January 13, 1993

The Honorable S. Vance Wilkins Jr.

Member, House of Delegates

You ask whether legislation recently recommended by the Governor's Commission on Violent Crime (the "Commission") that would allow a person to purchase no more than one handgun in any thirty-day period would violate Article I, § 13 of the Constitution of Virginia (1971).

I. Commission's Recommendation

The Commission has recommended legislation limiting "to one the number of handguns an individual may purchase in any 30-day period, with certain legitimate exceptions." INTERIM REPORT OF THE GOVERNOR'S COMMISSION ON VIOLENT CRIME, Recommendation 5, at 10 (Dec. 1, 1992). The Commission has stated the following rationale for its proposal:

Restricting the number of handguns an individual can purchase within a thirty-day period will significantly curtail straw purchases and remove the profitability of gun-running. As already noted, Virginia is a principal source for handguns on the east coast of the United States. Handguns are also the principal weapon involved in Virginia's growing murder rate. Research on violent assaults indicates handguns are more likely to cause death than any other weapon. This law will reduce handgun accessibility and curtail straw purchases and gun running, but not unduly restrict an individual's legal rights to own guns.

II. Applicable Constitutional Provisions

The Second Amendment to the Constitution of the United States provides that "[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."

Article I, § 13 of the Constitution of Virginia provides:

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.

III. Article I, § 13 Is Coextensive with Second Amendment

The Constitution of Virginia has not always included the statement that "the right of the people to keep and bear arms shall not be infringed." In fact, it was not until 1971 that this language was added to Article I, § 13.

Although there has been no judicial interpretation of Article I, § 13, in the constitutional debates the General Assembly looked to the Second Amendment and the federal case law interpreting it for guidance in adding the "right to bear arms" language to the Virginia Constitution. 1 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 274, 277 (1974). Indeed, a review of the minutes of the 1969 debate in the Senate of Virginia about the suggested inclusion of this language in Article I, § 13 reveals that the motivation for adding this phrase was simply to conform the Virginia Constitution to the Second Amendment:

Senator Bateman:[2] ... Is it the sole purpose of the proponents of the amendment to realign the language of our Bill of Rights on this subject with the language and the purpose and the same protections as are in the second amendment to the Constitution of the United States?

Senator Long:[3] Yes.

Senator Bateman: And it has no purpose of limiting or diminishing or adversely affecting any existing power of any political body or entity to regulate or control the possession and use of firearms by the people?

Senator Long: No, sir.

PROCEEDINGS AND DEBATES OF THE SENATE OF VIRGINIA PERTAINING TO AMEND-

MENT OF THE CONSTITUTION 394 (Ex. Sess. 1969). The debate in the House of Delegates made this same point:

MRS. GALLAND:[4] Mr. Harrell, referring to the language in Section 13, "therefore, the right of the people to keep and bear arms shall not be infringed", I believe you just said that this was in essence identical to the language in the federal Constitution. It was the apparent consensus of the committee that this language had no effect upon the right of the Commonwealth or its local subdivisions to enact reasonable gun legislation.

Would you assure me once more that this is the fact?

MR. HARRELL:[5] I will for the record. There is no question of the constitutionality of such controls. That has been established under the federal Constitution. There are certain federal controls with reference to firearms.

MRS. GALLAND: Thank you.

MR. DURLAND:[6] I am concerned about the specifics of your last answer. Will the gentleman assure me that within the context of his previous statement that preventive legislation affecting gun control will not be prohibited by this language? For example, legislation that would come before the fact, such as licensing and registration, rather than after the fact?

MR. HARRELL: It would be my judgment and opinion that what the gentleman refers to would not be prohibited. This is language which comes from the Second Amendment to the Constitution of the United States; and as the gentleman well knows, there are many federal statutes which have some effect upon firearms. This will not do anything more on the State level than has been done on the federal level.

MR. HARRELL: This merely puts into the Constitution of Virginia what is in the Constitution of the United States, to which, of course, we are all subject. Certainly our Constitution could not be in derogation of the federal Constitution.

MR. DURLAND: I take it that "therefore" is used to indicate that the phrase "the right of the people to keep and bear arms" is to modify the previous phrase concerning a "well-regulated militia".

MR. HARRELL: Yes. That is the reason the comma should be there rather than the semicolon. The clause creates no additional rights.

PROCEEDINGS AND DEBATES OF THE HOUSE OF DELEGATES PERTAINING TO AMEND-

MENT OF THE CONSTITUTION 473-74 (Ex. Sess. 1969).

This constitutional history makes it clear that the "right to bear arms" language of Article I, § 13 of the Constitution of Virginia tracks the Second Amendment to the United States Constitution, and that judicial interpretation of the Second Amendment thus applies equally to Article I, § 13. 1 A.E. DICK HOWARD, supra; see also Farmer v. Commonwealth, 12 Va. App. 337, 340, 404 S.E.2d 371, 372 (1991) (precedent concerning Fifth Amendment applies equally to interpreting similar provision of Virginia Constitution).7

IV. Federal Courts Consistently Construe Second Amendment to Confer Collective Right upon Citizens to Form Militias

In 1876, the Supreme Court of the United States overturned a person's criminal conviction for an alleged violation of another person's Second Amendment rights of "'bearing arms for a lawful purpose,'" concluding that "[t]his is not a right granted by the Constitution." United States v. Cruikshank, 92 U.S. 542, 553 (1876). Since then, the federal courts consistently have held that the Second Amendment confers only a collective right upon the citizens of the states to form militias. See, e.g., United States v. Miller, 307 U.S. 174 (1939); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983);

United States v. Warm, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976);

United States v. Johnson, 497 F.2d 548 (4th Cir. 1974).

The Supreme Court's most recent pronouncement on the Second Amendment is its statement that "legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Lewis v. United States, 445 U.S. 55, 65 n.8 (1980); see also United States v. Cassidy, 899 F.2d 543, 549 n.l2 (6th Cir. 1990).

V. Restricting Purchase to One Handgun During 30-Day Period Would Not Violate Second Amendment or Virginia Constitution

The "right to bear arms" phrase of Article I, § 13 of the Constitution of Virginia is synonymous with the Second Amendment to the United States Constitution. Under long-standing federal case law, the Second Amendment confers only a collective right to bear arms. It is thus my opinion that legislation allowing a person to purchase no more than one handgun in a thirty-day period would not violate either the Second Amendment or Article I, § 13.

Virginia would not be unique in enacting such a statute regulating handgun purchases. South Carolina adopted a similar statute several years ago. See S.C. CODE ANN. § 23-31-140(C) (Law. Co-op. 1989) ("[N]o person is allowed to purchase more than one pistol during each thirty-day period.").

Former Senator Herbert H. Bateman, of Newport News, now a member of Congress representing the First District.

Former Senator M.M. Long, of Wise County.

Former Delegate Marion G. Galland, of Alexandria.

Former Delegate Lyman C. Harrell Jr., of Emporia.

Former Delegate William R. Durland, of Fairfax.

The Supreme Court of Virginia historically has interpreted our Constitution to be coextensive with the United States Constitution when similar language is involved. For example, the Supreme Court has held that the equal protection clauses of the Virginia and United States Constitutions mean the same thing. Archer and Johnson v. Mayes, 213 Va. 633, 194 S.E.2d 707 (1973). The Court also has held that the protections with respect to search warrants afforded by Article I, § 10 of the Virginia Constitution are substantially the same as those contained in the Fourth Amendment to the United States Constitution. Lowe v. Commonwealth, 230 Va. 346,348 n.,1,337 S.E.2d 273. 275 n.l (1985), cert. denied, 475 U.S. 1084 (1986). And, the privilege against self-incrimination given by Article I, § 8 of the Virginia Constitution has been held to be no broader than the Fifth Amendment to the United States Constitution. Flanary's Case, 113 Va. 775,779,75 S.E.289,291 (1912).