30 November 2019

Proposed Firearms Laws (Virginia) - Age

Day two of looking at the bills which several members of the Virginia General Assembly have proposed become laws restricting firearm ownership and use. From the Senate there are Bills 12, 14, 16, 18, and 22 from Senator Saslaw; 13 and 15 (Senator Ebbin); 35 (Senator Surovell); 51 (Senator Spruill); 67 (Senator McClellan); 69 (Senator Locke); & 70 and 71 (Senator Lucas).  From the House there are Bills 2 (Delegate Plum) and 9 (Delegate Bourne). As stated previously, I know that's a ton of bills; I expect many to fail, get changed, get merged, etc. Generally, I would wait until the actual laws have been passed. However, because of the great amount of interest I'm going to look at these as they are in their larval bill state.

Age Restrictions: This comes from SB18, proposed by Sen. Saslaw. It changes several statutes relating to age and I shan't be following the order in the statute because that would bury the lead. I've glanced through all the bills that are proposed and this is the one which strikes me as being the one likely to run afoul of the US Constitution's 2nd Amendment and Virginia Constitution Art. I, Sec. 13 (which is facially broader than the 2nd Amendment).

Cannot Buy:

A new subsection of § 18.2-308.2:2, (R) will state that no person under the age of 21 will be allowed to buy a firearm in Virginia (people over 18 yoa at time of passage will be allowed to under a grandfather clause).

COMMENT: They'll have to pop over the state line and buy them in Tennessee, North Carolina, Kentucky, or West Virginia. I'm not a big fan of infantalizing those between 18 and 21. If 18 is the age of majority then 18 is the age of majority. Furthermore, when we pass laws forbidding law abiding adults from doing something entirely legal - whether they are about drinking, using nicotine, or buying firearms - we encourage wink and a nod lawlessness. Beyond even that, denying an adult a constitutionally guaranteed right, by attempting to make that right non-exercisable, without a particular and individualized reason, but only because she belongs to a non-harmful class, inclusion in which she has no control over, begs for a constitutional challenge.

Access by Minors: § 18.2-56.2

(A) An adult cannot "recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb" of someone under the age of 18. There are two real changes here. First, the age used to be under the age of 14. Second, the punishment went up from a fine to a class 6 felony (up to 5 years in prison).

(B) It's a class 1 misdemeanor (up to 12 months in jail) to authorize person under 18 to use a firearm without supervision by an approved 21 yoa person. The statute used to forbid authorization for a kid under 12 yoa.

COMMENT: I'm not sure what the burning need is for these changes.

(A) is a nothingburger. "Reckless" behavior is entirely subjective, but unless it's tied to a springloaded door trap (we all remember that case from law school), it's going to be hard to make the case that a 14-17 yoa minor doesn't understand the danger inherent in a loaded firearm. Once you get under 14 the scale begins to tip and things like having a loaded firearm in the desk drawer, or on the wall, or behind the door starts looking a lot more like reckless behavior as the child in question gets younger.

(B) is an anti-hunting statute. Prior to this, it appears that a minor of 12 yoa or older could go out with her .22 rimfire and shoot squirrels, rabbits, or the bleeping beaver that keeps flooding the corn field. Now she can't and her older 17 yoa brother can't go out with his .45-70 and cull the out of control deer or bear populations either. Now they can't unless they drag some adult along with them.

None of this protects the citizenry any more than the law as it currently exists. If (B) is meant to prevent adults from arming children in gangs or in riots or similar situations it's far too broad and needs to be narrowed. Perhaps (B) is meant to stop sales to minors, but if so the statute should ban authorization to possess not use.


Possessing Pistols or Assault Weapons: § 18.2-308.7

An adult under the age of 21 cannot "intentionally possess or transport a handgun or assault firearm anywhere in the Commonwealth."

Exceptions of Note:

Can possess if

(1) Have written permission from landowner. If under 18 the minor must also have her guardian's permission. (but not on property the 18-20 yoa owns herself)

(2) If accompanied by someone 21 yoa, at a firing range.

(3) Hunting (no further limitation; this appears to make the government clerk who issues a minor a hunting license a misdemeanant per § 18.2-56.2(B))

(5) A law enforcement officer. (new exception)

COMMENT:  Hmmm . . . This one clearly denies an adult a constitutionally guaranteed right, without a particular and individualized reason, but only because she belongs to a non-harmful class, inclusion in which she has no control over.

This one may actually rise to strict scrutiny analysis when challenged. The US Supreme Court hasn't set a standard for reviewing firearm cases and the appellate courts have generally adopted the intermediate standard with a rather strong lean toward the rational basis standard. However, the ones I've read seem to be more about the firearm and this is about an absolute ban on a class of citizens' constitutionally guaranteed right. It'll be interesting watching the constitutional challenges if this bill passes into law.

NOTESB16 also proposes a version  of this statute in which an under 18 yoa is forbidden to possess a "shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered." This version doesn't have the 21 yoa language at all.

 Loss of Driving Privileges: SB16 proposes that § 16.1-278.9 be changed so that any minor caught with an assault firearm cannot have a license until she is 18 years and 3 months old.

COMMENT:  Yeah, because that's we need. Another reason to make someone an illegal driver for a reason having nothing to do with a driving offense. 

More Posts about the Firearm Proposals

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