Next year, Democrats will control both houses of Virginia’s state Legislature as well as its governorship. On November 18, State Sen. Dick Saslaw introduced a bill that he will sponsor in the 2020 legislative session. That bill will outlaw not only the sale or transfer but also the possession of certain firearms.
Saslaw’s bill — SB 16 — provides that “It is unlawful for any person to import, sell, manufacture, purchase, possess or transport an assault firearm” and makes such actions a Class 6 felony. (In Virginia, Class 6 felonies are punishable by imprisonment for between one and five years.)
SB 16 provides that a wide range of center-fire rifles, pistols, and shotguns are included in the definition of to-be illegal firearms, these include:
1. A semi-automatic center-fire rifle with a fixed magazine capacity in excess of 10 rounds;
2. A semi-automatic center-fire rifle that has the ability to accept a detachable magazine and has one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the rifle; (iii) a thumbhole stock; (iv) a second handgrip or a protruding grip that can be held by the non-trigger hand; (v) a bayonet mount; …
3. A semi-automatic center-fire pistol with a fixed magazine capacity in excess of 10 rounds;
Basically, every rifle of the common AR-15 design and a great many pistols and shotguns in common use for personal defense, target shooting, and hunting would be banned.
Not only would they be banned, but because SB 16 makes it illegal to possess such firearms, they also would have to be either surrendered to or seized by police authorities in the jurisdiction in which they are located.
—
In its 2008 decision in District of Columbia v. Heller, the Supreme Court decided that the right to keep and bear arms belongs to everyone.
The 27 words of the Second Amendment state: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
SB 16, if enacted, would go much further than any previous American gun control law by making possession of the covered firearms illegal, rendering them subject to seizure from their owners.
The first major U.S. gun control legislation was the National Firearms Act of 1934. Enacted as a result of the use of automatic weapons — principally the Thompson submachine gun — by outlaw gangs, the act made illegal the possession of machine guns and short-barreled shotguns unless the owner of one paid for and was issued a government tax stamp for it. The law’s constitutionality was affirmed by the Supreme Court as late as 1991.
Again, SB 16 makes possession of “assault weapons” illegal outright, with no means for law-abiding citizens to retain their possession of such weapons in their homes, businesses, or in sporting groups of hunting or target shooting.
If SB 16 is enacted by the Democrat-dominated Legislature and signed by Virginia’s gun-control-minded Gov. Ralph Northam, its effect will be blocked for months or years by legal challenges to its perfectly clear unconstitutionality.
In determining the constitutionality of that law, the courts will have to consider a long line of gun control decisions of the Supreme Court.
D.C. v. Heller ruled (in a brilliant decision written by the late Justice Antonin Scalia) that the Second Amendment is a personal right that is not limited by the prefatory phrase about well-regulated militias. In the decision, Scalia referred to historical sources, such as 18th-century dictionaries, to prove that the definition of “arms” included not only weapons of war but also all firearms. Scalia’s decision states specifically that
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search … the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Virginia cannot constitutionally take away its citizens’ individual rights to self-protection. If enacted, SB 16 would do just that.
So what can be done?
The residents of Tazewell County, have come up with their own solution.
On Tuesday, December 10th, the Board of Supervisors passed two different resolutions.
The first resolution declared the County to be a Second Amendment Sanctuary.
The second promoted the order of militia in the county.
When the resolutions passed, the crowd cheered loudly in support of the decision. And they didn’t squeak by–the votes were unanimous, with more than 200 citizens standing by in support.
The militia resolution had already unofficially passed thanks to a poll taken by the county earlier in the month. But Board Chairman Travis Hackworth said that voters kept calling for the county to declare itself a Second Amendment Sanctuary, as well.
Hackworth went on to say that the Board of Supervisors has three lawyers on it. The three lawyers carefully examined some of the other declarations passed by other Virginia counties to make sure that theirs didn’t miss anything or water anything down.
The ‘teeth’ in these bills usually comes down to two things: funding and prosecution. Tazewell County’s resolutions both would eliminate funding for any branch of law enforcement that would infringe on the rights of the citizens to keep and bear arms.
But if the state tried to turn the tables, they could deny the county funding in areas other than law enforcement or even attempt to remove the elected officials standing in their way.
Given the threats from Governor Northam and Congressman McEachin this week, those are very legitimate fears.
That is where the militia resolution is in place. County Administrator Erc Young laid out their thought process: “Our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities,” Young said. “Therefore, counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.”
If the Governor or any other State entity tries to remove their Sheriff from office for disobeying unjust laws, they’ll face a legally assembled group of armed citizens standing against them.
The militia ordinance also calls for concealed weapons training for any county resident that is eligible to own a gun. Further, it called for the local public school to begin including firearm safety classes.
Now for the latest update:
Virginia Democratic leaders abandoned their gun confiscation proposal Monday following a grassroots outpouring of opposition to gun control across the state.
Governor Ralph Northam (D.) and incoming Senate majority leader Dick Saslaw (D.) said they will no longer pursue their plan to ban the possession of “assault weapons.” Instead, they will include a provision to allow Virginians to keep the firearms they already own.
The reversal comes before the newly elected Democratic majority has even been sworn in, after a majority of the state’s counties declared themselves “Second Amendment sanctuaries.”
“In this case, the governor’s assault weapons ban will include a grandfather clause for individuals who already own assault weapons, with the requirement they register their weapons before the end of a designated grace period.” Northam spokeswoman Alena Yarmosky told the Virginia Mercury.
The Democrats’ backtracking may indicate a trend in the gun debate in Virginia. Gun-control advocates (including Democrat candidate Bloomberg) poured millions of dollars into successfully flipping the state legislature, but the outpouring of opposition to their agenda, may cause some new members of the state legislature to be cautious about backing gun control.
The Virginia Citizens Defense League, which has pushed counties to refuse to enforce unconstitutional gun laws, said there is “no doubt” the Democrats’ retreat was a result of the Second Amendment sanctuary movement.
There were 59 2nd amendment sanctuary counties in the state as of yesterday.
So what about this militia thing? Can they do that?
The idea of a militia – that is a group of armed citizens that enter military service in time of need – has a long history in the United States.
America’s militia extends back to English traditions beginning with the Assize of Arms in 1181 during which it was written that:
“He will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm.”
This was further reinforced in 1285 with the Statute of Winchester in 1285, which stipulated:
“Every man shall have in his house arms for keeping the peace according to the ancient assize.”
Perhaps the strongest cultural tradition to transfer from England to its colonies was the distrust of a standing army that could enforce the crown’s will and circumvent parliament.
England’s strength lay in its navy, which was out of sight – and often out of mind – and could not project power inland. The army was not considered a gentleman’s occupation and soldiers were looked upon as mere pawns.
Through the colonial conflicts of the 17th and 18th centuries, English colonists in North America had plenty of opportunities to encounter regular British army soldiers.
For the most part, these interactions were not always positive. The often devoutly religious colonists saw the regulars as profane, uncouth and generally prone to immoral behavior. For their part, the soldiers thought the colonial militia prayed too much and were prone to flee when the shooting started.
The militia’s record during the wars of the colonial period was mixed. There were notable collapses, such as militia refusing to cross colony lines – an issue that would prevail well into the 19th century – but also successes as well.
The most notable came in the 1744 all-militia expedition to seize the French fortress of Louisbourg in Nova Scotia. After a conventional siege, the amateur army took the bastion, much to the surprise of both leaders in France and England alike.
For the most part, the militia were a useful auxiliary force for the British in North America, that performed less-than-vital tasks thus freeing up regulars for offensive military operations.
Each colony had its own militia laws, but most enlisted the aid of all able bodied white males, usually between the ages 18 and 45. These units were to be formed under the auspices of the colony’s charter and individuals were responsible for equipping themselves.
The first muster of full militia regiments took place in 1636 in the Massachusetts Bay Colony. It remained especially strong in the New England states, where militia units developed into political and social institutions as well as military organizations.
The political class that emerged in the colonies during the run-up to the Revolutionary War were often very active in the militia. Likewise, radical groups like the Sons of Liberty infiltrated New England’s militia, ensuring that the citizen armies were sufficiently loyal to the cause of independence when hostilities kicked off at Lexington and Concord.
Militia units formed the backbone of the American military at the outset of the revolution. As the war continued, the militia was used to augment the Continental Army.
While the militia units of the War of Independence were amateurs, just like their colonial forerunners, they did score some victories for the rebellion.
It was the militia that carried out the Siege of Boston and gave George Washington an army with which to prosecute the war before the Continental Congress could provide authorization for a semi-professional force.
The militia traditions ensured that there were trained and (somewhat) ready troops to fill the ranks of the Continental Army, as well as experienced officers.
When the American Revolution ended, Congress cut the regular army down to a tiny force in response to an anti monarchy mood in the former colonies that viewed a standing military as a danger to a free people.
The Federalists (strong central government) favored a national army and navy to protect sovereignty.
Their opponents, the Democratic Republicans, were convinced that a permanent military would only give more power to the federal government and reduce the authority of the states.
The Framers of the Constitution eventually got their way, angering the Anti-Federalists by establishing a larger army, and more importantly, by giving Congress authority over the militia.
Article I, Section 8 (the Militia Clause) states:
“Congress shall have the power to: provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
This removed overall control of the militia from the states to Congress. The Second Amendment to the Constitution added the often-cited phrase: “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” And yet, the militia were already susceptible to control from the federal government as outlined in Article I, although this was often disputed by state governments.
The Civil War
At the outbreak of the U.S. Civil War, Washington needed to expand the federal army and called upon the states to raise 90-day “volunteer” units, which were largely made up of militia.
Generally speaking, the first volunteer regiments sent from each state were formed from the Volunteer Militia organizations, many of which could trace their roots back to colonial period.
These regiments, for the most part, compiled outstanding records of service in the Civil War and demonstrated that a militia culture could be of great value to the nation.
Following the Civil War, volunteer militias continued. Through the 1880s, most states continued to organize, fund and regulate their own militias.
The U.S. Volunteers were used again in the Spanish-American War in 1898.
The Militia Act of 1903 created the National Guard out of the Organized Militia and designated the Reserve Militia, to consist of males 17 to 45, those eligible for the draft.
This removed more control of the militia from the states, but provided additional funding for training, equipping, and manning the force.
It was the National Defense Act of 1916 that fully modernized the National Guard, provided federal funding for training, drills, annual training, and equipping.
It did, however, stipulate that in return, the War Department and the army gained far more control over the militia; for example, the army was now able to dictate what types of units would be raised in each state.
The act also removed the issue of militia serving outside the United States by stipulating that when called into service by the president, the National Guard would function like regular federal troops.
From then on, the National Guard has served with distinction in all the major conflicts of the United States. The idea of a citizen-soldier still retains its popularity, and for good reason: the National Guard ensures a link between civilians and the military in this age of the all-volunteer force.
So where does that leave us?
Most states still have militia laws on their books, which provide authorization for State Defense Forces or State Guards.
Some states – like Texas – have far-reaching militia laws that allow the governor to call up private citizens as part of an unorganized militia in the event of invasion or natural disaster.
Virginia has a similar constitution that call for a National Guard, The Virginia Defense Force, and The Unorganized Militia.
The Virginia militia system as a compulsory service composed of the body of the people trained to arms as envisioned by George Mason remained intact until the end of the American Civil War.
Reconstruction governments forced upon Virginia an all-volunteer militia system in opposition to Virginia’s Bill of Rights. The militia became statutorily composed of the volunteer and the unorganized militia.
In 1971, the Virginia Bill of Rights under Article I, Section 13, was changed to the following by popular vote:
“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.”
So there you have it folks. When threatened by a law that infringed on their constitutional right to bear arms, the people of Virginia called up their unorganized militia to defend themselves.
What do you think? Would you join them if called upon to do so?