On October 16, a Virginia Circuit Court struck down a state statute that effectively prevented those between the ages of 18 and 21 from purchasing handguns altogether. The case highlights the ongoing battle of states seeking to impose gun restrictions on young adults, but also highlights the tremendous amount of time required to litigate such infringements before reaching any kind of satisfactory outcome.
The case of Wilson, et al., v. Hanley, in the 24th Judicial Circuit Court of Virginia came to an intermediate conclusion on October 16 when Judge F. Patrick Yeatts issued an 8-page decision providing permanent injunctive relief and striking down Virginia Code § 18.2-308.2:5, which mandates background checks for all private handgun sales.
The case was brought in 2020 by three plaintiffs, backed by Gun Owners of America, Inc., Gun Owners Foundation, and Virginia Citizens Defense League.
“For five years, Gun Owners Foundation fought for Virginians’ right to purchase firearms without infringement. Let this victory be a lesson to any Virginia legislator who might consider violating the Second Amendment,” said John Velleco, Executive Vice President of Gun Owners Foundation, in an email statement.
Initiated in 2020, the suit took five years to conclude at the circuit court level, with the court finding that the law is deficient as-applied, but also limiting the scope of its finding, writing, “Let it be clear, the Court today is not holding that background checks are unconstitutional. That is a question for another day, perhaps another court.”
The act being challenged has all the hallmark characteristics of a hastily-enacted “public safety” law that yields unintended consequences impacting large populations and depriving them of their rights.
Simply put, the act requires background checks for private handgun sales but creates a de facto ban for 18- to 20-year-olds due to federal NICS limitations, which automatically reject background checks for handguns for adults under 21.
Prior to the act, those between the ages of 18 and 21 could purchase a handgun through a private sale, though they were barred from doing so through a licensed dealer. The act requires background checks for private handgun sales but ends up creating a de facto ban for 18- to 20-year-olds because the NICS system automatically rejects handgun transfers to individuals under the age of 21.
The court enjoined the law in July of 2020. The state attempted to remedy the issue by having State Police attend all gun shows to conduct background checks in place of the NICS system. In 2023, they attended 48 gun shows, but of course, this didn’t address the constitutionality of the issue.
First, the Court found that a Bruen analysis wasn’t necessary as, “…the inherent as-applied constitutional deficiencies of the act require that the court strike the statute in its entirety.”
But how to do so legally? The court had numerous remedies to consider with regard to the challenged law.
The Court turned to precedent in a case called Ayotte, which requires consideration of three interrelated principles to determine the correct remedy when a statute is unconstitutional as-applied:
In essence, they are:
- Refrain from “nullify[ing] more of the legislature’s work than is necessary…” so as not to “…frustrate the intent of the elected representatives of the people.”
- Don’t rewrite the law to make it constitutional unless the statute is “readily susceptible.”
- The remedy must align with legislative intent and not circumvent the legislature’s objectives.
Under the severability approach, it could exempt adults aged 18 to 20 from obtaining a background check before purchasing a handgun, while requiring a background check for all those over the age of 20. “This proposition strains reason,” declared the Court.
“The court finds that rewriting the statute to address the constitutional concerns would exceed its judicial authority and fundamentally alter the legislative scheme. The court refuses to step into the shoes of the legislature, and as such, this prong also weighs in favor of striking the act in its entirety,” wrote the court, indicating that rewriting the law was clearly not the solution.
“Finally, under the third prong, the court must analyze legislative intent, which it finds challenging to do….The court also observes that it is feasible to create a system where all individuals are treated equally in obtaining a background check.”
Declining to rewrite the law, the court offered the example of Nevada, which requires all firearm sales and transfers, with limited exceptions, to go through a background check conducted by a federally licensed firearms dealer.
Ultimately, the court concluded, “The statute as it stands, cannot remain intact.” Why did it take five years to reach this conclusion? It’s hard to say and not at all evident by reading the opinion.
