one can go over their heads. Under Va. Code § 2.2-511, the Attorney General has no authority to bring an ordinary criminal prosecution in circuit court unless the Governor specifically asks, and a firearms misdemeanor is not on the short list of exceptions. The framers of Virginia's government did not build a lever for Richmond to force a local prosecutor's hand, because they did not want one.
I do solemnly swear that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge the duties incumbent upon me.Constitution of Virginia, Article II, Section 7
Read the order. The oath runs to the Constitution first, and to the duties of the office second. A statute that violates the first is not a higher law that cancels the oath. It is the thing the oath was written to stop. When Heller and Bruen hold that the people have a right to keep common arms, and Richmond passes a law saying they do not, a prosecutor who took that oath does not get to pretend the conflict isn't there.
County by county, and now a city, in the order they declared. Watch the southwest and the Shenandoah Valley light up. This is not a fringe. It is a whole region of Virginia telling Richmond the answer is no.
Every name here belongs to a person who put their office on the line in the open, on the record, under their own signature. Read them slowly.
I'm an enforce-the-law prosecutor, but I can't enforce a law that's unconstitutional.
I took an oath to uphold both the Constitution of the United States and the Constitution of Virginia. That oath requires more than mechanical enforcement of statutes.
We can either honor our oath to preserve the Constitution, or enforce statutes which are clearly unconstitutional.
I am not going to take law-abiding citizens as of June 30th, and criminalize that same behavior on July 1st, solely on the basis of this new law.
This office will not prosecute any law-abiding citizen of Warren County for conduct that was lawful before this enactment.
I will not prosecute someone for exercising their Second Amendment right to keep and bear arms.
My office will not enforce these laws, as it is my opinion they are unconstitutional under Bruen, Heller, and Miller. The prosecution of misdemeanor offenses is entirely within the discretion of the Commonwealth’s Attorney.
Standing here is not free. The most powerful officials in Virginia have named these prosecutors in public and called their oath a violation. The bills' own sponsors told them to resign. They took the position anyway, and most of them took it alone, with no higher office offering cover.
Virginia law lets a court remove a prosecutor for neglecting a "clear, ministerial duty." But declining a discretionary misdemeanor is the opposite of that, and a petition needs sworn signatures from a tenth of the county's voters. The threat hangs over them. It has not been filed.
A delegate who wrote the ban told them to "resign." A senator who sponsored it called their stand "amateur constitutional lawyering." The Lieutenant Governor called it "a direct violation of their oath." They absorbed all of it personally.
A bar complaint that triggers an investigation no matter how thin. A primary funded by gun-control money. Budget friction through the state. A national press that calls a rural prosecutor's oath "an unnerving turn." They knew all of it.
Removal petitions filed. Special prosecutors appointed. State takeovers. Bar complaints. As of today, the count on every one of them is zero. The entire arsenal Richmond has aimed at these sixteen is words. They are winning the only way that matters right now, by standing still.
This did not come from nowhere. Six years ago, when Richmond last came for Virginia's guns, the counties answered first and answered loud. What is happening now is the same spirit, hardened into the decisions of the people who actually hold the charging pen.
The parties to the compact have the right, and are in duty bound, to interpose for arresting the progress of the evil.James Madison · Virginia Resolution of 1798
Madison wrote that here, in Virginia, about a government reaching for power it was never granted. The sixteen are not inventing something radical. They are the modern, individual form of the oldest idea in Virginia's constitutional tradition. A law that collides with the Constitution is, in Marshall's words from Marbury, simply void, and an officer sworn to that Constitution cannot lawfully give a void statute its teeth.
I'm an enforce-the-law prosecutor, but I can't enforce a law that's unconstitutional.G. Ryan Mehaffey · Spotsylvania · a Marine
The people of Virginia must be able to trust that all Commonwealth's Attorneys will uphold the rule of law.Office of Gov. Abigail Spanberger
Your duty, if you're a commonwealth attorney or a sheriff, is to enforce the law, and if you're not willing to do that, you should resign.Del. Dan Helmer · sponsor of HB 217
I know these Republican prosecutors see this as an opportunity for tough guy posturing and amateur constitutional lawyering.Sen. Saddam Azlan Salim · sponsor of SB 749
Commonwealth's Attorneys are elected to enforce our laws, which is what we expect them to do when these laws take effect on July 1.Attorney General Jay Jones
Watch the move. The state passes a law that two federal precedents say it cannot pass. When prosecutors point that out, the state accuses them of abandoning the rule of law. The same Richmond now demanding uniform enforcement spent years cheering Northern Virginia prosecutors who refused to charge the cases they disliked. The rule of law is exactly the ground the sixteen are standing on.
Prosecutors decide whether to charge. Sheriffs decide whether to arrest. Across the same stretch of Virginia, sheriff's offices have said their deputies will not be turned into the muscle for this ban. A prosecutor's stand is strongest when the badge in the field is standing with him.
Plus sheriff's offices reported standing down across Hanover, Louisa, Carroll, Washington, Bedford, Page, Floyd. Campbell County's Sheriff Whit Clark put it plainest: he has "laid his hand on the Bible three times" and sworn to uphold the Constitution, and he intends to do it.
They are not refusing to do their jobs. They are doing the one part of the job the oath actually demands.
Bearing Freedom · CommentaryThe lawsuits are one front. This is the other. Sixteen prosecutors have decided the ban dies at their county line, and the number keeps climbing. See the legal war being waged on the very same law.
See the six lawsuits →